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Conley Byrd, Justice.
Appellant Arkansas State Board of Pharmacy, pursuant to Ark. Stat. Ann. § 72-1040 (Supp. 1969), revoked the pharmacist’s licenses of Aud Earl Whayne and Gene W. Porter, Sr., on the asserted grounds that they had aided and abetted the practice of pharmacy by a person not authorized to practice pharmacy by the Arkansas State Board of Pharmacy, such person being Suella Hull. On review pursuant to Ark. Stat. Ann. § 5-713 (Supp. 1969), the trial court held that the activities of Suella Hull did not constitute the practice of pharmacy and therefore reversed and dismissed the charges against appellees Aud Earl Whayne and Gene W. Porter, Sr. For reversal appellant in its statement says:
“The principal issue presented is whether one who interprets physicians prescriptions for dangerous drugs and types labels for prescription drugs which give the directions for taking the drug is performing one of the functions of a pharmacist contrary to Arkansas Statutes restricting to licensed pharmacists the right to ‘fill prescriptions, compound and dispense drugs and medicines or otherwise perform the duties and functions of a registered pharmacist.’ ”
Mrs. Hull’s activity behind the prescription counter with respect to refill prescriptions and new prescriptions is set forth in her affidavit as follows:
“[W]ith reference to any work done by me behind the prescription counter the following is my routine and is under the direction and supervision of either Mr. Porter or Mr. Whayne:
1. A customer requests from one of the pharmacists, one of the other ladies who work in the store or myself a refill of a prescription. This re quest may be received in person or by telephone. The person receiving the request obtains the prescription number and the name of the person for whom the medication is prescribed. This information is written in the appopriate spaces on the outside of a receipt bag by the person receiving the order.
2. The prescription receipt bag is then handed to me by the person in the store who took the order.
3. Our prescriptions are filed numerically and in stacks of one hundred (100). I remove from the prescription files the appropriate prescription file which contains the prescription number ordered.
4. I then take a Medic Pharmacy prescription label and type in the appropriate spaces the prescription number, the name of the prescribing physician, and the name of the patient, the prescribing physician’s directions, the initial of the pharmacist on duty and the date.
5. I then lay the prescription receipt bag, the prescription file opened to the appropriate prescription, and the label as typed by me on the prescription counter, stacked in the order herein recited, i. e., the typed label on top.
6. After the pharmacist fills the prescription, he places the label on or in the container, enters the price on the prescription receipt bag and places the container on the top of the prescription receipt bag. I enter the tax and total charges in the appropriate places on the prescription receipt bag and place the container in the prescription receipt bag.
7. I then hand the prescription receipt bag to one of the ladies in the front of the store and they, in turn, deliver the prescription receipt bag containing the order to the patient and collect the charges shown.
8. At no time do I ever place a label on a prescription container.
9. After the prescription has been filled by the pharmacist, I return the prescription file to the appropriate files.
10. As to new prescriptions, if such is handed to me by a customer or one of the ladies who work in the front of the store, I follow the following procedure:
(a) I stamp the assigned number on the new prescription; at the same time, I stamp the same number on a Medic Pharmacy label and a Medic Phamacy prescription receipt bag. This is done with a numbering machine which is set to stamp the same number three times.
(b) I then take the numbered Medic Pharmacy prescription label and type in the appropriate spaces the name of the prescribing physician, the name of the patient, the prescribing physician’s directions, the initial of the pharmacist on duty and the date.
(c) I then lay the prescription receipt bag, the new prescription and the label as typed by me on the prescription counter, stacked in the order herein recited, i. e. the typed label on top.
(d) I then follow the procedures outlined in paragraphs six; seven and nine of Section IV of this affidavit.
(e) At no time do I ever place a label on a prescription container. I do not count, compound or place in container any medications prescribed by a physician for a patient.
Appellant controverts Mrs. Hull’s affidavit in three respects — i. e., (1) It contends that the evidence of its inspector Mr. Woodrow Little constitutes substantial evidence that Mrs. Hull with the knowledge and consent of Whayne and Porter affixed labels to drug containers; (2) that Mrs. Hull would go back into the medicine department and obtain the bulk container of the drug called for in the prescription and set the drug container on the prescription, apparently for the convenience of the druggist; and (3) that Whayne and Porter both freely admitted that Mrs. Hull interpreted the directions on prescriptions and typed them on the label. Appellees argue that items 1 & 2 are not supported by substantial evidence under the record here involved and that item number 3 — i. <?., that Mrs. Hull interprets the direction on prescriptions — is not supported by the record.
For purposes of this decision and without determining whether the evidence is substantial, we will treat the record as establishing that with respect to refill prescriptions Mrs. Hull does affix or place in the container the prescription labels before the prescription is filled by the druggist. We also assume that the evidence shows that Mrs. Hull does go back into the medicine department and bring forth the bulk drug and set on the label prior to the filling of the container by the druggist.
However, the record does not sustain appellant’s contention that Mrs. Hull interprets the directions on the prescriptions. In this respect Mr. Whayne on cross-examination testified:
“Q. When you take a prescription in and she stamps it how do you determine whether that is a controlled drug or just an ordinary prescription?
A. I would do that.
Q. Who is going to determine on telephoned in prescriptions does she take those?
A. I take all of them over the telephone.
Q. Who is going to interpret the directions?
A. I write the prescription out and lay it down.
Q. She interprets the directions on the prescriptions and types them on the labels?
A. She reads them herself.
Q. She reads them herself and types the directions on labels?
A. Yes Sir.”
The only description of the duties of a pharmacist is that given in Ark. Stat. Ann. § 72-1011.8 (Repl. 1957), as follows:
Any person who is not an Arkansas registered pharmacist or a licensed ‘Practical Druggist,’ or a student serving internship, who shall fill a prescription, compound or dispense medicine or otherwise perform the functions of a pharmacist, shall be guilty of a misdemeanor punishable by a fine of not less than fifty ($50.00) dollars, nor more than one hundred ($100.00) dollars for the first offense and not less than one hundred ($100.00) dollars and/or thirty (50) days imprisonment for each succeeding offense thereafter. Each day that such person shall fill prescriptions, compound, dispense medicines or otherwise perform the functions of a pharmacist shall constitute a separate offense. Any registered pharmacist or licensed ‘Practical Druggist’ who shall aid, abet or encourage any person to violate the provision of this section shall have their certificate of registration or their permit revoked or suspended, within the discretion of the Board of pharmacy.” (Emphasis supplied)
Appellant here contends that Mrs. Hull’s activities come within the phrase “or otherwise perform the functions of a pharmacist.”
In Arkansas State Board of Pharmacy v. Patrick, 243 Ark. 967, 423 S. W. 2d 265 (1968), the evidence showed that a Mrs. Hughes not only filled a prescription, typed the name on the label but also placed the label on the filled package and handed it to the Pharmacy Board’s investigator. We there pointed out that in order to place the proper label on a filled container some knowledge of drugs was necessary and held that the affixing of the label to a filled container constituted the practice of pharmacy in violation of Ark. Stat. Ann. § 72-1040(5). However, it appears to us that the affixing of a label to an empy container for the proposed use by a licensed pharmacist is not subject to the same construction. In the latter case the clerk performs only a mechanical function and needs no knowledge whatever of the nature of the drugs involved or their effect upon a patient in the event the pharmacist himself makes an error in checking the label against the prescription placed there for his convenience as a time saving procedure.
Appellant has cited us no authority other than the Patrick case to sustain the position it here takes. Our research reveals no cases reaching as far as appellant argues and we certainly do not believe that the statute which applies only to persons “who shall fill a prescription, compound or dispense medicine or otherwise perform the functions of a pharmacist” can be so extended by judicial construction to make the conduct of Mrs. Hull a violation of the law under the statute above.
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Frank Holt, Justice.
The issue in this case is whether, under the various pleadings, the appellants can sustain a direct action against the appellee. On April 20, 1968, H. Gordon Gregson entered the Rebsamen Park Golf Course Clubhouse in Little Rock, paid his green fee and, as he was turning away to leave, lost his footing, fell and sustained serious back and spinal injuries. On January 17, 1969, he and his wife, appellants herein, in the belief that the City of Little Rock had no liability insurance, filed suit against the city and its architect, neither of whom is a party to this appeal, alleging that the injuries received by Gregson proximately resulted from the negligence of the architect and the negligence of the city which was operating the golf course in a proprietary capacity as a profit making enterprise.
The City of Little Rock filed a demurrer to this complaint which raised the issue of municipal immunity. The trial court overruled the city’s demurrer, upholding the appellants’ contention that the city was subject to suit in tort according to the allegations of the appellants’ complaint. Shortly thereafter, the city filed its answer wherein it admitted maintaining and operating the Rebsamen Park Golf Course, but specifically denied that such activity was of a proprietary nature. Subsequent to this answer the appellants propounded interrogatories. It was discovered that liability insurance, apparently affording coverage to the city, had in fact been provided by appellee. Appellants thereupon filed an amended complaint adding appellee as a party defendant and prayed judgment against the City of Little Rock and its architect jointly and severally or, in the alternative, against the Great American Insurance Company pursuant to Ark. Stat. Ann. § 66-3240 (Repl. 1966).
Appellee filed a motion to dismiss the amended complaint contending that, since § 66-3240 did not permit a direct suit against an insurance carrier where its insured municipality is subject to suit in tort, the overruling of the city’s demurrer effectively precluded appellee from being named a party defendant. Prior to any hearing on this motion, appellants took a voluntary nonsuit without prejudice as to the city and the next day filed an amended and substituted complaint against appellee and the architect which alleged various acts of negligence against the city and the architect, but which did not assert that the city was acting in its proprietary capacity. Appellee filed a motion to dismiss the amended and substituted complaint based on the same grounds as its original motion to dismiss. Appellants responded to this second motion denying “that there has been any ruling by this Court in this cause of action that the City of Little Rock is subject to suit for tort.” After a hearing, the trial court found that:
“* * * it has heretofore been ruled upon the hearing of the Demurrer of the City of Little Rock to the original complaint that the City of Little Rock was subject to suit in tort under the allegations of the complaint filed by the plaintiffs; that having found that the City of Little Rock was subject to suit in tort, the Court doth find that a direct action cannot be maintained against the Great American Insurance Company.”
Appellants assert four interrelated points for reversal. We group them for discussion: (1) The overruling of the city’s demurrer did not conclude the question of the city’s liability for tort so as to preclude suit against appellee; and (2) since appellants voluntarily nonsuited themselves as to the city and thereafter filed an amended and substituted complaint against appellee,- the allegations in appellants’ first complaint are not binding on them with respect to appellee.
I
A demurrer admits the facts set out in a complaint to be true solely for testing the sufficiency of those facts, as a matter of law, to state a cause of action. The admissions of the alleged facts are asserted exclusively for the purpose of a ruling; and this ruling decides no questions of law and fact, but only determines the sufficiency of the pleadings as a matter of law. See Carrier v. Beck, 227 Ark. 92, 296 S. W. 2d 446 (1956). In the instant case, then, all that could conclusively be ruled upon is whether the city, acting in a proprietary capacity, is subject to suit for tort. The demurrer being overruled, the issue as to whether or not the city was actually operating the clubhouse in a proprietary capacity is properly a question of fact susceptible to determination only at trial. In the city’s subsequent answer, as noted earlier, it specifically de nied acting in a proprietary capacity. Consequently, the issue of the city’s liability for tort, being a factual question, could only be determined after evidentiary proof was adduced.
II
Appellants direct our attention to Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S. W. 2d 79 (1959), where we held that “[w]hen a nonsuit is taken, the procedure which was adopted in that action has no bearing on a subsequent action.” There, the plaintiff, in his first complaint, alleged, inter alia, grounds which conferred jurisdiction on a court of equity. Subsequently, the plaintiff dismissed this suit and refiled it in the circuit court, avoiding any allegations which would bestow jurisdiction on equity. On appeal we held that, since there had been a change in the allegations as to jurisdiction, the first complaint was not binding upon the plaintiff. In the instant case, however, the appellee argues that “the appellant has not filed a new cause of acdon but has simply substituted the appellee in place of the City of Little Rock.” In reply the appellants bolster their position by citing Bunch v. Launius, Chancellor, 222 Ark. 760, 262 S. W. 2d 461 (1953), wherein it is stated:
“* * * A formal amendment may relate back to the filing of the original pleading, but the rule is otherwise when the new pleading goes to a matter of substance, such as change in the party defendant.”
In Campbell v. Coldstream Fisheries, Inc., supra, the plaintiff filed a new action, but for the same cause; the “cause of action,” therefore, remained the same, as is true in the case at bar. The present complaint is one of substitution of the appellee for the city as a party defendant. It thereby “goes to a matter of substance” as specified in Bunch v. Launius, Chancellor, supra. It is also significant to note that the city answered the original complaint by specifically denying that it was acting in a proprietary capacity prior to the time that appellee was joined as party defendant. In the case at bar, any action taken before the appellee became a substituted party was certainly not binding upon appellants with respect to appellee.
Reversed. | [
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Frank Holt, Justice.
This is an eminent domain proceeding and is a sequel to Arkansas State Highway Commission v. Davis, 245 Ark. 813, 434 S. W. 2d 605 (1968). In 1966 appellant took 3.37 acres of appellees’ land and severed 18 acres from their 95-acre tract. Prior to that time, the property was utilized for the operation of a commercial laying hen business and a cattle farm. Upon retrial, a jury assessed damages at $20,666, and from a judgment on that verdict comes this appeal.
Appellant first contends for reversal that the trial court erred in overruling its motion in limine. Appellant asserts that its motion was directed primarily and specifically toward eliminating from the jury’s consideration the testimony adduced at the first trial with regard to the cancellation of the landowners’ egg production contract which was cancelled by the Corn Belt Hatcheries due to the proximity of the interstate construction facility. Appellant’s trial counsel asked, in effect, that the appellees’ witnesses not be permitted to testify that the possibility of loud nosies and bright lights from heavy traffic would adversely affect the egg production, causing the cancellation of appellees’ egg contract and, therefore, rendering worthless the sin: chicken houses on their property. The trial court denied the motion with the admonition to the landowners that testimony as to possibilities would be improper and that any evidence offered by the appellees should be limited to reasonable probabilities. The refusal of the motion in limine with the accompanying admonition to~Thd appellees to limit the testimony to reasonable probabilities was clearly within the discretion of the trial court. We have often recognized the discretionary power of a trial court in the control of the admission of testimony. Western Coal & Mining Co. v. Nichols, 168 Ark. 346, 269 S. W. 991 (1925). Certainly there is no abuse of discretion demonstrated in the case at bar. Furthermore, on the first appeal of this case we remanded with directions to “afford an opportunity for the parties to present more positive and more explicit evidence relative to the issue of whether the Davises’ commercial laying houses are now a total loss because of the proximity of the new interstate highway.” The appellees were entitled to again present their theory of damages and to implement their evidence within reasonable probabilities.
Appellant next asserts that the trial court erred in striking that portion of Mr. Charles Wilburn’s testimony as to damages to appellees’ chicken houses. Mr. Wilburn testified for appellees as an expert appraiser. According to him, the proximity of the interstate highway to appellees’ property, and particularly to their chicken houses, depreciated the value of the use of those buildings for the production of eggs to the extent of $20,000. Appellant asked the trial court to strike that portion of his testimony, asserting that it had no basis in fact since his estimate of the diminution in value of the chicken houses was based upon information he acquired from the landowners and an employee of the Com Belt Hatcheries when he made his investigation for appraisal purposes. We cannot agree with this contention. We firmly settled the merits of this contention in Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966), when we said:
“It is at once apparent that if we sustain the commission’s contention it will hardly be possible in the future for a landowner or an expert witness to give an admissible opinion about the value of property.
The overwhelming weight of authority is contrary to the appellant’s present contention. It has repeat edly been held that expert or lay testimony is competent even though it is based wholly or partly upon hearsay, [citing cases]”
Furthermore, in the recent case of Arkansas State Highway Comm’n v. Highfill, (April 20, 1970), 452 S. W. 2d 846, we again recognized that the landowner has the right to show the highest and best use for which his property is adaptable before and after the taking. So, too, in the case at bar, the appellees could properly show that the highest and best use of. their property before the taking was for commercial egg production purposes and that after the taking, their lands were rendered useless for this purpose.
Appellant next contends that the verdict is not supported by substantial evidence and is excessive. We do not agree. As previously indicated, 3.37 acres of appellees’ lands were acquired in fee and 18 acres were severed from the 95-acre tract. Appellees presented three witnesses who were experts and knowledgable as to the effect of the proximity of the highway facility upon appellees’ commercial egg production business. Evidence was adduced that because of the proximity, appellees’ contract was cancelled and they were unable to acquire a commercial contract from other sources and that appellees’ six chicken houses were designed and constructed in such a manner that they were rendered useless for any other purpose and had only a salvage value as a result of the cancellation of the contract. The appellant produced an independent operator who disagreed with appellees’ witnesses. According to him, the appellees’ property would continue to be suitable for commercial laying hen operations. These two. conflicting theories were presented to the jury, and it was for it to determine which should prevail.
One of appellant’s value witnesses estimated damages to all the property at $1,550 and another estimated $3,000. The appellees’ value witnesses estimated damages to the entire property ranging from $26,658 to $27,383. As previously indicated, the jury awarded $20,- 666. There was detailed evidence that the specially designed six chicken houses (with a 13,500 laying hen capacity) were damaged to the extent of $20,000 since they were rendered totally useless except for salvage purposes due to the proximity of the interstate highway and interchange facilities. In view of this latter evidence and the undisputed facts that 3.37 acres were acquired in fee and 18 acres were severed from the 95-acre tract which was also being utilized for cattle pasturage, we hold there is substantial evidence to support the verdict and we cannot say it is excessive.
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Carleton Harris, Chief Justice.
This case represents another effort to persuade this court to discard and repudiate the doctrine of charitable immunity to tort actions. Properties belonging to Trinity Lutheran Church, one of the appellees herein, and Odus H. Le-May, appellant, adjoin each other, being located within a residential section of Pine Bluff. According to the complaint filed by LeMay against the church and Peter Smykla, Jr., Chairman of the Board of Trustees, a large oak tree, located on the church property, fell on appellant’s house, damaging same in the amount of $6,872.56. It was alleged that notice had been given that the tree was leaning toward appellant’s home, and was dangerous and hazardous to person and property because of its decayed and defective condition; nonetheless, appellee negligently failed to remove it. Judgment was sought in the amount heretofore mentioned. The church and Smykla filed separate demurrers, setting out that Trinity Lutheran Church is an eleemosynary or religious institution, and, as such, was not liable for negligence. The church further asserted that the acts alleged to be negligent in the complaint were with respect to properties owned in connection with religious activities, non-proprietary in nature. Smykla asserted that, being sued in his representative capacity, there was no liability. On hearing, the demurrers were sustained by the Jefferson County Circuit Court, and from the judgment so entered, appellant brings this appeal.
Appellant argues that charitable' immunity as a defense in a tort action is no longer supported by public policy, and, although a “rule of property,” should no longer be allowed by this court; further, that charitable immunity is not recognized as a defense in any foreign country, and is rapidly dying in the United States. Though a creditable brief in support of his position is presented, we see no need to again discuss this question, since the issue, and our cases on the subject were thoroughly reviewed in Williams v. Jefferson Hospital Association, Inc., 246 Ark. 1200, 442 S. W. 2d 243, this opinion being handed down just eight months ago (June 9, 1969). We reiterate what was there said.
There is no allegation in the complaint that the activities of appellees are other than religious activities, and we agree that the trial court properly sustained the demurrers.
Affirmed. | [
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John A. Fogleman, Justice.
Appellant was charged with first degree murder of Larry McKinney on June 14, 1969. He was convicted of second degree murder and sentenced to five years’ imprisonment. He urges three grounds for reversal of that conviction, viz: (1) failure of the circuit court to suppress his alleged confession; (2) failure of the trial court to grant his motion for continuance; and (3) failure of the evidence to support the verdict.
In support of the first ground, appellant now argues that his confession was inadmissible because it was given as a preliminary to a polygraph examination, the results of which are barred as evidence by Ark. Stat. Ann. § 71-2225 (Supp. 1969). His present argument also includes the contention that the alleged confession is so inconsistent that it is obvious that appellant could not have understood what he signed. His motion to suppress was on other grounds, i. e., that the statement was involuntary because the language, comments and innuendos of the officer to whom the statement was made constituted promises of leniency. Although it appears that appellant’s present arguments on this ground are without merit, we will not further consider them because they were raised for the first time on appeal. Petty v. State, 245 Ark. 808, 434, S. W. 2d 602; Gathright v. State, 245 Ark. 840, 435 S. W. 2d 433. We will review the evidence for the purpose of determining whether, under all the circum stances, the statement appellant sought to suppress was voluntarily given.
Nash was 22 years of age, the son of a minister and possessed of education including Wz years of college. He had experienced two years of Army Service. He had on occasion filled his father’s pulpit. At the time of his arrest he was employed at the Whirlpool Corporation factory as a paint operator. On Saturday, June 14, during an investigation by the prosecuting attorney of the circumstances of the killing of Larry McKinney, Nash had agreed to take a polygraph test. While at work during the afternoon of June 16, he was called to his employer’s personnel office. Upon arrival there he recognized Officer Tidwell whom he willingly accompanied to the police station for the purpose of taking the test. Sometime after arrival at the station he was taken to Sergeant Bettis, whose primary duty was administering polygraph tests. While the officer stated that he identified himself as a police officer, Nash denies that he knew this. Appellant’s statement in this regard is irreconcilable with his contention about promises of leniency by the officer, and his later testimony that he had confidence in Bettis because he knew that Bettis was a police detective.
Bettis testified that he gave appellant a printed form containing a concise explanation of the rights of one in custody as to interrogation as delineated in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The officer stated that he asked Nash to read the form and that he read from an identical one while Nash followed his reading by reference to the form provided him. According to Bettis, appellant answered affirmatively when asked if he understood his rights and added that he was only going to tell the truth and was willing to sign the appended waiver of his rights to remain silent and to have the advice of counsel. This waiver was signed by Nash, and his signature was witnessed by Bettis and Tidwell.
Bettis’ testimony relating to the circumstances leading up to the signing was confirmed by Tidwell, who stated that he left the room after attesting Nash’s signature. Nash substantially corroborated the testimony of the officers, but testified that he was asked to sign the papers only as an agreement to take the polygraph test.
After the signing of the waiver, Bettis proceeded with an explanation of the test and after about 10 minutes, Nash proceeded to make a statement of his activities on the occasion of the killing of Larry McKinney. Bettis testified that he typed the státement as it was given over a period of approximately one hour. He also stated that as the typing of each paragraph was completed, it was read back to and confirmed by Nash. At the very inception of Nash’s oral statement, he admitted that he had possessed a gun on the evening in question, and had left it at the home of a friend named Bruce Sanders. Nash signed an authorization to Officer Tidwell to pick up this weapon. Tidwell then was recalled to the room and given the authorization. He proceeded to the designated house and returned with a pistol about the time Sergeant Bettis finished typing Nash’s statement. The weapon was exhibited to, and identified by, Nash. Bettis then asked appellant to read the typed statement. According to this officer, after Nash finished reading the statement, he asked appellant if he wanted to sign it, and appellant did so in the presence of Officers Tidwell and Brooks. Bettis stated that Nash was so upset and emotional after signing the statement that a polygraph test was not then possible, even though Nash was still willing to undergo it.
While Nash admits that he acted of his own free will, he asserts that he understood that the waiver was signed by him with the understanding that it was given in connection with the taking of the polygraph test. He testified that, in explaining the test, Bettis told him that if he didn’t tell the truth not to take the test, because his untruthfulness would certainly be disclosed. Thereafter, said Nash, Bettis advised that “if a man told him the truth, he would tell a man the truth” and that conflicting: stories had been told about the events surrounding the shooting of Larry McKinney Nash also testified that Bettis continually told him that even if he shot and killed McKinney he surely couldn’t be held for first degree murder but that the only thing “they” could do was to reduce the charge to “justifiable” homicide or involuntary manslaughter. By way of explanation to the court, Nash testified that Bettis said that he would probably be “booked” for murder, just as one would be “booked” for manslaughter after an automobile accident, and, after two or three days, a judge, upon preliminary hearing, would reduce the charge to “justifiable” homicide.
Appellant admitted that he told Bettis what happened, but said that the statement he signed was not typed until after the officer’s assurances about reduction of the charge, and the sergeant asked that he repeat his story while it was being typed. Nash also said that most of the matters set out in the statement were “almost correct,” but that “they project a different meaning” and “can be interpreted a different way than from the way I stated.” He did deny any knowledge that a shot he fired had struck the deceased, because he said he was running backward and looking the other way when his weapon was fired. He also denied having made some of the remarks contained in this purported statement and attributed to him on the occasion of the shooting.
Nash’s claim that he only read parts of the incriminating statement is hardly credible in view of his equivocal testimony on that point. He stated in answer to one question by the trial judge that “I know I read through it. . .” Bettis denied having made any promises to Nash.
The independent review of the record to which we are committed in considering admissibility of confessions convinces us that the circuit judge was correct in holding the statement to be voluntary and admissible. In so doing, we have given appropriate, but not controlling, weight to the findings of the trial judge. See Harris v. State, 244 Ark. 314, 425 S. W. 2d 293, cert. denied, 393 U. S. 941, 89 S. Ct. 308, 21 L. Ed. 2d 278 (1968). He stated that he might have felt some concern about appellant’s understanding of what had been said and done if the latter were illiterate or dull and unappreciative of the meanings of words and distinctions in words and expressions. His observation of appellant, however, convinced him that Nash was bright and appeared to have understood all that took place. The judge found that Nash had readily admitted that he had been fully warned of all his rights, that there was no basis for any understanding by him that his waiver of rights applied only if he were undergoing a polygraph test, that he could not have been misled, and that he intelligently made the statement with a full understanding of his rights. We note, as did the circuit judge, that appellant is possessed of intelligence and a good vocabulary. Nash displayed a ready perception of questions asked, and an ability to express his answers clearly, comprehensively and fluently. We have no doubt that the statements were voluntarily made. Whatever inconsistencies appear in the text are not such as to evidence any lack of understanding on Nash’s part.
Appellant filed two motions for continuance on September 12, 1969, after the case had been set for trial. The first was filed by David T. Westmoreland, who had been employed by appellant’s father three months earlier, had represented appellant at the preliminary hearing, had filed his motion to suppress evidence and had represented appellant at the hearing thereon. The motion recited that the attorney had done substantial investigative work. It disclosed that a “certain lack of confidence had developed” between the client and this attorney, asserted that Nash should be represented by someone else, and stated that efforts were being made to secure additional or substitute counsel. On the same date, a motion was filed by Warner, Warner, Ragon & Smith, through Wayne Harris, asking that the case be continued until sometime in October to afford adequate opportunity to Harris, as newly retained counsel to investigate and prepare for trial. This motion alleged that lack of confidence in his first attorney developed during conferences beginning September 8 and that Harris would be unable to prepare for trial because he would be in Denver from September 14 through September 17, 1969. No evidence was offered on this motion and an order denying it was not made until the beginning of the trial on September 19.
Appellant’s motion for new trial served on September 29 and overruled on October 6 stated that appellant was prejudiced by Harris’ inability to prepare for trial and that, before Harris’ acceptance of employment, appellant’s friends and relatives had unsuccessfully tried to follow Harris’ advice to employ another attorney.
The principal part of appellant’s argument on this point here has to do with matter that was developed during the course of the trial but not shown to have been made known to the trial court prior to denial of the motion, e. g.: the shooting took place where 200 people were assembled; the state’s case was presented through interested witnesses; at least six shots were fired in the vicinity; that appellant was able to present only two witnesses present at the scene, neither of whom saw the critical shot fired. The record does disclose that Westmoreland had subpoenaed 45 witnesses. It also reveals that appellant had caused a subpoena to be served upon a witness who did not appear, but it is not shown what this witness was expected to testify.
Motions for continuance are addressed to the sound judicial discretion of the trial court, and we will not reverse its action unless we can say that the judge has abused this discretion. Johnson and Loyd v. State, 247 Ark. 1086, 449 S. W. 2d 954; Scates v. State, 244 Ark. 333, 424 S. W. 2d 876. When we view the lack of evidence to support appellant’s motions, the active participation of Westmoreland, who had made at least enough investigation to subpoena 45 witnesses, and the lack of any showing as to reasons for Harris’ anticipated absence or of unavailability of any member of his firm to assist in investigation and preparation for trial, we cannot say that the circuit judge abused his discretion in denying these motions. Furthermore, neither the motion for new trial nor any part of the record demonstrates how appellant was prejudiced, the identity of witnesses who might have been disclosed by pretrial investigation or what such witnesses would have testified. In the absence of a showing of prejudice, we cannot say that the refusal of a continuance is error. Gathright v. State, 245 Ark. 840, 435 S. W. 2d 433. Appellant argues that he was prejudiced because the identity of the alleged murder weapon became a critical issue and the evidence was so unsatisfactory on this point that appellant could have identified the true owner of the weapon, if granted a continuance. Yet, he had 17 days after the trial to make a showing of prejudice on this score, or any other, on presentation of his motion for new trial, but failed to do so.
The argument here on the insufficiency of the evidence is three-pronged. It is asserted that the evidence does not establish (1) the identity of the killer, (2) the whereabouts of appellant when the fatal shot was fired, (3) the ownership and possession of the murder weapon. None of these grounds was specifically mentioned in the motion for new trial. On this point, appellant only asserted that the evidence was insufficient to support a conviction of first degree murder, in addition to the statement that the verdict was contrary to the evidence. Even if this argument is reviewable, it seems to us that it fell with our holding that appellant’s statement was properly admitted in evidence. In that statement Nash told of going up to Larry McKinney, asking who was fighting, and running away when Louis Wilson chased him and McKinney made threatening gestures toward him. After assuring himself that he was no longer being pursued, he said that he went back to his car, armed himself with a .22 caliber pistol and returned to the scene of the fighting because he was “shook up” about Wilson’s and McKinney’s “jumping” him. McKinney then came toward appellant, who told him to stop, stated “I have got my____together now” and fired at the deceased from a distance of five feet. He then stated that he went to his car, told Bruce Sanders’ sister to get in and drove to the house where Bruce Sanders lived, taking Sanders, Sanders’ sister and Ham Phillips. According to the statement, Sanders hid the pistol, after which Nash and Sanders returned to the scene. It was only necessary that there be other proof that the offense charged was committed by someone. Ark. Stat. Ann. § 43-2115 (Repl, 1964); Wallis v. State, 245 Ark. 1024, 436 S. W. 2d 273; Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653. There was evidence that McKinney’s wife found him lying on the ground after he had been shot. A police officer also testified that he found McKinney on the ground and sent him to a hospital where he expired at 12:35 a.m. A pathologist who performed an autopsy found a bullet wound in the deceased’s right chest which penetrated his lung and caused his death. This, coupled with appellant’s statement, was sufficient to sustain conviction of murder in the second degree.
Actually, we find sufficient evidence to sustain this conviction of second degree murder without the incriminating statement. Waldo Sanders testified that he had stopped his brother-in-law McKinney from fighting and was holding his hand in which there was a gun, when he heard a shot and turned and saw Nash going back through a crowd which had assembled. He said that Nash fired at McKinney, saying “You must want to die.” McKinney’s widow said that as she ran away from the scene after shots had been fired, Nash ran past her and hollered “I gotcha man.” This evidence, without going into further details, was sufficient. See Long v. State, 240 Ark. 687, 401 S. W. 2d 578; Rand v. State, 232 Ark. 909, 341 S. W. 2d 9.
The judgment is affirmed.
For example, the witness said: that Sergeant Bettis explained “which impulses the test reacted on;” that the officer’s reading of the printed part of that statement with reference to his rights "was the same thing in essence” as the otal explanation; that he had his gun “in the console of the car.” | [
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John A. Fogleman, Jusdce.
Appellant’s sentence to four years’ imprisonment for burglary and grand larceny, fixed on November 11, 1967, was suspended on the same date. Appellant was placed on probation for a period of two years. On July 8, 1969, the suspension was revoked and appellant was ordered committed to the Department of Corrections for two years for burglary and two years for grand larceny. He appeals from this judgment.
Appellant’s contentions are that the revocation was based solely upon his failure to report to the circuit court’s probation officer for a period of five or six months and that the reasons given by the court for its action constituted an arbitrary and capricious abuse of discretion.
We have said that suspension of a sentence is a privilege extended, in the exercise of judicial discretion by the trial court, upon appropriate conditions to one found guilty of a criminal offense. We have also said that revocation of a suspension for failure of the offender to comply with the conditions imposed is in the nature of revocation of this privilege lying within the sound judicial discretion of the court that granted it. Smith v. State, 241 Ark. 958, 411 S. W. 2d 510.
The probation officer, Jeff Davis, testified that appellant had failed to make required monthly reports for a period of six months beginning January 13, 1969. During that period, the officer received no communication from appellant or any member of his family. Mr. Davis enlisted the aid of a deputy sheriff, who reported that appellant had removed from his previous address, and efforts to locate him had proved unavailing. Appellant’s mother brought him to Davis’ office only after six months had elapsed, all efforts to locate appellant had been unsuccessful, and a warrant for him had been issued. The mother promised that her son would thereafter report regularly if placed under her supervision. She repeated this promise to the court at the hearing upon the petition to revoke the suspension, stating that she had enough control over appellant to assure that he would do so. She professed ignorance of his failure to report, although he was living in her home during the entire period of his delinquency.
Appellant offered no justifiable excuse for his failure to report. He stated that he had been injured in an automobile wreck. He admitted that he did not come to the probation officer because he had been shot in his elbow and hip on a date he could not recall. He admitted ability to use a telephone, but claimed ignorance of Davis’ telephone number.
We find no arbitrary or capricious action or abuse of discretion on the part of the circuit judge. He stated his concern about the matter and his reluctance to send appellant to prison. Yet, recalling that 200 persons were on probation, he felt that failure to do sp would establish a precedent which would effectively undermine his entire probation system. Such deliberate weighing of the factors is the antithesis of abuse of judicial discretion.
The judgment is affirmed. | [
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Conley Byrd, Justice.
The question presented here is the location of the boundary between riparian owners on opposite sides of an abandoned river bed. Thechancellor fixed the boundary between the parties along a line equidistant from the north high bank and the south high bank. Appellants Leta Wright Gill, William H. Cook, Jr., Darra Jean Cook, William H. Cook, Sr. and Catherine Wright Cook appeal contending that the boundary should have been fixed along the thalweg or valley way of the river at the time it became non-navigable. Appellee Tennie Porter cross-appeals contending that appellants have no standing in court to challenge her right to confirm her title; that the court erred in not basing its decision on Act 126 of 1953; that the court erred in not holding the river changes were avulsive in nature; and that the court erred in changing the boundary between Sebastian and Crawford counties.
We find that appellee’s cross-appeal is not sustained by the record or the law upon which she relies. The parties stipulated that appellee was the riparian owner on the north side of the river before the cutoff by the Corps of Engineers in 1962, and that appellants were the riparian owners on the south side. During oral argument it was admitted that the river reached its 1962 position through the process of eroding away, passing over and filling in. In McGee v. Matthews, 241 F. Supp. 300 (E. D. Ark. 1965), it was pointed out that lands are formed by accretion when the river erodes away, passes over and fills in the lands involved. That case also held that in the event of an avulsion the county line remained in the thalweg or valley way of the abandoned river bed or channel.
We do not find that Act 126 of 1953 is applicable here. That act only amended Sections 1 and 2 of Act 203 of 1945. The latter act by its title was designed to furnish a means whereby the State could acknowledge that a river bed has been abandoned. We can find nothing in the acts which is intended to affect the rights of riparian owners.
On the direct appeal we reverse the trial court. In Parker, Comm’r of Revenues v. Moore, 222 Ark. 811, 262 S. W. 2d 891 (1953), we held that the State’s title rests on navigability and that once the navigability of a stream ceases, the rights of the riparian owner attach to the beds of nonnavigable streams and lakes. In Gill v. Hedgecock, 207 Ark. 1079, 184 S. W. 2d 262 (1944), we held that where a nonnavigable stream constitutes the boundary between adjoining property owners, each property owner takes to the valley way or thread of the stream. Thus, in the instant case, appellants and appellee as riparian landowners owned no right in the bed of the abandoned river channel until the moment it became nonnavigable. The moment the portion of the abandoned river channel became nonnavigable Parker, Comm’r of Revenues v. Moore, and Gill v. Hedgecock would control, thus placing the boundary between the two riparian owners in the thalweg or valley way of the abandoned river channel. That the valley way of an abandoned river bed constitutes the boundary between adjoining owners has been recognized by the decisions from other jurisdictions — see Arkansas v. Tennessee, 246 U. S. 158, 62 L. Ed. 638, 38 S. Ct. 301 (1918). The U. S. Supreme Court there said:
. .It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel**.”
The proof here shows the location of the valley way at the time the Arkansas River abandoned the old channel because of the cutoff dredged by the Corps of Engineers in 1962.
For the reasons herein stated the case is reversed and remanded to the trial court for entry of a decree in accordance with this opinion. | [
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Conley Byrd, Justice.
A jury found appellant Maggie Walker guilty of voluntary manslaughter and fixed her punishment at five years in the penitentiary. For reversal of the judgment upon the verdict, appellant argues that the trial court erred in not dismissing the charges against her because her actions were in self-defense and for her own protection. We find no merit in appellant’s argument.
The record shows that H. D. Hughes, the ex-husband of Mary Hughes, was corresponding with both appellant and the decedent Norene Hatter. Immediately prior to the shooting a commotion occurred when H. D. Hughes tried to get his drunk son to go home. About the time that Mary Hughes, the boy’s mother, started trying to get him home, a fight started between appellant Maggie Walker and Norene Hatter.
Appellant’s version is that when she got even with decedent, the decedent grabbed her dress, started stabbing at her with a knife, and said, “Bitch if you don’t kill me g . . .d . . . I’m going to kill you.” Decedent kept on stabbing, so appellant commenced shooting to protect herself.
Other witnesses stated that appellant started the fight. Alton Hodnett said that when appellant came out of Al’s Cafe, she walked up behind decedent and hit her, and that when decedent turned around, he heard four or five shots.
Dr. Scott McMahen testified that decedent died of three gun shot wounds in the abdomen.
The issue of self-defense was a fact question for the jury.
Affirmed. | [
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Lyle Brown, Justice.
Appellant Floyd Harber initiated this action in his capacity as a taxpayer and patron of Gosnell School District, Mississippi County. He sought a writ of mandamus directed to appellees as chairman and secretary of the State Board of Education to require that a hearing be conducted to resolve a complaint filed by Harber with the Board and against J. W. Rea, Superintendent of Gosnell Schools. The chancellor rejected a demurrer to the pleading, heard the case on its merits, and ruled that the State Board had performed its duty by acting on the complaint against Rea. Since it is our view that the demurrer should have been sustained we shall not enumerate appellant’s points for reversal because they are concerned with the merits of the rase.
In June 1969, appellant filed with the State Board in affidavit form his charges against Superintendent Rea. The affidavit alleged that appellant was employed for the school year 1968-69 as principal of the junior high school; that at the outset of the school year he was called in by Rea and instructed to show on appellant’s attendance reports an average daily attendance in the upper 90% range; that when pressed for assurance of cooperation appellant “stalled for time”; that pursuant to his final decision not to participate in the padding of attendance rolls appellant made a full disclosure to the school board; and that the local board supported the superintendant in the plan and discharged appellant for failure to follow orders. Appellant’s affidavit further alleged that the superintendent had, during the current school year, used a system whereby he added to the final attendance reports a number of absentees and certified them as actually being in school. In corroboration of his charges he filed two written statements from former employees of Gosnell District. In those statements the respective employees stated that under pressure from the superintendent they had in previous years falsified attendance records. Appellant asked that the superintendent’s teaching certificate be revoked, which is the statutory penalty for permitting or requiring any teacher to falsify attendance records. Ark Stat. Ann. § 80-1228 (Repl. 1960).
Appellee A. W. Ford is, and was, the State Commissioner of Education and ex-officio Secretary of the State Board of Education. Upon receipt of the described charges, along with a request from appellant’s attorney for a hearing, Mr. Ford appointed a committee from his staff to make an investigation. Based on the committee interviews with school employees at Gosnell and inspection of attendance records the committee filed an extensive report. Its findings need not here be detailed, except to say that “non-conforming practices” were found with respect to reporting daily attendance.
The matter was presented to the State Board at the regular quarterly meeting in September 1969. The record available to the board was the affidavit of appellant, two statements supporting his position, and a detailed report of the investigating committee. The State Board was also informed that the committee “did not find substantial evidence of an attempt to falsify the records.” The board concluded there was no basis for a public evidentiary hearing as requested by appellant. Counsel for appellant was immediately notified of the decision of the board and the petition for mandamus was shortly filed.
Appellant relies on the provisions of the Arkansas Administrative Procedure Act which he asserts affords him a right to a formal and evidentiary public hearing before the State Board. The cited Act is found in Ark. Stat. Ann. §§ 5-701-714 (Supp. 1969). It has two purposes, (1) to require certain designated State agencies to adopt and publish procedural rules, including methods whereby the public can make submissions or requests; and (2) to afford adjudication rights in matters over which the agencies have jurisdiction. “Adjudication” is defined as “agency process for the formulation of an order.”
Authority for the procedure followed by appellant is recited in Ark. Stat. Ann. § 5-707, which is a part of our administrative procedure act:
Agency failing to act. — Suit in court. — In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself injured in his person, business, or property by such failure, refusal, or delay may bring suit in the Chancery Court of any county in which he resides or does business, or in the Chancery Court of Pulaski County, for an order commanding the agency to act.
Appellees demurred to the jurisdiction of the chancery court over the subject matter of the action, the subject of course being whether a writ of mandamus should issue. The demurrer was overruled. On appeal, appellees cite as authority for their contention of lack of jurisdiction our recent case of Nethercutt and Payne v. Pulaski County Special School District, 248 Ark. 143, 450 S. W. 2d 777. It was there held that Ark. Stat. Ann. § 33-101 (Repl. 1962) was unconstitutional insofar as it purported to vest in chancery courts the power to hear and determine a petition for writ of mandamus.
The portion of § 5-707 which authorizes the chancery court to entertain a petition for writ of mandamus must fall for the reasons stated in Nethercutt and Payne. The designation of the forum is clearly severable from the other provisions of the section and therefore the remainder of the section is not affected by our holding.
Had the trial court sustained the demurrer it would have then been appropriate to have transferred the case to law. That is because appellant responded to the demurrer by conceding its apparent merit and specifically praying that the cause be so transferred.
Appellees argue here, as they did below, that appellant did not possess the legal capacity to sue. We hold that the broad provisions of § 5-707 give him the right to bring the süit. It provides that any person might bring suit to compel action if he “considers himself injured in his person, business, or property” by the failure or delay of the agency to act on his complaint. According to his petition and supporting affidavits, appellant was a taxpayer, resident, and patron of Gosnell School District; the school superintendent was exacting an illegal requirement that teachers responsible for average daily attendance records falsify those reports; and the refusal of appellant to cooperate had resulted in the loss of his position. We of course make no finding as to the truth of the allegations; however, assuming their truth for the purposes of the demurrer, such a practice could jeopardize the careers of the faculty, imprint a black mark on the community and the school system, and result in misappropriation of school funds. (Average daily attendance is related to both federal and state aid.) Additionally, appellant had been injured in his vested right to follow his profession, allegedly because he failed to follow the illegal practice. Because of the reasonable possibilities we have enumerated we think any citizen, taxpayer, and patron would rightfully deem it to his best interest, as well as to the community collectively, that the practice be exposed in order to avert the inevitable.
The cause is remanded with direction that the motion to transfer to law be granted.
Fogleman, J., dissents in part. | [
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George Rose Smith, Justice.
The highway department brought this action to condemn a 2.28-acre tract owned by Nealie McMillan Hardy and others. The landowners had leased a small part of the land — a rectangle 25 by 50 feet — to Humble Oil Company for ten years. Humble had constructed on its plot a tall advertising sign, consisting of two substantial steel columns supporüng a crossbar bearing the letters ESSO and arrows pointing toward a nearby Esso service station. The jury awarded $6,000 to the landowners and $1,100 to Humble. This appeal questions the latter verdict only.
Both in the trial court and here counsel for the highway department have insisted that Humble is entitled to nothing, because its sign is removable personal property. It is argued, on the authority of Ark. State Highway Commn. v. Fox, 230 Ark. 287, 322 S. W. 2d 81 (1959), that Humble’s only measure of damages is the amount by which the fair market value of the lease exceeds the rent that would be payable during the remainder of the term. Humble did not offer any witness who attempted to evaluate the leasehold in exactly that manner. Moreover, says the appellant, it was held in the Fox case that in a condemnation suit a lessee cannot recover the cost of removing personal property from the land. The appellant concludes that there is therefore no support in the record for Humble’s $1,100 verdict.
We cannot, in fairness, sustain that argument. The concrete foundation for Humble’s sign was certainly not a removable chattel. The sign as a whole cost $6,663.08. From the undisputed proof the jury could have valued the concrete foundation at more than the amount of the verdict. The foundation consisted of two monolithic concrete blocks, each surmounted by an aboveground platform, poured at the same time, to which a steel column was bolted. Each block was 141i feet square and 5 feet thick; each platform was 3 feet square and 18 inches thick. Thus the entire foundation comprised about 79 cubic yards of concrete, which, according to the proof, cost an average of $16.50 a yard, or a total of $1,303.50. The ten-year lease had almost nine years to run at the time of the taking. Hence the unrecovered cost of the concrete alone, with no allowance for forms, steel, bolts, labor, etc., exceeded the amount of the verdict.
The evidence that we have narrated was a competent basis for the verdict, even if we assume that the ultimate issue was the value of the unexpired lease. Nichols points out, in discussing improvements on leased property, that “the value of the fixtures lost because incapable of removal is sometimes admitted, not as proving specific items of damage, but as a means of showing the value of the unexpired term.” Nichols, Eminent Domain, § 13.121 (rev. 3d ed., 1962). This is unquestionably a case for resort to such evidence. In fact, Humble’s property would obviously be taken without just compensation if it were denied recovery for its investment in the huge blocks that served as the base for its removable sign. We are not impressed by the appellant’s argument that the foundation must be treated as being removable simply because Humble’s lease allows it to remove its improvements at the end of the term. The truth is that the concrete blocks are not removable. It would be a manifest injustice to allow the State to take that property without compensating the lessee therefor, upon the legal fiction that the clause in the lease had changed the essential nature of the blocks.
There is a second issue — a minor one. Some weeks after the trial Humble, at the urgent request of the highway department, took down the sign (at a cost of $817) to clear the land for the proposed highway construction. In the court below the highway department sought to obtain possession of the sign itself, on the theory that the court had held it to be a part of the real estate. We do not find that positive ruling in the record, but in any event . the court was right in holding that any such cohtroversy-us: a matter for a separate lawsuit, since ,tne . only issue in an eminent domain proceeding is the value of the property taken. Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65 (1951).
Affirmed.
Brown, J., not participating.
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Roy Penix, Special Chief Justice.
Steven Ira Carter, a 14 year old newspaper boy, was crushed to death February 8, 1968, while attempting to use an elevator installed in the Justice Building on the State Capitol Grounds in Little Rock. The youth’s mother, Mrs. Marion E. Carter, as administratrix, brought this suit under the wrongful death act against R. E. Hartenstein, d/b/a Hartenstein Elevator Company, who manufactured and installed the elevator, alleging liability because of the manner in which the elevator had been constructed and installed.
Hartenstein answered and brought in as third-party defendants, Erhart, Eichenbaum, Rauch & Blass, the architects who designed the Justice Building, and D. A. Harmon, d/b/a Harmon Construction Company, the contractor who built the elevator shaft. Mrs. Carter amended her complaint and pleaded over against the architects and the contractor.
All defendants raised as their defense Ark. Stat. Ann. § 37-237 thru 37-244 (Repl. 1962) which is Act 42 of the General Assembly of 1967. The pertinent statute is § 37-238:
“Personal injury or wrongful death — Four-year limitation. — No action in tort or contract (whether oral or written, sealed or unsealed) to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction or the construction and repair of such improvement more than four (4) years after substantial completion of same.”
The parties stipulated that the Justice Building was substantially completed in the year 1958: Thereafter, the defendants all moved for a summary judgment. The Circuit Court granted summary judgment, finding that the cause of action was barred by § 37-238.
The sole issue before this court is the constitutionality of § 37-237 et seq. (Act. 42). The appellant contends the statute violates the Arkansas Constitution, Article 2, Sections 13 and 18; Article 5, Section 25; and Amendment 14, as well as the United States Constitution, Amendment 14, Section 1.
Appellant asserts the statute violates due process; is discriminatory, contravenes equal protection of the laws, and is local and special legislation.
The question raised is whether the legislature was arbitrary or capricious in granting this immunity from suit four years after substantial completion of construction to those enumerated in the statute without giving such protection to others such as materialmen and owners, whom appellant claims belong to the same class as those exempted.
This Statute, whether it be one of “vested right” and a means of remedy and recovery, or whether it be characterized as a “statute of limitations”, is largely a question of semantics and manipulation of legal theory. The true issue is whether it is fair and reasonable and an appropriate action by the General Assembly of the State of Arkansas, or whether it impinges and frustrates basic rights guaranteed constitutionally. The court cannot — and it should not try to — make legislative policy in a case like this, but only protect essential and basic rights when they are infringed.
This Act only cuts off action after four years. But, even then, if an accident or injury occurs before the expiration of that four year period, it may still be brought within an additional 12 months against those furnishing the design, planning, supervision or observation of construction, or the construction and repairing of any improvement to real property. All of the defendants in this action are within this definition. However, it does not include owners of buildings or materialmen who are not otherwise involved . Such materialmen and the owners of buildings or structures who are in sole control of premises after completion of the work are not similarly situated with the defendants in this case. They are not in the same class with those described in the act. Particularly is this true after construction is substantially completed and accepted by the owners. Part of acceptance is to accept some future responsibility for the condition of the premises.
Other similar limitation acts are only analogous, but we derive some knowledge and benefit from their application and use. The basic limitation for torts is three years (Ark. Stat. § 37-206); malpractice against professionals two years (Ark. Stat. § 37-205), and against banks three years (Ark. Stat. § 85-4-406). Of course, it may be that under tort and malpractice actions, limitations might only begin to run from the time of the accident or discovery, but this is not true in respect to banks and we have found no authority to overturn that three-year period. See, Bamford v. Van Emon Elevator Company, 79 Oregon 395, 155 Pacific 373, (1916). Kakargo v. Grange Silo Company, 204 N. Y. Supp. 2d, (1960). These acts have been consistently upheld.
We have carefully considered Skinner v. Anderson, 38 Ill. 2d 455, 231 NE 2d 588 (1967), concerning this appeal. In all deference and in respect to the decision by the Supreme Court of Illinois, we cannot apply its reasoning to this case. That court held the Illinois Statute, there challenged, to be discriminatory against others similarly situated. The Arkansas Statute, as we view it, does not do this. The Illinois Constitution, (specifically Section 22 of Article IV) enumerates classes and creates a different problem. Further, a vital distinction, nonetheless, exists between owners or suppliers and those engaged in the professions and occupations of design and building. This is not arbitrary or unreasonable. It is a legitimate and practical exercise of the legislative function.
To say that there can be no limitation in perpetuity against a designer or erector of a structure would be in effect to discriminate against professional builders and designers. Whether three years, four years of five years — or more or less— is the correct or appropriate period, should not and cannot be the concern of the judiciary. We only must determine whether the legislature has acted reasonably in respect to their mandate from the people as set out in the Constitution.
This case has nothing to do, as presented, with questions of concealed defects, imminently and inherently dangerous, or prospective liability. See Frumer and Friedman, Products Liability, 1967, Chap. 12, Secs. 39.01, 39.02 and 40.01 (2); and Prosser, The Fall of the Citadel, 50 Minn. L. Rev. 791 (1960). Also see generally: Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113 (1949) and Comment, 18 Cath. U. L. Rev. 361.
Almost every statute or law serves to work for some and against others. Here, we simply do not view this enactment as granting special privileges and immunities. Our opinion is that Act 42 is valid, reasonable, constitutional and not enacted for arbitrary or capricious reasons. We think the legislature was entirely within its constitutional right in passing such statute.
Affirmed.
Harris, C. J., not participating.
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Lyle Brown, Justice.
Appellee Paula Lynch was the plaintiff below and recovered judgment as the result of a fall down the stairway in St. Anthony’s Hospital in Morrilton. The judgment was against Fidelity-Phenix Insurance Company, which covered the charitable hospital with public liability insurance. Fidelity-Phenix moved, for a directed verdict at the close of plaintiff’s case in chief on the ground that while the proof showed the landing at the top of the stairway was not built according to regulations, that construction was not shown to have been a proximate cause of Mrs. Lynch’s fall. The motion, which was overruled, was renewed without success at the close of Fidelity-Phenix’s case. The propriety of those rulings is the only question on appeal.
Evidence introduced by appellee reflected that Mr. and Mrs. Lynch visited a sick friend on the second floor; that they left the hospital by the same route they entered, using a flight of stairs; and that appellee fell down the stairs after passing through a door which opened onto the stairs. As the couple started down the steps they were headed south, and the door was hinged to their right. Naturally the door had to be by them pushed forward and out over the stairs. There was no landing on the stairs side, or south side, of the door. As one stepped through the door, instead of stepping on a landing the same level as the- floor on the north side of the -door, he stepped down to the first step of the stairway. The riser of the first step was flush with the door opening. The described construction was in violation of state health department regulations which required the floor level of the corridor of the second floor to be maintained on the stairway side of the door for a descending distance equal to the width of the door.
Alton Lynch described his wife’s fall in these words:
And as I put my hand up on the door to push it open, I had my hand probably above the flash plate — or buffer plate — the push plate on the inside of the door, which would be the north side of the door. I pushed the door open, I would say at least 45 degrees. * * * Whether or not my wife had her hands on the door, I cannot say for certain, but the door was in the —open, and by her being ahead of me, I was at a standstill holding the door. She stepped —I believe she stepped with her left foot. She went down; and with one continuous movement as she stepped. * * *
Q. She started to take the step and started falling head long down the steps?
A. It was just in outer space. I didn’t have time. Of course, I-had one of-my hands on the door. I don’t know for sure which hand I had holding the door open, but she stepped, and she was gone; and I didn’t have an opportunity to grab. She was just there- in outer space, you might say, and went down the steps and -hit just once half way to the bottom, half way down those steps, and seemed like the next time she hit it was at the bottom of the steps, the landing.
Appellee’s description of the fall on direct examination was very brief. She testified that as they ascended the stairs to the second floor she did not observe the absence of a platform; that she had never before used this particular passageway; that she pushed the door and started to step and “I just fell”; that she started with her left foot but made no contact; that “I just fell and I landed at the bottom of the steps”; and that she had no recollection of catching her heel or slipping on any object.
On cross-examination appellee was questioned at length about her precise movements immediately preceding the fall:
Q. Did you place your left foot on the first step down?
A. I started to — if I — I fell, just like I started to step and fell in a hole.
Q. Mrs. Lynch, did you place your foot on the first step down?
A. I couldn’t tell you if it depended on my life.
Q. Did you tell me on August 25 in Mr. Gordon’s office, before a court reporter, . under oath, that you did step with your left foot on the first step down?
A. Yes. I said that.
* * *
Q. Were you confused at all about that?
A. Yes, I’m confused until this day what caused me to fall.
* * *
Q. I said, ‘And you could see a step down? And you put your left foot down one step, is that correct?’ And your answer was, ‘Yes.’ Now, is that your testimony?
A. If it’s down there, I said it. But something happened to that first step when I stepped down. I don’t — I mentioned I didn’t know whether it was a narrow step or what, but something happened with that first step.’
* * *
Q. My question is: Having seen the top step, did you take your left foot, as you said here [discovery], in answer to several questions, did you take your left foot and place it down on that top step and fall?
A. Well, I took a step with my left foot, and I fell, I don’t know what happened. I don’t know whether I hit the step, or the middle of the step, or where I hit it. I just don’t know.
Appllant emphasizes the difference in appellee’s statements made on discovery and in her courtroom testimony. The essential difference is apparent. On discovery she testified that she placed her left foot on the first step down and fell, the cause 'of the fall being unknown to her. At the trial she stated on cross-examination that she did not know whether her foot ever made contact with the first step. The discrepancy was a factor for the jury’s consideration in passing on appellee’s credibility and in its search for the truth. It creates no ground for our disturbing the verdict. Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S. W. 2d 1062 (1937).
Appellant contends that there is no established connection between the absence of a landing at the head of the stairs and the fall experienced by appellee. It is emphasized that appellee did not know what caused her to fall and hence the conclusion of the jury on that score must rest solely on guesswork.
A safety engineer testified as to the regulatory requirements concerning a landing on the stairway side of the door and level with the corridor on the other side. He described the safety feature of the requirement:
On the stairways, you never know, if you’ve a door that you can’t see through, what’s on the other side. When you go through a door the purpose of the landing is to give you room to go out of the door, handle the door, close it. You have room to look at the environment. It is a protection to get you beyond the door.
When one examines the testimony of appellee’s husband in the light most favorable to the jury conclusion, we think its finding of causation was reasonable. The jury could well have found from that testimony that appellee stepped into open space. “She went down and with one continuous movement as she stepped.” He testified that her first contact with the steps was half way down the stairs. Similarly, on direct examination, appellee insisted that when the door opened she put her left foot forward, made no contact, and started falling. “I started with my left foot and didn’t make contact.” From appellee’s testimony itself the jury could have concluded that the fall so frustrated her that she actually did not know the details of the incident. Still the jury had the testimony of the only other eyewitness who recounted the incident with apparent clarity. There was also evidence from which the jury could have concluded that appellee was walking at a normal gait, wearing low heels, and did not trip or slip on any object.
Had St. Anthony’s hospital conformed to the safety regulation it would have installed a platform extending the width of the door and south a distance also equal to the width of the door. A failure to install the platform was evidence of negligence. The jury simply concluded that a platform of those dimensions would more than likely have prevented appellee from stepping into open space and thus averted the fall. The regulation was designed, according to the engineer, to prevent the very incident that occurred in this instance.
If appellee’s evidence afforded a reasonable basis for the conclusion that it was more likely than not that the failure to install the platform was a substantial factor in causing her to fall, then she met her responsibility of proving causation. Prosser, Torts (3rd Ed. 1964), at page 245. Continuing on page 246 the same authority states:
He [plaintiff] need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. * # * If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.
All of the evidence we have recounted was in the record when appellant moved for an instructed verdict at the close of plaintiff’s case. The only. evidence offered by appellant was a portion of appellee’s discovery deposition, which was cumulative because appellee had been cross-examined relative to the same questions and answers. What we have said is equally applicable to both of appellant’s motions — the motion for an instructed verdict when appellee rested her case and the same motion at the conclusion of the entire case.
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Frank Holt, Justice.
Upon a jury trial the appellant was found guilty of burglary and grand larceny, as charged by information, and his punishment assessed at 5 and 12 years respectively in the penitentiary. From a judgment on those verdicts comes this appeal. For reversal appellant contends that the trial court erred in admitting into evidence appellant’s incriminating admissions since they were involuntarily given. We must agree with the appellant’s contention.
The appellant objected to the proffered evidence of his confession to police officers. In accordance with the requirements in Jackson v. Denno, 378 U. S. 368 (1964), the court conducted an evidentiary hearing in chambers to determine the voluntariness of appellant’s confession. The trial court found the confession was voluntarily given and permitted appellant’s incriminating admissions to be presented in evidence to the jury.
When the voluntariness of a confession is disputed on federal constitutional grounds it is the responsibility of the appellate court to examine the entire record and make an independent determination of the voluntariness of the confession. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293 (1968).
The appellant was arrested about 12:30 p.m. on a Saturday. He was placed alone in a security cell by the two arresting officers. About three hours later, these two officers brought him to their office and interrogated him about some stolen goods, some of which were exhibited to him. The appellant testified that his request to call a lawyer was denied and after 20 or 30 minutes of questioning he was returned to his cell. About an hour or two hours later the same officers “called me out again.” This time he was per mitted to use the phone and he was unable to locate the lawyer he was calling. The officers then showed him a signed confession by the appellant’s brother and informed appellant that: “[T]hey had fingerprints and witnesses, that I might as well sign it and I told them I wanted to talk to a lawyer before I signed anything. So they took me back to my cell.” This interrogation lasted about 20 minutes. He was left in the security cell for another two or three hours before he was again interrogated by two other officers. Up to this point his narration of events appears uncontradicted.
These two different officers resumed the questioning of appellant about 9:30 that night. One of these officers testified that they began their interrogation by reading to him a waiver form that incorporated the safeguards which are required in Miranda v. Arizona, 384 U. S. 436 (1966). The officer testified that the appellant responded by saying:
“I understand what my rights are but I do not want to sign the waiver. I’ll tell you what happened, but I will not sign the waiver.”
This officer testified that the appellant also said: “[H]e didn’t want to sign a waiver until he talked with a lawyer.” Further, the appellant made no request in his presence to call a lawyer. This officer stated that he continued to interrogate appellant and made notes in longhand as to what he told him. The appellant was returned to his cell. The officer typed “the report” and about 10:20 p.m. the appellant was again removed from his cell at which time it appears that he signed this report or statement.
The other officer who was present during this interrogation verified that the Miranda warning was read to appellant by his fellow officer. He was asked what response appellant made after reading to him his rights. He answered: “At first he advised that he would decline to talk to begin with for just a few minutes, then he changed his mind.” This officer also testified that the appellant refused to sign a waiver. Further:
“Q. Did he request an attorney at that time?
A. Yes, and he said he’d been attempting to call one. We offered again at that time to let him call.
Q. He refused to sign a waiver without an attorney being present?
A. Y es, sir.
Q. How long thereafter did the interrogation continue?
A. Probably ten or fifteen minutes.”
The officer further testified that when the appellant was told he could use the phone to call a lawyer the appellant replied that: “[H]e had tried to call a short time before and he wasn’t in.” The appellant thereafter made and signed the incriminating statement.
The question is presented whether the confession made by the appellant comports with the requirements in Miranda that:
“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact, that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. * * *”
In Harris v. State, supra, we said:
“The prerequisites for the admission in evidence of any statements made by a defendant when he is in custody of officers are found in Boyd and Byrd v. State, 230 Ark. 991, 328 S. W. 2d 122 (1959). There is a presumption that it is involuntary; and the burden is on the State to show the statement to have been voluntary, that is, freely and understandably made without hope of reward or fear of punishment. In making those determinations the court looks ‘to the whole situation and surroundings of the accused.’ ”
In the case at bar, after an independent review of the entire record of the Denno proceeding and considering the total situation and the surroundings of the appellant, we must conclude that this 19-year-old boy’s incriminating statements, even though he had previously had experience as an offender, were involuntary and, therefore, inadmissible when the requirements of Miranda are applied, together with those of Harris v. State, supra. In the very recent case of Pierce v. State, 248 Ark. 204, 451 S. W. 2d 219, we interpreted Miranda to mean that the accused has the unqualified right to stop the questioning and consult with an attorney and this request precludes further questioning until there is in fact the requested consultation.
It necessarily follows that the judgment must be reversed and the causes remanded.
Fogleman, J., dissents. | [
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Carleton Harris, Chief Justice.
In its petition for re-hearing, appellant points out that the trial court found that the recovery by appellee, First National Bank, of $6,287.00 on the last check given by Starkey, should have been reduced by $858.48, representing the proceeds given Treadway by Eicon, but later paid by Starkey under a consent judgment. This credit would reduce the total judgment of the appellee to $5,428.52. Appellee agrees that this contention and the relief sought should be granted.
It is also pointed out that Starkey should be entitled to retain a judgment against appellee, First State Bank for $425.77, occasioned by a certain payment made by appellant to Barber-Coleman Co., mentioned in paragraph five of the petition for re-hearing. The bank does not dispute this assertion, and the contention is held valid.
All other contentions raised by appellant have been heretofore considered, and are held to be without merit. The petition for re-hearing is accordingly denied except as to the relief afforded in the previous paragraphs.
Appellant also asks for a clarification of the find ing against Graybar, this court being requested to specify the appropriate date of estoppel, and whether such estoppel applies as to the amount due Graybar “as to each successive check or whether they are cumulative and the last check estops the entire prior account”.
We held Graybar estopped because of the totality of its conduct. Graybar notified Starkey on October 25, 1967, before any progress payments had been made, that it was handling the electrical materials on the job at Arkadelphia for Eicon, and it requested that checks for the material be made co-payable to Graybar and Eicon covering the material furnished as billed. Yet, despite this request, and despite the fact that Graybar, according to its evidence, knew nothing about the progress payments, Starkey was not notified of the failure to receive payments until June 28, 1968. It was also apparent from the evidence that Graybar had only endeavored to keep the Eicon account under $5,000. Based on these facts, we held Graybar to be estopped.
We are really unable to see that it makes any difference whether the estoppel is held to apply as to the amount due Graybar from each successive check or whether the last check estops the entire prior account, since we are holding Graybar to be estopped on the entire prior account, no effort having been made to collect any money from Eicon until the account exceeded $5,000, and no notice being given to Starkey until June. Under the particular facts of this case, the estoppel would appear applicable in either, or both, instances. | [
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Frank Holt, Justice.
Appellant was charged by information with first degree murder. A jury found him guilty of involuntary manslaughter and requested the court to assess punishment. The court fixed a sentence of three years in the State Penitentiary and imposed a fine of $1,000. The fine was then suspended upon good behavior. From that judgment comes this appeal. For reversal appellant first contends that the evidence is insufficient and, therefore, the court erred in refusing to direct a verdict at the close of the State’s case and, also, at the close of all the evidence. On appeal it is our duty to view the evidence in the light most favorable to the appellee and when so considered, if we find it substantial, we must affirm. Reynolds v. State, 211 Ark. 383, 200 S. W. 2d 806 (1947).
It was • stipulated that the deceased was shot by the appellant. The State established, from the testimony of the State Medical Examiner who performed an autopsy on the deceased, that death resulted from a gunshot wound to the left arm which exited the arm and entered the neck. Ollie Rackley, brother of the deceased, testified that he met his brother between 5:15 and 5:30 p.m. at a store in Heber Springs and that his brother requested that he get in his truck with him, stating: “I know what Lee, George, and Crow [appellant] was into it about.” Instead, Ollie entered his own truck and followed the deceased at a distance of about a quarter of a mile behind him. Because of the hills in the road, he was unable to keep his brother in sight at all times; but, upon reaching the crest of one of the hills, Ollie observed the deceased bending over, holding his stomach and falling from the running board, of his dump truck. As we understand Ollie’s testimony, appellant’s car, with him sitting in it, was on the other side of the road about four feet from deceased’s truck and facing the opposite direction. Upon arriving at the scene, Ollie observed that appellant was bending over the deceased, and that the deceased was lying on the ground with his head under the truck next to its rear wheels. No weapon was observed about the deceased. Appellant gave a revolver to the officer at the scene of the crime and stated that the deceased “had come at him with a hammer” and that “he had to shoot him.”
The State then rested, and the defense moved for a directed verdict, which motion was denied by the court. The court was correct. The evidence, viewed most favorably to the appellee, is more than sufficient to sustain the verdict. Further, appellant failed to stand on his motion and proceeded to testify and offer evidence in his own behalf. He thereby waived his motion for a directed verdict at the close of the State’s case which results in the sufficiency of the evidence being determined from all the evidence introduced during the trial. Smith v. State, 241 Ark. 748, 410 S. W. 2d 126 (1967); Reeves v. State, 222 Ark. 77, 257 S. W. 2d 278 (1953).
Appellant testified and adduced other evidence that he and the deceased were friends; that they had been drinking beer which they had bought at a nearby town; that they got into an argument about who should pay for gasoline for a return trip; whereupon the deceased placed a hammer inside his pants and challenged appellant to a fight. Instead, appellant returned home with his two remaining passengers and got an axe (which he explained was for purposes of protection in the event that the deceased and his brothers would gang up on him) and placed it in the car. The threesome then started toward Bald Knob. On the way, they met the deceased who, according to the testimony of these witnesses, waved them to stop, got out of his truck, began cursing at appellant and started toward him with a hammer raised in his hand as if to strike. Appellant remained in the car, reached into his glove compartment and pulled out a gun. He then warned the deceased not to approach any further; and, when the deceased lunged at him, appellant fired his weapon. On cross-examination, one of these witnesses testified that appellant and the deceased had previously agreed to meet out on the road.
Appellant further testified that when the deceased approached him with the raised hammer, he attempted to leave, but the car wouldn’t start. He thereupon produced the gun and fired the fatal shot without aiming and with the intention of merely frightening his aggressor. He then threw his axe into the field and placed the deceased’s hammer back into the truck.
Appellant requested a directed verdict, asserting that it was uncontradicted that he acted in self-defense and that there was no proof adduced by the State sufficient to sustain any verdict on any charge. Again the court correctly refused appellant’s motion. The evidence in this case clearly presented a material question of fact and thereby precluded a directed verdict. Ford v. State, 222 Ark. 16, 257 S. W. 2d 30 (1953). The weight to be given the conflicting testimony and all reasonable inferences to be drawn therefrom were questions for the jury to determine. It was for the jury to accept or reject the credibility of the evidence tending to establish appellant’s theory of self-defense. We think there is substantial evidence to support the verdict. See Reynolds v. State, supra. Therefore, we cannot find merit in appellant’s contentions that the State failed to sustain its burden of proof and that the trial court erred in refusing to direct a verdict at the close of all the evidence.
Appellant lastly asserts that the trial court erred by instructing the jury, over his objection, that when one provokes or invites an attack, he must have withdrawn from the combat or made a bona fide effort to withdraw from the combat before invoking self-defense. He argues that the testimony clearly establishes that he was not the aggressor; that he did not provoke the affray; that he did in fact withdraw; and that, therefore, this instruction prejudicially misled the jury. However, appellant has failed to carry this point forward in his motion for a new trial; and, therefore, it is not properly preserved for review on appeal. Randall v. State, 239 Ark. 312, 389 S. W. 2d 229 (1965); Kesse and Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542 (1954). The purpose of a motion for new trial is to afford the trial court an opportunity to correct an alleged error. State v. Neil, 189 Ark. 324, 71 S. W. 2d 700 (1934).
Affirmed. | [
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John A. Fogleman, Justice.
Appellants own three adjoining lots in Plaza Terrace Addidon to Little Rock. The Pierces own one on which they live and the Robertsons own two. The dwelling house of the Pierces is located on their lot in the extreme northeast corner of the subdivision at the intersection of Markham and McKinley Streets. The Robertson lots also face on West Markham. The subdivision is bounded by West Markham Street on the north and McKinley Street on the east. It consists of 33 lots, only two of which (those owned by the Robertsons) are vacant.
A bill of assurance for the subdivision was filed by its owners on March 26, 1958, while' it was still outside the city limits. Restrictive covenants provide that all lots and building sites in the addition be used for residential lots only. The covenants run with the land and are binding at least until the year 2000. The owners of 51% of the front footage of all lots in the addition may revoke, alter or amend any of these covenants, conditions or restrictions.
Appellees are owners of most of the other 30 lots in the subdivision, only four of which have any frontage on Markham. The rear of three of appellees’ lots is on McKinley. This street runs alongside another of their lots.
Appellants brought this action to cancel the covenant restricting the use of their property on the ground that the restriction was no longer useful or beneficial for the purposes intended so that an unjust confiscation of their property resulted. The chancellor denied the relief sought, holding that appellants had failed to meet their burden of proof. He found that the testimony showed that cancellation of the restrictive covenants would reduce the value, and otherwise adversely affect the use, of appellees’ property for residential purposes. This appeal from that decree is based upon a contention that the evidence preponderates in favor of appellants and that we should grant the relief on trial de novo. We are unable to agree, however, that the chancellor’s findings are clearly against the preponderance of the evidence. Thus, we affirm the decree.
Appellants rely upon our decisions in City of Little Rock v. Joyner, 212 Ark. 508, 206 S. W. 2d 446, and Storthz v. Midland Hills Land Company, 192 Ark. 273, 90 S. W. 2d 772. They particularly emphasize the following language from the Joyner case:
“. . . [E]quity will and shquld entertain a bill which has the purpose of cancelling a restrictive covenant in a deed as a cloud upon title wherein it is alleged that the conditions surrounding the property have so changed as to utterly destroy its value for the purpose for which the restriction was promulgated to prevent, and that this change of conditions is due to no fault on the part of the petitioner and will work no irreparable injury to others.
‘Stated another way, equity should entertain jurisdiction to cancel a restrictive covenant in a deed where it would be oppressive and inequitable to give the restriction effect as where the enforcement would have no other result than to harass or injure the one without accomplishing the purposes for which originally made.’”
Appellants offered evidence which tended strongly to show that their property had depreciated in value as a result of commercial developments in adjacent areas to an extent unforeseen by anyone at the time of the filing of the bill of assurance. The following facts were stipulated:
Markham is located upon a right-of-way 60 feet wide. From McKinley Street west, it was being widened to four lanes, its width to the east of the property. In December 1968 the daily traffic volume on Markham had reached 15,000 to 16,000 vehicles per day, with a peak volume of approximately 3,100 vehicles between 4:00 and 6:00 p.m. and of 1,500 between 7:00 and 9:00 a.m. It is one of four major traffic arteries feeding western Little Rock, but has a somewhat lower traffic volume than the other three. The traffic rate is expected to increase at the rate of approximately 6% per year. A traffic light was to be placed at the Markham-McKinley intersection within the succeeding few months. The intersection ranks eleventh in the city in frequency of automobile accidents. On days when traffic is especially heavy a policeman is on duty at the intersection directing traffic a,t 9:00 a.m. West Markham is brightly lighted by mercury vapor lights from University Avenue east of the addition for some distance to the west, well beyond this addition.
The street lights are mounted upon large steel poles about 40 feet high, one of which is about two feet west of Pierce’s driveway and another 100 to 150 feet west. A Shell service station was built just across McKinley street from appellants’ property in 1968. A greenhouse just west of the addition is a non-conforming commercial property. It was in existence before the addition was platted or the bill of assurance filed. Hughes Street is the first street west of the addition. The property southeast of the Markham-Hughes intersection is still an undeveloped wooded tract, zoned for apartments. The area north of Markham and west of McKinley is all zoned for family residential use. The property immediately across Markham is a very high type residential area and there are residences across the street from appellants’ three lots.
There are no vacant houses in Plaza Terrace Addition. The addition is a neighborhood of nice, neat, well maintained homes, with neat, orderly, well kept lawns, with every indication of pride in the neighborhood.
Pierce purchased his lot in 1961. Robertson bought one lot on February 24, 1959, and the other on January 25, 1961, both for residential purposes. Pierce moved onto his lot to be closer to town and the stores. Markham Street was described as a typical farm-to-market road 24 feet wide in early 1958. Curbs and gutters were added when Plaza Terrace and Plaza Heights, the addition immediately across Markham, were developed. In 1961 the street was only 28 feet wide, but it has been subsequently widened twice. McKinley Street, now an entrance to the large Mall Shopping Center, was then only a wagon road. The land immediately to the east of McKinley was residential. The Mall Shopping Center is now located between McKinley and University Avenue, only a short distance east and south of the Pierce property.
According to Robertson when he bought his first lot a service station was northeast of the McKinley-Markham intersection, and between McKinley and University, the Plaza Towers Apartments, the Fausett Plaza Building at the corner of Markham and University and a drive-in restaurant were in existence. He testified that Park Plaza Shopping Center had been constructed across Markham, in the next block to the east, except for additions made in the past tour years. A school four blocks to the south has been eliminated and the property is now part of a shopping center. University Avenue, 1,524 feet east of Plaza Terrace Addition, was not four lanes wide. The Georgetown Apartment just across the street forming the south boundary of the subdivision had not then been built. A few houses had been built in the addition.
Pierce’s driveway is only a few feet from, and parallel to McKinley. He complained that some motorists enter the driveway rather than the street and that he has trouble driving out of his driveway during peak traffic hours. He also testified that no lights are ever needed in his house at night because of the brightness of the street lights and .of the lights in the shopping centers.
Neither the Pierces nor the Robertsons have ever listed their respective properties with a real estate agent for sale, nor have they made any effort to sell them. Neither Pierce nor Robertson professes to know whether his property could be sold for residential purposes or the price it might bring. Each gave Shell Oil Company an option, never exercised. Pierce’s property for which he paid $22,500 would have brought $75,000. Robertson gave an option to lease, but he felt that he could obtain more money from the oil company than he could for residential purposes.
The president of a savings and loan association, which usually loaned 80% of the cost of house and lot on desirable residential property, would be unwilling to lend more than 50% for residential construction on. appellants’ lots. Although he did not consider that the property was now suited for residential purposes, he stated that its value had not been destroyed for those purposes. He admitted that his company relied ori restrictive covenants.
A real estate agent found a change in the market for houses on Markham during the last three years, because of traffic volume, so that a longer period of time was required to find a purchaser for them than was necessary in other locations. While it was her opinion that appellants’ property had depreciated in value from 35% to 50%, she would not be surprised to learn that a recognized loan company would make an 80% loan for residences on the Robertson lots. She had sold two homes in the subdivision and would expect the buyers to be able to rely upon the restrictions in the bill of assurance.
Appellants called as a witness Russell McLean, a contractor and professional appraiser, who has been acquainted with the area for 50 years, very closely since 1950. This witness related the history of the remarkable development making University Avenue, near its Markham crossing, known as the “miracle mile” and the intersection one of the most important commercially in Arkansas. He considered everything between the addition and University, both north and south of Markham, as commercial, and Park Plaza and the Mall two of the state’s largest shopping centers. He was of the opinion that appellants were suffering from bad planning because of frontage on Markham, and that their lots were undesirable for residential purposes because of the two large shopping centers, and the lack of a buffer between commercial and residential use. He also expressed the opinion that the property in the subdivision had reached its peak insofar as residential use is concerned, as all subdivisions tend to do when the last lot is developed. He felt that the property must seek a higher level to increase in value. The three lots in particular and the entire subdivision to the extent appellants’ property did not serve ás a buffer were said by him to be süffering from economic obsolescence brought on by surrounding developments. He opined that a house built on Robertson’s property would sell for only about one-half of its cost because of the lights, noise and traffic, some of which continues 24 hours per day. He thought that commercial use of appellants’ property would not harm the remaining property any more than it is already injured by commercial use across McKinley.
The testimony of C. V. Barnes, a real estate counselor, was of the same tenor as that of McLean. He stated that the purpose of protective covenants is- to assure the purchasers within a subdivision of the similarity of character of the improvements placed therein, but not to guarantee stabilization of value. In his opinion, removal of the restrictions would tend to offset the decrease in value of property in the addition suffered by reason of the development of adjacent property. He admitted that the four abutting lots would be affected by commercial use of appellants’ property to an extent dependent upon the particular use to which the three lots were put. He felt that the Pierce residence could be sold for some price lower than that identical residential property in the interior of the subdivision would bring. He thought that it would be difficult to sell the Robertson lots for residential purposes, but acknowledged that they would have some value for that purpose. 'He classified the neighborhood as being permanent as any, but not as permanent in residential character as a, subdivision not surrounded by what he called “higher use.” It was his opinion that the owners of all the property in the subdivision would receive more for their money by removal of the restrictions to permit development.of the property for these “higher uses.”-
Appellees produced testimony tending to show that they had purchased lots in the subdivision, as late as August, 1968, in reliance upon the restrictive covenant, and that in many instances the restriction, was the deciding factor in choice of location. Proximity of certain schools, a church and the shopping centers was also considered a desirable factor by certain lbt owners. The owner of the adjoining lot on Markham had built a home in December, 1956. He did not look upon his home as an investment, but hoped to live there the rest of his life. He is a service station operator who felt that such an operation is not a .desirable neighbor for residential property. The owner of one of the lots adjoining appellants’ on the south was of the opinion that certain commercial uses of appellants’ property (such as a service station) created hazards from automobiles, gasoline, etc. because of a downward slope away from Markham. Some witnesses characterized the subdivision as stable, and emphasized the fact that there had been few changes in ownership or occupancy.
Appellees also offered the testimony of Sam Reynolds, a real estate broker. He described Plaza Terrace Addition as an extremely stable neighborhood of homes in an appraisal range from the high twenty to low thirty thousands. He found 15 of the original owners still living in the subdivision, and á turnover smaller than found in the usual subdivision. He valued the Robertson lots at $3,500 each for residential purposes, and the Pierce residence at from $23,000 to $26,000. He predicted an immediate and accelerating decline in values of the remaining lots if appellants’ property was used for purposes other than residential. He foresaw apprehension on the part of owners and misgivings by prospective purchasers affecting the whole subdivision if the restrictions were lifted, even for the three lots only. He admitted that the lots along McKinley and those facing the Georgetown Apartments had suffered some depreciation in value and that appellants’ property was not as desirable for residential property as it had been. He felt that the interior lots were more desirable although he believed that they would undergo some depreciation in value. He saw tendencies toward stabilization of values and neighborhood characteristics resulting from bills of assurance. He found that the entire subdivision had a potential for a highly valuable commercial use 15 to 20 years hence but had discarded the idea of attempting to acquire the ownership as one block at present.
The manager of the mortgage loan department of a savings and loan association testified that appellants’ lots had value for residential purposes and that he would make an 80% loan for residential construction on either of the two vacant lots to a borrower with a good credit rating and a steady income, or a 90% loan to certain preferred borrowers.
Henry M. deNoble, former Director of Community Development and later Director of Planning and Traffic for the City of Little Rock, diagnosed removal of the restrictive covenant on the three' lots as cancer-like. It was his opinion that the remainder of the subdivision would lose its residential character. He gave examples of other predominantly residential areas in Little Rock through which traffic volumes were at least as great as that passing appellants’ lots. He considered the subdivision well planned and still desirable as a residential area. McKinley Street seemed to him to be an adequate buffer between the residential and commercial areas.
Whatever may be said about the impairment of the value of appellants’ property for residential purposes, there is evidence that its value for residential purposes has not been destroyed. There is impressive evidence from which it could reasonably be found that removal of the restrictive covenant would materially injure appellees, who acquired their property in reliance thereon. After carefully weighing the evidence, we cannot say that conditions have so changed since the filing of the bill of assurance as to make the covenants useless in securing the benefits to purchasers sought to be protected thereby. To say the least, we cannot say that the chancellor weighed the evidence incorrectly.
The decree is affirmed.
C. V. Barnes testified that this service station was not built until early 1960.
A Texaco service station now occupies this site.
C. V. Barnes testified that these apartments were built in 1963 and 1964. | [
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Frank Holt, Justice.
This is an appeal from an adverse ruling on appellant’s petition to vacate three default judgments.
On January 29, 1969, appellee filed three separate suits for monies owed to him by appellant for various reasons. Appellant answered with a general denial to each claim and asserted one counterclaim. The cases were consolidated and set for trial on April 9, 1969. On that date appellant’s attorney moved for a continuance primarily due to the inability of the appellant to be present because of illness. An unverified written statement from appellant’s housekeeper was offered to the court asserting that appellant was sick and unable to appear. Appellant’s son appeared before the court and orally made a statement to the same effect. After making inquiry as to the nature ot the defenses to the actions, the court announced that it would enter default judgments against the appellant on the three cases, but that if competent medical evidence were produced establish ing that appellant was unable to appear and defend because of illness, the judgments would be vacated.
On April 24, 1969, appellant’s attorney filed a written motion to vacate the judgments, stating in part: “That to date no physician has been found to attend said defendant, examine and prescribe for his benefit. That the said defendant is still ill.” The court dismissed this motion on April 29, 1969, finding that: “1. No excusable negligence has been alleged in said motion. 2. No verified affidavit from competent medical authorities are alleged or set out therein.” The March Term of the Circuit Court adjourned; and, upon the opening of the September Term, appellant entered a petition to vacate the judgments. The petition alleged that new evidence had been acquired concerning appellant’s illness and inability to appear on the date set for trial; that this new evidence would prove a casualty and misfortune which prevented him from appearing; that the court has never heard this new evidence; that the court’s dismissal of appellant’s motion to vacate the judgments perpetrated a fraud upon appellant in that he was not informed of the date of the hearing which resulted in said order; and that appellant has a meritorious defense to this cause. From the court’s dismissal of this petition, based upon the pleadings, comes this appeal.
We have often said that, irrespective of other allegations, one cannot successfully set aside a default judgment after term time unless a meritorious defense to the action be alleged and shown. Alexander v. Jones, 233 Ark. 708, 346 S. W. 2d 692 (1961); Sweet v. Nix, 197 Ark. 284, 122 S. W. 2d 538 (1938); Ark. Stat. Ann. § 29-509 (Repl. 1962). In the case at bar, appellant alleged a “meritorious defense.” However, this was a naked allegation and a conclusion of law which did not elaborate or show in what respect a valid defense existed on the actual merits of the case. Consequently, it was not error to dismiss the petition.
Affirmed. | [
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George Rose Smith, Justice.
This is an action for medical malpractice brought by Wayne and Leah Ann Graham, as the parents and next friends of Steven Wayne Graham, a minor. The complaint alleges that the defendant, Dr. Sisco, in delivering Steven Wayne by Caesarean section, negligently cut the child’s face, leaving a permanent and disfiguring scar that runs from a point near his right ear to a point near his right eye.
The defendant moved for a summary judgment upon three separate grounds. The trial court rejected two of the grounds for summary judgment, but the court entered judgment for the defendant upon the third ground; namely, that counsel for the plaintiffs had stated that he did not intend to offer expert medical testimony upon the issue of liability and that without such expert testimony the plaintiffs could not make a prima facie case for the jury. The plaintiffs’ appeal brings up for review all three of the asserted grounds for summary judgment.
First, the court was right in holding that the cause of action was not barred by limitations, even though the operation was performed more than six years before the suit was filed. True, the two-year statute governing actions for malpractice does not contain a savings clause for minors. Ark. Stat. Ann. § 37-205 (Repl. 1962). But the general savings clause, § 37-226, which allows a minor to bring an action within three years after he reaches twenty-one, is applicable. Upon that point we held in Schuman v. Westbrook, 207 Ark. 495, 181 S. W. 2d (1944), that even though the original savings clause adopted in 1844 was limited to statutes of limitation then on the books, the scope of the savings clause was broadened in 1899 to apply to any cause of action regardless of whether it existed prior to 1844 or after-wards. Hence the minor’s cause of action in the case at hand was not barred when this suit was brought.
Secondly, the court was also right in holding, on motion for summary judgment, that the doctrine of res judicata is not necessarily a bar to any cause of action that the child’s father may assert in his own right. This claim arises from a judgment that was obtained in 1965 by Dr. Sisco’s clinic (apparently an individual proprietorship) against Mr. Graham. The judgment was for medical bills, including the fee for the Caesarean operation. It is now contended by the appellee that Graham’s failure to file a counterclaim in that case precludes him from asserting any cause of action in his own right against the appellee. See Shrieves v. Yarbrough, 20 Ark. 256, 247 S. W. 2d 193 (1952).
No such controversy is yet discernible in the case. The complaint does not assert any cause of action in favor of Mr. Graham individually, as distinguished from that being asserted on behalf of his son. It will be time to explore the issue now being argued by the appellee when it is clearly defined by the pleadings or by the proof. At this stage of the case there is plainly no basis for the entry of a summary judgment one way or the other.
Thirdly, the important question is whether the trial court was right in entering a summary judgment for the defendant on the ground that the allegations of the complaint cannot be proved without expert medical testimony. Those allegations, with reference to negligence, are two: That Dr. Sisco did not adequately examine the mother to determine the position of the child before performing the operation, and that the doctor cut the child by exerting too much pressure upon the scalpel, which we take to mean simply that he cut more deeply than he should have.
The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.
In the case at bar we hold that the appellee was not entitled to a summary judgment. In reaching that decision we are influenced by two important considerations:
In the first place, one who moves for a summary judgment has the burden of showing “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ark. Stat. Ann. § 29-211 (Repl. 1962). Dr. Sisco’s motion was not accompanied by affidavits or other proof. Hence he asserts that, as a matter of law, the negligence charged to him is necessarily so far beyond the comprehension of an average juror that it cannot be proved except by a resort to expert testimony.
We are unwilling to make such a sweeping declaration, especially without proof. The complaint states, in substance, that Dr. Sisco cut so deeply that he injured the unborn child. It may be that a simple physiological demonstration of the position of the fetus within the womb and of the position of the womb within the mother’s body might enable the jurors. to decide the issues. It may be that an experienced surgical nurse, though not qualified as a medically knowledgeable expert, might establish a prima facie case for the plaintiffs on the basis of having observed a hundred similar operations. Many other possibilities come to mind. We do not imply, by mentioning those possibilities, either that such evidence would be admissible or that it would make a case for the jury. Our point is simply that the defendant, in moving for a summary judgment, had the burden of showing that no genuine issue of fact could possibly be made without expert testimony. We are unwilling to say that he met that burden merely by calling the trial court’s attention to the allegations of the complaint, with no proffer of supporting proof.
In the second place, an important point of policy is involved. It is a matter of commoii knowledge, often mentioned in judicial opinions and other authorities, that the plaintiff in a medical malpractice case is often unable to find a medical expert willing to testify against a fellow physician. The problem is fully discussed in Seidelson, Medical Malpractice Cases and the Reluctant Expert, 16 Catholic U. L. Rev. 158 (1966), and in a comment, Malpractice and Medical Testimony, 77 Harv. L. Rev. 333 (1963). It goes without saying that the plaintiff’s inability to obtain favorable expert testimony poses the possibility of greait miscarriages of justice. Certainly we should not unnecessarily worsen the plight of those having meritorious causes of action that should be redressed.
Yet here the defendant demands the entry of a summary judgment in his favor without even offering his own affidavit to exonerate himself from the charge of negligence. In this connection we have not overlooked the assertion in the appellee’s brief that Dr. Sisco’s discovery deposition was considered by the court below in ruling upon the motion for summary judgment. No such deposition, however, is in the record before us, even though the appellants designated the entire record for inclusion in the transcript. If the clerk or the reporter omitted a material part of the record, the appellee had a remedy under the statute if he thought the omitted matter to be essential to our consideration of the appeal. Ark. Stat. Ann. § 27-2129.1; see also Davis v. Ralston Purina Co., decided today, 248 Ark. 14, 449 S. W. 2d 709, Apparently the appellee did not consider the omitted matter to be essential, for in his brief in this court he waives any complaint about its omission.
It is quite evident that if the members of the medical profession, the legal profession, or any similar occupation, can prevent a malpractice case from even coming to trial simply by agreeing not to testify against one another, very few such cases will be heard in the future. Such a “conspiracy of silence,” as it is usually called, would allow the most grossly negligent practitioner to avoid even the simple duty of making his own explanation, under oath, of how the plaintiff happened to be injured. With the issues now before us by no means free from doubt, we are wholly unwilling to sanction a procedure fraught with such serious possibilities of injustice to future litigants.
Reversed. | [
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J. Fred Jones, Justice.
Dean Wisdom, d/b/a Wisdom Realty, sued C. E. Bennett in the Pulaski County Circuit Court for a realtor’s commission of ten per cent on the sale price of real property in the amount of $6,000. The trial court, sitting as a jury, rendered judgment for Wisdom against Bennett for $600 and Bennett has appealed. He relies on the following point for reversal:
“The court erred in finding that a Contract existed between the parties upon which a real estate commission could be based.”
The only written instrument offered in evidence was an offer and acceptance form signed by Jimmy McClung as buyer and Dean Wisdom as agent, wherein McClung offered to buy “five acres C. E. Bennett property.” Among other provisions of the offer, McClung agreed to pay $6,000 for the property with $300 in cash and the balance in 84 monthly payments of $87.43 each. McClung’s offer was not accepted by Bennett and is only important here as some evidence of Wisdom’s compliance with his verbal contract. This is not a suit for specific performance, but is one for a realtor’s commission based on a verbal contract for the sale of real property.
The trial court concluded from highly conflicting evidence, that an enforceable verbal contract was entered into by Bennett and Wisdom whereby Bennett agreed to pay Wisdom a ten per cent commission on the sale price of five acres of Bennett’s land if Wisdom would find a buyer who would pay $6,000. The trial court also found that Wisdom had performed his part of the contract by finding a purchaser for Bennett’s property who was ready, able and willing to purchase the property for the price and on the terms laid down by Bennett, and that Wisdom had earned the commission that he and Bennett had agreed upon. See Belyeu v. Hudson, 179 Ark. 657, 17 S. W. 2d 865. On appeal from a law court decision, this court is bound by the substantial evidence rule which has been announced and reiterated in our decisions too numerous to mention. Under that rule we can only concern ourselves with whether there was any substantial evidence to support the judgment of the trial court in this case, and we conclude that there was.
The facts upon which the trial court rendered its judgment must be gleaned from the conflicting testimony, and it is in such situations as this, that the appearance and demeanor of the witness while testifying becomes so important to a chancellor in an equity case, or to a jury, or a trial judge sitting as a jury, in a law case. In such cases, where a just and proper decision must rest on the truth in conflicting evidence, we have always recognized the importance of seeing and hearing the witnesses testify, as the trial judge and jury are permitted to do; as opposed to reading from the record what the witness said, as we are required to do on appeal.
Mr. Wisdom testified that he had been in the building contracting business and had known Mr. Bennett and done business with him for a number of years. He says that in November, 1968, Mr. McClung contacted him in regard to purchasing some real property on which to place some house trailers. He testified that he entered into a verbal contract with Bennett to sell five acres of Bennett’s property to McClung. Mr. Wisdom says that he called Mr. Bennett concerning four acres which Mr. Bennett did have for sale and was advised by Bennett that the four acres had already been sold. He says that Bennett advised that he had another five acre tract he would sell. Wisdom testified that he made an appointment with Bennett to look at the five acre tract, and he continued his testimony as follows:
“I picked him up at his house and we drove over to the North end of this property which is a tract that appears to be about twenty acres. He showed me where the two North corners were, we walked along the North line of the property, he showed me where there was a one acre tract cut out of the Northeast corner of this twenty that belonged to the Pulaski County School Board, For this reason, this particular tract he was agreeing to sell would have, to be irregular in shape. We walked along the West line of the property and criss-crossed the property and back to the East side where our car was located. We sat in my car and we took a piece of scratch paper and determined how much additional footage we would have to give in order to make this a full five acre tract since there was one acre missing out of the Northeast corner. I asked what price he wanted and he said Six Thousand Dollars.. I asked if he would be agreeable to paying a ten percent sales commission on the Six Thous- and Dollars and he said yes.
* * *
We drove back to his house and I let him out. The following day, I called Mr. McClung and told him I had some property I would like to show him, took him out there, he. and his wife . . . We walked over the property like Mr. Bennett and I had and discussed financing and what the monthly payments would be approximately. . . He said he needed a little time to think and talk about it. . . For the next three weeks, I kept in contact with Mr. McClung.
* * *
When Mr. McClung told me he was ready to make an offer, I said, ‘Let me contact Mr. Bennett again and see if the property was still available.’ This was on Saturday, the 16th of November. I called Mr. Bennett and I told him, I said, ‘My people are ready to make an offer on this property, have you sold. it or is it still available?’ He said, ‘No, Dean’ it’s sdll available.’ I said, ‘Well, I’ll get them together and make an offer and I’ll be back in touch with you.’ They came to my office on the Seventeenth and we drew an offer and I took some earnest money and that afternoon, I carried the offer to Mr. Bennett, presented it to him, we sat down in the front seat of my car and went over the offer. Mr. Bennett was agreeable to this offer. We again took a scratch pad and figured out how much extra footage he is going to have to give the man to get him a full five acres and Mr. Bennett had his pen in his hand and started to sign the offer and he said, ‘Does my wife need to sign this? and I said, ‘It won’t be necessary for her to sign this particular instrument, but she’ll have to sign the sales contract.’
* * *
Q. Did Mr. Bennett subsequently refuse to sell the property?
A. Yes, sir.
Q. Did you make . . . did you and Mr. Bennett have any discussion or conversation concerning your commission?
A. Yes, we did about the second or third day after this, I called Mr. Bennett and asked him to stop by, I would like to talk to him. This time we sat in his car and Mr. Bennett then agreed with me that this was what the property was worth and he would like to go ahead and sell it but his wife didn’t want to. I said, 'Well, buddy, you are putting me in a bad position with my client, I feel I have earned my commission, you don’t have to sell the property, but at this point, I have found you a buyer at the price which we agreed on and I feel you owe the sales commission.’
Q. Did he subsequently refuse to pay any sales commission?
A. Yes, sir.”
Jimmy McClung testified that he made an offer, and signed an offer and acceptance form, agreeing to pay $6,000 for some property belonging to Mr. Bennett and shown to him by Mr. Wisdom. On cross-examination Mr. McClung testified that he went to the property with Mr. Wisdom and Mr. Wisdom pointed out five acres.
Mr. Bennett testified that in November Mr. Wisdom contacted him in regard to some land and in this connection he testified as follows:
“A. I told him I had some land on the North side of the road and another parcel of land that I would sell five acres off of and he came down and we got in his car and drove over to this parcel of land and we went to this old school house property, parked his car right at the South corner of the school house property and walked out to the West side of the school house property, just across this acre and I told him I would sell five acres around this school house property.
Q. Was there any talk at that time between you and Mr. Wisdom about what commission he would be paid?
A. No, it wasn’t mentioned about the commission. He told me that man would give Six Thousand Dollars, the price of Six Thousand Dollars for the five acres and I told him I would sell five acres around the school house property and showed him and described it to him the best I knew how and showed him where the property was and the corner was.
Q. Was there anything at that time. . . this is on that meeting the first time he came to your house. . . was there anything said be-between you at that time relative to how this Six Thousand Dollars that he mentioned would be paid?
A. No, we didn’t discuss it. He said it would be a credit sale or something and I said, ‘I don’t care, I’d rather sell it and collect the interest anyway,’ that is the words I told him.
Q. Was there other conversation between you at that time, other than what you have testified about, the price or about the specific property?
A. There wasn’t anything said about ... he left and went bach and worked out this schedule and come back with this acceptance two or three weeks later.
Q. Did he have anything with him when he brought that offer and acceptance?
A. He was going to sell a strip across, completely across the North line.
Q. How did you know that?
A. He had a little sketch of paper where he had worked out these footages and amount of footage it would take for this acre of ground.
Q. Had there been any drawings or footages shown to you or had you drawn any for him before that time?
A. No, sir.”
On cross-examination Mr. Bennett testified as follows:
“Q. Mr. Bennett, you say you did agree to sell five acres around what would be the Northeast corner, is that correct?
A. Yes, sir.
Q. And that is on the North end of your property, isn’t that true?
A. Northeast corner of the property.
Q. But five acres would include a strip across the North line?
A. No, sir.
Q. Did you not point out the particular points that would mark the boundaries for this property you wanted to sell?
A. Yes, sir. * * * [T]he property is still for sale and to sell a five acre block around the school house property can still be bought, but I can’t close my road up on the North end when I finish my road. I would have a dead end street on all my property from the South which would be approximately ten or eleven lots on each side of this road that I am building. I would have a dead end street when I get to this strip he was talking about, a five acre strip across the back.
Q. But you did point out to Mr. Wisdom the area you wanted sold around the Northeast corner?
A. Yes, sir, and he came back with a strip across the property, across my road, my proposed road, and I said, ‘I can’t go like that.’ ”
The fact that Wisdom is a licensed realtor vests him with no benefits in this case outside the affirmative provisions of his contract with Bennett. Perhaps such contract should be within the statute of frauds but it is not. Dallas v. Moseley, 150 Ark. 210, 233 S. W. 1084; Blanton v. Jonesboro B. & L. Association, 176 Ark. 315, 3 S. W. 2d 964. So long as a realtor’s right to a commission may rest in oral contract, such contract may be proved by oral testimony; and so long as a contract may be proven by oral testimony, trial courts and juries must resolve conflicts in such testimony.
Had we been trying this case in the first instance, we are unable from the cold record alone to say whether we would have decided the issues in favor of Bennett or in favor of Wisdom as the trial court did. However, as the matter now stands, on appeal in this court, we are only concerned with whether there was any substantial evidence to sustain the judgment of the trial court, and we conclude that there was.
The judgment is affirmed. | [
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Lyle Brown, Justice.
This controversy is between the divorced parents of a deceased soldier and over the proceeds of a life insurance policy taken out by their son. The policy was issued by The Prudential Insurance Company of America to the soldier son under the Servicemen’s Group Life Insurance Act, 38 U. S. C. A. § 765. Bessie M. Shores Nelson petitioned that she be declared the designated beneficiary and that Prudential be enjoined from paying any of the proceeds to R. C. Shores, the father. She also made R. C. Shores a defend ant. Prudential paid the face amount of the insurance certificate into the registry of the court and asked for discharge of further liability, which was granted. The trial court found that the son had made a written designation of his mother as beneficiary and that the instrument had been received in the uniformed services prior to the son’s death. The appellant, as a basis for reversal, challenges both those findings.
Congress passed in 1965 an amendment to Title 38 to afford special indemnity insurance for members of the armed forces serving in combat zones. The law is designated “Süb-chapter III — Servicemen’s Group Life Insurance.” The Act provides that each such serviceman is automatically insured beginning with his active duty unless he elects in writing not to be insured. On June 10, 1966, during his processing period under a voluntary enlistment, Maltón G. Shores, the son, made his insurance election. He executed in triplicate DA Form 3054, specifying that he desired to remain insured and designating his mother as sole beneficiary. Under army regulations the original of Form 3054 was to be placed in the service member’s field personnel file, the duplicate copy given to the member, and the triplicate forwarded to the custodian of the member’s financial data records folder.
At the trial of the case appellee produced her son’s copy of Form 3054. She also introduced a letter purportedly written by her son and mailed to her along with the government form. She said she received tliose instruments in June 1966. The letter, among other things, stated, “I am sending a paper to you. This paper is showing that I have life insurance for $10,000.”
Pvt. Shores was killed in action in Vietnam in July 1967. Subsequently there was of course a processing of his army files; during that endeavour it was discovered that the original of Form 3054 was not contained in his permanent file, which we have previously referred to as his field personnel file.
There is yet another signed copy of Form 3054, being the triplicate which regulations provided should be placed in the soldier’s financial data records folder. There was introduced in evidence a certified document from the Army Finance Center. That instrument contains a reproduction of Pvt. Shores’s Form 3054 which compares favorably with the copy possessed by appellee. Its authenticity is not questioned. Unfortunately the document from the finance center does not show the date on which Form 3054 was received by it.
This brings us to the crux of the case. Does the fact that a copy of Form 3054 was never placed in the Shores field personnel file — or placed there and thereafter lost — affect his designation of beneficiary? We think not. The question is whether he complied with the simple statutory requirements (1) that his designation be in writing, and (2) that it be received in the uniformed service prior to his death. We think the chancellor’s findings that the veteran performed those requirements are amply supported by the evidence. At the army processing center it cannot be doubted that the young man signed all documents requested of him to be signed. His copy of Form 3054 (which he sent to his mother) is apparently a receipted copy because it bears the signature “Lt. Richmond” in the upper right-hand corner. When young Shores turned over to the processing officer of the army a signed copy of Form 3054, his designation of beneficiary was as of that moment received in the uniformed service. It then became the duty of the army, not the inductee, to distribute the retained copies in accordance with army regulations.
Appellant’s first point for reversal is that there was no written designation of beneficiary “properly filed with the adjutant general’s office [to be placed in the personnel file] prior to Maltón Gene Shores’ death.” What we have just said answers that point. It should be remembered that this case deals with the original designation of a beneficiary as opposed to a change in beneficiary. Appellant relies strongly on Stribling v. United States et al, 293 F. Supp. 1293 (1968), but that case in volved a change in beneficiary. Appellant also cites as controlling Breckline v. Metropolitan Life Insurance Co., 178 A. 2d 748 (1962). In Breckline the involved statute required a filing of written designation of beneficiary in the employing office and that requirement was never complied with during the life of the insured.
Appellant next argues that appellee failed to establish that designation of beneficiary was in fact ever executed. It was clearly established that the signature on the copy of Form 5054 possessed by the mother was genuine and that the covering letter written by the boy was likewise genuine. Furthermore, the Army Finance Center was in possession of a copy.
Appellant’s final point for reversal is based on the argument that a copy of Form 3054 found its way into the file of the finance center under date of December 11, 1967, long after the veteran’s death. The reasoning is that appellee became disturbed when she did not forthwith receive the proceeds of the insurance; that she exhibited her copy to veterans service agencies, which in turn presented it to the finance center; and that the letter stamped it with a filing mark, made a photocopy of it, and returned Mrs. Shores her copy. Nothing in the record actually supports the argument. The filing mark on appellee’s copy does not appear on the copy in the record of the finance center. There is another significant difference between the two copies. Lt. Richmond’s signature on appellee’s copy, to which we have referred, does not appear on the finance center’s copy. It "is also revealed, from a careful examination of the exhibits, that the filing stamp on the mother’s copy is not-the stamp of any government agency; rather it is that of a private central agency formed by all insurance companies participating in the writing and servicing of insurance policies for members of the armed forces.
The wishes of this veteran, who gave his life in combat, are of utmost importance to us. Since we think it clear, as it appeared to the chancellor, that he- was in substantial compliance with the statutory requirements, we have no hesitancy in affirming.
Affirmed. | [
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Frank Holt, Justice.
The issue in this case is whether one who murders his parent can inherit from the estate of his victim, and, further, the legal effect upon the right of the slayer’s heirs to inherit. Appellant’s brother, Leslie A. Wright, was convicted in 1954 of first degree murder in the killing of his mother and sentenced to life imprisonment. Upon being paroled in 1964 he married appellee, Lynda Davis Wright, and he was killed in an automobile accident before the birth of his son, Glenn Madison Wright, the other appellee. The appellant subsequently instituted this action to quiet title to all of the lands owned by his father and mother when they were murdered in 1953 by appellant’s seventeen-year-old brother, Leslie. The two brothers were the only surviving descendants.
The chancellor denied appellant’s petition that he be declared the sole owner of the lands in question and concluded that an undivided one-half interest in the lands should be confirmed in the appellee, Glenn Madison Wright, a minor, subject to the dower interest of his mother, appellee Lynda Davis Wright. The court further found by a preponderance of the evidence that Leslie Wright murdered both of his parents.
For reversal the appellant contends that the court erred in failing to hold that on the basis of sound public policy the appellees could not inherit or participate in the Wright estate. To the contrary, the appellees contend that the question of intestate succession is governed exclusively by our statutes of descent and distribution. Ark. Stat. Ann. § 61-101 et seq. (1947). Appellees assert that those statutes impose no restrictions upon the right of a killer to inherit from the ancestral estate of his victim. They cite § 61-230 as the only limitation. Also relied upon is Barnes v. Cooper, Adm’x., 204 Ark. 118, 161 S. W. 2d 8 (1942). This statute specifically bars dower or curtesy rights where one spouse murders another spouse. Therefore, say appellees, in the case at bar the son is not barred from sharing in his parents’ estate since there is an absence of an express statutory limitation. We do not so construe our statutes or the law.
In Smith v. Dean 226 Ark. 438, 290 S. W. 2nd 439 (1956), a widow who had been convicted of murdering her husband sought title to her husband’s entire estate. There we held that § 1-230 was intended by the legislature as a restriction or limitation upon the dower or curtesy rights between the spouses where one murders the other. We allowed her to recover the widow’s statutory allowance since that item was not expressly prohibited by the statute. However, there we find this meaningful language:
“Apart from statute, however, it is a familiar principle of law that one who wrongfully kills another is not permitted to share in the other’s estate, to collect insurance on his life, or otherwise to profit by the crime. Horn v. Cole 203 Ark. 361 156 S. W. 2d 787; Rest., Restitution, § 187. That principle would control this case were it not for the fact that the record contains no legal proof that the appellant killed Harold Dean. We cannot take judicial notice of the facts disclosed by the record in the earlier criminal proceeding.”
Clearly, this expressed what our view would be whenever there is a proper judicial determination in a civil proceeding that one is the killer of someone from whom he seeks to inherit. In the case at bar the chancellor made an independent and unquestioned finding of fact that the son murdered both of his parents. This being true, it is our view that the “familiar principle” in Smith v. Dean, supra, is controlling in the instant case and precludes the slayer from sharing in the estate of either victim.
The reasoning for such a view is based upon the common law maxim that no sane person should be permitted to profit or acquire property by his own wrong or criminal act. 23 Am. Jur. 2d, Descent 8c Distribution, § 95. This rule of public policy, based upon centuries of usage, wisely requires this to be the law. Our general statutes on descent and distribution include, significantly, § 61-113 which reads:
“In all cases not provided for in this act, the inheritance shall descend according to the course of the common law, * #
See, also, Ark. Stat. Ann. § 1-101 (Repl. 1956). We have long recognized the rule that statutes in derogation of the rules of the common law are strictly construed by us. Gill et al v. State, ex rel Mobley, 242 Ark. 797, 416 S. W. 2d 269 (1967). We do not think it was the legislature’s intention to abrogate such a common law maxim in the absence of a specific statute to that effect.
We hold that upon the chancellor’s finding in this proceeding that Leslie A. Wright murdered his parents, it follows that at the time he committed these tragic acts he precluded himself from sharing in either of his victim’s estate. Since the parents’ only other heir in being at the time of this double murder was the appellant, Leslie’s brother, we also hold that title to all the lands in question is now vested in appellant.
As previously recited, the marriage of Leslie and appellee Lynda occurred years after the slayings, as did the birth of appellee Glenn. We express no opinion as to the rights of the appellees had their relationship to Leslie A. Wright been in being, as was appellant’s, when these murders occurred. We cannot agree with appellees that a civil court adjudication of the wrongful killings in the case at bar must precede the slayer’s demise. Appellant’s petition to quiet and confirm title to all the lands should be granted.
Reversed and remanded for entry of a decree consistent with this opinion. | [
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John A. Fogleman, Justice.
On May 14, 1967, appellee and one J. Q. Floyd were involved in an automobile collision, while each was driving his own vehicle. Appellant carried the collision insurance on Floyd’s vehicle. Floyd instituted a suit to recover from appellee for his personal injuries and for damage to his motor vehicle. After settlement negotiations between the attorneys for the parties, Floyd’s attorney advised appellee’s attorney by letter dated November 21, 1967, that Floyd would amend his complaint to eliminate any claim for damages to his automobile and then accept appellee’s settlement offer of $6,000. In concluding, this attorney stated:
“* * * I realize that this would be an increase in your offer, and I also realize that the insurance company would probably make claim for reimbursement of subrogation, but this is the basis by which I feel a settlement would be reached.”
Thereupon the suggested amendment was made and a copy thereof furnished to appellee’s attorney. The settlement was then concluded. An order of dismissal of Floyd’s suit with prejudice was entered on November 28, 1967. Thereafter, Floyd first made claim agáinst appellant, who paid him $2,348.83 for collision damage on January 8, 1968, when Floyd executed a proof of loss giving appellant subrogation rights against appellee. The present action was later instituted by appellant against appellee, seeking recovery of the amount it paid Floyd. There was no allegation of fraud or collusion on the part of the parties to the settlement.
Appellee’s defense of res judicata was sustained by the circuit court and appellant’s complaint dismissed.
Appellant admits that res judicata would have constituted a complete defense under the principle applied in Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S. W. 2d 491, except for the concluding sentence in Floyd’s attorney’s letter. It argues that appellee was thereby put on notice that appellant would have subrogation rights, so that our decision in Sentry Insurance Company v. Stuart, 247 Ark. 2, 439 S. W. 2d 797, governs. There we said that no act of the insured releasing a wrongdoer from liability could defeat the insurer’s rights when it was done without knowledge or consent of the insurer, and the wrongdoer had full knowledge of the insurer’s right of subrogation. A settlement made by the tort-feasor under those circumstances was held to constitute consent to a splitting of an otherwise indivisible cause of action. That case, however, may readily be distinguished from this, because that settlement was made after payment had been made by the insurer to its insured, and notice of the consequent subrogation rights had been given to the alleged tort-feasor by the insurer. Recovery by the insurer was permitted upon the basis of the tort-feasor’s knowledge of the payment of the insurer’s liability to the insured.
Appellant here had acquired no subrogation rights and had given no notice to the tort-feasor. As stated by the circuit judge, Floyd was the owner of all claims accruing from the collision when the dismissal order was entered. Appellant admits that it had no subrogation rights at the time the letter was written. These rights could not come into existence until appellant had paid Floyd’s claim. Haley v. Brewer, 220 Ark. 511, 248 S. W. 2d 890; North Arkansas Milling Co. v. Lepari, 231 Ark. 965, 333 S. W. 2d 713. Floyd’s attorney’s letter cannot be construed as a notice on behalf of appellant and merely constitutes a prediction on his part. It clearly indicated that appellant had not then paid Floyd’s claim. As noted in Sentry, the settlement there was effectuated without a court judgment or the filing of a suit.
We further point out that there was no agreement by Mrs. Dearing that the cause of action be split, as was the case in St. Paul Fire & Marine Ins. v. Wood, 242 Ark. 879, 416 S. W. 2d 322. Advice of steps to be taken by appellant’s insured before he accepted her settlement offer, which obviously required a dismissal of his cause of action with prejudice, did not and could not constitute an agreement on her part that the cause of action, then owned by Floyd exclusively, wás or could be split.
The judgment dismissing appellant’s complaint is affirmed. | [
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John A. Fogleman, Justice.
This appeal from a judgment dismissing appellants’ complaint as amended is based upon the assertion that the circuit court erroneously sustained appellee’s demurrer thereto. The demurrer was general, stating merely that the complaint and the amendment thereto failed to state facts sufficient to constitute a cause of action. Obviously, it is not a speaking demurrer as argued by appellants, who also argue that their pleadings do state a cause of action.
The complaint as amended contained allegations that, during construction of a pipeline on a right-of-way across appellants’ pasturelands condemned for that purpose, appellee’s agents and employees carelessly and negligently cut fences and left gates open, allowing appellants’ registered cattle to stray from the pasture and mix with grade cattle of adjoining owners so that it became necessary for appellants to remove their cattle to a meadow owned by them. They alleged that loss of the grazing of the 100-acre pasture and 5,000 bales of hay from their meadow resulted. Appellants also alleged that their registered bull was rendered unfit for breeding purposes as a result of either his fall into a ditch on appellee’s right-of-way, carelessly and negligently left unprotected by appellee’s employees, or carelessness and negligence of appellee’s employees in subsequently removing him from the ditch, or both the fall and the removal.
In testing the sufficiency of a pleading by general demurrer, every reasonable intendment is indulged to support the pleading, and if the facts stated in the pleading, together with every reasonable inference deducible therefrom, constitute a cause of action, the demurrer should be overruled. Donham, Commissioner v. Neely Company, 235 Ark. 710, 361 S. W. 2d 650; Farmers Cooperative Assn., Inc. v. Phillips, 241 Ark. 28, 405 S. W. 2d 939. When we view appellants’ pleadings in this case we cannot agree with the circuit judge’s holding that no cause of action was stated. We do not agree with the appellee’s argument that it was under no duty to take any measures for the protection of appellants’ animals, so long as it did nothing to entice or lure them into the ditch. Nor do we agree that the action of appellants in removing their cattle to the meadow can be said to be such an intervening cause that any negligence in cutting the fences and leaving the gates open could be held as a matter of law to be a remote, rather than a proximate, cause of appellants’ loss of hay.
It has always been recognized in this state that a landowner from whose lands a right-of-way easement has been taken has the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement after the improvement is constructed. Ark.-La. Gas Co. v. Maxey, 245 Ark. 15, 430 S. W. 2d 866. We have said that a condemnor is granted exclusive possession of the condemned property only to the extent necessary for the erection, operation and maintenance of the improvement for which the easement is taken or granted, and that the landowner has the right of possession subordinate to the paramount possession of the condemnor, with the corresponding right to exercise any and all rights of ownership except such as are inconsistent with the easement. Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A. L. R. 1446. As a corollary to the recognized principle hereinabove stated, it is said that the rights of the parties are reciprocal and the respective owners must use the way in a manner that will not interfere with the other’s right to utilization and enjoyment •thereof. Lindsey v. Shaw, 210 Miss. 333, 49 So. 2d 580 (1950); Denton v. Buffalo Pipe Line Corporation, 39 N. Y. S. 2d 83 (Sup. Ct. 1939). Many years ago, we recognized that destruction of a landowner’s crops by a railroad during construction constitutes a tort independent of the taking of the right-of-way. Springfield and Memphis Railway Company v. Henry, 44 Ark. 360.
In an Arkansas diversity case, the Eighth Circuit Court of Appeals has sustained a recovery of damages from a contractor for cattle lost when they escaped from a pasture by reason of the cutting of, and failure to restore, pasture fences at places where they crossed a right-of-way acquired by an electric cooperative for the purpose of constructing, operating and maintaining an electric transmission line. The contractor was then clearing the right-of-way preparatory to construction of the line for the cooperative. Kincade v. Mikles, 144 F. 2d 784 (1944). Of course, even though the utility company was alleged to have been doing the work itself in the case before us, the liability for negligent acts or omissions in this regard would not be different.
Other jurisdictions, including those whose decisions were cited above, have applied these principles to allow recovery of damages to landowners or their property from the owner of an easement for utility purposes, based upon violation of the duty of the easement owner to the landowner. It is generally recognized in such cases that the duty is imposed upon the holder of the dominant estate to so use the property that injury or damage to the owner of the servient estate will not result from customary use, maintenance or repairs of the dominant estate. Cities Service Gas Co. v. Christian, 316 P. 2d 1113 (Okla. 1957). This requires use of the easement in such a way as to impose as slight a burden as possible on the servient tenant. Baker v. Pierce, 100 Cal. App. 2d 224, 223 P. 2d 286 (1950).
It has also been held that it would be reasonable to expect, under circumstances similar to those existing here that, whenever a fence is breached, the easement holder would replace the wires on the posts to preserve the enclosure. M & M Pipeline Company v. Menke, 45 S. W. 2d 344 (Tex. Civ. App. 1931). In the case just cited the situation was analogized to the requirement that the owner of a right of passage over another’s land close gates used for ingress and egress.
Damages to the lessee of pastureland resulting from a ditch being left open were held recoverable because of the duty imposed by law upon the holder of an easement for installation and maintenance of a pipeline, upon entering the pasture, to use ordinary care in his operations to maintain the premises in such condition as not to cause injury. J. M. Huber Petroleum Co. v. Yake, 121 S. W. 2d 670 (Tex. Civ. App. 1938).
Whether appellee acted negligently in cutting the fences and leaving gates open or in leaving an open ditch unprotected may well depend upon the reasonableness or necessity for its doing so in order to construct the line. See Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A. L. R. 1446; Transcontinental Pipe Line Corp. v. Hill, 55 So. 2d 170 (Miss. 1951); Shell Pipe Line Corp. v. Coston, 35 S. W. 2d 1056 (Tex. Civ. App. 1931); J. M. Huber Petroleum Co. v. Yake, supra; Denton v. Buffalo Pipe Line Corporation, 39 N. Y. S. 2d 83 (1939). In most cases, this will be a question of fact to be resolved by a jury upon pertinent evidence, as would be the reasonableness of measures taken to avoid injury or damage to an owner or his property, crops or livestock. See, e. g., Wall v. Rudolph, 198 Cal. App. 2d 684, 18 Cal. Rep. 123 (1961). Cases from other jurisdictions, in which recovery for loss or damage because of escape of cattle through breaches of pasture fences, or because of injuries to cattle through negligence in operations of the easement holder was sustained, include M & M Pipe Line Co. v. Menke, supra; Estey v. Susquehanna Pipeline Co., 199 Misc. 290, 98 N. Y. S. 2d 560 (1950); Cities Service Gas Co. v. Christian, supra. Unless we can say that the complaint is so defective that, taking all facts alleged as admitted, they state no cause of action whatever, we must conclude that the demurrer should have been overruled. United States Fidelity & Guaranty Co. v. Moore, 233 Ark. 703, 346 S. W. 2d 524; Donham v. Neely Co. 235 Ark. 710, 361 S. W. 2d 650. We cannot say that appellants’ pleading is that defective.
We are limited to the narrow question whether appellants’ allegations state any cause of action and do not have before us any question pertaining to burden of proof or measure of appellants’ damages which a jury may find to have been próximately caused by acts of appellee. In view of the authorities herein cited, we do not agree with arguments of appellee that appellants have stated conclusions only, particularly as to cutting fences, leaving gates open and leaving an open ditch unprotected. The allegations as to negligence in removal of the bull from the ditch may be subject to that objection. There is no statement of - any act or omission on the part of appellee in removing the bull which resulted in the disaster to him. It may well be that a further motion to require the complaint to be made more definite and certain in this and other particulars is appropriate. Furthermore, such questions as the existence of intervening causes, contributory negligence and failure of appellants in any duty they may have had to minimize their damages, are matters to be asserted in defense, and are not considered here.
The judgment is reversed and the cause remanded with instructions to overrule appellee’s demurrer.
As indicated by the cases heretofore cited, appellee’s right-of-way is an easement only.
While some of the cases cited involve easements obtained by grant rather than by condemnation, it appears that the terms of the grants were such that the reciprocal rights and duties of the parties were the same as they would be if the right-of-way had been obtained through eminent domain. | [
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J. Fred Jones, Justice.
This appeal by the Missouri Pacific Railroad Company questions the validity of a judgment rendered against it by the Saline County Circuit Court, on a jury verdict, in favor of the plaintiff appellee, Ligón Specialized Haulers, Inc. for damages to a flat-bed trailer in the amount of $4,603.57.
The recorded facts are briefly these: About 1:00 a.m. on November 25, 1968, the appellee’s truck driver, George Caster, drove the appellee’s truck tractor pulling a 40 foot trailer loaded with masonite and plywood, across the appellant’s railroad track at the Neeley Street crossing in Benton, Arkansas. This particular crossing is slightly elevated in that the rails and cross-ties are higher than the surrounding area, requiring traffic traveling in either direction on Neeley Street to go up an incline to the actual railroad rails in crossing the tracks. The appellee’s 40 foot trailer was equipped with “dolly wheels” protruding down from the front portion of the trailer, and a metal tool box, built to the underside, along the middle of the trailer. As appellee’s tractor and trailer crossed the railroad, the dolly wheels hung on the crossing as the tractor started downgrade after crossing the track, and the tool box near the center of the trailer became firmly lodged on the asphalt street surface between the railroad rails at the crossing. In other words, the loaded trailer was too long, and too low for this elevated crossing, and the trailer became more or less balanced across the railroad track in such manner that the drive wheels of the tractor lacked sufficient traction to dislodge the trailer and either pull or back it from the crossing. While the appellee’s trailer was thus stranded, and about four minutes after it became so, the appellant’s train rounded a curve about 700 or 800 feet from the crossing and struck the trailer.
Ligón, Inc. sued Missouri Pacific and its engineer J. F. Rose for the damages to its trailer allegedly caused as a proximate result of the railroad’s negligence in failure to keep a proper lookout; failure to properly apply the brakes; failure to stop within a safe distance; failure to give a warning signal; and failure to take emergency precautions to avoid the occurrence after the helpless condition of said truck was observed or should have been observed. The railroad company and its engineer filed answers of general denial and the railroad counterclaimed for damages to its locomotive in the amount of $5,796.84 as a direct result of the plaintiff’s negligence in operating a vehicle that did not have proper clearance; in attempting to cross the tracks after such defective clearance had become apparent; in failure to take reasonable steps to warn the approaching train of the presence of the trailer; and in otherwise failing to exercise ordinary care for its safety and the safety of others. Ligon’s complaint was amended to allege that the engineer J. F. Rose was guilty of negligence in operating a train at a speed too great for the circumstances then and there existing.
By stipulation the parties agreed that Ligón, Inc. sustained damage to its truck in the amount of $4,-603.57, and that Missouri Pacific sustained damage to its diesel unit in the amount of $5,796.84. The trial court granted a motion for a directed verdict for the defendant J. F. Rose on the ground that there was no evidence to establish a jury question on his being independently and individually liable under the complaint and the amendments thereto. The propriety of this procedure is not questioned. The case was presented to the jury on the sole issue of alleged negligence of the railroad company in operating its train at a high speed. Trial resulted in a verdict and judgment for Ligón, Inc. as already stated and Missouri Pacific relies on the following points for reversal:
“The trial court should have directed a verdict for the defendant, Missouri Pacific Railroad Company, on the complaint on the grounds that there was no substantial evidence upon which a jury question could be made regarding the allegation of excessive speed, and there was no causal connection between the speed of the train and the accident.
The court erred in giving plaintiff’s requested instruction No. 16 on speed.”
We are of the opinion that the court erred in its failure to direct a verdict for the defendant Missouri Pacific for the reason that there was no causal connection between the speed of the train and the accident in this case. Having reached this conclusion, the propriety of plaintiff’s instruction No. 16 becomes moot and we do not reach it.
Mr. Richard Parnell testified that he had been employed as a truck driver by Ligón, Inc. for eight or nine years and that on the night of the accident he crossed the Neeley Street crossing with his truck immediately ahead of George Caster. He testified that both trucks were loaded but that the wheels on his trailer were spaced farther apart than the ones on Caster’s trailer and that the tool box on his trailer was between the spaced wheels, whereas the tool box on Caster’s trailer was in the middle of the trailer. He testified that after he crossed the railroad track and pulled into a parking lot, he looked back and saw that Caster’s truck was hung on the railroad crossing. He says that he and his relief driver started to back their rig up to Caster’s rig in an attempt to pull it off the track, but that before he could get hooked up to Caster’s truck, he heard the whistle of a train and saw the lights coming. He says that at that time Mr. Caster had walked down the tracks with his flashlight for the purpose of signaling a train in the event one would come through. He says that when he saw the train coming, he attempted to move his truck out of the way and had moved it approximately 10 feet when the train struck Caster’s trailer. He says that fuzees and flares are carried in the Ligón, Inc. trucks but that no effort was made to put one out in this instance.
Mr. J. F. Rose, the engineer, testified that on the night in question the train was traveling from Little Rock to Texarkana; that his maximum permissible speed was 79 miles an hour, and he was traveling 78 miles an hour. He says that they approached the Neeley Street crossing out of a curve which was not sharp enough to require a reduction in speed. He says that he observed no flares or reflector lights on the truck and did not see anyone attempting to flag him with a flashlight. He testified that the Neeley Street crossing came into view after rounding a curve 700 or 800 feet from the crossing, but that on the night in question he did not know, or could not tell, that the truck trailer was across the track until he saw its outline when about 400 feet from the crossing. Mr. Rose testified that it would have taken approximately three-quarters of a mile to stop the train when the brakes were applied in emergen cy, and that he could not have stopped the train in a shorter distance than three-quarters of a mile at the speed he was traveling. The appellee’s trailer was a flat-bed trailer and engineer Rose testified that he was unable to see it and determine that it was on the track, until it was in the view of his headlight.
There is no question in this case that the limit of permissible speed through the Neeley Street crossing was 79 miles per hour, and that the train was traveling within the. permissible speed limit. Engineer Rose testified without contradiction that it would take three-quarters of a mile to stop the train at the speed of 78 miles per hour, and that the Neeley Street crossing only became visible 700 or 800 feet after emerging from a curve in the railroad track. It must be remembered in this case that the railroad company owned its tracks and had a right to use its railroad for the purpose it was built. The railroad company had the same right to cross Neeley Street with its trains as Ligón, Inc. had to cross the railroad with its tractors and trailers. Missouri Pacific R.R. Co. v. Nelson, 195 Ark. 883, 115 S. W. 2d 872. As a practical, common sense matter, if railroad companies were required to operate trains at a speed commensurate with any dangerous situation that might be created by members of the traveling public at street or highway crossings; then the railroads could never maintain any sort of time schedule in the operation of trains, and commerce over railroad systems would become impossible.
It is true, in the case at bar, that the Neeley Street crossing was a busy crossing where many motor vehicles per day crossed the railroad. There is nothing in the record, however, to indicate that the Ligón, Inc. tractor and trailer would not have safely crossed the railroad, even after the train’s headlight became visible and its whistle and bell became audible, had the trailer not become hung up on the crossing. Neither is there evidence that Mr. Caster, the truck driver, would have attempted to cross the track had the train headlight been visible or its whistle and bell been audible as the tractor and trailer approached the crossing. In other words, there is no evidence whatever that this collision would have occurred had Caster not attempted to cross the elevated tracks on Neeley Street with his low and heavily loaded 40 foot trailer which became more or less balanced across the railroad track. Neither is there any evidence in the record before us that, the railroad company or its engineers would or should anticipate, or be expected to anticipate, that anyone using the Neeley Street crossing would attempt to pull a 40 foot trailer with a tool box compartment under its middle, across the tracks at this crossing. In other words, the railroad company had a right to anticipate and believe that motorists using the Neeley Street crossing would either wait a safe distance from the crossing for approaching trains they would see or hear coming; or that they would cross the tracks without delay ahead of approaching trains they could not see or hear coming.
We agree with the appellee that there may be fact situations in which the speed of a train may constitute questions of negligence for jury determination, but we hold that such is not the situation in the case at bar. There is no evidence in the record before us that the train was traveling off schedule and at an unusual speed as was the situation in Davis v. Scott, 151 Ark. 34, 235 S. W. 407, cited by the appellee. In the case at bar the train was traveling on schedule and at the usual rate of speed. The record is clear, as we view it, that the proximate cause of the accident and resulting damage in the case at bar, was the unusual position of the appellee’s trailer on the appellant’s railroad track and not the unusual speed of the appellant’s train.
The judgment of the trial court is reversed and this cause dismissed.
Byrd, J., dissents. | [
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OPINION OF THE COURT. An action of debt was brought by Paschal Buford, executor of Henry Buford, deceased, against William Hickman, founded upon a record of the United States district court of west Tennessee. The defendant filed a special demurrer to the plaintiff’s declaration, but the demurrer was overruled. Issue was then taken on the plea of nul tiel record, upon which issue the court rendered judgment for the defendant; and the assignment of error caffs in question the propriety of this judgment.
The whole case, we apprehend, turns upon the question of the sufficiency of the record offered in evidence. If that was full and complete, and properly authenticated, the decision of the court, in refusing to receive it as evidence, was erroneous. But, on the other hand, if it was not full and complete, and properly authenticated, the decision of the court was correct.
The first objection taken in argument to the admissibility of the record was, that it being a record of a district court of the United States, the act of congress of 1790 [1 Stat. 122] regulating the mode of authenticating records 'in order to make them evidence, ' does not apply. Admitting the act of congress of 1790 to apply alone to the records of the state courts, and this is clearly the case, still it has been decided, by some of the most respectable courts in the Union, that the record of the United States courts are admissible in evidence in the state courts, if authenticated by the seal of the court, attestation of the clerk, and certificate of the judge; and we can perceive no substantial objection to their admission as evidence in the courts of this territory. The United States exercise jurisdiction and sovereignty over Arkansas, and we conceive that we are bound to know the officers of the respective courts of the United States, and to enforce, when called upon, their judgments, for the same reasons that the English courts enforce the judgments of one another. Pepoon v. Jenkins, 2 Johns. Cas. 119; Borden v. Fitch, 15 Johns. 121.
The second objection taken to the admission of the record in evidence, is one of much more difficulty, and about which we have entertained great doubt It has been contended that the record is incomplete and imperfect, and does not furnish evidence that the defendant was served with process. There is no writ in the record, nor does it appear that issue was joined between the parties. In the introductory part of the declaration the technical term “attached” is used; from which it might be inferred that there had been a writ, and it had been executed. It further appears from the record, that the parties appeared by their attorneys, that a jury tried the cause and gave a verdict, and that the district court rendered a judgment. But does all this furnish conclusive legal evidence of the existence of a writ and its service? If a writ be an essential component of a record, and that it is so considered is well settled by authority, can it be dispensed with, or can its legal existence be established in any other way than by its production; or can its service be shown in any other mode'than by the return ot the proper officer? Duvall v. Craig, 2 Wheat. [15 U. S.] 45, 55; Adams v. Calhoun, Litt. Sel. Cas. 10. It is true, that the appearance of a party by attorney will cure a defective service of a writ, and even supersede the necessity of service, and the consent of the parties entered on the record might doubtless dispense with the writ itself. 2 Strange, 1072; [Wood v. Lide] 4 Cranch [8 U. S.] 180: [Knox v. Summers] 3 Cranch [7 U. S.] 498. But in the record of the district court, no such consent appears. The parties appeared by their attorneys, but no plea was filed, and no venire facias awarded, although, from the nature of the case, one was necessary. In short, no act was performed by the attorney going to show' that he was representing the defendant Hickman, Can Hickman, then, be considered to have been regularly in court? We thing not The record furnished, in our opinion, no legal evidence, of the service of process on Hickman, or an appearance for him; and if so, the judgment of the district court of Tennessee was not binding upon him, and was properly excluded. ‘ Judgment affirmed. | [
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OPINION OF THE COURT. The defendant Strong presented a claim for allowance against the plaintiffs, as administrator and administratrix, to the circuit court of Phillips county, which was finally acted upon and allowed on the 17th day of November, 1820. The object of the writ of error is to reverse- this allowance. Two preliminary questions have been raised by a motion to dismiss the writ of error, first, whether it is authorized in such cases? .and if so, secondly, whether it is not barred in the present case by the statute of limitations?
By the 30th section of the act of 1825, entitled, “An act concerning executors and administrators” [Laws Ark. Ter. 00], any person having a claim or demand against the estate of a deceased person, may apply to the circuit court of the county in which the letters testamentary, etc., of administration were granted, to have the same proved and allowed, first giving ten days’ previous notice of the • nature and amount of such claim or demand, and in such cases the circuit court, or, if either desired it, where the amount exceeds twenty dollars, a jury, shall decide on the validity of the claim or demand without the formality of pleading. Where the sum in controversy does not exceed one hundred dollars, the decision is final. For a greater amount the right of appeal is given to either party to the superior court, upon paying the costs ol proceeding in the circuit court, and making affidavit he does not appeal for the purpose of delay. In the superior court, where the appeal has been regularly obtained and transmitted, the case is to be tried on its merits de novo. The object of the legislature in authorizing this summary mode of proceeding, was doubtless not only to facilitate and simplify the adjustment of claims against the estates of deceased persons, but to render it less expensive. The common law method, however, by suit against the executor or administrator, may still be resorted to. But if the action be brought Within a year after the grant of letters testamentary or of administration, the costs are to be paid by the plaintiff in the suit notwithstanding he may obtain judgment for the amount of his claim. Where the common law remedy is adopted, there can be no doubt but that a writ of error would lie as in other cases. The issuance of a writ of error from the final decision or judgment of any circuit court, is declared by our statute, to be a matter of right. Geyer, Dig. 263. Apart from this statutory provision, the common law allows the writ on all judgments rendered according to its rules by any court of record. 2 Tidd, Pr. 1051; 9 Petersd. Abr. tit. “Error,” 10.
The proceeding in the ease before the court is dependent for its validity alone upon the thirtieth section of the act of 1825. and is altogether contrary to the course of the common law. Upon an allowance in the proceedings authorized, a subsequent act is necessary on the part of the court before payment of the claim allowed can be coerced by execution. The executor or administrator is required to settle his accounts annually with the court, and upon these settlements, an order is made for the payment of claims previously allowed in whole or in part according to the situation of the estate, upon which, if not complied with in ten days after . j ■ ■-■laimant may sue out an execution. See section 34 of same act. The allowance, therefore, is neither a final decision, nor is it a judgment according to the course of the common law. The doctrine is, where a new jurisdiction is created by statutory provision authorizing a proceeding not known to the common law. the writ of error will not lie, but a certiorari will. 2 Tidd, Pr. 1051. It has been repeatedly decided in the circuit courts, that a writ of error does not lie on an allowance against an executor or administrator in the county courts where such allowances are now cognizable by act of the legislature.
We are clearly of the opinion, that if the plaintiffs have been injured by the decision of the circuit court, their remedy is not by writ of error, the legislature not having given it by the act authorizing the allowance. The second ground relied upon, it will not be necessary to notice. The motion is therefore sustained, and the writ dismissed. | [
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PER CURIAM
After the Supreme Court Clerk refused to accept petitioner’s appeal record on the basis that his notice of appeal was not filed within the proper time, petitioner Sammy Goodwin moved for a Rule on the Clerk pursuant to Rules 36.9 and 36.22 of the Arkansas Rules of Criminal Procedure. The State has responded contending that the Clerk was correct in refusing the record because of Allen v. State, 261 Ark. 331, 553 S.W. 2d 690 (1977), which held that the filing of a notice of appeal within the 30 day limit is jurisdictional. We grant the Rule on the Clerk upon the showing made and for the reasons hereinafter set out.
The record shows that a jury verdict was returned finding petitioner guilty on August 21, 1976. On September 6, 1976 petitioner filed a motion for new trial but, for reasons not shown, the trial court has neglected to act upon the motion. Without notice to petitioner, a judgment of conviction was entered on January 17, 1977. The transcript of the trial was filed by the court reporter on January 26, 1977. Petitioner’s counsel, through a routine check, discovered on February 17, 1977 that the judgment had been entered and filed the notice of appeal on the same date.
Under similar circumstances, we held in Allen v. State, supra, that the filing of a notice of appeal in apt time was a jurisdictional prerequisite to our review. This same conclusion was reached in appeals of civil cases. See General Box Co. v. Scurlock, Comm. of Rev., 223 Ark. 967, 271 S.W. 2d 40 (1954) and White v. Avery, 226 Ark. 951, 295 S.W. 2d 364 (1956), involving the construction of Ark. Stat. Ann. § 27-2106.1 (Repl. 1962) with reference to appeals in civil cases. By Acts 1971, No. 333, the General Assembly provided:
SECTION 3. Time and Method of Taking Appeal. Within thirty (30) days from the date of sentence and entry of judgment by the trial judge, the person or persons desiring to appeal the judgment shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment appealed. The notice of appeal shall include a certificate by the appealing party or his attorney that a transcript of the trial record has been ordered from the court reporter if, for the purposes of the appeal, a transcript is determined essential to resolve the issues on appeal. Notification of the filing of the notice of appeal shall be given to all other parties, or their representatives involved in the cause by mailing a copy of the notice of appeal to said parties or their representative, but failure to give such notification shall not affect the validity of the appeal. Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. If an appeal has not been docketed in the Supreme Court, the parties, with the approval of the trial court, may dismiss the appeal by stipulation filed in that court or that court may dismiss the appeal upon a motion and notice by the appellant.
SECTION 9. Other Remedies Not Abolished. Prior to the time fixed to file a notice of appeal, a person convicted of either a felony or misdemeanor may file a motion for new trial, a motion in arrest of judgment or any other application for relief. Such pleadings should include a statement that the movant believes the action to be meritorious and is not offered for the purpose of delay. Service of such motion shall be given to the representative of the prosecuting party. If requested or found to be necessary, the trial court shall promptly designate a date certain to take evidence, hear and dispose of all of matters that are presented. Upon the filing of any motion or other application for relief in the trial court, the time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications.
SECTION 10. Statutes Governing Civil Appeals to Apply. Matters pertaining to several appeals, the docketing, designation, abbreviation, stipulation, preparation, and correction or modification of the record on appeal as well as appeals where no stenographic record was made shall be governed by those statutes which now apply to, or may hereinafter be provided for, civil cases on appeal to the Supreme Court.”
As can be seen from the foregoing, Acts 1971, No. 333 is not substantially different from the provision governing appeals in civil cases — i.e. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). However, in adopting Arkansas Rules of Criminal Procedure effective January 1, 1976, this Court adopted Rule 36.9, which provides:
“Within thirty (30) days from the date of the sentence and entry of judgment by the trial judge, the person or persons desiring to appeal the judgment shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment appealed. The notice of appeal shall include a certificate by the appealing party or his attorney that a transcript of the trial record has been ordered from the court reporter if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal. Notification of the filing of the notice of appeal shall be given to all other parties or their representatives involved in the cause by mailing a copy of the notice of appeal to the parties or their representatives, but failure to give such notification shall not affect the validity of the appeal. Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. If an appeal has not been docketed in the Supreme Court, the parties, with the approval of the trial court, may dismiss the appeal by stipulation filed in that court or that court may dismiss the appeal upon a motion and notice by the appellant.” [Emphasis Supplied].
The committee comment with respect to Rule 36.9 is as follows:
“Except for the emphasized language, Rule 36.9 is practically a verbatim rendition of section 3 of Act 333, now codified as § 43-2703 (Supp. 1973): ... .
The emphasized language is essentially that found in the authority superseded by Act 333, viz., § 43-2710 (Repl. 1964). Its restoration is suggested in order to permit a belated appeal upon a showing of good cause. While notice of appeal is a logical mechanism to bring into focus questions such as when a defendant should begin service a sentence of incarceration, there appears to be no persuasive reason for grounding an appellate court’s power to entertain the appeal on this procedural requirement. Extension of the court’s authority by addition of the supplementary language brings the rule into conformity with Standards, Criminal Appeals § 2.1.”
Consequently, the filing of a notice of appeal in apt time in a criminal case is not a jurisdictional prerequisite under Rule 36.9 and thus Allen v. State, supra, is overruled.
Under Rule 36.22 which is similar to § 9 of Act 333 of 1971, supra, appellant had 30 days after the disposition of his motion for new trial in which to file his notice of appeal and under Rule 36.9 the time for filing the notice of appeal runs from the date of entry of the judgment. Upon the showing here made, petitioner had already taken the necessary steps to obtain the court reporter’s transcript of the testimony before the judgment was entered without notice to him. Under the circumstances we must conclude that he has shown good reason for his one day tardiness in filing the notice of appeal. Consequently, the rule upon the Clerk to file the appeal is granted.
Amendment to Rule 19, Rules of the Supreme Court of Arkansas
June 13, 1977
PER CURIAM
IN RE: RULE 19. AMICI CURIAE ATTORNEYS.
Paragraph (a) of Rule 19 is amended to read as follows:
(a) May File Briefs, When. — Amici Curiae attorneys may file briefs, with the permission of the Court. The motion for permission should state the reasons why such a brief is thought to be necessary. | [
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Frank Holt, Justice.
In a hearing before the Arkansas State Board of Chiropractic Examiners, appellant was found guilty of violating Ark. Stat. Ann. § 72-441 (a) (2), (6) and (8) (Supp. 1975), and his license to practice was suspended for a period of six months. The circuit court affirmed. For reversal appellant asserts that “Arkansas Statute Annotated § 72-419, setting forth the qualifications of the members of the Arkansas State Board of Chiropractic Examiners, is unconstitutional as it creates a Board which does not fairly represent the profession of chiropractics and suspension of a license by such a Board constitutes a denial of due process of law.”
The power and authority given a Board to exclude from practice an incompetent or unworthy person is a recognized power of the state. “The constitutionality of such laws, as a valid exercise of the police power, has often been sustained, and indeed rarely questioned.” State Medical Board v. McCary, 95 Ark. 511, 130 S.W. 544 (1910). Here the statute, in addition to certain residency and oath provisions, requires that each member of the Board be a member in good standing with the Arkansas Chiropractic Association, regularly licensed and practicing for at least five years and a graduate of a reputable school or college of chiropractic, with the added provision that no two members of the five member Board be graduates of the same school. The issue raised in appellant’s motion for dismissal and argued here is that the graduates of the Palmer College of Chiropractic (of which appellant is a graduate) are not given equal representation on the five member Board. It is insisted that since 77 (55.4%) of the 148 licensed chiropractors in Arkansas are Palmer College graduates, they are not equally represented on the Board.
The record reflects that one of the five member Board, which conducted the hearing, is a graduate of the Palmer College. The licensed chiropractors in the state are graduates of 11 different schools. The Board, created by the legislature, is the sole authority for matters of licensing and revocation of license, § 77-441 (a). Any infringement of appellant’s rights is preserved through the right of appeal from the Board’s findings to the circuit court. § 77-441 (b). We hold appellant has not demonstrated any bias or prejudice or a denial of due process of law based upon the assertion that the composition of the Board results in unequal treatment to him as a Palmer College graduate.
Appellant also argues that the makeup of the Board is not fairly representative of the entire profession (148 members) and, further, there is a possibility of pecuniary gain by the Board and other members of his profession as a result of the suspension of his license. It appears these issues were not raised in his motion to dismiss and are asserted for the first time on appeal. Consequently, we cannot consider them. Further, it appears that appellant is a member of the association and, therefore, is without standing to raise the issue that the Board is unrepresentative of the non-members (approximately one-fourth) of the profession.
Appellant next contends that § 72-441 (a) (2), (6) and (8) is unconstitutional because the terms “gross immorality” and “unprofessional conduct” are void for vagueness. We cannot agree. Proof was adduced that appellant and his family, accompanied by a fifteen year old babysitter, were in Little Rock for the annual Arkansas Chiropractic Association convention. The babysitter and her family were patients of his. She was sleeping in the same motel room with him and his family. After retiring one evening, appellant said he was awakened by the young girl’s apparent discomfort and he administered a needed chiropractic adjustment. According to her, however, appellant lay down in the bed with her and made certain sexual advances. The Board found that appellant attempted to engage in sexual intercourse with her without her consent.
The term “gross immorality” is commonly interpreted by courts as being equivalent to and coextensive with the term “moral turpitude.” Brown v. Hassig, 136 Kan. 384, 15 P. 2d 401 (1932); and 61 Am. Jur. 2d, Physicians, Surgeons and Other Healers § 60. The term “moral turpitude” has been held to be consitutional when used in a statute pertaining to the revocation of a physician’s license. State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83 (1935). The term “grossly immoral or unprofessional conduct” does not render a statute void for uncertainty since those terms are susceptible to a “common” understanding and “general opinion.” Alton v. Board of Medical Examiners, 13 Ariz. 354, 114 Pac. 962 (1911); see also Ballentine, Law Dictionary 2d (1948). Here we hold the terms “gross immorality” and “unprofessional conduct” are readily susceptible to a common understanding especially when applied to this factual situation by members of the profession itself. The statute here is reasonably necessary in the public interest and to assure competency in the profession.
Affirmed. | [
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George Rose Smith, Justice.
In 1975 the county court of Franklin county granted a petition for the creation of an incorporated town, to be named Wiederkehr Village. The appellant, a practicing attorney living in the city of Ozark, took an appeal to the circuit court, although he had not been a party to the county court proceeding. The circuit judge sustained the Village’s motion to dismiss Turner’s challenge to the incorporation, on the ground that Turner had no standing to question the county court order. That issue of standing is the only question before us.
Under the statute, “any person interested” may contest the incorporation. Ark. Stat. Ann. § 19-102 (Repl. 1968). The annexation statute incorporates that section by reference. Section 19-302. In construing the phrase, “any person interested,” we held in an annexation case that it means a person who resides or owns property either in the annexing city or in the area to be annexed. City of Crossett v. Anthony, 250 Ark. 660, 466 S.W. 2d 481 (1971). At the hearing in the trial court Turner contended primarily that he owned property in the Village, because he had a contingent fee contract under which he would acquire three acres there if he won his client’s lawsuit. During the oral argument before us Turner conceded that his contingent fee agreement did not amount to the ownership of property in the Village.
Turner now contends, as he did to some extent in the trial court, that people living in the area, although not within the definition of “any person interested,” should have an opportunity “to determine what effects this town could have on their schools, police facilities, government loans, grants, state turnback funds, the cost of holding elections, water supply, and fire protection.” Turner also mentions his ownership of property somewhere near the Village. (Its exact location is not shown, Turner having referred to it at the hearing as being “right next to the area to be incorporated” and again as being “one quarter of a mile or less than a quarter of a mile across the road” from the area.)
We do not foreclose the possibility that a person owning property near an area to be incorporated might have standing to oppose the incorporation if he could show that he was threatened with a direct pecuniary damage not shared by members of the public in general. But Turner has not suggested or offered to show that he is in that situation. His grievance, if he has one, is common to everyone in the neighborhood. The legislature, in the interest of orderly and prompt procedure, unquestionably had the authority to restrict the right of protest to persons having a direct interest in the matter. We expressed that view in the Crossett case, supra, in limiting the right of protest to residents and property owners in the area: “If these protestants [outsiders] have such interest, there would be no reason why any other citizen within the trade area of Crossett, or indeed within Ashley County, would not also have such interest. We hold, therefore, that ‘any person interested’ as referred to in the statute, means any person who actually has some interest in the city or in the area to be annexed, and that at least some such interest must be shown on trial de novo in the circuit court in the face of a motion to dismiss for lack of interest.” We adhere to that view.
Affirmed. | [
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Darrell Hickman, Justice.
James E. Moore was convicted of rape in Mississippi County Circuit Court and sentenced to life imprisonment.
On appeal he alleges two errors: certain physical evidence, the product of an unlawful search and seizure by the police officers, was admitted into evidence; his statement was improperly admitted into evidence because the police obtained it after confronting him with the evidence and despite his indication he wanted counsel.
The testimony during the trial revealed that Moore late at night went to the victim’s boarding house. She knew Moore and tried to dissuade him from entering her house. Moore pulled a gun, forced his way in, robbed her, raped her and shot her at least twice. A boarder in her house discovered her early the next morning and called the police. The police arrived on the scene and called an ambulance. The victim was taken to the hospital’s emergency room when she told the police who had raped, robbed and shot her. The police immediately went to the home of Moore’s parents, arriving there at about 7:00 a.m. Two officers covered the back entrance and two officers entered the front of the house. Although the facts are somewhat disputed, at least one officer had a shotgun in his hand when they entered the house. The officers testified that Moore’s parents consented to their entry and a search of the premises; Moore’s parents disputed the officers’ testimony. The officers went into a bedroom and found Moore asleep. They immediately arrested him and he was taken to jail. The officers remaining on the scene proceeded to search the house. In a room adjacent to Moore’s bedroom, they found a .32 pistol hanging on the wall and a purse containing papers which belonged to the victim. In Moore’s bedroom they found a gun, some clothes and other articles under his bed.
Even though the officers testified that they had the oral consent of Moore’s parents to search the house, a list of the items seized was not given to Moore’s parents as required by Arkansas law. See Rules of Grim. Proc., Rule 11.4 (1975).
The next day an officer obtained a statement from Moore. He showed Moore the evidence that was seized at the time of the arrest. When Moore was advised of his rights, he indicated that he would like to have a lawyer. He started to call a lawyer but stated that he did not have the money to hire a lawyer. The interrogating officer did not explain Moore’s right to counsel and proceeded to question Moore. Moore made a statement implicating himself in the crime. The statement and all of the physical evidence taken from Moore’s house were admitted into evidence by the trial court.
The police were certainly justified in immediately entering the house to arrest Moore. The victim had stated she knew Moore and apparently there was no problem in identifying the suspect. The state argues that Moore’s parents consented to the search and that the search was necessary to prevent the destruction of evidence. These two arguments hardly merit discussion. Two police cars containg four officers surrounded the house of Moore’s parents early in the morning and two officers entered the front door with at least one of them having a drawn weapon. Under such circumstances, the state must prove that the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543 (1968). White v. State, 261 Ark. 24, 545 S.W. 2d 641 (1977). The proof falls far shot in this instance. There is no evidence in the record to support the argument that the search was necessary to prevent destruction of the evidence. There is no reason one of the officers could not have obtained a search warrant while the other officers remained at the scene.
Even though the officers did not have a search warrant or legal consent to search the premises, the law permits a search of the area within the immediate control of the person arrested. See Rules of Grim. Proc., Rule 12.2. The purpose of this rule is to permit officers to seize weapons or evidence within the reach of the suspect which might be destroyed. Several items of evidence were found in Moore’s bedroom. However, a search of the rest of the house turned up a .32 pistol and a lady’s small purse, which contained documents. We hold that only those items in Moore’s bedroom were lawfully seized and all other evidence was improperly seized.
The U.S. Supreme Court discussed a similar situation where a search was made without a search warrant or consent. Chimel v. California, 395 U.S. 752 (1969). In the Chimel case the court stated:
There is ample justification, therefore, for a 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.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less.
Supplemental Opinion on Rehearing delivered May 31, 1977
The statement taken from Moore was obtained after he had been shown the evidence which was seized at his parents’ home. Since part of the evidence was illegally seized, the statement is not admissible. See Walton & Fuller v. State, 245 Ark. 84, 431 S.W. 2d. 462 (1968).
In addition, when Moore was questioned he indicated he wanted a lawyer. We have made it quite clear that if an individual indicates in any manner prior to his statement, or during his interrogation, that he wishes to exercise his rights, the interrogation must cease. Webb v. State, 258 Ark. 95, 522 S.W. 2d 406 (1975). Davis v. State, 243 Ark. 157, 419 S.W. 2d 125 (1967).
The judgment is reversed and this cause remanded for a new trial consistent with this opinion.
Reversed and Remanded.
We agree. Harris, C.J., and Fogleman and Roy, JJ.
Conley Byrd, Justice.
On rehearing appellant points out that no search of the premises was made until after he was arrested and removed from the premises. He then contends that the evidence seized by the officers in his bedroom should also be suppressed. We must agree with appellant on both contentions.
The record shows through both Captain Denver Johnson and Detective Claybourn Hicks that the appellant was not present when the search of his home began. Captain Johnson testified that they did not start the search until after appellant was taken to jail and Detective Hicks testified that appellant was on his way to the police department at the time of the search.
In Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), the State sought to justify a search of the house as being incident to an arrest. In reversing the conviction and holding the search unlawful, the Court said:
“. . . Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden is on those seeking [an] exemption [from the requirement] to show the need for it. . . ”
“. . . When 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 a 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.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence of judicial processes’ mandated by the Fourth Amendment requires no less.”
Again in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the Court reiterated:
“Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ ‘ [T]he burden is on those seeking the exemption to show the need for it. ’ !n times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won — by legal and constitutional means in England, and by revolution on this continent — a right or personal security against arbitrary intrusions by official power. If times have changed, reducing every man’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.”
On the uncontroverted evidence, it cannot be said that the exigencies of the situation were such as to bring the search of the bedroom, after appellant was on his way to jail, within an exemption that justified the search as being incident to a lawful arrest. It follows that the evidence recovered in the bedroom after appellant was on his way to jail in the squad car must also be suppressed.
The trial court’s theory that the possibility of destruction of the evidence by appellant’s family was a sufficient exigency to support the officers’ warrantless search was discounted in Chimel v. California, supra — see dissent of White, J. There is no contention or suggestion that appellant’s mother or father were confederates in the crime and to assume that they would willingly become accessories after the fact to such a crime is not a fact upon which one is entitled to rely as justification for the invasion of such a precious right.
Rehearing granted on behalf of appellant.
Harris, C.J. and Hickman, J., dissent. | [
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John A. Fogleman, Justice.
On this appeal, appellant questions the propriety of a judgment notwithstanding the verdict in an eminent domain proceeding. The judgment for the amount of compensation to the landowner was based upon the testimony of the only value expert witness who testified for the appellee landowners. The testimony of appellant’s only value expert had been stricken by the trial judge during the course of the trial upon the landowners’ motion. The verdict was for an amount less than that determined by either expert. The judgment was rendered on May 27, 1976, on appellee’s timely motion filed December 8, 1975.
Appellant is in no position to question the action of the trial court on appeal. Rule 2c of the Uniform Rules for Cir cuit and Chancery Courts, Vol. 3A, Ark. Stat. Ann. (Supp. 1975) requires that, if a respondent opposes a pleading as defined by Rule 2, he shall file a response, including a brief supporting statement of the legal and factual reasons in support thereof within ten days after the service of the pleading upon him. Even though appellees’ motion was filed in strict compliance with Rule 2a and 2b, no response was ever filed by appellant. Appellant makes some rather persuasive arguments here, which, so far as the record discloses, have never been presented to the trial court. Consequently, these issues are raised for the first time on appeal. Since this is so, we cannot consider them. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848.
The judgment is affirmed.
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Frank Holt, Justice.
The appellant, represented by court appointed counsel, pleaded guilty to burglary and grand larceny and was sentenced to a term of 15 years imprisonment in the Arkansas Department of Correction. Subsequently, he filed a pro se petition for post-conviction relief pursuant to Rule 37 alleging certain infringements of his constitutional and statutory rights. The trial court granted him a new trial without holding an evidentiary hearing. The state then amended its information alleging appellant was a habitual criminal. Upon a retrial appellant, represented by a different court appointed counsel, was convicted by a jury of the burglary, grand larceny charges and, also, being a habitual criminal. His punishment was assessed at 31 1/2 years in the Arkansas Department of Correction. For reversal appellant contends, through his court appointed trial counsel, that the trial court erred by granting his pro se petition, as an indigent, for post-conviction relief inasmuch as appellant “did not knowingly and intelligently waive his right to counsel and was thereby denied his constitutional right to equal protection.” In effect appellant asserts he should have had counsel to advise him in the preparation and filing of his pro se petition. Therefore, the court should not have granted his pro se petition. This novel argument is wholly without merit.
“A defendant’s technical knowledge is irrelevant to the assessment of a knowing exercise of his constitutional right to represent himself. ” Burton v. State, 260 Ark. 688, 543 S.W. 2d 760 (1976); Faretta v. California, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The trial court is not obliged to appoint counsel even for the resolution of the issues presented in a post-conviction relief petition if an evidentiary hearing is not necessary. Dyer v. State, 258 Ark. 494, 527 S.W. 2d 622 (1975).
Further, it cannot be said here that appellant was a stranger to courtroom procedure since it was alleged and proved that he was a habitual criminal. Additionally, he had originally pleaded guilty to the burglary and grand larceny charge to which he had confessed and this confession was not controverted in the case at bar.
We hold that appellant has demonstrated no infringements of his constitutional rights.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ. | [
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Darrell Hickman, Justice.
This child custody case originated in Texas. In 1970 the parties were divorced in Texas and Cecil Ruth Bonds was granted custody of the parties’ minor child. In July, 1975, William Bonds went to Texas and brought the child to Arkansas without permission or a court order. William filed a petition for custody in Pope County Chancery Court and Cecil Ruth filed a petition for the return on the child by way of a petition for a writ of habeas corpus. The chancellor refused to hear evidence on custody and placed the child with the Arkansas Social Services Department. We reversed the decision and remanded it for trial. See Bonds v. Lloyd, 259 Ark. 557, 535 S.W. 2d 218 (1976).
This case was tried on remand and Cecil Ruth was awarded custody of the child. William appeals alleging two errors: the trial court erred in admitting into evidence a deposition of a Texas social worker, and the court should have granted William custody.
The evidence of the fitness of the two parties for custody of the minor child was about evenly divided. Both parents have shortcomings. William has not supported the child financially and Cecil Ruth has failed at times to provide a clean, wholesome environment for the child. The chancellor, observing the parties and hearing the evidence, decided that the best interests of the child would be to leave him with his mother. She has had custody of the child since birth and visits with the father have been inegular. Custody cases are often bitterly disputed and difficult to decide. We cannot say the court was in error in resolving the disputed evidence and leaving the child with the mother. Both parties have had their personal problems, before and since the divorce. In such cases we will not substitute our judgment for that of the trial court, unless it is arbitrary or against the preponderance of the evidence. Crawford v. Hopper, 186 Ark. 1098, 57 S.W. 2d 1048 (1933). We cannot say the judgment of the chancellor was arbitrary or against the preponderance of the evidence.
During the trial, a deposition of a Texas social worker was admitted into evidence over the objection of William. Cecil Ruth brought the deposition from Texas and gave it to her lawyer the date of the trial. It was not presented to the clerk sealed as required by Arkansas law. See Ark. Stat. Ann. § 28-352 (f), (Repl. 1962). We have held that a deposition which is unsealed and undelivered to the court clerk is prima facie inadmissible. See Stephenson v. Lewis, 152 Ark. 361, 238 S.W. 61 (1922). In this case, however, Cecil Ruth testified that the document was delivered sealed to her attorney, an officer of the court. She testified that the document had not been tampered with and there is no evidence in the record that would tend to show the document had been tampered with. We simply have the bare objection that the procedure required by the Arkansas law was not followed to the letter. We find that it is a matter of the trial court’s discretion to admit a deposition under such circumstances, and we do not find that the court abused its discretion in this case. See Lathrop v. Kellogg, 158 Cal. App. 2d 220, 322 P. 2d 572 (1958).
Affirmed.
We agree. Harris, C.J., and Fogleman and Roy, JJ. | [
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Edward P. Jones, Special Justice.
William Goodwin Tucker (also known as Billy) age sixteen was convicted of killing his mother and sentenced to ten (10) years imprisonment for second degree murder. His appeal contends that a confession and subsequent admission made by him were not voluntarily obtained.
The evidence indicates that a few minutes after 12:00 a.m. on April 3, 1975, Billy Tucker walked approximately three blocks from a friend’s home in Judsonia, Arkansas to the home of Billy Tucker and bis mother. A short time later he returned to his friend’s home and told the people there that his mother had been killed. Law enforcement authorities were contacted and the investigation reflected that Mrs. Tucker, the mother of Billy Tucker, had been beaten and stabbed to death. During the next two hours Billy Tucker was present at his home with numerous law enforcement officials and was not questioned until approximately 2:00 a.m., when Officer Doug Fogley of the Arkansas State Police arrived at the Tucker home. Officer Fogley advised Billy Tucker of the rights afforded him under the U. S. Constitution and obtained from him a written waiver of those rights. At that time Billy Tucker denied any involvement in the death of his mother.
At approximately 4:00 a.m. the Defendant was placed in a cell in the juvenile section of the jail at Searcy, Arkansas. At approximately 6:00 a.m. Officer Fogley took the Defendant from the cell and fingerprinted and photographed him. A trace metal detection test or TMDT was performed to determine whether or not Defendant’s hands had come into contact with metal.
Following that test Officer Fogley took the Defendant to an office and interrogated him for approximately one hour. During this interrogation, attended only by Officer Fogley and the Defendant, Officer Fogley purposely created, according to his own testimony, a friendly relationship with the Defendant. The Officer advised the Defendant that the trace metal detection test indicated that the Defendant’s hands had come in contact with metal objects during the preceding hours and further advised the Defendant that a latent fingerprint had been found on broken glass near the body of the deceased and that the print would probably turn out to be Defendant’s. It is clear that the purpose of advising the Defendant of the metal test results and the fingerprint was to create the impression with the Defendant that physical evidence existed proving his involvement and guilt. At this interrogation of Billy Tucker, Officer Fogley knew but did not tell the Defendant that the metal test was by no means conclusive evidence that the Defendant had stabbed his mother. He also knew but did not advise the Defendant that the print found on the glass piece was only a partial print and probably could not be determined to belong to the Defendant. It is interesting to note that even if the print had been Defendant’s it also would not have been convincing evidence as to the guilt of the Defendant since the Defendant lived in the house and could easily have touched the glass other than while killing Mrs. Tucker.
Officer Fogley then described to the Defendant his theory of how the crime was committed by the Defendant. Thereafter Defendant indicated that he desired to make a statement and after a witness in addition to Officer Fogley was present the Defendant Billy Tucker admitted the killing of his mother and further described two knives used. After giving this statement the Defendant accompanied the officers to the kitchen of the Tucker home and indicated to the officers the two knives involved.
Billy Tucker was sixteen years of age at the time of his confession and age is a factor to be considered by this Court in determining the voluntariness of a confession.
The Defendant was living with his mother in Judsonia, but his father, William A. Cook, was living in North Little Rock, Arkansas. After hearing of the death of Mrs. Tucker the father traveled from North Little Rock to Judsonia and talked with his son prior to the time Billy Tucker was taken to jail. Mr. Cook testified that he was not aware that Billy was a suspect and also was not aware that he was taken to jail until after the confession was made by his son. He spoke to Officer Fogley at the scene of the crime but did not advise the Officer that he did not want the Officer to speak to his son nor did he make any effort to secure the services of an attorney for his son.
The Defendant did poorly in school. There is substantial evidence in the record as to the mental capabilities and capacity of Billy Tucker.
These three factors, namely, age, lack of a parent or some other adult present during interrogation of the Defendant, and the mental capability of the Defendant are all relevant and are important circumstances surrounding the confession of this Defendant.
The other events which are relevant to the voluntariness of the confession concern what occurred following the death of Mrs. Tucker. Defendant urges that the explanation of Constitutional rights and subsequent waiver thereof occurred in an atmosphere of “noise, confusion and milling about by persons not directly connected with investigation of the crime”. He submits that he was impaired by a lack of sleep and that the interrogation which occurred at 6:00 a.m. in the morning was unjustified. Defendant also contends that no voluntary confession occurred because of the length of the interrogation, the false friendly relationship created by the interrogating officer and the trickery and false statements made to the Defendant by the officer.
Undoubtedly, the atmosphere and scene at the Tucker home during the initial investigation of the death and questioning of the Defendant were not ideal circumstances for the interrogation of a witness. However, there is no evidence in this record that the Defendant was not able to hear and understand his rights as they were explained to him or that he did not understand and intelligently waive these rights. As previously mentioned, Defendant at that time denied any involvement in the crime.
it may be true that Defendant was tired from lack of sleep at 6:00 a.m. on April 3, 1975 when the confession was made. But we cannot conclude and the evidence does not indicate that the interrogation of approximately one hour caused truthfulness to be compromised by fatique.
Defendant urges that the several factors set forth above constitute a “totality of circumstances surrounding the confession”, which, when considered together, render this confession and subsequent admissions involuntary. This appeal argues that when all circumstances relating to his confession are examined the conclusion must be reached that the State has failed in its burden of showing a knowing and intelligent waiver of Defendant’s right to counsel and right to remain silent under the principles set forth in Miranda v. Arizona, 384 U.S. 470 (1966). The Defendant contends that allowing the confession and subsequent admission concerning the two knives into evidence was error.
The right of an individual to remain silent and to have available the assistance of counsel is well established. When an in-custody confession is obtained and the voluntariness of a confession challenged we make an independent determination of the issue from a review of the entire record and in making such a review look to the totality of the circumstances surrounding the confession. However, we will not set aside the finding of voluntariness by the trial court unless the finding is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 514 (1974).
In Moseley v. State, 246 Ark. 358, 438 S.W. 2d 311, we concluded that youth of a defendant does not prevent the giving of voluntary confession or the intelligent, knowing waiver of his Constitutional rights. In Shepherd v. State, 239 Ark. 785, 394 S.W. 2d 624 cert. den., 387 U.S. 923, 87 S. Ct. 2038, 18 L. Ed. 2d 977; Dewin v. State, 114 Ark. 472, 170 S.W. 582; and Mitchell v. State, 206 Ark. 149, 174 S.W. 2d 241, lack of education standing alone has been held insufficient to establish that a confession or waiver of rights was involuntary. Although some states require a parent, counsel or guardian present when a juvenile is questioned, such a requirement does not exist in Arkansas. Moseley v. State, supra. Therefore, although relevant, the evidence regarding age, mental capability and lack of adult protection is not persuasive to find an involuntary confession.
The crucial aspects of this case and certainly the two matters which have been most emphatically argued by this Defendant concern the relationship between Defendant and Officer Fogley created and cultivated by Officer Fogley and the statements made by Officer Fogley to the. Defendant concerning fingerprints and the trace metal detector test. It is asserted that these two elements, coupled with the events previously discussed above, bring into being a “totality of circumstances” rendering the confession involuntary. We do not agree with this conclusion.
Officer Fogley testified that after fingerprinting and photographing the Defendant and conducting the metal test he took the Defendant to his office and they talked together alone for one hour prior to the confession. That scene is described by Officer Fogley and in essence substantiated by the testimony of Defendant. Officer Fogley attempted to gain the confidence of the Defendant. He described his relationship with Defendant as that of a “dutch uncle.” He stated that he attempted to “love him to death,” and that the information concerning the fingerprints and the metal test were probably a “ruse” and “con. ” This friendly relationship is seen by Defendant in his appeal as creating a notion in the mind of Defendant that by making a confession he could expect leniency and that the fingerprint and metal detection information was a trick or artifice which violates notions of fair play and which are impermissible in Arkansas. He cites as authority Brown v. State, 198 Ark. 921, 132 S.W. 2d 15 (1939). As a review of that case will show, the Defendant in Brown was clearly subjected to duress and coerced into making the purported confession. Such simply did not occur with the Defendant here, Billy Tucker. Limitations on the use of trickery and deceit by law enforcement officers have been considered by the United States Supreme Court as well as by courts of other jurisdictions. In Frazier v. Cupp, 394 U.S. 734 (1969), the opinion by Justice Marshall stated:
“After the questioning had begun and after a few routine facts were ascertained, petitioner was questioned briefly about the location of his Marine uniform. He was next asked where he was on the night in question. Although he admitted that he was with his cousin Rawls, he denied being with any third person. Then petitioner was given a somewhat abbreviated description of his Constitutional rights. He was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Questioning thereafter became somewhat more vigorous, but petitioner continued to deny being with anyone but Rawls. At this point, the officer questioning petitioner told him, falsely, that Rawls had been brought in and that he had confessed. Petitioner still was reluctant to talk, but after the officer sympathetically suggested that the victim had started a fight by making homosexual advances, petitioner began to spill out his story. Shortly after he began he again showed signs of reluctance and said, ‘I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now.’ The officer replied simply, ‘You can’t be in any more trouble than you are in now,’ and the questioning session proceeded. A full confession was obtained and, after further warnings, a written version was signed.” (Emphasis added.)
The Court concluded:
“The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.”
In the case of Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974) the court was asked to determine whether or not a false statement to an accused by a law enforcement officer that the murder weapon had been obtained, was such fraud, deceit or trickery as to cause a subsequent confession to be inadmissible. There the court concluded that confessions are not inadmissible when obtained by such methods, provided the means employed are not calculated to procure an untrue statement and provided further than the confession is otherwise freely and voluntarily made. See also Moore v. State, 230 Ga. 839, 199 S.E. 2d 243 (1973); Hudson v. State, 153 Ga. 695, 113 S.E. 519.
Therefore, we conclude that the friendly relationship created by Officer Fogley in this case did not cause a false hope of leniency in this Defendant. Furthermore, we also con- elude that the misleading statements concerning the fingerprint did not prompt or cause Billy Tucker to make an untruthful confession.
In summary, we find that when considering the “totality of circumstances” surrounding the obtaining of the confession of Billy Tucker that the cumulative effect of the particular characteristics of this individual Defendant as well as the events relevant to and surrounding his confession do not constitute duress or coercion. This Defendant was advised of his right to remain silent and his right to counsel but did not choose to avail himself of those opportunities. Actually, his own statement reflects that he was entirely familiar with the procedure of being “given his rights” by police officers, stating that on prior occasions he “wouldn’t doubt” but that his rights had been explained to him more than six times and that he understood them even before they were explained on the occasion in question.
This judgment is affirmed.
Fogleman and Holt, JJ., dissent.
Hickman, J., not participating. | [
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George Rose Smith, Justice.
This is an action against the city of Crossett for breach of contract, a municipality not being suable in tort.
In 1961 the plaintiffs were living in a home near the city. In order to relieve a flooding problem the city obtained from the plaintiffs an easement, 30 feet wide, for a drainage ditch across the plaintiffs’ land. Through the years the city passively failed to keep the ditch in good repair. In 1975 a heavy rain caused the water in the ditch to overflow and rise to a depth of several inches within the plaintiffs’ house, with extensive property damage.
The plaintiffs brought this action for damages on the theory that the instrument granting the easement imposed upon the city a duty to maintain the ditch so that the plaintiffs’ property would be protected from such damage as that which occurred. The city denied the existence of any such duty. The trial judge considered the written instrument to be ambiguous and submitted its meaning to the jury, which returned a $7,500 verdict for the plaintiffs.
We agree with the city, for either of two alternative reasons. First, we find no real ambiguity in the written agreement. It grants to the city “a right of way and easement for the purpose of constructing, maintaining and repairing a drainage ditch over, across, and through’.’ a 30-foot strip across the plaintiffs’ land. The grantee is given rights of ingress and egress “for the purposes herein contained.” The grantee agrees that in the construction and maintenance bf the ditch no stumps, brush, trees, limbs, or debris shall be placed, piled or moved so as to create a fire hazard, damage any property of property owners in the vicinity, or otherwise damage nearby standing trees. The grantee agrees to indemnify, defend, and hold harmless the grantors against claims for damages to persons or property arising from acts or omissions of the grantee relating to the construction and maintenance of the drainage ditch.
We can find no language in the instrument, and counsel for the appellees point to none, expressly or impliedly binding the city to construct or maintain or repair the ditch. The instrument is just what its title says, “Grant of Easement.” It is essentially a conveyance by the grantors to the grantee, of cer tain privileges, with limited protective language in favor of the grantors. Absent any language imposing an affirmative duty of maintenance upon the city, no such duty existed.
Secondly, even if the appellees’ insistence that the instrument is ambiguous be accepted, the proof still does not support the jury’s finding of liability on the part of the city. The parol evidence rule is actually a rule of substantive law. Hoffman v. Late, 222 Ark. 395, 260 S.W. 2d 446 (1953). Under that rule, all antecedent proposals and negotiations are merged into the written contract, which cannot be added to or varied by parol evidence. Rearing v. Crawford, McGregor & Camby Co., 102 Ark. 575, 145 S.W. 266 (1912); Comment, Scope and Operation of the Parol Evidence Rule in Arkansas, 4 Ark. L. Rev. 168, 169 (1949).
The appellees were allowed (erroneously, we think) to introduce oral evidence of intent, but even that evidence does not sustain the verdict. The plaintiff Riles was asked if he had any discussion with the mayor, when the contract was signed in 1961, about who would be responsible for the condition of the ditch. Riles answered, “Yes, sir,” but did not say what the discussion was. Even if he had said that the mayor promised to assume responsibility, the testimony would have been inadmissible.
Riles also testified that within five years before the trial he asked the mayor on several occasions to clean out the ditch. On one occasion the mayor answered that the city was “broke,” on another that he had no one to do the job. Such casual conversations, occurring some ten years after the contract was signed, fall short of establishing a new agreement, supported by a consideration, binding the city to maintain the ditch. We find no competent testimony creating an issue of fact with respect to the city’s asserted obligation to maintain the ditch.
The judgment is reversed and the cause dismissed.
We agree. Harris, C.J., and Holt and Roy, JJ. | [
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Elsijane T. Roy, Justice.
Appellant Juanita Bailes and Fred O. Bailes, Sr. were married in 1953. They began operation of a business, Bailes Best-Made Dog Food, in Fort Smith, in 1958, and continued such operation until Bailes died intestate on October 31, 1969. Surviving him were Juanita, his wife, and an only son, Fred O. Bailes, Jr., by a previous marriage. After the death of Fred O. Bailes, Sr., Mrs. Bailes incorporated the business and continued its operation under the name Bailes Best-Made Dog Food, Inc.
This action was instituted by appellee Fred O. Bailes, Jr., claiming that all the assets of the business should become part of the estate of his father and should be distributed according to the law of descent and distribution.
The chancellor held that although there was no written partnership agreement the evidence supported a finding that the business was operated as a partnership on an equal basis and 50% of its assets should be included as part of the estate of Fred O. Bailes, Sr. Thereafter the court ordered that an accounting of said partnership be filed, showing all assets of the business as of October 31, 1969, the date of death of Fred O. Bailes, Sr. Juanita Bailes and the other appellants gave their notice of appeal from this decree.
This Court dismissed the appeal because a final order or decree of the chancery court had not been entered. On remand the chancellor appointed a master who, on the basis of additional evidence, submitted a detailed report to the court. In accordance with the report, based upon an equal division of the assets, the court ordered appellants to pay the sum of $114,482.14 to the estate of Fred O. Bailes, Sr., deceased. From this order appellants have appealed.
Appellee cross-appealed alleging that he is entitled to 80% of the assets of said business and appellant Juanita Bailes should receive 20% of said assets in accordance with the division of profits reflected by the tax returns.
The master and the chancellor found no merit in this contention. Mrs. Bailes testified the returns reflected the division of income in this manner for social security purposes only and the division was not a reflection of the interest of each in the partnership.
On appeal there is no allegation that the business was not a partnership, so we will discuss the issues in that light. Appellee contends the provisions of the Uniform Partnership Act, Ark. Stat. Ann. §§ 65-101 et seq. (Repl. 1966), mandate his father’s estate’s entitlement to an amount equal to the value of decedent’s interest in the partnership at the time of his father’s death. We do not agree with appellee’s interpretation of the Uniform Act.
In Alexander v. Sims, Executor, 220 Ark. 643, 249 S.W. 2d 832 (1952), we recognized the validity of an agreement between business partners which provided that the interest of the deceased partner would pass to the survivor. Although the agreement considered in Alexander was invalidated because of fraud in its procurement, the Court stated:
Absent any question of consideration, testamentary nature, or fraud on a partner or his creditors, spouse, heirs, etc., some courts have upheld a partnership agreement in which each partner agrees that the survivor will receive all of the assets of the partnership, [cases cited] but such an agreement is always subjected to the closest scrutiny to see if the utmost good faith was observed.
The Uniform Partnership Act does not require the initial partnership agreement be written and neither can we find any provision requiring an agreement which disposes of the assets upon the death of a partner be in writing.
In 68 C.J.S. Partnership § 294(a), the following comment is made:
It is entirely competent for partners to provide, in their articles or agreement of copartnership, that the death of a partner shall not dissolve the firm, and that, in such event, the partnership business shall, or may, be continued by the surviving partner or partners, either as sole proprietors of the business. . . . (Or continued on some other basis as indicated therein.)
It is not necessary that agreements such as have been mentioned should be contained in the original articles of partnership; a separate agreement with respect to such matters is valid and binding even though it be in parol
In Gammill v. Gammill, 256 Ark. 671, 510 S.W. 2d 66 (1974), another case involving a partnership, the Court emphasized the importance of the “actual intent” of the parties in determining the business relationship between them.
In Hogan v. Hogan, 234 Ark. 383, 352 S.W. 2d 184 (1961), this Court stated:
. . . partners can agree that certain matters can be handled in a different manner than that provided under the Uniform Partnership Act in the absence of other partners or creditors, a chancery court, in dividing property between man and wife in a divorce proceeding, may proceed in a different manner than provided in the Partnership Act. * * *
Since there are no other partners, no creditors, no partnership obligation, we must look to the action of the parties to determine whether their intention (actual or implied agreement) was that the survivor would take title to the partnership assets. Both the oral testimony and the written documents support such an agreement. In fact there is very little evidence to the contrary.
During the course of operation of the business from 1958 until October 31, 1969, the following items of property, listed on the partnership books, were considered assets of the business and title to them was held as follows:
(1) A tract of real property described as Lots 357, 358, 360 and 361 in Thibaut Place, an Addition to the City of Fort Smith. The title to this property was placed in the name of “Fred Bailes and Juanita Bailes, husband and wife, as tenants by the entirety,” by virtue of a Warranty Deed dated March 31, 1964.
(2) A savings certificate, dated May 8, 1967, given by the First Federal Savings and Loan Association of Fort Smith in the amount of $36,000, and issued in the names of “Fred Bailes or Mrs. Juanita Bailes, as joint tenants with right of survivorship, and not as tenants in common.”
(3) A savings account dated July 28, 1965, being Account No. 128827, issued by the First Federal Savings and Loan Association of Fort Smith to “Fred Bailes or Juanita Bailes, as joint tenant with right of survivorship, and not as tenants in common,” and further entitled “Special Account,” and which reflected a deposit of $2,290.77 as of the date of death of Fred O. Bailes, Sr. This account was marked “Rent Account” and a separate ledger on the books of the partnership reflected rent that was received from the real property described in (1) above.
(4) A savings account, No. 26939, issued by the First Federal Savings and Loan Association of Fort Smith in the names of “Fred Bailes or Mrs. Juanita Bailes” and which was in existence on the date of death of Mr. Bailes and which had a deposit therein of $4,686.95.
(5) Two checking accounts with the First National Bank of Fort Smith, Arkansas, one in the names of “Mr. or Mrs. Fred Bailes, Special Account,” being Account No. 036-14-2. The second, a checking account with the First National Bank of Fort Smith in the name of “Bailes Best-Made Dog Food Company,” being Account No. 13612-6.
The above assets reflect that title to the real property was taken in the names of the parties as “tenants by the entirety;” two savings accounts were registered in both names “as joint tenants with right of survivorship, and not as tenants in common;” as to the two checking accounts the vice president of the bank testified that both parties drew on both accounts and the bank regarded them as survivorship accounts.
In addition to the intention of survivorship rights being clearly expressed by the deed, savings and checking accounts, the undisputed testimony of four witnesses reflects this was the manifest intention of Fred and Juanita. The witnesses were Mrs. Marie Whorrall, who, with her husband, prepared the income tax returns of the partnership from 1958 to 1967; Buck Brown, who had known the decedent for thirty years; Mrs. Lena Sanderford, mother of the deceased; and Juanita Bailes, appellant. Each of them testified that upon several occasions Bailes had stated that his wife was to have the business on his death.
Mrs. Whorrall testified:
Q. Did you ever have occasion to hear Fred Bailes give any information during your course in contacting him in regard to your accounting and your bookkeeping and your tax return preparation — tell you as to the condition of the business or what would happen to the business upon his death?
A. Yes.
Q,. What, was that?
* * *
A. Well, Mr. Bailes would come over to see us when we lived here, and he and Mr. Whorrall and I would discuss his business and the operation and he said many times that he wanted Juanita to have the business if anything should happen to him because she had helped this up, she was the business head and she was a wonderful — she caught on to this operation and was very valuable to this business.
Mrs. Sanderford, who was appellee’s grandmother, testified concerning a conversation she had with her son, the decedent, the last time he visited her at her home.
Q. Did he ever express to you his intent as to what would be done with the business after his death?
A. He did.
Q. What was that, that he expressed to you?
* * *
A. Well, the last time Fred was home, he came in the kitchen where I was at and talked to me about it. And he said that they had had an opportunity to sell the business, but said Juanita wants the business and I said, “Now, Juanita you can take care of the business all right, do you want it, and she says yes, I do,” and he said, “well, it’s yours.”
A further statement as to the intention of the parties is found in Mrs. Bailes’ testimony:
Q. Mrs. Bailes, Mr. Harris has asked you about the ownership of the business. How was the ownership of the business known as Bailes Best-Made Dog Food prior to the death of Fred Bailes?
A. We went into business together on equal shares. We both worked in it, we established it together. We shared equal parts of all the revenue that came out of the business.
Q. Then what would happen on the death of either one of you?
A. If I should have died before Fred, it would have been his business. If he died before me, it was my business.
On the basis of the widow’s testimony alone, this Court would be most reluctant to find Mrs. Bailes had survivorship rights because such claims must be closely scrutinized as indicated in Alexander, supra. However, in view of the totality of the circumstances, including the written documents, conduct of the parties and the oral testimony, we find the evidence overwhelmingly supports the conclusion that Fred O. Bailes, Sr. and Juanita Bailes intended and had agreed with each other that the survivor would succeed to ownership of all the assets of the business at the death of the other.
In view of our determination that Mrs. Bailes, for the foregoing reasons, is entitled to full survivorship rights in the business property, it is unnecessary to discuss appellee’s cross-appeal contending’that he is entitled to 80% of the assets of the partnership.
Since the preponderance of the evidence does not support the trial court’s holding, the decree is reversed.
Byrd, J., dissents.
The stock was held by Mrs. Bailes, her daughter Susan and the daughter’s husband, C.A. White, all of whom are appellants in this action. | [
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OPINION OF THE COURT.
In this case two questions only are presented: First, whether the court below erred in rejecting the plea that the plaintiffs were not partners, on the ground that it was not sworn to; and, second, whether the judgment is regular in giving eight per cent, interest after its rendition.
The first question presents no difficulty. The plea offered was in abatement, and should 'have been verified by the oath of the party offering U. Geyer, Dig. p. 250, § 23. The second is of a more serious character, principally on account of the discrepancy in the decisions heretofore made in similar cases. If this court were now called upon for the first time to express an opinion on the subject, there would be no hesitancy in saying, that, in this country, no judicial tribunal, in ordinary cases, has the power to render judgment for prospective interest at a higher rate than six per cent, per annum. When a note or obligation is put in suit by action of assumpsit, debt, or covenant, interest may be calculated at a rate exceeding six per cent, and not more than ten, according to the agreement of the parties, and the judgment given for the amount due at the time of its rendition, but certainly for nothing more. The statute in force here on the subject of interest, it is said, authorizes and requires judgments like the one under consideration; otherwise the obligation of contracts for a higher rate of interest than six per cent would be impaired. It is true that the statute does provide, that when the parties agree expressly, that any obligation shall bear interest, not exceeding the rate of ten per cent., the same shall be deemed legal, and the several courts are required to give judgment accordingly. Geyer, Dig. 240. But this provision does not change the matter in the slightest degree, as anything secured by it would be fully accorded, by calculating the interest at the rate agreed upon, and incorporating it in the judgment at the time of its rendition. After that time all accruing interest is on the judgment, and not ■on the obligation. A judgment giving six per cent, interest until paid would doubtless be sustained, but, when so expressed, would be no better than if nothing had been said upon the subject. The words giving it would be surplusage, merely expressive of the general rate to which the party would have been entitled without their insertion. Accruing interest being on the judgment, the first section of the statute referred to (Id. p. 230), fixing the general rate, steps in and relieves the question of all difficulty, by providing that creditors shall be allowed to receive at the rate of six per cent, per annum for all moneys after they become due, on bond, bill, promissory note, or other instrument in writing, or on any judgment recovered in a court of record, then or thereafter to be established. Six per cent., and no more, is given by the statute, on a judgment, and no distinction is made between judgments rendered on an obligation, or any other writing or description of evidence. In the case before us the action was founded on an obligation by which the plaintiff in error bound himself to pay a sum of money, at a given time, with eight per cent, interest from maturity, if not punctually paid. The judgment is for principal and interest at that rate, up to the time it was given, and also interest at the same rate until paid. The judgment, we know, is in accordance with the decision in the case of Henderson v. De-sha [Case No. 6.351a], at the January term of this court, 1S34. At the July term, 1834, however, in two cases, the same question arose, and was decided otherwise. It may therefore be fairly regarded as remaining unsettled. But, suppose there had been other cases decided in consonance with the case of Henderson v. Desha, would it be, if obviously erroneous, conclusive upon this court in the present case? We think not; for, although uniformity in judicial proceedings is desirable and necessary, yet, when precedents are unauthorized and oppressive, they ought not to be tolerated. Upon what, it might be asked in the case before us, is prospective interest at the rate of eight per cent, given? It cannot be answered, that it is upon the obligation, for that ceasfed to exist simultaneously with the rendition of judgment; nor can it be said that .it is on the judgment, for interest on judgments is, by express statutory provision, limited to six per cent. In all cases where interest at a higher rate than six per cent, is allowed, it is a consequence growing out of the act of the debtor, sanctioned by the provision in the statute on the subject of interest.
We therefore think, that the judgment of the circuit court, in this case, is defective, in giving accruing interest at a higher rate than six per cent. Judgment reversed. | [
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Darrell Hickman, Justice.
Bertha Webb filed a petition in this court asking for a writ of prohibition to stop Circuit Judge Todd Harrison from proceeding with the trial of her case in Poinsett County. She is charged with forgery and uttering of a check. We granted a temporary stay of the trial pending a decision by the full court.
Webb argues this court should grant a writ of prohibition because she was denied a speedy trial, an order dismissing her case was illegally set aside, and the circumstances of the case warrant the writ.
The deputy prosecuting attorney of Poinsett County charged Webb in July, 1975; however, after a personal investigation, he decided the charges should be dismissed. He made an oral motion before Judge Harrison in October, 1976 to nolle prosequi the case. It is disputed whether or not the judge took this motion under advisement and later ruled on it. The deputy states in an affidavit that Judge Harrison did not state to him he was taking the motion under advisement. Judge Harrison, in a signed order that was not filed until December the 30th, recited the motion was taken under advisement and overruled on the 29th of November. This order, along with several others, was filed on the 30th of December. The orders were dated the 28th of December but entered nunc pro tunc to dates in October. The orders were: an order granting a motion for a speedy trial; an order denying a motion to nolle prosequi the case, and an order setting the matter for trial December 29th.
After the October hearing, but before any written orders were filed by Judge Harrison, the prosecuting attorney made a motion to dismiss the case with prejudice before Judge Gerald Pearson, a judge in the same circuit. Judge Pearson signed an order dismissing the charges on the 5th of November. However, he set this order aside on the 7th of December as entered in error. There is no evidence that any of the parties received notice of Judge Pearson’s order setting aside the order of dismissal.
We do not find in this record sufficient evidence to justify prohibiting trial because there was a denial of a speedy trial. Although the case was set several times for trial, and passed on the motions of the state, there is no evidence the petitioner’s motion for a speedy trial was presented to the court until October, 1976. Also, three full terms of court did not lapse from the time Webb was arrested until the trial date in December, 1976. See Curan v. State, 260 Ark. 461, 541 S.W. 2d 923 (1976). These bare facts are insufficient to warrant a writ of prohibition. This does not preclude raising the same issues before or during trial.
Webb argues that the original order of Judge Pearson dismissing this case binds the state and therefore the court should be prohibited from proceeding with the trial. However, Judge Pearson set aside his order within the same term of court. The order setting aside the dismissal states that the original order of dismissal was entered in error. A trial court may set aside its own order in the same term of court without notice to the parties if the original order was entered in error.
The orders filed by Judge Harrison recite facts which are in conflict with the affidavit of the deputy prosecuting attorney, and it is not clear from the record that a writ of prohibition should be granted. We have held that a writ of prohibition is a discretionary matter and is only proper when the trial court has no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts. Pacific Mutual Life Ins. Co. v. Toler, 187 Ark. 1073, 63 S.W. 2d 839 (1933). Sparkman Hardwood Timber Co. v. Bush, 189 Ark. 391, 72 S.W. 2d 527 (1934). Since the trial court still has jurisdiction and there are disputed facts, we cannot grant a writ of prohibition as a substitute for an appeal.
A prosecuting attorney and a circuit judge both have great discretion in performing their duties. The prosecutor has the discretion to file charges and the discretion to ask the court to dismiss charges. The trial court has the discretion to grant or deny a motion to dismiss charges. Based on the record before us, we cannot say there is evidence of abuse of authority by either official. The orders filed in this case do not preclude further motions before trial. We cannot presume that the public officials will not do their duty, therefore, the petition will be denied.
Conley Byrd, Justice, dissenting. I disagree with the majority first because I think Bertha Webb has been denied a speedy trial within the meaning of Arkansas Constitution Art. 2 § 10 and the Sixth Amendment to the United States Costitution, and second because we should emphasize and use our “superintending control over all inferior Courts” so as to correct a manifest injustice.
The facts are not in dispute. The record shows that Bertha Webb operates the Webb Printing Company in Memphis, Tennessee. Some two months before the forged check was passed, Bertha Webb’s purse containing her billfold and driver’s license was stolen from a Memphis restaurant. On July 2, 1975, a woman passed a forged check of Mrs. Gene Thompson at the Marked Tree Bank in the amount of S4,85Q.Q0. That woman volunteered the driver’s license of Bertha Webb to the bank teller for identification. On July 29, 1975, Michael Everett, Deputy Prosecuting Attorney, acting on behalf of David Burnett, Prosecuting Attorney for the Second Judicial District, filed a felony information in the Poinsett Circuit Court charging forgery and uttering against Bertha Webb. Bertha Webb’s defense from the beginning was an alibi. The case of State of Arkansas v. Bertha Webb, #CR75-63, was set for trial at the October 1975 term of Poinsett County Circuit Court, again on March 8, 1976 and once again October 14, 1976. Even though Bertha Webb was ready for trial at each setting, the case was passed each time on motion of the State. On July 10, 1976 Bertha Webb filed a motion demanding a speedy trial. In the meantime, the State through its duly constituted authorities had interviewed all of Bertha Webb’s alibi evidence and had concluded that Bertha Webb was innocent of the charges filed against her. After Bertha Webb filed a motion to dismiss for lack of a speedy trial on October 28, 1976, the deputy prosecuting attorney with the consent of the prosecuting attorney recommended to Judge Gerald Pearson, who held the first week of the October 1976 term of criminal court in Poinsett County, that the motion to dismiss be granted. Pursuant to that motion and recommendation, Judge Gerald Pearson entered an order on November 10, 1976 dismissing with prejudice the charges against Bertha Webb. Thereafter and without notice to Bertha Webb, Judge Gerald Pearson entered an order dated December 8, 1976 which set aside the November 10, 1976 order. The respondent Judge Todd Harrison, who had been holding the clerk files in the case of State of Arkansas v. Bertha Webb, § CR75-63, caused counsel for Bertha Webb on December 13, 1976, to be notified that the charges against her had been set for trial on December 29, 1976, the fourth day after Christmas and the third day before New Years.
Bertha Webb’s assertion that it will be necessary to have 17 witnesses from the State of Tennessee to present her defense is not challenged by the respondent.
For informational purposes, the affidavits of Michael Everett and David Burnett are attached to this opinion as appendix “A” and appendix “B” respectively.
In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Court discussed what constituted a denial of a speedy trial and there stated:
“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex con spiracy charge.
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”
* * *
“A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.”
The securing of out-of-state witnesses pursuant to Ark. Stat. Ann. § 43-2005 and § 43-2006 (Repl. 1964), requires appearances in the courts of both the State issuing the request and the State in which the witness is present. Furthermore, there is a 1,000-mile limitation. To secure the attendance of the necessary witnesses from December 13th to December 29th would be a Herculean feat in itself since the statutes and the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases both require that proper notice be given to a witness before a hearing can be held to secure his attendance.
Even if it could be assumed that all of Bertha Webb’s witnesses were willing to voluntarily appear in her behalf, still the actions of the courts of this State have immeasurably prejudiced the rights of Bertha Webb. After the entry of the November 10, 1976 dismissal with prejudice, Bertha Webb’s witnesses had no reason to keep her informed of their whereabouts. Realistically speaking, it would be near impossible to bring together 17 people on short notice during the rushed period between Christmas and New Years for many people have made vacation arrangements for travel and made plans with family far in advance of the holidays. However, without having properly subpoenaed her witnesses, the trial court could have forced Bertha Webb to continue the trial on the theory that she had been dilatory. Under such circumstances, the cases before this Court all hold that the trial court does not abuse its discretion. However, if no prejudice has been shown for delay, one should consider the fact that neither Bertha Webb, her counsel nor the deputy prosecuting attorney knew that Gerald Pearson had set aside the November 10th order of dismissal with prejudice until this matter came up for temporary hearing in this Court on December 22, 1976.
In my opinion, the facts demonstrating prejudicial delay in the prosecution of this case are further magnified by the fact that the duly elected Prosecuting Attorney of the Second Judicial District, after a thorough investigation of the witnesses, has concluded that Bertha Webb is innocent of the charges. To me it is a disgrace to any government to permit a trial judge to sit mutely behind the log of judicial discretion in refusing to dismiss a criminal prosecution of a felonious crime after the State has conceded that the defendant is innocent. Nor can I think of any greater prejudicial delay than the delay in the dismissal of the defendant in that situation.
Concededly, Ark. Stat. Ann. § 43-1230 (Repl. 1964), provides that “No attorney for the State shall enter a nolle prosequi on any indictment, or in any other way discontinue or abandon the same, without the leave of the court in which such indictment is pending being first entered on the minutes.” However, the power of the court in such cases being judicial, it is not absolute and it cannot refuse a nolle prosequi without any valid reason. See State ex rel Pilkinton, Prosecuting Attorney v. Bush, Judge, 211 Ark. 28, 198 S.W. 2d 1004 (1947), where we had before us Ark. Stat. Ann. § 24-119, which authorizes the prosecuting attorney to appoint deputies “provided, that such appointment shall not take effect until approved, in writing, by the judge of the circuit court of such circuit. . . .” There James Pilkinton, the duly elected prosecuting attorney, had designated Henry Woods to be his deputy and the respondent Dexter Bush, the Circuit Judge, filed a response asserting that he had the right without any reason to disapprove the appointment of Henry Woods. While we recognized that the approval or disapproval of the appointment of a deputy prosecuting attorney was a matter within the discretion of the trial judge, we there said:
“The power of the circuit judge being judicial, it is not absolute; and he does not have the right to refuse, without any valid reason, to approve an appointment of this kind.”
While the writ of mandamus was denied in that instance, we did so without prejudice and pointed out that the trial judge’s discretion was subject to our review on certiorari under the superintending control given to this Court under Art. 7 §4 of the Constitution of Arkansas. I would here treat Bertha Webb’s petition as a request for a writ of certiorari and discharge her.
For the reasons stated I respectfully dissent.
APPENDIX A
Michael Everett, being first duly sworn, makes oath that:
1. At all times herein mentioned, I was duly appointed Deputy Prosecuting Attorney for Poinsett County, Arkansas, and have personal knowledge of the matters stated herein.
2. On July 29, 1975, I filed a felony information on behalf of David Burnett, Prosecuting Attorney for the Second Judicial District, in Poinsett Circuit Court against Bertha Webb charging forgery and uttering, probable cause being based on the fact that Bertha Webb’s name was on the back of the check that was forged.
3. The case of State of Arkansas vs. Bertha Webb was set for trial during the October 1975 term of Poinsett County Circuit Court, again on March 8,1976, and again on October 14, 1976, but the trial was continued on each setting on the Motion of the State of Arkansas. At no time was there a continuance on Motion of Bertha Webb, who has been ready for trial on each setting.
4. From the moment that Bertha Webb was arrested in Memphis, Tennessee, I have had numerous discussions about the case with her attorneys, who have vigorously maintained that Bertha Webb is innocent.
5. I have kept David Burnett, Prosecuting Attorney for the Second Judicial District, thoroughly informed of the status and developments in the case of State vs. Bertha Webb from the onset.
6. A representative of the State was requested by Bertha Webb’s attorney to meet in Memphis, Tennessee and examine all of her proof.
7. During the March 1976 term, I went to Memphis, Tennessee accompanied by Owen Miller, special investigator of the Prosecuting Attorney, and met with Bertha Webb and her attorneys and interviewed the following alibi witnesses who were present at the meeting: Fred Stewart, Linda Moitozo, Robert Kirkpatrick, Patricia Capos, Isaac Martin, Andy Thompson, Marvin Sites, and Brooks Webb. These alibi witnesses were sound and impressive in their specific reasons for recalling the date in question. Next I examined the time cards of Webb Printing Company, kept at 6-minute intervals, which I concluded to be admissible under the business records act and these time cards substantiated the testimony of the alibi witnesses that Bertha Webb was in Memphis the entire day on which the check was passed in Marked Tree, Arkansas. I further examined the written statements of two additional witnesses, which showed that Bertha Webb’s purse had been stolen from a Memphis restaurant on May 10, 1975 (two months before the forged check was passed). I examined Bertha Webb’s application for a new Tennessee driver’s license, which was made before the check was passed. Next I reviewed the affidavit of Herbert A. Taylor, M.D., Bertha Webb’s physician, which substantiated that the physical description of Bertha Webb was different from that given by the bank teller of the woman who passed the check.
Finally I interviewed Earl P. Davenport, handwriting expert, whose opinion was that the forged check was made by tracing a previous check of the victim, Mrs. Thompson, that had been payable to Creative Bath Kitchens, a Memphis concern dóing business with the victim. Bertha Webb had nothing to do with Creative Bath Kitchens. The attorneys for Bertha Webb had turned up the check from which the forgery was made, by making a transparency of the forged check and comparing it with numerous checks of Mrs. Thompson until they found the one that matched. Bertha Webb’s attorneys brought to my attention the name of a woman who could have had access to the check and who fit the description of the person who passed the check and whom they believed to be the likely suspect for the forgery.
8. After I returned from the Memphis meeting, I informed David Burnett of the substance of proof shown to me and I told him that in my opinion, Bertha Webb was innocent, the State could not convict her, and the case should be dismissed.
9. David Burnett agreed with my conclusions that the case should be dismissed against Bertha Webb.
10. At all times after the Memphis meeting and after conferring with David Burnett, I advised the attorneys for Bertha Webb that a motion to dismiss would be made.
11. On October 14, 1976, I made an oral motion before Judge Todd Harrison for nolle prosequi to which Judge Harrison replied that he didn’t want to do it then, as he wanted to talk to Fred Odum of the Arkansas State Police about it, but at no time did Judge Harrison state to me that he was taking the motion under advisement or that the case was to be set for trial.
12. The trial was continued again on October 14, 1976, on the Motion of the State.
13. Previously on July 10, 1976, Bertha Webb had filed a motion for a speedy trial and on October 28, 1976, filed a motion to dismiss for lack of speedy trial, and I believed the motion to be well taken as the actual business of the criminal division In Poinsett County had ended in October 1976. Therefore, in November, 1976, I sent Judge Gerald Pearson the Order dismissing cause with prrejudice along with precedents for the dismissal, which was granted and entered on November 10, 1976, with the consent of David Burnett.
14. I sent the dismissal order to Judge Gerald Pearson because Judge Pearson held the first week of criminal court during the October 1976 term, which I understand was at the request of Judge Harrison who had a backlog docket in Crittenden County, and also because Judge Pearson is much faster in answering my mail than is Judge Harrison.
15. It is, and has been, the custom in the Second Judicial Circuit for orders in criminal cases to be entered by any Judge, including those who at the time might be sitting on the civil bench, in order to expedite all business of the Circuit Court.
16. I chose the motion to dismiss with prejudice, rather than Nolle Prosequi because defense counsel had made the motion, and to my mind I thought the motion to be well taken, and I believed it was proper that the information be dismissed with prejudice, as a nolle prosequi would leave the case open to be refiled, and I didn’t believe Bertha Webb to be guilty.
/s/ Michael Everett
Deputy Prosecuting Attorney for Poinsett County, Arkansas
STATE OF ARKANSAS COUNTY OF POINSETT
Sworn to and subscribed before me this the 4th day of January, 1977.
/s/ Darlene Lagrove
Notary Public
My Commission Expires:
3-24-80
'APPENDIX B
David Burnett, being first duly sworn, makes oath that:
I
At all times mentioned, I was the duly elected Prosecuting Attorney for the Second Judicial District of Arkansas, and have personal knowledge of the matters stated herein.
II
On July 29, 1975, Michael Everett, Deputy Prosecuting Attorney, filed a felony information on my behalf aainst Bertha Webb in Poinsett Circuit Court charging forgery and uttering.
III
The case of State of Arkansas vs. Bertha Webb was set for trial during the October 1975 term of Poinsett Circuit Court, again on March 8, 1976, and again on Octoberl4, 1976, but the trial was continued on each setting on the Motion of the State of Arkansas; at no time was there a continuance on the Motion of Bertha Webb.
IV
t have been personally involved in the case of State vs. Bertha Webb, having prepared it for trial on two settings, and having had numerous consultations with Michael Everett and Bertha Webb’s lawyers about the case.
V
The attorneys for Bertha Webb requested that a representative of the State come to Memphis, Tennessee, and meet with them to review the documentary evidence of Bertha Webb, and to interview her witnesses and to interview Bertha Webb and a handwriting expert.
VI
Michael Everett, Deputy Prosecuting Attorney, attended the meeting requested by defense counsel on behalf of myself and the State and upon his return from said meeting gave me his findings which are set forth in the Affidavit of Michael Everett.
VII
Michael Everett advised me that, in his opinion, after examining the proof on behalf of the Defendant, Bertha Webb is innocent, and I agreed with his conclusion that the State of Arkansas could not prove Bertha Webb guilty of forgery and uttering, and that the case should be dismissed.
VIII
The attorneys for Bertha Webb informed me that their investigation had caused them to conclude that another person, not Bertha Webb, had committed the crime, and, in my opinion, a further investigation by the State of Arkansas should be made in regard to the guilt or innocence of said party identified by the attorneys for Bertha Webb.
IX
Because of my belief that the State of Arkansas could not convict Bertha Webb, and because I believe it my duty as Prosecuting Attorney, representing the State of Arkansas, not only to prosecute persons I believe are guilty, or may be guilty of a crime, but also not to prosecute persons who are not guilty and cannot be convicted, and in view of the opinion of Michael Everett that Bertha Webb was innocent, I agreed to a dismissal of the action, which was granted by Judge Gerald Pearson on November 10, 1976 upon application of Michael Everett.
It is, and has been, the custom in the Second Judicial Circuit for orders in criminal cases to be entered by any Judge, including those who at the time might be sitting on the civil bench, in order to expedite all business of the Circuit Court.
XI
Insofar as I, as Prosecuting Attorney for the Second Judicial District of Arkansas, represent the State of Arkansas, the State has no further desire to prosecute Bertha Webb.
/s/ David Burnett
Prosecuting Attorney for the Second Judicial District of Arkansas
STATE OF TENNESSEE COUNTY OF SHELBY
SWORN TO and subscribed before me this the 8th day of January, 1977.
/s/ John D. Richardson
Notary Public (Seal)
My Commission Expires:
June 11, 1980 | [
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John A. Fogleman, Justice.
Appellant was found guilty of the charge of felonious possession of stolen property of a value in excess of $35 in violation of Ark. Stat. Ann. § 41-3938 (Repl. 1964) and sentenced to serve a term of 21 years in the State Penitentiary. He asserts and we agree that the trial court erred in giving the jury the state’s requested instruction No. 2 over appellant’s objection because the instruction included only the felony definition of the statute and omitted from the jury’s consideration the lesser included offense of misdemeanor possession of stolen property of a value of less than $35. He argues that failure to so instruct was error because the question of value of the allegedly stolen item was for the jury.
The property was described as a .380 Astra handgun. Evidence of value was given by the state’s expert witness, who described its appearance as “despicable looking, and it is dark and discolored and the grips are cracked, it is a gun that is desirable by the military collectors because it was a gun that was used by the German Army.” He stated that the weapon was made in Spain and sold to the Germans between 1941 and 1945. He estimated its value as between $40 and $50. Another witness for the state identified the gun as being his property and testified that he purchased the weapon three or four years ago for $90 or $95. He stated that the markings on the barrel were caused when he tried to take the barrel off with a pair of wire pliers. He testified that the grip of the handgun was held together by one screw, that the “bluing was messed up on it” and that it was sort of rusty.
Evidence of value of stolen goods was important in Higginbotham v. State, 260 Ark. 433, 541 S.W. 2d 303 (1976), which involved the question whether the jury should have been instructed on the lesser included offense of petit larceny. In that opinion we discussed the important considerations to be used in determining when the jury should be so instructed. We stated:
When the evidence shows conclusively that the value of the stolen property exceeds $35, as in the theft of more than that amount in cash or of property worth a great deal more, such as a new automobile, the lesser offense obviously need not be submitted. At the other extreme, when there are conflicting estimates of value both above and below $35, the lesser offense obviously must be submitted. Neither extreme is presented here.
The same is true in the case at bar, but unlike the Higginbotham case, the jury could reasonably find that the value of the gun was less than $35 because the mini num value expressed by the expert witness ($40) was so close to the minimum value for felonious possession of stolen property ($35), State v. Enochs, 339 Mo. 953, 98 S.W. 2d 685 (1936), cited in Higginbotham v. State, supra, and because of the admitted disreputable appearance of the weapon. The jury had a right to accept such portions of the testimony as it believed to be true and to reject that it believed to be false, Pickett v. State, 91 Ark. 570, 121 S.W. 732.
Because the jury, in finding the appellant guilty of felony possession of stolen property, must necessarily have found him guilty of misdemeanor possession of stolen property, the error in failing to instruct on the lesser included offense may be cured by remanding this cause for a new trial, unless the Attorney General, within 17 days, elects that the judgment be modified so as to sentence the appellant for the violation of the lesser offense. If he so elects the sentence is reduced to the maximum sentence of one year in the county prison or the municipal or city jail and a fine of $300.
We agree. Harris, C.J., and Roy and Hickman, JJ. | [
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John A. Fogleman, Justice.
This case involves the question whether evidence of well-established custom and usage was admissible in evidence in a case where the terms of an oral contract were in dispute. Appellant contended, and introduced evidence to show, that it contracted for appellee to excavate for a boot pit area for a rice dryer for Producers Rice Mill, Inc. at Wynne. According to the evidence introduced on behalf of appellant, defendant below, the contract called for payment at the rate of $2.50 per cubic yard. Appellee’s evidence showed the agreement was that the compensation was to be paid at that rate on a “loose yard basis.” The difference is that under appellant’s concept, the hole excavated would be measured and the compensation paid on the basis of the measured yardage. Under appellee’s version one-third of this amount would be added to the yardage determined by this measurement to obtain the loose yardage.
Appellant proffered evidence of a well-established and generally accepted custom and usage in the excavation and construction industry to pay for such excavation work on the basis of the measured yardage calculated from a cross-section of the excavation. Appellee was in the construction business off and on for eight years. Before entering into the contract, he consulted with an employee, who had been in the earth moving business for 50 years, 13 years of which were in the operation of his own business and 5 years in the employ of appellee. If there was a well-established general custom and usage in the business, appellee should certainly have been aware of it. See Connelly v. Parkes, 160 Ark. 496, 255 S.W. 22.
Of course, evidence of custom and usage would not be admissible to vary, contradict or defeat the terms of the contract. Jackson County Gin Co. v. McQuistion, 177 Ark. 60, 5 S.W. 2d 729; Ballon v. Jones, 167 Ark. 478, 268 S.W. 857; Burton v. Wilson, 135 Ark. 269, 205 S.W. 655; National Lumber & Creosoting Co. v. Mullins, 187 Ark. 270, 59 S.W. 2d 493. If custom and usage is uniform, reasonable and well established, it may govern the terms of a contract and be considered as a part of the contract, unless contradictory to its express terms. Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S.W. 150; McCarthy v. McArthur, 69 Ark. 313, 63 S.W. 56; Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400, 153 S.W. 833; Davis v. Martin Stave Co., 113 Ark. 325, 168 S.W. 553; Jackson County Gin Co. v. McQuistion, supra. The evidence offered would have been admissible as an aid to interpretation of the contract and the measuring of its terms if the jury should find that the contract was upon the terms as appellant’s witnesses expressed it, because that evidence was that the custom was of such widespread usage that it could be presumed that the contract was made with reference to it. Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W. 2d 762; Connelly v. Parkes, supra; McCarthy v. McArthur, supra; Davis v. Martin Stave Co., supra; Batton v. Jones, supra; Wilkes v. Stacy, 113 Ark. 556, 169 S.W. 796. See also, Sharpensteen v. Pearce, 219 Ark. 916, 245 S.W. 2d 385.
But the admissibility of this evidence in this case is not restricted to interpretation of the contract, if its terms were as appellant contends. The circuit judge ruled that it was inadmissible on the issue as to the terms of the contract. This was error. The evidence would not have been admissible if the issue was the existence or non-existence of a contract. Ft. Smith Refrigeration & Equipment Co. v. Ferguson, 217 Ark. 457, 230 S.W. 2d 943. Usage cannot make a contract where there is none. McCarthy v. McArthur, supra. But neither party contends that there was no contract. Instead, both maintain that there was a contract. The dispute is about its terms. The question is what the terms of the contract were on the matter of compensation to appellee. Where evidence on this subject is conflicting, evidence of custom and usage is admissible as bearing upon the probable truth of what was alleged on either side as having been the agreement of the parties. Shaver v. McKamey, 216 Ark. 211, 224 S.W. 2d 819; Ft. Smith Refrigeration & Equipment Co. v. Ferguson, supra. See also, Sharpensleen v. Pearce, supra.
In order that our holding be not mistakenly applied, we agree with the trial court that neither the custom and usage of appellant nor its practice under other contracts is admissible in this case, where there was no evidence that appellee had any knowledge of either when the transaction was entered into and it appears that there was no connection between any of the other transactions and that with appellee. Glidewell v. Arkhola Sand and Gravel Co., 212 Ark. 838, 208 S.W. 2d 4; Calhoun v. Ainsworth, 118 Ark. 316, 176 S.W. 316, LRA 1915 E 395; Forest Park Canning Co. v. Coler, 226 Ark. 64, 287 S.W. 2d 899.
A great deal of appellant’s argument rests upon various sections of the Uniform Commercial Code, Ark. Stat. Ann. §§ 85-1-101 et seq (Add. 1961; Supp. 1975). There is nothing in the text of the code to indicate any intention that it apply to the transaction between these parties. Afiy lingering doubt about the matter may be dispelled by reference to the title of Act 185 of 1961 adopting the code. It reads:
An Act to be known as .the Uniform Commercial Code, Relating to Certain Commercial Transactions in or Regarding Personal Property and Contracts and Other Documents Concerning Them, Including Sales, Commercial Paper, Bank Deposits and Collections, Letters of Credit, Bulk Transfers, Warehouse Receipts, Bills of Lading, Other Documents of Title, Investment Securities, and Secured Transactions, Including Certain Sales of Accounts, Chattel Paper, and Contract Rights: Providing for Public Notice to Third Parties in Certain Circumstances: Regulating Procedure, Evidence and Damages in Certain Court Actions Involving Such Transactions, Contracts or Documents: to Make Uniform the Law With Respect Thereto: and Repealing Inconsistent Legislation.
This contract does not fall into any category enumerated. Thus, provisions of this code do not govern admissibility of evidence in this case.
The trial court was not in error in denying appellant’s motion for a directed verdict. The instructions requested by appellant on the subject of usage of trade were erroneously refused for the same reason we find error in the exclusion of the evidence offered by appellant on the subject, even though its requested instruction no. 1 might have been more artfully drawn.
The judgment is reversed and the cause remanded.
We agree. Harris, C.J., and Byrd ami Hickman, JJ. | [
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OPINION OF THE COURT.
The only question we deem important is the variance between the verdict of the jury and the judgment of the court. The verdict is for “eighty-nine dollars in damages,” and the judgment is for damages assessed by the jury, and also for interest thereon from the rendition of the judgment before the justice of the peace. We are of opinion that the court erred in adding interest to the damages found by the jury. It was the province of the jury to decide upon the question of interest, and it must be presumed, if any ought to have been awarded, that it was included in their assessment of damages. Reversed. | [
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OPINION OF THE COURT. This is an action of debt, brought by Wylie against Burnett, in the Chicot circuit court, upon the following obligation, and condition annexed: “Know all men by these presents, that we, John J. Bowie, as principal, and Wm. B. Patton and Moses Burnett, as securities, are held and firmly bound unto Edward Wylie in the sum of seven hundred dollars lawful money of the United States, to be collected of, as on the following conditions, namely: Whereas the said Bowie has this day bargained and
sold unto the said Wylie seven hundred acres of Spanish confirmed land claims; now, if the said Bowie should make good and sufficient title to him, the said Wylie, to the aforesaid land, then in that case the above obligation is to be void, otherwise to remain in full force.” Which writing is by oyer made part of the record. The defendant in the court below, having by consent withdrawn his pleas of payment, waived oyer of the writing declared on, and filed a general demurrer to the declaration, which was by the court overruled, and judgment rendered against him -for seven hundred dollars and costs, has appealed to this court.
The principal ground of error relied upon by the counsel for the appellant is, that the plaintiff in the court below failed to assign breaches of the condition of the writing obligatory on which the action is founded, and that judgment was rendered without a writ of inquiry, or the intervention of a jury. Our legislature, at its last session, adopted and re-enacted the statute of William III. c. 11, § 8, under the title of “An act concerning suits on penal bonds and other writings under seal.” This statute has also been long since re-enacted in the states of New York, Virginia, and Kentucky. The adjudications, then, in England and in those states, upon this statute, will be regarded by this court as high authority. In the case of Van Benthuysen v. De Witt, 4 Johns. 218, the supreme court of New York say: “In suits on bonds for the performance of covenants, it is compulsory on the part of the plaintiff to assign breaches, and have his damages assessed; and when breaches are assigned, the jury at the trial must assess damages for such breaches as the plaintiff shall prove; otherwise the verdict is erroneous, and a venire facias de novo will be awarded. 5 Term R. 636; 2 Caines, 329; 2 Wils. 377. It is now settled in England, New York, Virginia, and Kentucky, that in debt on bonds, with a condition for doing anything else, except the payment of a gross sum of money, or the appearance of a defendant in a bail bond, the plaintiff is bound to suggest breaches, either in his declaration, replication, or on the roll or record.” 1 Saund. 58, note 1 by Williams; 2 Saund. 187; Collins v. Collins, 2 Burrows, 820; 5 Term R. 538; 8 Term R. 126; 2 Hen. & M. 446; 1 Bibb, 242. The learned editor of Johnson’s Reports, in a note to the case before mentioned of Van Benthuysen v. De Witt (2d Ed.), lays down the law on this subject, which entirely accords with our own views. He says: “The plaintiff may assign breaches (either one or more) in his declaration, or he may leave the assignment to be made afterwards in consequence of the plea; as if the defendant pleads performance of the covenant, the plaintiff may set forth his breaches in his replication; or where the defendant pleads non est factum, or judgment be given against him on demurrer, nil dicit, or confession, and the plaintiff has not assigned breaches-in his declaration, he may, notwithstanding, suggest breaches on the record; and the suggestion may be made as well before as. after the entry of the judgment The judgment to be entered is to recover the penalty of the bond, nominal damages, and costs; . and if judgment be entered for the damages assessed by the jury,, it is so far erroneous, and will be reversed as to the damages, and the execution is of course to levy the amount of the judgment, but is indorsed to levy only the damages assessed for the breaches of covenant, together with the costs.” In support of these positions, numerous authorities are cited. If, then, the present action is founded on a penal bond for the performance of any thing else than the payment of a gross sum of -money, or the appearance of the defendant in a bail bond (and it is clearly not for either of these), it was incumbent on the plaintiff, after the demurrer to his declaration had been overruled, to assign or suggest a breach or breaches of the covenant contained in the condition of the obligation declared on, and have the damages assessed by a jury upon a writ of inquiry; and for his failure to proceed in this manner, we are clearly of opinion that the judgment is erroneous, and must be reversed.
It has been argued by the counsel for the plaintiff with great earnestness and zeal, that this is not an action brought upon a penalty for non-performance of an agreement or covenant contained in any indenture, deed,, or writing. By inspecting the writing obligatory, as set out upon oyer, it is manifest that it is a penal bond for the conveyance, by a good, sufficient title, of seven hundred acres of Spanish confirmed land claims. To illustrate this proposition by reasoning would seem to be difficult, since it appears to us to be self-evident. The language used is clear, plain, and unambiguous. The obligors bind themselves to pay to the plaintiff seven hundred dollars, conditioned to be void if one of them should make to the plaintiff a good and sufficient title to seven hundred acres of Spanish confirmed land claims which he had that day bargained and sold to the plaintiff, otherwise to remain in force. The plain intention of the parties to this contract is to secure by a penalty, namely, seven hundred dollars, the conveyance, by a good title, of seven hundred acres of Spanish confirmed land claims. Let us advert to the condition of the bond on which the action was brought in the case of Ramsey v. Matthews, 1 Bibb, 242. It is in these words: “The condition of the above obligation is such, that whereas, the above-named Ramsey has hired two ne-groes of the said Matthews for one year, and for one hundred dollars each, to be paid at the end of the year, and to find said negroes in clothing, &c., pay their taxes, and return said negroes at the end of the year to the said Matthews; now if the said Ramsey does and shall well and truly pay, do, and perform, &c., then this obligation to be void.” How or in what particular does the condition differ from the condition of the bond before the court? The condition of the present bond is: ‘‘Now, if the said Bowie should make a good and sufficient title to him, the said Wylie, to the aforesaid land, namely, seven hundred acres of Spanish confirmed land claims, then the above obligation -to be void.” There is no substantial difference in these two bonds; and Judge Trimble and the whole court held that the obligation in the case of Ramsey v. Matthews was to be regarded as a bond with collateral conditions, in which the law requires breaches to be assigned.
We abstain from further remarks on a question which to us appears so free from doubt. The other objection taken to the declaration, we deem untenable. Judgment reversed. | [
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YELL, Judge.
This was an action of ■debt, brought in the name of the governor, for the use of McWilliams, against John Campbell and others, upon a constable’s bond. An execution had been placed in the hands of Campbell, as constable of Ozan township, in favor of McAVilliams. against •Tames W. Judkins, for the sum of sixty-one dollars and fifty cents. Upon the execution the constable made a levy on the property of Judkins, on the 8th day of April, 1S33; but took no bond for its deb very, on the day of the sale; and returned on the execution, that he had levied on a quantity of household and kitchen furniture, bedding, medicines, and drugs, but not enough to satisfy the execution. He advertised the property to be sold on the 4th of May. 1S33, and proceeded to offer the same publicly, and in separate parcels, at which time no person bid or gave any thing for the property. The plaintiff then sued out a venditioni exponas, and placed it in the hands of the constable, upon which he made the following return, namely: “This ven. ex. is returned not satisfied; the property levied on, by virtue of an execution, bearing date the 8th of April. 1833, is not to be found in my bailiwick, and I have not found any other goods or chattels of the defendant whereon to levy the ven. ex.; returned this 27th of June, 1S33.” Whereupon suit was commenced against Campbell, as constable, and his securities on his official bond, for the amount of the debt. At the May term. 1S34, of the Hempstead circuit court, the jury found the following verdict; “We find the assignment of breaches in the plaintiff's declaration mentioned, to be true, and assess his damage by reason thereof, to the sum of sixty-one dollars and fifty cents.”
In the investigation of this subject it may be necessary to advert to several points. in the cause for the purpose of settling some questions that may hereafter arise. The material question is, Was there error in the verdict and rendition of the judgment in the court below? It' has been properly contended by the counsel for the plaintiff in error, that the judgment for the plaintiff ought to have been for the full amount of the penalty of the bond, to be discharged by the payment of such damages as the plaintiff had sustained by reason of the breaches assigned; and in support of that position, 1 Saund. 58, note 1, and Ter. Dig. 348, have been cited. By reference to the statute it will be found, that upon any bond “for the payment of money, wherein the plaintiff shall recover, judgment shall be entered for the penalty of such bond, to be discharged by the payment of principal and interest due thereon, and costs of suit and execution shall issue accordingly.” Then if this was a bond for money, no possible doubt could exist. But it is a bond with conditions to perform the duties of an office. Will that change the judgment? We believe not. The statute says, “The plaintiff may assign as many breaches as he may think fit, and the jury may assess damages on each of the breaches, and on each verdict the like judgment shall be entered, as heretofore has been usually done in such cases.” From the statute and the English authorities, we are satisfied, that in this judgment there is error in form, sufficient to require us to remand the cause for a more perfect judgment.
The court is asked to decide the question, as to the liability of the constable, in not taking a delivery bond for the property on the first execution, and in failing to obtain the property on the return of the venditioni exponas. The statute requires the officer to take bond from the defendant; but if the defendant fails, or refuses to give it, he can only take the property and keep it until the day of sale. It becomes to a certain extent his own. He could, if it was taken out of his possession, bring an action to recover it, or for any injury to it. And further, if an officer levies on property sufficient to pay the debt, and his return shows the fact, it is a payment of the debt by the defendant, and the plaintiff must look to the officer for his money. The officer may take a delivery bond (Tor. Dig. 345); but if he does not, the property is at his own risk: and if it is not forthcoming on the day of sale, he becomes liable, in the nature of special bail, to the plaintiff. If the above principles are time, then the officer would still be responsible for the delivery of the property on the return of the venditioni exponas.
The court refused to permit the defendant, on the inquiry of damages, to give parol evidence of the value of the goods levied on under the execution, and Instructed the jury, that the officer, failing to state the value of the goods levied on, was conclusive evidence that there were goods enough to pay and satisfy the debt, although the officer had returned that they were not sufficient. We believe the court erred in rejecting the evidence to prove the value of the property. That was one means to arrive at the true amount of damages that ought to have been recovered against the officer. Consequently the court erred in instructing the jury, that the officer not returning the value of the property levied on, was conclusive evidence against him, of sufficient value, and that they ought, to find accordingly. Judgment reversed. | [
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Elsijane T. Roy, Justice.
Appellant Berl Harvey was found guilty of possession of stolen property and sentenced to eleven years in the State penitentiary. He subsequently filed a motion for a new trial which was overruled.
On appeal appellant first urges that it was error for the trial court to overrule his pre-trial motion to suppress evidence obtained through a search of his home without a warrant. The trial court held appellant had voluntarily consented to the search.
The constitutional propriety of a search of one’s premises effectuated through consent alone, in the absence of any warrant, must be demonstrated from the total circumstances surrounding the giving of that consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The burden is on the State to prove that consent was unequivocally and specifically given, and the State must make its showing of the sufficiency of the evidence supporting the consent to search by clear and positive proof. Hock v. State, 259 Ark. 67, 531 S.W. 2d 701 (1976).
In the instant case the sheriff testified he was accompanied by a police officer and two investigators, and they made a search of appellant’s premises. The uncontradicted evidence shows that the sheriff first made the identities of the parties known and then informed appellant they had come to pick up a chain saw which was allegedly part of the stolen property. Appellant, after first being advised that he did not have to consent to the search of the premises, signed a typed “Consent to Search” form. The form had been read to appellant by the sheriff and both appellant and his wife examined the form before it was signed. There was no evidence of duress, force or coercion on the part of the officers. Appellant voluntarily took the sheriff over the premises. Appellant then told the sheriff that most of the goods were in the trailer, and appellant unlocked the trailer with his key.
When these factors are viewed in their entirety we find the evidence is more than sufficient to support the trial court’s conclusion that the State sustained its burden of proving the voluntary nature of appellant’s consent by clear and positive evidence.
The second contention by appellant is that certain testimony by one of his witnesses was erroneously stricken from the record. The evidence excluded consisted of the testimony of Homer Bynum, a resident of Siloam Springs and long-time friend and business acquaintance of appellant, that appellant’s reputation for trüth and veracity in the community was good. However, on cross-examination he stated he was speaking from his own personal feelings, that he had not talked to any of appellant’s neighbors in Fayetteville, and that he did not have “the foggiest idea” of what went on there in connection with appellant.
In Henson v. State, 239 Ark. 727, 393 S.W. 2d 856 (1965), quoting 20 Am. Jur. 2d Evidence § 326, we noted that character evidence “must relate and be confined to the general reputation which such person sustains in the community or neighborhood in which he lives or has lived.” The evidence developed at trial clearly established the character witness did not know appellant’s business or personal reputation in Fayetteville, the community in which appellant lived. Furthermore, it was not shown that appellant had established any reputation, business or otherwise, in Siloam Springs, the community in which the witness lived.
Although under certain circumstances the rule regarding reputation in the community may permissibly embrace a larger geographic area than the domicile of the accused, there was no such showing made here. Trial courts are vested with broad discretionary powers in determining whether a witness is competent to testify, and their decisions on the matter are not ordinarily reviewable on appeal unless so clearly in error as to constitute an abuse of that discretion. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974), and Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330 (1976). We find no abuse of discretion here.
Filially, appellant contends the trial court erred in overruling his motion for a new trial. The rule for segregating witnesses had been invoked pursuant to Ark. Stat. Ann. § 43-2021 (Repl. 1964). Appellant alleged the “spirit of the rule” had been violated by one of the witnesses who had been seen talking to a spectator at recess during the trial. At the hearing on the motion the most that was established was that the two were seen talking together. No clear or substantial evidence was presented as to the subject of their conversation.
We have always recognized the court’s wide latitude of discretion in granting or denying a motion for a new trial and hold that a judge’s action will not be reversed in the absence of an abuse of that discretion or manifest prejudice to the complaining party. Black v. State, 215 Ark. 618, 222 S.W. 2d 816 (1949); and Cross v. State, 242 Ark. 142, 412 S.W. 2d 279 (1967). Nothing appears in the record to warrant overturning the court’s refusal to grant a new trial.
Finding no reversible error, the judgment is affirmed.
Byrd and Hickman, JJ., dissent.
See 29 .Am. Jur. 2d Evidence § 347 (1967). | [
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Conley Byrd, Justice.
This appeal comes from a judgment entered on a jury verdict finding appellant Robert Andrew Baysinger guilty of capital murder and fixing his punishment at life imprisonment without parole.
The record shows that Billy Joe Holder, the decedent, had been sheriff of Searcy County for a number of years. Loren Reeves ran against Holder for sheriff in 1972 but Holder won. Loren Reeves ran again in 1974 for sheriff and this time defeated Holder. Thereafter, Holder, over the objections of Reeves, was employed by the State as an enforcement agent with the Alcohol Beverage Control Board. Shortly before his death, Holder in his capacity as a law enforcement officer with the Alcohol Beverage Control Board had caused appellant and appellant’s wife to be arrested for bootlegging. Appellant at the time told Reeves that appellant was going to kill Holder. Some week or two later appellant told Reeves that if Reeves would put $2000 in the pot, appellant would try to take care of everything. Following Holder’s assassination on February 9, 1976, appellant told Reeves “. . . me, you, and the man that done it, and another woman are the only ones that can involve me. . . .” Reeves then quoted appellant as saying “you better damn sure keep your mouth shut.” In June appellant met Reeves on the parking lot of the Sunset Motel where Reeves taped the conversation he had with appellant. Appellant there identified Norman Sutterfield as the trigger man and explained that he contacted him through the Kiddie Care Nursery in Conway, Arkansas. The State proved that long distance calls had been made from appellant’s phone to the Kiddie Care Nursery. The proof showed that appellant had been seen in the vicinity on the day of the murder in a pickup truck matching the description of Sutterfield’s truck. Other proof showed that appellant had caused to be withdrawn $17,697.27 from a savings account within a few weeks of the murder. Appellant had hunted other persons who were responsible for his bootlegging arrest for the purpose of whipping them.
POINT I. We can find no merit to appellant's contention that he was entitled to a directed verdict in his favor.
POINT II. Appellant here contends that the trial court erred in allowing into evidence the incriminating tape recorded conversation between him and Reeves. The first contention is that it violated his Fifth and Sixth Amendment rights because he was not given his Miranda warnings. We can find no merit to this contention. See Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). The proof on the part of the State shows that appellant was neither in custody nor deprived of his freedom while talking with Reeves — in fact, the evidence shows that appellant wanted Reeves for a confederate and at least considered the sheriff a confidant instead of a law enforcement officer.
Neither do we find any merit to appellant’s contention that the recorded conversation violated his Fourth Amend ment rights. See Kerr & Pinnell v. State, 256 Ark. 738, 512 S.W. 2d 13 (1974) and United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971).
POINT III. The contention that the trial court, after holding an Omnibus hearing, erred in failing to rule on appellant’s motion to suppress prior to trial is not likely to arise upon a new trial.
POINT IV. The fourth contention is that the trial court erred in refusing to permit appellant to show that Reeves had made inconsistent statements.
On February 25, 1976, after interviewing Reeves, Officer Partlow made the following report, to-wit:
“On the morning of 2/25/76, at 11:45 a.m. in Room 28 of the Marshall Motel in the presence of Sgt. Duvall, Sgt. Young and Trooper Partlow, Loren Reeves was offered the opportunity to take a polygraph test and he had previously stated that he would take the test.
When he was told that Sgt. Young was ready to give him the test he became somewhat upset and refused to take the test. He went on to state that he had discussed this with the County Attorney, John Driver, and Driver told him to tell us we could take that box and shove it up our ass. He went on and said that he had nothing to hide but thought the reason for asking him to take the test was politically motivated by Will Goggin, Venson Jones, and Phil Womack.
He further stated that he was a good friend of Robert Baysinger’s, he did hunting with Baysinger and considered him a pretty good fellow and didn’t believe he would kill anyone.”
At the June trial, Reeves testified that Baysinger had planned to kill Holder and that after the murder Baysinger told him “me, you, and the man that done it, and another woman are the only ones that can involve me, and you better damn sure keep your mouth shut.” The appellant attempted to have Reeves’ February statement put into evidence at the trial in order to impeach Reeves’ credibility. But when the State’s objection to it was sustained, the appellant made a proffer of the investigative report for the record.
Apparently, the State’s objection to the February statement was based on Ark. Stat. Ann. § 28-708 (Repl. 1962) which required that, before an inconsistent statement can be entered, the witness must be inquired of concerning the same, together with the circumstances of time and persons present. That statute was specifically repealed by Acts 1975 (Extended Sess., 1976), No. 1143, Art. XI § 2. The procedure for examining witnesses with respect to prior inconsistent statements is now controlled by the Uniform Rules of Evidence, Rule 613 (Acts 1975, No. 1143).
The State, to sustain the action of the trial court, now takes the position that the contradictory statements involved collateral matters. However, Reeves’ February statement that appellant was a good fellow and that Reeves didn’t believe appellant would kill anyone is certainly contradictory to Reeves’ statements at the trial to the effect that appellant planned and hired Holder’s assassin. It follows that we must hold that the trial court erred in excluding the proffered evidence.
POINT V. Appellant’s contention that the prosecuting attorney in his closing argument referred to appellant’s failure to take the stand is not likely to arise on a retrial. However, from the meager record presented we find no error.
POINT VI. For the appellant’s sixth point for reversal, it is alleged that the trial court erred in overruling appellant’s motion for a new trial based upon the non-disclosed relationship of a juror to witnesses called by the prosecution. The record shows Bennie Morrison was the second juror to be seated and was subsequently elected foreman of the jury. On motion for new trial, the State stipulated that Bennie Morrison was a first cousin to witness Donnie Griggs and a third cousin to Jim Morrison who were subpoenaed as witnesses for the State. Jim Morrison was married to the daughter of the decedent.
The record shows that at the Omnibus hearing it was agreed between the Court, the Prosecuting Attorney and Defense Counsel that all jurors related to witnesses within the degree of second cousin would be routinely dismissed for cause. When each new panel of jurors was brought into the courtroom, both the prosecution and the defense read their list of prospective witnesses to the panel. Witness Donnie Griggs was listed as a witness for both the prosecution and the defense. The court instructed the jurors to raise their hand if they were related in any way to any of the witnesses. If a juror raised his hand, he was then questioned as to the degree of the relationship. The record reflects that a number of jurors raised their hands and were excused for being within the designated relationship. However, juror Bennie Morrison did not respond to the inquiries.
To counteract the showing made by appellant in support of their motion for new trial, the State introduced the following affidavit:
“STATE OF ARKANSAS County of Marion
Comes the State of Arkansas, by Kenneth R. Smith, Prosecuting Attorney, and having been duly sworn states on oath:
That on the 30th day of August, 1976, in the presence of Donald Joe Adams, Gail Mathews, and Roy Gene Sanders, Attorneys for the defendant, Robert Baysinger, and in the presence of the Court, after six jurors had been selected, Bennie Morrison being one of said jurors, I moved the Court to excuse Bennie Morrison as a juror for cause to which the defense objected. I then moved the Court to permit me to exercise a preempt toward challenge and excuse Bennie Morrison to which the defense objected pointing out to the Court that the State and the defense had previously agreed at the Omnibus hearing held in this matter that in accordance with case law the State would not be permitted to excuse a juror once accepted except for cause.
That the defense attorneys were at that time advised that the State had received information after Bennie Morrison had been selected that Bennie Morrison was a good friend and customer of Robert Baysinger having purchased whiskey from Robert Baysinger and that Bennie Morrison might have information that the State would want to produce at the trial.
The defense stated that they objected unless State could prove such. A hearing was set for 8:45 Tuesday morning, August 31, in the chambers of the Circuit Court for the State to offer such proof. During the night of August 30th I, accompanied by Jack D. Knox, special agent of the FBI, interviewed witnesses in an attempt to substantiate same but were unable to do so. On August 31st at 8:45 in chambers, I advised the Court and the defense that I could not substantiate same but only have hearsay evidence concerning it, to which the defense renewed their objection to Bennie Morrison being excused either peremptorily or for cause.
Kenneth R. Smith, Prosecuting Attorney”
Based upon the showing made the trial court overruled appellant’s- motion for new trial.
In Bryant v. Brady, 244 Ark. 807, 427 S.W. 2d 179 (1968), we had before us jurors who had remained silent when they were asked to respond to questions as a group by raising their hands. After pointing out that the silence of a juror in such a situation amounts to a response to a question, we then stated:
“Here we think the trial court abused its discretion by not setting aside the verdict. Obviously, the jurors did not fairly answer the questions put to them by the court. Of course, truthful answers to the questions would not necessarily have disqualified the jurors, but how can we assert that they returned a fair verdict when they did not give fair answers to questions of the court? When viewed from the standpoint that ‘justice ought not only to be fair but appear to be fair, ’ Arkansas State Hwy. Comm’n v. Young, 241 Ark. 765, 410 S.W. 2d 120 (1967), we think the trial court under the record here abused its discretion in not setting aside the verdict.”
Following our decision in Bryant v. Brady, supra, the General Assembly recognized the justness of the premise thereof by Acts 1969, No. 568, § 6 [Ark. Stat. Ann. § 39-106 (Supp. 1975)] which provides:
“No verdict or indictment shall be void or voidable because any juror shall fail to possess any of the qualifications required in this Act [§§ 39-101 — 39-108, 39-201 —39-220] unless a juror shall knowingly answer falsely any question on voir dire relating to his qualifications propounded by the court or counsel in any cause. A juror who shall knowingly fail to respond audibly or otherwise as is required by the circumstances to make his position known to the court or counsel in response to any question propounded by the court or counsel, the answer to which would reveal a disqualification on the part of such juror, shall be deemed to have answered falsely.”
In view of the constitutional guarantee (Ark. Const. Art. 2 § 10) of a trial by “an impartial jury,” we must hold on the record before us that the trial court erred in overruling appellant’s motion for new trial. To avoid these consequences, the State contends that the juror was overly friendly to the appellant. However, this contention is not substantiated by the record. Since the State at the trial recognized that the evidence was not sufficient to sustain a death sentence, we fail to see how a juror who has failed to give fair answers to the qualifying questions put to him and who subsequently votes to bring in the highest possible penalty against the defendant can be said to be overly friendly toward him.
POINT VII. The record shows that the jury was sequestered by court order. Some of the jurors were permitted in the presence of the bailiff to place calls to members of their family for personal supplies such as clean clothes. On the night before the court submitted the case to the jury, the bailiff at the suggestion of the court arranged for the jurors to have dinner with members of their family. At that dinner the bailiff, of couse, did not hear every conversation. However, under the circumstances it would appear that the State met its burden of showing that no improper influence was brought to bear upon an individual juror — i.e. any separation of the jurors that may have occurred cannot be said to have been done without the permission of the court.
POINT VIII. Sergeant Earl Rife and Major Tudor, after listening to the taped recording of the conversation between Reeves and appellant, caused a transcription of the tapes to be made. Where the officers were unable to understand the conversation, a blank was left or a notation made to show that the officers could not understand the tape. Over the objection of appellant that it was the officers’ interpretation of the tape and that the officers did not have the original transcript they corrected, the court permitted the transcription to be introduced into evidence and an identical copy was given to each juror to look at while the tape recording itself was being played to the jury. Every witness who was questioned about the transcript stated that the transcription was correct. In fact, appellant did not in the trial court and does not now controvert anything contained in the transcript or assert that it prejudicially misrepresented the conversation on the tape. The assertions now made by appellant are that the trial court erred in allowing the transcript into evidence and in allowing each member of the jury to have and retain a copy of the transcript throughout the trial.
The record does not sustain appellant’s assertion that the jurors were permitted to retain a copy throughout the trial. On the other issue the authorities are not in agreement. In Bonicelli v. State, Okla. Cr., 339 P. 2d 1063 (1959) and Duggan v. State, Fla. App., 189 S. 2d 890 (1966), it was held error for the State to give the jurors a transcription of a tape recording. In United States v. Turner, 528 F. 2d 143 (9th Cir. 1975), it was held permissible. We believe that United States v. Turner, supra, states the better policy where as here the transcription is shown to be accurate and it would be necessary to replay the recording for the jurors several times unless the transcription is used.
For the two errors indicated, the judgment is reversed and the case is remanded for a new trial on the merits.
Reversed and remanded.
We agree: Harris, C.J., and Fqgleman and Hickman, JJ- | [
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Harold Sharpe, Special Justice.
This appeal seeks reversal of the Order of the Pulaski County Circuit Court affirming the grant of a savings and loan charter to Appellee, Home Savings and Loan Association, by Appellee, Arkansas Savings and Loan Association Board. For the purposes of brevity, Appellee, Arkansas Savings and Loan Association Board is hereinafter referred to as “The Board”, and Appellee, Home Savings and Loan Association, is hereinafter referred to as “The Association”.
Although this matter has previously been before this Court (257 Ark. 599), because of the length of tirfSe involved and the complexity of the sequence of events, we briefly summarize the proceedings. On May 1, 1973, The Association filed its application with The Board for a charter for a savings and loan association to be located in Mountain Home, Arkansas. After the taking of voluminous testimony from numerous witnesses, by deposition and ore tenus, The Board granted the application on December 26, 1973. Thereafter, appeals were taken to the Circuit Court of Pulaski County and to this Court. On February 10, 1975, this Court reversed and remanded for lack of specific findings by The Board. On May 27, 1975, The Board made new findings of fact and declarations of law, which, on November 3, 1975, the Circuit Judge found deficient, and again the matter was remanded to The Board. On November 18, 1975, new findings of fact and declarations of law were made by The Board. The matter was again taken to the Circuit Judge of Pulaski County, who entered his Order affirming the grant of the charter. This appeal follows.
Before considering the merits of the case, we make specific reference to Rule 9 (b) of the Rules of the Court. As the Rule clearly states, the Statement of the Case to appear in Appellant’s Brief is to be made without argument. The purpose of the Statement of the Case is to give this Court, which is familiar with neither the facts nor proceedings of the case, an unbiased, impartial, and factual overview and synopsis of the nature of the case and the proceedings below. It is not the place for argument.
Appellant urges three points for reversal:
(1) That the findings of facts by The Board did not comply with the requirements of Ark. Stat. Ann. Sec. 67-1824, on the question of management;
(2) That the record contains no substantial evidence to support the Order of The Board granting the application;
(3) That the circuit Court erred in holding that The Board need not find a present need for a new savings and loan association in the area.
We deal with these contentions as they are presented.
For its first point for reversal, Appellant argues that Ark. Stat. Ann. Sec. 67-1824 (2) (Supp. 1975), requires that The Board make a specific finding, separate and apart from its findings relating to the directors and officers of the applicant, that the applicant will have qualified full time management, and that the factual basis for this finding be set out in detail by The Board in its Order. We disagree. The statute provides as follows:
67-1824. Approval of application for charter. — The Board shall not approve any charter application unless the incorporators establish and the Board shall have affirmatively found from the data furnished with the application, the evidence adduced at such hearing, and the official records of the Supervisor that:
(2) The character, responsibility, and general fitness of the persons named in the articles of incorporation and who will serve as directors and officers of such association are such as to command confidence and warrant belief that the business of the proposed association will be honestly and efficiently conducted in accordance with the intent and purpose of this act and the proposed association will have qualified full time management.
If we read the statute as urged by Appellant, any applicant would necessarily be required to hire or make arrangements for its manager before the charter is issued, so that his name may be submitted with the application, and his qualifications determined by the full board. As we said in Morrilton Federal Savings and Loan Association v. Arkansas Valley Savings and Loan Association, 243 Ark. 627, 420 S.W. 2d 923 (1967), we do not read the statute as requiring that the manager be employed before the charter is issued. Such a requirement would be entirely impractical. The procedure to secure a savings and loan charter is lengthy, and either the manager or the members of the proposed association would be required to bear the risk of rejection of the application. In the case at bar, for example, the proposed manager would have been held in limbo, supposedly at the expense of the applicant, since 1973.
Rather, we interpret the statute to require The Board’s finding be that the character, responsibility, and general fitness of the proposed directors and officers are such that the proposed association will have qualified full time management. In this case, no serious question has been raised as to the proposed directors and officers who will select the full time manager. Thus, we find that the statutory requirement has been met.
With such an interpretation of the statute, it is unnecessary for us to deal with Appellant’s contention that submission of the name of the manager, once hired, to the supervisor is a delegation of the Board’s statutory authority to the supervisor.
For its second contention, Appellant urges that the record does not contain substantial evidence to support The Board’s finding of a need of another savings and loan in the Mountain Home area. We affirm The Board’s action since there is substantial evidence to support its findings. In addi tion we consider the evidence with all reasonable inferences deducible therefrom in the light most favorable to the Appellees. First Federal Savings and Loan v. Union Federal Savings and Loan, 257 Ark. 199, 515S.W. 2d 75 (1974). Whether the evidence of the Appellee or the Appellant weighs more heavily is not a consideration. Heber Springs Savings and Loan Association v. Cleburne County Bank, 240 Ark. 759, 402 S.W. 2d 636 (1966).
When we review the findings of The Board, we find the evidence to be clearly substantial. The Board found that the proposed service area consists of six counties, with a population of approximately 52,000, and with a rapid growth factor, both in number of people and economically. Bank deposits increased by 428 percent during the decade of the 1960’s. From December, 1972, to June 30, 1973, the total assets in the three financial institutions with home offices in Mountain Home increased to in excess of $96,000,000.00, and during the same period, loans increased by 20.7 percent, to over $68,000,000.00. Overall, The Board found the area to be served to be an area of rapid demographic and economic growth, increasing in population, and with a progressive economy.
Finally, Appellant contends that the lower Court erred in rejecting its argument that, for The Board’s grant to be sustained, there must be a finding that there is a present need for a savings and loan association in the area. Essentially, Appellant’s argument is boiled down to be that the proof heard by The Board in 1973 had no application in 1975, due to changing economic and social conditions. Our rejection of this argument is based on practical considerations. Because of the tremendous growth of litigation and the physical limitations of the Courts, there is a lapse of time between decisions of an administrative tribunal or trial Court and the Appellate Court. At present, we know of no way to avoid the delay, but have long worked toward judicial economy. To hold that this decision must be reversed for stale evidence would only prolong the litigation, and open the door for an endless cycle of appeals and rehearings of cases in this type. It has already been four years since the original filing of the application. It is not unreasonable to say that, if we were to remand for the taking of new proof, another four year cycle would be forthcoming. We also note that this argument was not raised before The Board, but only after the question had reached the Courts. Therefore, any such argument is deemed to have been waived.
For the reasons hereinabove stated, the judgment is affirmed.
Special Chief Justice Comer Boyett and Special Justice R. Eugene Bailey join in the majority opinion.
Fogleman, J., concurs.
Harris, C.J., and Byrd and Holt, JJ., not participating. | [
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John A. Fogleman, Justice.
Appellants were three of the five commissioners of the Housing Authority of the City of Booneville. Appellee is the mayor of the city. The mayor removed all the commissioners. Appellants filed their petition for certiorari in the Circuit Court of Logan County, seeking review of the proceedings for their removal. Writ of certiorari was granted to bring up the record of the proceedings. Thereafter the writ was denied and the action of the mayor sustained, the court holding that it was with sufficient legal cause and not arbitrary. Appellants ’ only point for reversal is the assertion that the circuit court erred “for the reason such removal was without legal cause. ” Although we find evidence of legal cause for removal of the commissioners which might well prevent us from saying that the action of the mayor was arbitrary, we find reversible error in the failure of the trial court to quash the removal of appellants for procedural reasons.
The applicable statute is Ark. Stat. Ann. § 19-3010 (Repl. 1968) which provides that a commissioner of a housing authority created under the provisions of Ark. Stat. Ann. § 19-3001 et seq (Repl. 1968) may be removed by the mayor for inefficiency or neglect of duty after notice and hearing. The commissioners were charged with having failed to conduct meetings as required by the by-laws of the housing authority; having failed to designate successors as required by Ark. Stat. Ann. § 19-3006 (Repl. 1968); permitting an employee of the housing authority to use a truck for driving between his home and place of private employment and various other places not connected with his duties with the housing authority; permitting the executive director of the authority to sign the name of one of the appellants, Loyd Wayne Bowen, then chairman, to various checks, in violation of the by-laws; and failure to file reports of recommendation annually as required by Ark. Stat. Ann. § 19-3033 (Repl. 1968).
Appellants argue that the case is governed by the definition of cause for removal stated in Carswell v. Hammock, 127 Ark. 110, 191 S.W. 935. They overlook the fact that the statute there involved only provided that removal be “for cause only” while the statute here specifically provides for removal “for inefficiency or neglect of duty or misconduct in office.” In the former statute, cause was not defined. In the statute we are considering it is defined. Still, the principles stated in Carswell furnish guidance in this case. Cause was thus defined there:
“ ‘Cause, ’ or ‘sufficient cause, ’ means ‘legal cause, ’ and not any cause which the Council may think sufficient. The cause must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.”
We would agree that a removal for inefficiency and neglect of duty must be for matters relating to and affecting the proper administration of the office and of a substantial nature affecting the rights of the public. Apparently, appellants feel that the public interests must have undergone appreciable damage before there could be a removal under the applicable statute — an attitude of waiting until the horse is stolen before locking the gate. We feel that the statute involved here enables the mayor to remove commissioners when there is substantial danger to the rights and interests of the public because of inefficiency, neglect or misconduct. The statement on removal for cause in Williams v. Dent, 207 Ark. 440, 181 S.W. 2d 29, is more appropriate here than that in Carswell, although we do not find any conflict. In Williams, “for cause” was taken to mean “just cause,” and we said that the cause stated must not be a mere whim or subterfuge, but must be of substance relating to the character, neglect of duty or fitness of the person removed.
It is in the light of the language of the statute applicable here and the statements in both Carswell and Williams that we view the evidence in a case such as this. The scope of our review is defined in Carswell. We inspect the record to see whether the mayor had jurisdiction to remove the commissioners; whether he kept within that jurisdiction; whether the charges preferred were sufficient in law; and whether the evidence furnished any legal and sufficient basis for removal. In reviewing the evidence, we do not weigh it and the circuit court hearing was not a trial de novo. The real question for the circuit court was whether the mayor acted arbitrarily and without legally sufficient evidence, i.e., evidence of a substantial nature, to support his action.
The argument that the reappointment of Godfrey and the removal of appellants demonstrated that the mayor’s action was arbitrary and capricious is not persuasive. There was evidence that Godfrey had advised the city officials that he would not accept reappointment if the board was to continue to be inactive, but if the board was to be active, he would be glad to serve.
A cursory review of the record discloses that there may well have been sufficient evidence upon which the mayor could have found, without being unreasonable, arbitrary or capricious, that certain of the specified grounds for removal had been sustained as cause for removal under the guidelines provided by the statute and by Carswell and Williams; however, we feel that there was a failure of proof on at least one of those specifications. Consequently, we must sustain appellants’ argument that the order of removal must be quashed. It was in the form of a letter to the commissioners simply stating that the removal was for cause, without stating the cause. In advancing this argument, appellants rely on Williams v. Dent, supra. Even though it might appear that there are factors distinguishing this case from that, it is clear that the opinion in Williams has previously been construed in Martin v. Cogbill, 214 Ark. 818, 218 S.W. 2d 94 in a manner which renders these factors insignificant. In short, the holding in Martin is that an order of removal in cases such as this should be quashed if it does not specify the particular charge or charges upon which the removal is based if there is any doubt about the sufficiency of the evidence to sustain any of the grounds charged.
For this reason, the judgment of the circuit court is reversed and the order of removal of appellants is quashed.
We agree. Harris, C.J., and Byrd and Hickman, JJ. | [
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Conley Byrd, Justice.
Appellant admits that appellee Carolyn Sue Davis was not mentioned in the will, but asks this Court to adopt the rule that in the case of pretermitted children, extrinsic evidence be admitted to show the testator was aware of the pretermitted child and intended to disinherit. Appellant then suggests that, if the evidence be sufficiently clear, cogent and convincing, the expressed terms of the will be effectuated despite the pretermitted heir statute. Our pretermitted child statute, Ark. Stat. Ann. § 60-507(b) (Repl. 1971), provides:
“b. PRETERMITTED CHILDREN. If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.”
We cannot adopt the rule requested by appellant admitting such extrinsic evidence. Our cases uniformly hold that extrinsic testimony is admissible for the purpose of showing the meaning of words used in a will or for the purpose of placing the court in the position of the testator at the time of using the words but that such evidence is not admissible for the purpose of showing what the testator intended but failed to set out in the will. See Hardy v. Porter, 245 Ark. 729, 434 S.W. 2d 61 (1968) and Vaught v. Vaught, 247 Ark. 52, 444 S.W. 2d 104 (1969).
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Holt, JJ. | [
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Conley Byrd, Justice.
The trial court sitting as a jury found the appellant Jerry Hill guilty of burglary and theft. For reversal appellant raises the issues hereinafter discussed.
POINT I. Appellant contends that the evidence does not support either burglary or theft in that he did not enter the premises which were “likely to contain persons” for the purpose of committing therein an offense punishable by imprisonment.
Burglary is defined, Ark. Stat. Ann. § 41-2002 (Ark.
Crim. Code 1976), as follows:
“A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein an offense punishable by imprisonment.”
The crime of theft which is punishable by imprisonment is defined, Ark. Stat. Ann. § 41-2203 (Ark. Crim. Code 1976), as follows:
“A person commits theft of property if he: (a) knowingly takes or exercises unauthorized control over . . . property of another person, with the purpose of depriving the owner thereof; or. . . .”
The term “enter or remain unlawfully” as used in the burglary statute is defined, Ark. Stat. Ann. § 41-2001(3) (Ark. Crim. Code 1976), as follows:
“(3) ‘Enter or remain unlawfully’ means to enter or remain in or upon premises when not licensed or privileged to do so . . . .”
An “occupiable structure” is defined, Ark. Sat. Ann. § 41-2001(1) (Ark. Crim. Code 1976), as follows:
“(1) ‘Occupiable structure’ means a vehicle, building, or other structure;
(a) where any person lives or carries on a business or other calling; ... .”
The record shows that Rodney and Lloyd Bise own and operate Bise Auto Sales and Bise Body Shop on Highway #79 in Stuttgart, Arkansas. Appellant was regularly employed as a policeman for the City of Stuttgart. He was also a part-time employee of Bise Body Shop. The building housing the body shop was broken into on April 16, 1976. That incident was investigated by Rodney Bise and appellant at approximately 1:15 a.m. Later that morning about 3:00 a.m. appellant returned and removed from the building some money that Lloyd Bise kept in a box in the bathroom. When Lloyd ascer tained that the money was missing he called appellant who told him that he knew nothing about the money. A few days later appellant returned the money claiming that he only took the money for safe keeping and as a prank or joke on his friend Lloyd Bise.
Under the evidence there is no question but that appellant entered a business building at 3:00 a.m. when it was not open for business. We therefore conclude that there is substantial evidence to support the trial court’s conclusion that he unlawfully entered a building when not licensed to do so.
Perhaps a closer factual issue exists as to the purpose for which appellant took the money. However, when we consider the conversations between appellant and Lloyd Bise as to who the likely suspects were and whether finger prints could be lifted together with the circumstances under thich the money was returned, we cannot say that there was no substantial evidence to support the trial court’s finding that a theft occurred when appellant took the money.
POINT II. Appellant also contends that the judgment is void because of the clerical error in showing that the offense was committed on April 26th when all the proof showed that it was committed on April 16th. While appellant is correct about the date, he does not demonstrate how he has been prejudiced by the erroneous date inserted in the judgment. We do not reverse a judgment for harmless or nonprejudicial irregularities, Underdown v. State, 220 Ark. 834, 250 S.W. 2d 131 (1952). We consider the matter of the erroneous date to be both harmless and non-prejudicial.
Affirmed.
We agree: Harris, C.J., and Fogleman and Hickman, JJ■ | [
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LACY, Judge.
This is a writ of error, prosecuted by the defendants below to a judgment of the Phillips circuit court. The suit is in the name of the governor, for the use of William Strong, against Nisa Campbell and Samuel Campbell, as principals, on an administration bond, and William Dunn and Ichabod Dunn, as their sureties. The pleadings present no little perplexity, but the court will, however, without noticing the extraneous matter with which the'record is incumbered, proceed to the examination of all the questions they deem important to the decision of the cause.
The breaches are properly assigned, for the declaration avers that neither Nisa Campbell, before her intermarriage, nor Samuel Campbell, since that time, nor William Dunn, nor Ichabod Dunn, nor either of them, have paid or discharged the bond. Nisa Campbell had no right to pay, but by the consent and as agent of her husband after her intermarriage, and hence it was not necessary to aver, as it is not contended that she did pay after that time. The demurrer to the declaration was properly overruled.
The suit ought not to have abated upon the suggestion of the death of James Miller, who was then acting governor of the territory, for he was only a nominal party upon the record, and his name might have been stricken out without injury, and that of the governor alone retained, who, in legal contemplation. is always in being. If the party was even improperly ruled to trial at the same term at which the suit was revived in the name of his successor, it could only have operated as a continuance, and questions of that character are always left to the sound discretion of the court that tries the cause, and it must be a very flagrant case of injustice that this court would interpose to correct.
The appointment of an elisor to summon a jury stands upon the same principle, and will be presumed to be correct, either by agreement of the parties concerned, or for reasons satisfactorily appearing to the court below.
Oyer was rightfully refused as profert was not made.
The testimony offered by the defendants to show that the judgment of allowance was wrongfully or fraudulently ■ obtained, was properly rejected. If there was a judgment of allowance entered up by a competent court, that matter cannot again be inquired into or be reinvestigated in the way that the defendants proposed to do. The proper time was when that subject was under adjudication, and if the court which made the allowance would not permit the parties to appear, or refused to have competent proof to defeat the claim set up by the plaintiff, an exception ought then to have been filed, and this court could have corrected the error. Besides, if it was a fraudulent judgment. the party injured is not without adequate redress. Wherever a judgment in a court having cognizance or jurisdiction of a matter, is rendered against parties or privies, the matter is at an end, unless again reexamined in the manner pointed out by law. If the court is right in this position, it follows necessarily that the demurrer to the defendants’ rejoinder was properly sustained. The verdict of the jury is considered substantially correct; and even if it was not, as no exception was taken to it in the court below, it is now too late for the party to avail himself of such an advantage.
The only remaining questions for the court to determine, are the demurrer to the plaintiff’s replication, and the objection to the execution that was received as evidence in the cause. These points present something more of difficulty than those that have been disposed of, and are much more important in their bearing upon this cause.
The declaration is upon the penalty of the bond, without setting forth the conditions. A plea of general performance is a response to the issue, and the plaintiff then rejoins and avers the special breach upon which he has a right to recover. This breach constitutes in reality the basis of his action, and the bond is the means alone by which that injury can be redressed. The replication should' have been as certain and as particular as the declaration, and as if the suit was for the breach. It should have averred that the defendants were indebted bjr reason of a judgment of allowance in a given court an I at a certain term, and in an exact sum or amount, which judgment remained unpaid, and in full force and effect. Does the replication contain such matter? For aught that appears from the record, the judgment may have been paid off and fully discharged, or have been reversed, or a new trial granted, or the parties by our statutes may have been only entitled, on the final settlement of the estate, to a certain portion of allowance, which may have been received. Had issue been taken on it, the only question that could' have been submitted to the jury, would have been, was there such a judgment? and the defendants would have been precluded from proving they had discharged it, or complied' with all the conditions of their bond. The replication nowhere states that the judgment is now in full force and unreversed, nor that the defendants have failed to settle, as they were bound to do, or pay off the debts according to their dignity or grade. Besides, it should have concluded with a verification, for the assignment of a particular breach surely contains new matter. 1 Chit. Pl. 325, 330; 2 Starkie, 54. 02; Bac. Abr. tit. “Pleas and Pleadings,” J, O, D; Robins v. Reese [Robbins v. Luce, 4 Mass. 474]; 1 Saund. Pl. & Ev. 50; 9 Johns. 335; 2 Tidd. Pr. 826.
The objection that was taken as to excluding from the jury the reading of the execution, is not answered by saying that it was previously given in as testimony, and that, after it was once admitted, it could not be rejected. The defendants’ counsel had no right to object to the reading of the execution. Their right to have it excluded, only attached upon the plaintiff not producing a judgment on which it was founded. Besides, the motion to exclude is in the nature of a demurrer to evidence, which never can be made until the proof is heard. This court cannot presume there was a judgment when the record shows none was produced, nor does it alter the case, that both judgments were rendered in the same court. There might have been a fatal variance between the judgment and execution. The judgment might have been absolutely void on its face, or it might have been a forgery. That no execution can be received as evidence without a judgment, (except in a few particular cases,) is a rule of law so universal. and important, that it requires neither authority nor argument to sustain it. It follows that the court on this point, as well as overruling the demurrer of the defendants to the plaintiff’s replication, erred, and the judgment must therefore be reversed, and the case remanded for a new trial, with leave to the parties to amend their pleadings. Judgment reversed. | [
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Elsijane T. Roy, Justice.
Appellant Franklin D. Martin was convicted of first degree battery in violation of Ark. Stat. Ann. § 41-1601 (1 )(c) (Criminal Code 1976), the illegal act being that of shooting a person in the face with a .38 caliber revolver. The sentence imposed was ten years’ imprisonment and a $10,000 fine.
The pertinent statute defines first degree battery as follows:
(1) A person commits battery in the first degree, if:
(c) he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life;
On appeal appellant contends that § 41-1601 (l)(c), on its face and as applied to him, is unconstitutionally vague, and also defective because the culpable mental state necessary to warrant a conviction is not set out therein.
Ark. Stat. Ann. § 41-204(2) (Criminal Code 1976) provides in pertinent part:
... if the statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required, and is established only if a person acts purposely, knowingly, or recklessly.
Ark. Stat. Ann. § 41-203(1) (Criminal Code 1976) defines “purposely” and, in accordance with the provisions of the statute, the court gave the following instruction to which appellant objected:
A person commits Battery in the First Degree if he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. The conduct must be done purposely-
A person acts purposely without respect to his conduct or result thereof, when it is his conscious object to engage in conduct of that nature or to cause such a result.
In the commentary to § 41-1603 (Criminal Code 1976) it is stated:
For the most part, Battery in the first degree comprehends only life-endangering conduct. The severity of punishment authorized is warranted by the conjunction of severe injury and a wanton or purposeful culpable mental state. Each sub-section describes conduct that would produce murder liability if death resulted. * * *
A criminal statute must give fair warning of the proscribed conduct. In United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954), the Court stated:
The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.
In Harmon v. State, 260 Ark. 665, 543 S.W. 2d 43 (1976), this Court applied the standard of specificity as defined in U.S. v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947):
* * * The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.
We find appellant’s objection without merit since Ark. Stat. Ann. § 41-204(2) (Criminal Code 1976) clearly provides a culpable mental state must be proved. The court in its instruction imposed the highest burden upon the State, requiring the State to prove the conduct of appellant was done purposely instead of knowingly or recklessly.
Appellant admits in his brief that the extent of harm to the victim is adequately defined in Ark. Stat. Ann. § 41-115(19) (Criminal Code 1976) as follows:
“Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.
Appellant argues that the statutory phrase “under circumstances manifesting extreme indifference to the value of human life” does not provide sufficient notice to the accused or the jury of the acts or conduct prohibited by the statute. We do not agree as we find sufficient notice in the words of the statute to indicate the type of conduct proscribed. In United States v. Harriss, supra, it was stated:
. . . [I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise [cases cited]. And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction ....
In State v. Weston, 255 Ark. 567, 501 S.W. 2d 622 (1973), we pointed out why it is desirable to use general language in defining libel rather than a precise and inflexible definition.
Almost the same argument made by appellant here was made in Harmon v. State, supra. In Harmon appellant argued that the provisions of the statute were patently vague and overbroad and that inadequate guidelines were given to the accused and to the jury. In that case the Court stated:
In our view the terminology of § 41-1602(1) (d) is not vague nor overbroad. The provisions of the statute are of such “common understanding and practice” th'at it cannot be said that an ordinary individual or juror would have to speculate as to its meaning.
In the case at bar the phrase “circumstances manifesting extreme indifference to the value of human life” indicates that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused. The language of the Arkansas statute does not require reasonable men to speculate as to its common understanding or application.
In People, by Russel v. District Court for Fourth J.D., Colo., 521 P. 2d 1254 (1974), the court had before it inter alia a first degree murder statute using the words “under circumstances manifesting extreme indifference to the value of human life.” The statute was challenged as being unconstitutional “on the grounds that it was facially void for vagueness ...” and the court applying the test of whether men of common intelligence apprehend the statute’s meaning found the statute valid. We have reached the same conclusion in regard to the Arkansas statute.
Affirmed.
Fogleman, J., concurs.
Byrd and Hickman, JJ., dissent. | [
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Elsijane T. Roy, Justice.
On the morning of December 30, 1973, appellants Thomas Jeff Wallis and his mother, Mary Ethel Wallis, residents of Berryville, Arkansas, were returning to their home from a trip to Ohio. While traveling west on Interstate Highway #44 at a point within the city limits of Rolla, Missouri, they were involved in a motor vehicle accident with a large tractor-trailer truck driven by William Howard Long, agent of Mrs. Smith’s Pie Company, The ultimate destination of the truck was Oklahoma. Long is a resident of Pennsylvania, and Mrs. Smith’s Pie Company is a foreign corporation with its principal place of business in Pennsylvania and authorized to do business in' Arkansas under Ark. Stat. Ann. §§ 73-1754, et seq. (Repl. 1957), the Motor Carrier Act.
Wallis and his mother each brought an action against appellee Mrs. Smith’s Pie Company in Arkansas in Carroll Circuit Court for injuries they sustained as a result of the accident. The cases were consolidated for trial purposes only, and the jury returned individual verdicts in favor of appellee against each appellant. From said verdicts this appeal is brought.
At the trial Wallis, who was driving a 1967 Cadillac, testified they had been traveling about an hour when they ran into a heavy snowstorm. Because of the accumulation of ice and snow, the right lane of the interstate on which they were traveling had become hazardous and so he pulled into the left lane which he thought was in better condition.
Long had been following a furniture van in the right lane of the highway for about five miles. Immediately before the accident appellee’s vehicle driven by Long changed into the passing lane and struck the Cadillac from the rear. At the time of the accident the truck was traveling approximately 50 miles per hour while the Wallis vehicle was traveling at a speed of about 20 to 35 miles per hour.
The Missouri state trooper investigating the accident testified the roads were so slick his car slid past the accident. He further stated appellants complained of back injuries and were taken to a Rolla hospital for treatment although they showed no physical sign of injury. After being released from the hospital, appellants continued to Arkansas, arriving home around midnight of the day of the accident. For injuries allegedly suffered in the accident they received treatment from various physicians for several months. Thereafter Wallis sought damages in the amount of $250,000 while his mother sought $50,000.
The issue of the applicable state law was raised by appellee in its answer, contending that Missouri law controlled. Appellants urged Arkansas law was controlling. The court made no specific ruling on this issue prior to trial, but did apply Missouri law. Wallis admitted in his testimony he was aware of a Missouri statute which required automobiles to travel in the right-hand lane of a highway having two or more lanes of traffic proceeding in the same direction except under certain specified conditions not applicable here.
At the close of the evidence during the in-chambers discussion concerning the instructions to be given to the jury, appellants’ counsel objected to the application of Missouri law to the case. Thereafter, the following instructions were given:
Instruction No. 20. There was in force in the State of Missouri and City of Rolla at the time of the occurrence a statute which provided: “All vehicles in motion upon a highway having two or more lanes of traffic proceeding in the same direction shall be driven in the right hand lane except when overtaking and passing another vehicle or when preparing to make a proper left turn or when otherwise directed by traffic markings, signs or signals.” A violation of this statute is negligence.
Instruction No. 21. If you find that the plaintiff through his own negligence placed himself in a perilous position which was later discovered by the defendant or which by the exercise of ordinary care should have been discovered by the defendant in sufficient time to avoid the collision, then you must compare the negligence of each. If the negligence of plaintiff was of less degree than the negligence of defendant, then the plaintiff is entitled to recover damages you may find he has sustained as a result of the occurrence after you have reduced them in proportion to the degree of his own negligence.
Instruction No. 22. Mrs. Smith’s Pie Company has pleaded a defense of contributory negligence of Thomas Jeff Wallis. If you find that plaintiff, Thomas Jeff Wallis, operated his vehicle in a negligent manner and that such negligence was a proximate cause of his own damages then you will find for Mrs. Smith’s Pie Company on Tommy J. Wallis’s complaint.
The first point raised on appeal is that the trial court erred in instructing the jury on the law of Missouri absent proof of that law in the record. As a procedural matter we find no merit in this contention.
The issue of whether Missouri law was applicable was raised by the pleadings and was sufficient notice undej Arkansas statutes. This procedure comports with Ark. Stat. Ann. § 27-2504 (Supp. 1975), a part of the Uniform Interstate International Procedure Act, which reads:
A. Notice. A party who intends to raise an issue concerning the law of any jurisdiction of governmental unit thereof outside this State shall give written notice in his pleadings or other reasonable written notice.
B. Materials to be considered. In determining the law of any jurisdiction or governmental unit thereof outside this State, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence.
C. Court decision and review. The court, not the jury, shall determine the law of any jurisdiction or governmental unit thereof outside this State. Its determination is subject to review on appeal as a ruling on a question of law.
Under Ark. Stat. Ann. § 28-109 (Repl. 1962), Arkansas courts are required to take judicial notice of the statutory laws of other states, and we have held it is only necessary to plead foreign law, not prove it. See F.E. Creelman Lumber Co. v. Lesh, 73 Ark. 16, 83 S.W. 320 (1904). In light of these statutes we find compliance with the necessary procedure for introducing foreign law.
The only other point for reversal urged by appellants is that it was error to apply the law of Missouri to the proceedings.
Appellants are residents of Arkansas while appellee is a Pennsylvania corporation authorized to do business in Arkansas. The accident occurred in the State of Missouri. This Court has previously been committed to the rule that in tort cases where damages are sought for personal injuries, the substantive law of the state where the accident occurred is controlling. See Bell Transportation Co. v. Morehead, 246 Ark. 170, 437 S.W. 2d 234 (1969), and McGinty v. Ballentine, 241 Ark. 533, 408 S.W. 2d 891 (1966).
In Babcock v. Jackson, 12 N.Y. 2d 473, 240 N.Y.S. 2d 743, 191 N.E. 2d 279 (1963), the rationale of this traditional approach was stated as follows:
* * * It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its ex istence and extent solely on such law [citations omitted]. * * *
The advantage of this rule lies in its certainty, ease of application and predictability of results.
However, application of this rule is a cause of concern to this Court because Missouri follows the doctrine of contributory negligence which is a complete defense to any action brought by a negligent plaintiff. See Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S.W. 1144 (1916), and Chandlery. Mattox, 544 S.W. 2d 85 (Mo. App. 1976). See also Powell Bros. Truck Line, Inc. v. Barnett, 194 Ark. 769, 109 S.W. 2d 673 (1937). Arkansas, on the other hand, follows the more modern rule of comparative fault which apportions liability between plaintiff and defendant and permits the injured plaintiff to recover as long as his fault is less than that of defendant.
The traditional rule of lex loci delicti has fallen under much criticism in recent times and quoting from Babcock, supra, we find the following comment:
. . . [T]he vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. “The vice of the vested rights theory, ” it has been aptly stated, “is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved [citations omitted]. More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. * * *
A number of jurisdictions are departing from a mechanical application of the traditional rule and applying a more flexible approach when faced with a situation which involves a choice of law between jurisdictions that have widely dissimilar laws. For example, in Woodward v. Stewart, 104 R.I. 290, 243 A. 2d 917 (1968), the court considered a negligence action which involved a Massachusetts accident with all parties being Rhode Island residents. After examining several cases, the court stated:
* * * The clear import of the line of cases adopting the rule of flexibility, however, is that a forum court is free to apply the substantive laws of a state, other than the locus, when it finds that such state has the significant interest in the outcome of those issues.
Restatement (Second) of Conflict of Laws § 146 (1971) is also in accord with this view:
In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship ... to the occurrence ... , in which event the local law of the other state will be applied.
In the case before us we note the action was brought in Arkansas by two Arkansas residents against a Pennsylvania corporation authorized to do business in this State. The only contact either party had with the State of Missouri was that each was traveling the interstate highway there en route to a destination in another state.
In Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968), a case similar to that before us, the Supreme Court of Mississippi discussed several factors in deciding to apply the comparative negligence law of that state rather than the Louisiana law of contributory negligence. Two Mississippi residents were killed as a result of a collision between their vehicles on a Louisiana highway. In its opinion the court discussed choice-influencing considerations as presented by Dr. Robert A. Leflar in several law reviews. These considerations are:
(1) Predictability of results.
(2) Maintenance of interstate and international order.
(3) Simplification of the judicial task.
(4) Advancement of the forum’s governmental interests.
(5) Application of the better rule of law.
The Mississippi court found the last two factors were important, stating:
A primary consideration in determining applicable law is the advancement of the forum’s governmental interests. Mississippi’s interests in the present controversy are evident, while Louisiana has none. The parties were residents of Mississippi, and no citizen of Louisiana is involved. If there is any recovery on a new trial, it will be by a Mississippi plaintiff-administratrix or a defendantadministratrix as counterclaimant, acting as officers of a Mississippi court for the benefit of Mississippi citizens. This state is especially concerned with the protection of its injured domiciliaries and their families, and the distribution of its domiciliaries’ estates. The law selected and applied in this case will determine the effect of the contributory fault, if any, of plaintiff’s and counterclaimant’s decedents. It will determine whether this negligence, if any, will preclude plaintiff or counterclaimant from recovery. It is this Court’s duty to further this State’s governmental interests. The comparative negligence statute of this State has been effectively administered for many years and we have an interest in applying it to Mississippi residents.
Finally, an important consideration is application of the better rule of law. We believe in our. own law in this instance. Comparative negligence, although utilized in diverse ways in only seven states, is a fairer and more economically equitable standard of liability than that of the common-law rule of contributory negligence.
In McGinty v. Ballentine, supra, this Court indicated in the appropriate case a change might be made in the Arkanaas rule, stating:
This “choice of law” rule urged by the appellant is sometimes also called the “forum preference” rule. * * *
We recognize that some courts, and a growing number of Law Review writers are going to the so-called “forum preference” rule. We cannot now say here whether this Court will, in a stronger case than the one presented, abandon the “lex loci delicti” rule in favor of the “forum preference” rule; but in the case at bar we adhere to the lex loci delicti rule, just as we held in Wheeler v. Southwestern Greyhound, supra [207 Ark. 601, 182 S.W. 2d 214]. Here, the deceased was not a resident of Arkansas; the administratrix was not appointed by any court in Arkansas; the traffic mishap did not occur in the State of Arkansas. The only contact that Arkansas had to the mishap was the fact that the defendant has a place of business in Arkansas. All of the other factors — residence of the deceased, place of mishap, the appointment of the administratrix — had their locale in Missouri. * * *
in Schwartz v. Consolidated Freightways Corp. of Del., 300 Minn. 487, 221 N.W. 2d 665 (1974), a three vehicle accident occurred in Indiana. Plaintiff, a resident of Minnesota, brought suit in that state against co-defendant corporations foreign to the State of Minnesota but both licensed to do business there. All three vehicles were passing through Indiana en route to destinations in surrounding states. At the time of the accident, Indiana had in force the common law doctrine of contributory negligence while Minnesota had enacted a comparative negligence Statute. In deciding to apply Minnesota law, the court stated:
. . . Here, plaintiff is a lifelong resident of Minnesota and sustained his injuries in the course of his employment as a truck driver for a Minnesota corporation. The vehicle which he was driving was owned by this Minnesota employer, and was licensed, registered, garaged, maintained, and insured in Minnesota. Plaintiff had a Minnesota driver’s license. The excursion which had brought plaintiff to Indiana originated in Minnesota and was to terminate in Minnesota [although the load plaintiff was hauling was to be delivered to Fargo, North Dakota]. Plaintiff has received and continues to receive medical care in Minnesota for the injuries sustained in the accident. He currently resides in Minnesota, saddled with crippling physical disabilities arising from the collision. Thus,, the economic impact of these injuries and of subsequent litigation will be felt by Minnesota residents. * * *
Arkansas first enacted a comparative negligence statute in 1955 (Acts of Arkansas, 1955, No. 191). This statute has been broadened so that liability is now determined by comparing the fault of the parties.
At the time of the accident involved here the Arkansas comparative fault statute, Acts of 1973, No. 303, §§ 1-3 (repealed by Acts of 1975, No. 367, § 4), read as follows:
SECTION 1. The word “fault” as used in this Act includes negligence, wilful and wanton conduct, supplying of a defective product in an unreasonably dangerous condition, or any other act or omission or conduct actionable in tort.
SECTION 2. Fault chargeable to a party claiming damages shall not bar recovery of damages for any injury, property damage or death where the fault of the person injured or killed is of less degree than the fault of any person, firm, or corporation causing such damages.
SECTION 3. In all actions for damages for personal injuries or wrongful death or injury to property, fault chargeable to a claiming party shall not prevent a recovery where any fault chargeable to the person so injured, damaged, or killed is of less degree than any fault of the person, firm, or corporation causing such damage; provided, that where such fault is chargeable to the person injured, damaged or killed, the amount of the recovery shall be diminished in proportion to such fault.
This State’s governmental interest in its citizens is best served by application of our comparative-fault statute rather than Missouri’s contributory negligence law. As expressed in Clark v. Clark, 107 N.H. 351, 222 A. 2d 205 (1968), probably the truest governmental interest the forum has is “in the fair and efficient administration of justice, ” and in our opinion application of our statute better achieves that result.
The decided trend is away from the harsh results which occur in the application of the contributory negligence rule of law. Approximately 35 jurisdictions, including Pennsylvania, the home state of appellant corporation, have now enacted comparative negligence statutes in some form. See Heft & Heft, Comparative Negligence Manual, Ch. 3, §§ 3.10 through 3.580 (1971).
We therefore find this State has a predominate interest in applying its comparative fault statutes to its own citizens and those who seek relief in its courts. See Woodward v. Stewart, supra. For equally compelling reasons we find Missouri rules of the road are applicable to questions of alleged negligence in the actual driving of the vehicle. At the time of the accident, the parties were traveling the highways of Missouri and were under a duty to obey the traffic laws in force there. In Clark v. Clark, supra, the automobile accident occurred in Vermont and the parties were residents of New Hampshire. The court discussed the issue of whether to apply the Vermont guest statute, the “gross negligence” standard, or the New Hampshire negligence law as follows:
* * * We have an interest in applying it [common law negligence rule followed in New Hampshire] to New Hampshire residents, especially when such advance expectations as they may have had, based upon their domicile in New Hampshire, their maintenance of a car under our laws, and going on a short trip that was both to begin and end here, would have led them to anticipate application of our law to them. Unlike, “rules of the road,” as to which every consideration requires obedience to the rules that prevail at the place where the car is being driven, the factors that bear on this host-guest relationship all center in New Hampshire.
See also Vick v. Cochran, 316 So. 2d 242 (Miss. 1975).
In Sabell v. Pacific Intermountain Express Co., 36 Colo. App. 60, 536 P. 2d 1160 (1975), a Colorado resident brought an action for damages against two corporations, both of which were resident and authorized to do business in Colorado. The action arose out of a motor vehicle accident which occurred in Iowa. At the time of the accident Colorado had a comparative negligence statute while Iowa followed the doctrine of contributory negligence. In determining which state’s law would govern this issue the court stated:
* * * The relationship the parties have with a particular state has the greatest effect upon which of such rules of recovery should apply. In distinction, rules regulating conduct, as an exercise of the police power, are designed to protect the public in general from acts committed within the state which represent a danger to the public health, safety and welfare. Thus “rules of conduct” are more closely related to the state where the conduct occurs while “rules of recovery” relate more clearly to the state with which a party is identified. (Citation omitted.)
For the foregoing reasons this cause is reversed and remanded as to Thomas Jeff Wallis with directions to apply the Arkansas law as to the comparative fault statutes, but to apply the Missouri law as to the “rules of the road.” As previously mentioned, the causes of Mary Wallis and Thomas Jeff Wallis were independent actions with separate jury verdicts being returned as to each.
No abstract of any pertinent instructions which might reflect erroneous application of the law as to appellant Mary Wallis was contained in the briefs. Absent such we cannot assume error. Instruction No. 22 on contributory negligence which was abstracted applied only to actions of Thomas Jeff Wallis.
The burden is on appellant Mary Wallis to prove error as to her cause of action and having failed to meet this burden the judgment as to her is affirmed.
Reversed and remanded as to Thomas Jeff Wallis. Affirmed as to Mary Wallis.
Byrd, J., dissents.
V.A.M.S., RS Mo. § 304.015(6) (Cum. Supp. 1973).
Dr. Leflar is Distinguished Professor, University of Arkansas, noted scholar and recognized authority on the law of conflicts of law. See Leflar, American Conflicts Law (1968) and Leflar, Conflict of Laws: Arkansas — The Choice-Influencing Considerations, 28 Ark. L. Rev. 199 (1974); 54 Calif. L. Rev. 1584 (1966); 41 N.Y.U. L. Rev. 267 (1966).
See Ark. Stat. Ann. §§ 27-1763 — 1765 (Suppl. 1975) for the present statutory sections.
Pa. Acts 1976, No. 152, effective date September 7, 1976.
A search of the transcript reveals that no instruction on contributory negligence was given as to Mary Wallis, nor any instruction on joint vendure or imputed negligence. | [
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John A. Fogleman, Justice.
Carey Dean Little literally had his brains blown out by a shotgun blast as he lay sleeping in his bed at his home in Huttig, Arkansas, very early on the morning of January 16, 1975, his thirty-second birthday. His daughter Deborah Lynne (born August 5, 1960, according to her mother) was charged with his murder, found guilty, and sentenced to life imprisonment for murder in the first degree. She seeks reversal of this conviction on ten grounds. They are:
I
APPELLANT’S STATEMENT, MADE AT HER ARREST, AND ADMITTED OVER OBJECTION, WAS INVOLUNTARY AND INADMISSIBLE.
II
APPELLANT’S TAPE RECORDED STATEMENT, ADMITTED OVER HER OBJECTION, WAS INVOLUNTARY AND INADMISSIBLE.
Ill
APPELLANT’S STATEMENTS, MADE AFTER SHE HAD RETAINED COUNSEL AND WITHOUT PRIOR NOTICE TO COUNSEL, WERE INADMISSIBLE.
IV
INSTRUCTIONS ON BURDEN OF PROOF TO REBUT THE PRESUMPTION OF CHILD’S CRIMINAL INCAPACITY WERE ERRONEOUS.
V
INSTRUCTIONS DENIED APPELLANT BENEFIT OF THE PRESUMPTION OF CHILD’S INCAPACITY TO COMMIT CRIME.
VI
INSTRUCTIONS WERE INCONSISTENT AND INHARMONIOUS.
VII
TESTIMONY OF NON-EXPERTS AS TO APPELLANT’S ABILITY TO DISTINGUISH RIGHT FROM WRONG WAS INADMISSIBLE.
VIII
DENIAL OF APPELLANT’S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL WAS ERRONEOUS.
IX
FAILURE TO TRANSFER THE CASE TO JUVENILE COURT WAS ABUSE OF DISCRETION.
X
INSTRUCTION TO THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS ERRONEOUS.
We find no reversible error and affirm.
Perhaps the most critical question in the case arises from incriminating statements made by appellant and admitted into evidence over her objection. This is critical solely because of appellant’s age. Proper consideration of the admission of this evidence requires that the sequence of events leading up to the making of these statements be reviewed.
Brenda Sue Little, wife of Carey and mother of Deborah Lynne (who was called Debbie), was in bed with her husband when she was awakened by an explosion. She discovered that he was severely wounded and jumped out of bed. About that time, Debbie ran into her parents’ bedroom screaming and hollering, and then ran out. Mrs. Little followed, grabbed Debbie and her two brothers, and took them all into the living room, but Debbie ran back into the bedroom, screaming and hollering. Mrs. Little called her father-in-law and Ronnie Tucker, the marshal. She went into the bathroom to get something with which to wipe her husband’s face and Debbie was there, crying but not hysterical. One of the sons found a shotgun shell case in the hallway outside the bedroom door. It was pointed out to Marshal Tucker when he arrived at the Little house and he delivered it to Deputy Sheriff Vines, who came to the house pursuant to a call he received at 4:39 a.m. These two officers started looking for a shotgun and found one in Debbie’s bedroom closet behind some clothing. The bathroom window was open and the screen pushed out. It appeared to Marshal Tucker that it had been pushed out from the inside and another officer said the screen was stretched toward the outside. Tucker found no marks on the muddy outside wall. There were no footprints near the window. The ground was wet and soft. Neither mud nor tracks were found in the bathroom. The back door of the house was locked.
Later, Vines went with Chief Deputy Sheriff Saunders and Deputy Sheriff Vinson to the residence of Mrs. Paul Murray, Deborah’s aunt, where they found Deborah and some of her relatives shooting pool. Saunders and Vinson interviewed Deborah and her brother, in the presence of Vines and of Tucker, who was there when the other officers arrived. Debbie told the officers that she had heard the shot, gotten out of bed, gone to the door, turned on a light, saw her mother coming out of her parents’ bedroom crying, looked in, saw him and almost “went out.” The officers then talked to the victim’s father. They later took a statement from Darlene and Geraldine Dollar and arrested Debbie on the basis of their statements. The arrest was made near noon, without a warrant. The officers had first gone to her grandfather’s home and told him and Mrs. Little they were going to arrest Debbie. When Saunders told Deborah that she would have to come with the officers and would be charged with the death of her father, she seemed upset and said she didn’t want to go. Saunders said that Mrs. Little was upset, too, and that Mrs. Spells comforted Deborah. Deborah was taken in an automobile to the county juvenile home. Mrs. Little did not accompany them, but Mrs. Spells did. Mrs. Little testified that she was not permitted to go, but Saunders testified that she did not ask to be allowed to do so. Mrs. Little said that she realized that she herself was a suspect when the officers questioned her at the hospital to which her husband was taken. When they got into the car, Vinson warned Deborah of her constitutional right to counsel and her privilege against self-incrimination by reading from a card he carried. The officers asked Deborah no specific questions about the crime. When Vinson started to ask Deborah some questions after he had given the warnings, Saunders would not allow him to do so. The officers overheard Deborah say something to Mrs. Spells, with whom she was riding in the back seat, about hating her father and having “done it.” Vinson said that she acted calm and collected. Saunders then advised Deborah not to say anything at all and that she shouldn’t even be talking about the matter.
When they arrived at the juvenile home the officers turned Deborah over to Barbara Bird, a juvenile probation officer, and went to the sheriff’s office and called Deputy Prosecuting Attorney Joe Galloway. Later they met him at the juvenile home. They had purposely delayed going there to make certain that Deborah’s mother could be present before the officers talked to her, and went only when they had been advised that Mrs. Little was there.
Saunders said that Galloway explained Deborah’s rights to Mrs. Little and told her that, in his opinion, they would have to have Mrs. Little’s permission before Deborah’s statement could be taken. He said that Calloway gave the standard warnings that Deborah did not have to make any statement, that she was entitled to an attorney and that if they did not have the money to hire an attorney that one would be appointed free of charge.
Calloway asked Mrs. Little if she wanted to talk to her daughter before he and the officers talked with her. The mother and daughter went into a room where they were alone and they remained there for 10 or 15 minutes. When they returned, Mrs. Little said that Deborah wanted to tell what had happened. Mrs. Little looked as if she had been crying.
Vinson took charge of an interview of Deborah in an office in the juvenile home in the presence of Mrs. Little, Mrs. Bird, Deputy Sheriff Saunders and Deputy Prosecuting Attorney Calloway. Vinson first turned on a tape recorder and repeated the “Miranda warnings,” saying that these were given for both Deborah and her mother. He said that Deborah was calm and collected and paying attention. Neither Deborah nor her mother indicated in any way that either desired the assistance of counsel. Vinson said Deborah gave no indication that she did not desire to make a statement. No one other than Vinson asked any questions.
The tape recording reflects that Vinson first identified everyone present and proceeded to recite warnings about Deborah’s right to assistance of counsel, her right to remain silent, and that anything she said could and would be used against her. Vinson received an affirmative answer when he asked Deborah if she understood. No audible answer of Mrs. Little was recorded. Vinson said that she did respond in the affirmative, but that the recorder had not picked up her low-voiced answer. Vinson then asked Deborah if she wanted to talk to the officers, and when he received an affirmative reply, he confirmed by Deborah that she had previously been warned of her rights. He also confirmed the fact that Mrs. Little had conferred with Deborah before the interview.
Vinson then asked Deborah to explain everything that happened after 4:00 a.m. She then narrated what had hap pened from the time she had awakened early in the morning until she was brought to the juvenile home. She said that when she had awakened she got the gun out of her closet where she had hidden it, loaded it, went into the hall, closed her brothers’ bedroom door, went and opened a window screen to make it appear that someone else was the perpetrator of the crime, went back into the hall, pulled the trigger, shot her father, ran with the gun, forgetting to pick up the shell, hid the gun in her closet and got back in her bed. She then got up, met her mother coming out of the bedroom and started “screaming and squalling.” After Deborah completed her narration, Vinson asked her if she had planned this and if she had told anyone what she was going to do. She said that she had told her friends Darlene and Geraldine Dollar and that the three had planned to leave home, but she was planning to kill her father before they left. The interview was concluded at 4:27 p.m. It had lasted seven minutes.
Barbara Bird testified that when the officers brought Deborah to the youth home, they explained that, because of her age, they did not think it a good idea to take her to jail and asked her to talk to the girl in order to ascertain her attitude and the risk of her running away. Mrs. Bird understood that she was not to interrogate Deborah. Mrs. Bird took the girl on a tour of the facilities, but asked her no specific questions pertaining to her being charged with the crime or the occurrence in Huttig. Mrs. Bird said that Deborah was calm, able to carry on a normal conversation and did not appear nervous or distraught; that Deborah had been permitted to remain, without restraint, in the reception room, where only a female receptionist was present, until Mrs. Little came; and that after Mrs. Little had talked with her daughter privately, she told Deborah to tell the truth. She said that after Deborah’s statement was made, Mrs. Little asked Calloway what she should do and he responded, “Definitely, get an attorney.”
Calloway testified that Mrs. Little did not indicate at any time or in any way that Deborah should not talk to the police or that she desired an opportunity to obtain an attorney before the police talked to Deborah, even though he advised her that she had this right. No one had asked Deborah if she wanted an attorney.
Mrs. Little testified that in spite of the fact that the possibility of the appointment of an attorney was mentioned, she did not know what to do, being in shock and under sedation. She said that Deborah was sedated by five milligrams of Valium, some of which was given her by Linda Bussey and the remainder left for her at the home by Mrs. Little’s brother-in-law Paul Murray. Mrs. Little said she knew that Deborah had taken the medication because she became calm. She also said that she had left the medicine with the house mother at the juvenile home. She testified that she was advised by Calloway that if she did not have the means to hire a lawyer, he could get the “State” to appoint one, and that she had told Calloway that she’d get her own lawyer. She admitted that she had encouraged Debbie to tell the truth and that she understood “our” rights and knew that she could get her own attorney before the statement was made.
Mrs. Tommy Dumas, Deborah’s maternal grandmother, testified that between 10:00 and 11:00 a.m. on January 16 at the Murray residence, she had given Deborah two tiny white tablets that Mrs. Bussey had given her, but did not know what they were. She said that Debbie was nervous and distraught when she was given the pills, but thereafter she appeared to regain her composure and took a short nap for 20 or 25 minutes until Mrs. Dollar came over, awakened Deborah and took her to the Dollar residence. She said that Deborah complained of being dizzy when she awakened, and that even though her words wouldn’t come out distinctly, Mrs. Dumas had no difficulty in understanding her. According to Mrs. Dumas, when Deborah returned from the Dollar home, she was moody. Mrs. Dumas said that she asked to be permitted to go along when Deborah was arrested, but was refused permission.
The officers denied any knowledge of Deborah’s having taken any medication. They said that no inquiry was made to determine whether Deborah had taken any medication. No one says that they had been informed of this fact, or that there was any real indication of medication when the statement was taken that would have prompted any inquiry along this line. The “house nurse” at Huttig had told Saunders at the Little residence that morning that she had given Mrs. Little something to calm her nerves, but did not say that she had given Deborah anything. No one suggests that there were any threats, promises, offers or suggestions of leniency, plea bargains, or other inducements to Deborah’s making a statement. Those present positively deny that there were.
A psychiatrist who had observed and examined Deborah at the Arkansas State Hospital testified. He had conducted psychiatric interviews and psychological examinations. He had no difficulty communicating with Deborah and said that she seemed anxious to tell her story. He said that after 30 minutes’ interview, Deborah asked him if he did not want to know why she was there. He found no sign of physical or mental defect, organic brain disease or brain trouble. Although he found her intelligence quotient to be in the low dull normal range, he said that such a person can get along fairly well in everyday living situations and that she would have the ability to understand statements made to her concerning her rights and, in his opinion, she could understand rights as contained in the “Miranda warnings,” but admitted that there was no way for him to know that she did understand. He felt that it was unlikely that her will could be overborne. Her obesity indicated basic insecurity and inadequacy to this psychiatrist. He said that this would make her fearful of doing the wrong things. He said that Deborah told him that she had wanted to do what she had done for a long time, that she had planned it and had taken the gun and shell from her father’s room some three or four days prior to the killing.
A psychiatrist at the South Arkansas Regional Health Center testified that he had done research into the effects of the drug called Valium, which he described as a prescription drug known as an anxiety reducing drug. He said that it came in four different forms, each colored differently. The white tablet is two milligrams. He doubted that two of them taken simultaneously would have any effect at all. He said that he seldom used these tablets because they were so weak, but that they might reduce a very minor amount of anxiety. According to him, this drug relieves anxiety, probably by relaxing muscles, but without causing sleepiness, or “messing up” the clearness of the thinking processes. He said that the action or the oral medication lasts a little longer than two to three hours, that one-half of it is eliminated from the body within four or five hours; and, after five or six hours, approximately one-half of its effect has worn off, though it could possibly have some effect for ten or twelve hours. He testified that unless Valium was given in dosages of more than 50 milligrams, one would be unable to overcome the will of the person to whom it was given. In his opinion, one would not be more subject to enticement or to being misled as a result of taking Valium. In response to a hypothetical question, he expressed the opinion that two of the tablets taken at the time they were said to have been given Deborah would have had no effect on anyone’s thought processes at the time Deborah gave her statement and the person so administered the medication would have no difficulty in understanding someone advising him of his legal rights. He acknowledged that different persons reacted differently to different drugs.
Linda Bussey, a licensed practical nurse, who was industrial nurse for Olin Kraft in Huttig was called to administer first aid to Carey Dean Little. She knew Deborah Little, Mrs. Dumas and the Murrays. About noon on the day of the crime she gave medication to the victim’s mother. The next morning she gave Brenda Little medication to calm her down by intramuscular injection. The medication was prescribed by physicians. She said that she did not leave any Valium or white tablets of any kind on either occasion. She further stated that she was not asked for administration of any kind of medication by any other member of the family and denied that Paul Murray requested any type of medication for appellant. She positively denied administering any medication, orally or intravenously, to Deborah. She said that she did not keep Valium, or any type of tranquilizer at her office. She related that Mrs. Murray had called before she came to testify and tried to make her remember giving some white tablets to Murray to give Debbie but said that she told Mrs. Murray that she did not do so and would have to say that she did not. She admitted that she had a prescription for Valium for her own use and probably had some yellow, five milligram tablets at her home on the days she went to give medication to the ladies.
Paul Murray testified that when he came home from the hospital and said that Little had died, Debbie became very upset, and that he called Mrs. Bussey," who said that she might be able to give him something for her. He said he went to her house around 7:00 a.m. and she came to the door and gave him four white pills, saying that he should give Debbie two then and two later. He said that Mrs. Bussey told him the pills were not very strong, no stronger than aspirin, and something like Tylenol. According to him, they probably were Tylenol. He had no difficulty communicating with Deborah.
Mrs. Paul Murray testified that she saw her mother give Deborah two pills. She said that Deborah seemed relaxed, but told her that she was dizzy. She testified that she had talked with Deborah after the latter had talked to the police. She said that Deborah just broke down and told her “she had done it” but that she didn’t know why, and that she also made the remark that she had pushed the screen out of the bathroom window. Mrs. Murray said that “She hates that she has done it to a certain extent.”
Deborah did not testify at the hearing on the motion to suppress the confessions. Mrs. Spells testified at the trial but not at the suppression hearing;. She said that Deborah’s statements in the automobile followed the officer’s asking Deborah if she wanted to say anything concerning what had happened. She said that Deborah first said no, then said yes. She said that Deborah was calm on the way to El Dorado. She also stated that the officers would not permit Mrs. Little or any other member of the family to accompany Deborah to El Dorado when she was arrested.
Martha June Holdredge testified at the trial. She was a house mother at the juvenile house, where Deborah stayed about four months. She sat with Deborah 24 hours a day. She said Deborah would sit and hold her hand all day and was frightened at night. Mrs. Holdredge would hold Deborah’s hand at night. Sometimes Deborah would sleep on a pallet in the house mother’s room. After the two got acquainted, Deborah told Mrs. Holdredge that she had killed her father and that she had hated him because of his drinking and because he had made sexual advances toward her and she feared a sexual attack by him. According to this witness, Deborah told of hiding the gun in her closet, of getting up, shooting him, going back to bed, getting up again, looking at him and becoming hysterical. She said that she developed a close relationship with Deborah and that Deborah was very cooperative.
Appellant not only relies upon her immaturity, but seems to view the evidence in the light most favorable to her. We find no basis for rejecting the officer’s testimony that they did not interrogate Deborah while she was in the automobile or the testimony of the psychiatrist that Deborah was capable of understanding an explanation of her rights. Mrs. Spells did not testify at the suppression hearing. The extreme care taken by the officers to avoid putting Deborah in the jail and to await her mother’s arrival before she was questioned certainly indicates that they would not be less cautious while riding in the automobile with a family friend present. Although the youth of the maker is an important consideration, we have never held that it is a sufficient basis for exclusion of an incriminating statement, even when given without the advice of a parent or counsel. Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319; Tucker v. State, 261 Ark. 505, 549 S.W. 2d 285; Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311. In these cases, as in others, we look to the totality of the circumstances. Tucker v. State, supra; Watson v. State, 255 Ark. 631, 501 S.W. 2d 609.
Viewing the totality of the circumstances, it appears that Deborah had a compulsion to tell anyone who would listen what she had done. It would be difficult to say whether she was motivated by the rancor of hatred, pride in her accomplishment or a sense of guilt that compelled her to confess. Whatever motivated her, she seemed ready, willing and anxious to tell of her crime. She confessed at least four time to adults and had told her two friends and schoolmates, the Dollar girls, of her intention and showed them the gun she intended using. Once she realized that her concocted version of the episode was discredited, it probably would have been difficult to have kept her from telling those in authority and impossible to keep her from telling others. Even though appellant was classified as of “dull normal” intelligence she was not even mildly mentally retarded. The very deliberate planning and careful execution of the crime, and of her first version of it were indicative of a mental capacity beyond infancy and imbecility. The statement in the automobile appears to have been spontaneous and voluntary.
Spontaneous statements are not to be excluded. See Chenault v. State, 253 Ark. 144, 484 S.W. 2d 887. The real question, especially when warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1966), are effectively communicated, is “Is the confession the product of an essentially free and unconstrained choice by its maker?” “If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
The taped confession was a record of the entire interview. The argument that it was inadmissible is based upon her immature age, the alleged taint of the prior statement made in the automobile, the brevity of the conversation with her mother, and the fact that Deborah was held in an atmosphere that had the appearance of a regular home and was taken by the probation officer on a tour of it during which the officer talked to her about “boys and boy friends” and “girl things.” Appellant advances the novel argument that the net effect of this treatment was to lull her into a sense of security and well being that she would not have felt had she been incarcerated in the Union County jail, so that when she was confronted with two deputy sheriffs, a deputy prosecuting attorney and the probation officers, none of whom were in uniform, her will was overborne and her confession was not the product of her free will.
Perhaps appellant’s argument would be entitled to greater weight had the interrogation been in the ordinary jail atmosphere by uniformed officers, before her mother arrived, after having been held in jail alone for some hours. We find nothing coercive in the atmosphere in which the statements were taken or in the procedures followed after Deborah was taken to the juvenile home.
It is also urged that the confession to the house mother was involuntary because the state failed to show the circumstances surrounding it. We think the uncontradicted testimony of the witness herself constitued an adequate statement of circumstances to permit admission of the testimony, unless it be inadmissible for other reasons. In advancing this argument appellant compares the juvenile home to a jail, rather than a place with a “homey” atmosphere, and the house mother to a jailer. Reliance, however, is placed upon Vault v. State, 256 Ark. 343, 507 S.W. 2d 111 where the statement of a 16-year-old youth was given to officers shortly after his lawyer had left the jail where he was incarcerated, after having been present during two lineups. In this case, the only showing that an attorney had been retained was the appearance of appellant’s counsel at a preliminary hearing. But Vault and other cases are based upon an inhibition against interviews of persons charged and held in custody, without giving retained counsel an opportunity to be present. In Vault we said that we would not go so far as to hold that a confession by a prisoner in jail can never be voluntary and admissible. The only objection offered in the trial court to this testimony was the absence of counsel. To hold that this statement was inadmissible would mean that any spontaneous statement made in custody in the absence of counsel was inadmissible.
In spite of the age of appellant, we are unable to say, when we consider the totality of the circumstances that any of the incriminating statements made by appellant were the product of an overborne will. Insofar as the effects of medication are concerned the evidence that any had been administered is far from convincing. We cannot find sufficient evidence that there was an indication of this condition which would have required further inquiry or greater caution by the officers. See Cox v. State, 240 Ark. 911, 405 S.W. 2d 937. It must be kept in mind that interviews of suspects, even minors, are normal and proper in police investigations of crime and the only purpose of the exclusionary rule is to restrain improper police action. We certainly are unable to say that the trial judge’s findings of voluntariness were clearly against the preponderance of the evidence.
Appellant also contends that the instructions given relating to the burden of proof to rebut the presumption of her criminal incapacity were erroneous. This argument is first premised upon the assumption that Deborah was less than 14 years of age. Her counsel refers to her as a 13-year-old girl throughout appellant’s brief. In spite of her mother’s testimony about her birth date, it is obvious that there was a basis for submitting instructions on the question. In order to put this question in proper perspective, it is necessary that we set out the instructions given, the objections made and the instructions requested by appellant and refused. The following were given, over objections stated:
COURT INSTRUCTION NO. 13
You are instructed that our law presumes that a person between the ages of twelve and fourteen years is incapable of committing a crime or of discerning the difference between good and evil, or right from wrong, if you prefer, until the contrary be affirmatively shown by clear and convincing evidence.
*** Counsel for the defendant objects to the court’s giving of the Court’s Instruction No. 13 placing the burden of proof of insanity on the defendant and requiring that the defendant prove insanity by a preponderance of the evidence on the grounds that this instruction does not give effect to the Arkansas Statute which specifically states that a person is not considered sane until the age of fourteen, and that there is no presumption of sanity prior to that age. The evidence shows that the defendant was 13 at the time of the act; therefore, there is no presumption of sanity, no burden on the defendant to prove insanity by a preponderance of the evidence.
COURT INSTRUCTION NO. 13-A
If you are not so convinced by clear and affirmative evidence, it is your duty to acquit the defendant. However, should the State meet its burden in this regard, it would then become your duty to consider the defense offered by the defendant of insanity at the time of the commission of the crime. In that event, you are instructed that the law would then presume that she was sane and that she intended the ordinary and natural consequences of her act and the burden would then be upon her to prove by a preponderance of the evidence at the time of the commission of the killing that she was insane. If she proves to you that she was insane at the time the offense was committed, it would be your duty to find her not guilty by reason of insanity.
Counsel for the defendant objects to the giving of Court Instruction No. 13-A on the grounds that it eliminates one of the defenses in this case which is that a person between the ages of 12 and 14 is incapable of committing a crime and on the grounds that it places the burden of this defense on the defendant rather than on the State and also on the grounds that the instruction is contrary to the Court Instruction No. 13 and it is confusing to the jury. Defendant’s Requested Instruction No. 1 is not given.
The following was requested and refused:
DEFENDANT’S REQUESTED INSTRUCTION NO. 2
You are instructed that in this state the law presumes that a child under fourteen (14) years of age is incapable of committing a crime, and that such a child cannot distinguish right from wrong. The defendant in this case is entitled to the benefit of this presumption and this presumption is sufficient to justify an acquittal in this case unless and until overcome by evidence which convinces you beyond a reasonable doubt that the defendant, Deborah Lynne Little, had the mental capacity and maturity to distinguish between right and wrong and to form the criminal intent necessary to commit the crime with which she is charged.
Counsel for the defendant objects to the failure of the court to give defendant’s requested instruction No. 2 on the grounds that the court has used less than the requirement that the State must prove that the defendant knows the difference between right and wrong and good and evil beyond a reasonable doubt and has required the State to prove something less than this issue, beyond a reasonable doubt.
We have some difficulty in relating some of appellant’s arguments here to the objections made in the trial court. She relies upon our holding that, under the common law, one 13 years of age is presumed to be incapable of committing a crime and that this presumption prevails until the state shows that he had the mental capacity and intelligence to know right from wrong in reference to the offense with which he was charged. Harrison v. State, 72 Ark. 117, 78 S.W. 763. Appellant also points out that we have held that: the presumption against the capability of discerning between good and evil prevails until the contrary is shown affirmatively by the evidence, Dove v. State, 37 Ark. 261 (see also, Allenv. U.S., 150 U.S. 551, 14 S. Ct. 496, 37 L. Ed. 1179); and that this evidence must clearly establish that one aged 13 understood the nature and consequences of the offense charged, Garner v. State, 97 Ark. 63, 132 S.W. 1010, Ann. Cas. 1912C 1059. This is substantially what the jury was told by instruction No. 13.
It takes a strained reading of this instruction to find the ambiguity suggested by appellant, i.e., that the jury could believe that appellant was incapable of discerning right from wrong but capable of committing a crime. The objection made does not seem to reac h this alleged flaw because of the use of the word “or.” A specific objection along the lines now argued would have been calculated to produce a minor correction to remove it.
Instructions are to be read and construed reasonably. Arnott v. State, 109 Ark. 378, 159 S.W. 1105. It is at least as reasonable to say that instruction No. 13 as given required that the state show two independent factors, i.e., (1) that Deborah was capable of committing a crime and (2) was capable of distinguishing right from wrong or good from evil, because the presumption stated is that one of that age was presumed to be incapable of either committing a crime or distinguishing right from wrong. This interpretation would be more favorable to appellant than the law requires. See Harrison v. State, supra. But in any event, we do not think the instruction was misleading in that respect.
As appellant points out, the common law presumption that one under 14 but over 13 years of age does not have the capacity to commit a crime is rebuttable, and the burden is on the prosecution to clearly establish his capability of appreciating the nature of his acts, but the strength of the presumption varies with the actual age of the child and decreases as the upper limit is reached. To require this presumption to be rebutted beyond a reasonable doubt in a case where the minor’s age is near 14 is hardly consistent with the common law rules. The court’s instruction No. 13 requires the quantum of evidence required by the Arkansas cases. Garner v. State, supra.
Appellant also contends that she was deprived of the benefits of Ark. Stat. Ann. § 41-111 (Repl. 1964) by the court’s instructions 13 and 13-A. We do not agree. The section related to the presumption of sanity. It reads:
“A person shall be considered of sound mind who is neither an idiot nor a lunatic, or affected with insanity and hath arrived at the age of fourteen (14) years, or before that age, if such person know the distinction between good and evil.”
The single simple requirement of that section is that one under the age of 14 years is to be presumed sane if that person knows the distinction between good and evil. Thus, when and if it was shown by the state that Deborah did have the ability to distinguish between good and evil, the presumption of sanity comes into play, just as if she had been 15, 18, or 21 years of age or older, and this was recognized by instructions 13 and 13-A.
We do not agree that the essence of appellant’s requested instruction No. 2 was not covered by the court’s in structions 13 and 13-A. It, however, would have required the state to prove appellant’s capacity to commit a crime and to distinguish between right and wrong and to form the criminal intent necessary to commit the crime. But the state was only required to show that Deborah had the mental capacity to know right from wrong in reference to the offense with which she was charged or the nature of the charge and its consequences, and, for the presumption of sanity to come into play, to know the distinction between good and evil. This statute does not govern the ultimate determination of the mental capacity to commit a crime. It only affects the burden of proof by establishing a rebuttable presumption, and it is not necessary that a fact which creates a presumption be proved beyond a reasonable doubt. It is only the essential elements of the crime that go to guilt or innocence that must be proved beyond a reasonable doubt. Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925. The different facts and items of evidence that go to establish guilt do not have to be shown beyond a reasonable doubt, if the evidence on the whole case convinces the jury beyond a reasonable doubt of accused’s guilt. Butt v. State, 81 Ark. 173, 98 S.W. 723, 118 Am. St. Rep. 42; Starnes v. State, 128 Ark. 302, 194 S.W. 506; Martin v. State, 163 Ark. 103, 259 S.W. 6, 33 ALR 133.
It should be noted that the trial court gave the usual instructions on presumption of innocence, the necessity for the state to prove her guilt beyond a reasonable doubt, the requirement of a specific intent to take life and insanity as a defense. Because of its close relationship to the matter of presumption of sanity, we quote the last named instruction, viz:
COURT INSTRUCTION NO. 14
You are instructed that before insanity can be a defense, it is necessary for you to believe, by a preponderance of the evidence, first, that at the time of the alleged crime the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act she was doing, or, second, if she did know it, that she did not know that she was doing what was wrong, or, third, if she knew the nature and quality of the act and knew that it was wrong, that she was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done and unable, because of the disease, to resist the doing of the wrong act which was the result solely of her mental disease.
Appellant is in no position to complain of the failure of the trial court to give her requested instruction No. 2, particularly in view of the instructions given, because it was not a correct declaration of the law, as we have pointed out. State v. State, 194 Ark. 497, 108 S.W. 2d 474.
Appellant argues that the court erred in permitting witnesses for the state to testify about her ability to distinguish right from wrong. Specifically, she points out the testimony of City Marshal Ronnie Tucker and of Mrs. Adrian Spells, Darlene Dollar and Martha June Holdredge.
Tucker stated that he had known Deborah all her life, that he had occasion to personally observe, watch, and see and talk to Deborah, that he watched her as a kid in a small town in different situations, that he had occasion to be in the Little home in more than one instance in the line of duty, and that he arrived at the opinion that she knew right from wrong from seeing her playing around the street.
Mrs. Adrian Spells had been a next-door neighbor of the Littles for three years and was a “real good” friend of the family, her children were playmates and friends of Deborah and she saw Deborah every day and talked with her sometimes. She had moved away about a year prior to the death of Little, but Deborah would come to her house and the children would play. She had the opportunity to observe Deborah’s general nature, habits and disposition and said that the girl “acted normal” and that she thought Debbie knew right from wrong.
Darlene Dollar went to school with Deborah and they were close friends. She noticed Deborah’s behavior in classes and formed an opinion as to whether Deborah knew right from wrong or good from evil. She expressed that opinion by saying, “It looks like she would have known right from wrong. She didn’t get into too much trouble in school.”
The close association and relationship of Martha June Holdredge over a total of four months has already been related. She thought Deborah could discern good from evil.
We cannot say that the court erred in holding that each of these witnesses had sufficient opportunity to associate with and observe Deborah to form an opinion as to her ability in this regard. These opinions did not relate to Deborah’s overall sanity or to her capacity to resist a propensity or temptation to commit the crime, but simply to her ability to distinguish between right and wrong or good and evil. Still, the rules governing admissibility of testimony of these analogous issues should be similar. Carr v. State, 24 Tex. App. 562, 7 S.W. 328 (1888). But appellant made her sanity an issue. Non-expert testimony is admissible on the ability of an accused to distinguish between right and wrong, if the proper foundation is laid. Hill v. State, 249 Ark. 42, 458 S.W. 2d 45.
The admissibility of testimony of non-expert witnesses on such subjects lies within the sound judicial discretion of the trial court, and its decision will not be reversed unless it is clearly wrong. Raprich v. State, 192 Ark. 1130, 97 S.W. 2d 429; Davis v. State, 182 Ark. 123, 30 S.W. 2d 830. In Raprich we said:
While the testimony is not entirely satisfactory, we are unable to say that the trial court abused the discretion he was required to exercise in passing upon the preliminary question of the competency of the testimony.
‘ff Iff iff Iff Iff
*** Such witness must show that he possesses such qualifications as to be of some assistance, and when that showing is made the decision of the trial court will not be reversed unless it clearly appears to be wrong. ifc jf{ iff ]|(
In Smoot on Insanity (section 597), in discussing the question of the competency oí nonexperts, it is said: “Just what amount of knowledge and acquaintance is necessary to qualify such a witness is largely governed by the facts of each case, and within the sound discretion of the trial judge, who may declare the witness incompetent where the preliminary examination shows the facts are insufficient to qualify the witness to express an opinion. But where such witness shows any reasonable opportunity to acquire knowledge of the subject’s sanity through observation and association, and is able to state any facts upon which to predicate an opinion, the meagerness of such facts goes rather to the weight to be given the opinion than to its admissibility; and the opinion formed at the time, with the facts upon which it is based, should go to the jury for what it is worth. The weight to be given to such testimony is exclusively within the province of the jury, if the facts upon which the opinion is founded themselves tend to show sanity or insanity.” See, also, Vol. II Wharton’s Criminal Evidence (11th Ed.) p. 1746.
We cannot say that there was an abuse of the trial court’s discretion here. We do not think that Shaeffer v. State, 61 Ark. 241, 32 S.W. 679, relied upon by appellant is applicable here. In Shaeffer, the witnesses were asked whether, from their observation and the acts they detailed, the defendant would have sufficient mental power to keep from committing the crime, assuming that he could distinguish between right and wrong as to the crime charged. The evidence was held inadmissible because none of the witnesses showed any opportunity to know the defendant’s capacity to resist the propensity or temptation to commit the crime. The witnesses had stated their opinions as to the capacity of the accused to distinguish between right and wrong and this testimony was not held inadmissible.
Appellant asserts that the court erred in denying her motion for a directed verdict because there was no substantial evidence that she was able to distinguish right from wrong with respect to the offense with which she was charged. It is conceded that a psychiatrist stated the opinion of the state hospital that this young lady did know right from wrong and was able to conduct herself to adhere to the right. But appellant points out that the burden was on the state to prove that Deborah knew right from wrong in reference to the offense with which she was charged. The requisite capacity, however, can be determined from the facts and circumstances of the killing and the conduct of the defendant with reference thereto. Kear v. State, 84 Ark. 146, 104 S.W. 1097. The circumstances here and the conduct of appellant afforded substantial evidence on this score.
Appellant also contends that the trial court abused its discretion by failing to transfer this case to juvenile court. The basis of the argument is her age and evidence qf emotional and mental immaturity. Because of this and the liberal construction to be accorded to the act of which Ark. Stat. Ann. §§ 45-420 (Supp. 1975) [Acts 1975, no. 451; § 20, eff. July 1, 1975] and 45-241 (Rep!. 1964) are a part, she says that the trial court abused its discretion. There is a great emotional appeal in this sort of argument and decisions that trial judges must make are difficult ones. In order to say that there was an abuse of discretion we would have to say that the trial judge acted arbitrarily and capriciously. This we cannot do. At the time the motion to transfer was denied, the trial judge had conducted an extensive Denno hearing, which gave him a basis for the exercise of sound judicial discretion.
Appellant suggests that somehow an abuse of the court’s discretion is indicated by the fact that only a few weeks after her trial, a statute was enacted which would have placed exclusive jurisdiction of the offense, committed by a minor under the age of 15 years, in the juvenile court. Ark. Stat. Ann. § 41-617 (Grim. Code 1976). It is admitted the act did not apply. It is not indicative to us of an abuse of discretion. This argument would better be advanced to the executive branch.
Lastly, appellant argues that in the instruction on circumstantial evidence, the court used the word “should” instead of “must” in telling the jury that the circumstances should point to and be consistent with her guilt but should be inconsistent with any other reasonable hypothesis. Use of the word “must” would have been preferable, but we do not see how the jury could have been misled. The words are often synonymous. Rodale, The Synonym Finder, Special DeLuxe Edition, p. 780. It is also significant that there was both circumstantial and direct evidence in this case and the choice of the word used was really less significant than it would be if the State relied solely upon circumstantial evidence. Appellant’s argument, that the effect of the direct evidence cannot be considered in viewing the instruction because the jury was not told that it could convict on circumstantial and positive evidence, although it was made clear that it could convict on circumstantial or direct evidence, is not persuasive.
Although we do not take the instructions given to be inconsistent or inharmonious, we have not treated this argument in this opinion, because no such objection was made in the trial court.
The judgment is affirmed.
We agree. Harris, C.J., and George Rose Smith and Byrd, JJ. | [
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John A. Fogleman, Justice.
This appeal was taken from a judgment for a total of $50,000 in a wrongful death action. It was rendered on a complaint by the personal representative of Brenda Taylor, who was killed in a railroad crossing collision between appellant’s local freight train and a pickup truck occupied by Mrs. Taylor and her husband, Robert Lee Taylor. The collision occurred at approximately 8:45 p.m. on September 29, 1973, in Thornton at the intersection of Locust Street and appellant’s railroad tracks. Both Mr. and Mrs. Taylor were killed instantly and separate wrongful death actions were instituted on behalf of their respective estates and next of kin.
When the Taylors were killed they were returning to their own residence after having attended a birthday party at the home of her sister, who lived two blocks from the fatal crossing. They were traveling westerly on Locust Street which crossed appellant’s main line and spur siding tracks at a right angle. The tracks ran parallel, generally in a north-south direction. The center of the main line track was 14.8 feet west of the center of the spur siding track. The elevation of the main track was approximately one-half foot higher than the spur track.
Appellant asserts the following points for reversal:
I
THE TRIAL COURT ERRED IN SUBMITTING AN INSTRUCTION REGARDING SPEED OF THE TRAIN TO THE JURY.
II
THE TRIAL COURT ERRED IN SUBMITTING AMI 1802 (LOOKOUT) TO THE JURY.
III
THE TRIAL COURT ERRED IN REFUSING TO GIVE APPELLANT’S OFFERED INSTRUCTION 14.
IV
THE TRIAL COURT ERRED IN OVERRULING DEFENDANTS’ MOTIONS FOR DIRECTED VERDICT.
V
THE TRIAL COURT ABUSED ITS DISCRETION BY UNCONSOLIDATING THE CASES FOR TRIAL.
VI
THE VERDICT OF THE JURY WAS EXCESSIVE AND THE COURT ERRED IN SUBMITTING AN INSTRUCTION ALLOWING THE JURY TO FIND DAMAGES FOR MENTAL ANGUISH.
I
Appellant objected to the giving of the following jury instruction:
It is the duty of a railroad to operate its train at a speed no greater than is reasonable and prudent under all circumstances.
A failure to meet this standard of conduct is negligence.
Appellant’s argument that the giving of this instruction was error is two-pronged, i.e., there was no evidence on which to base a finding that there was negligence in operating the train at its speed of 40 to 45 miles per hour; the speed of the train could not have been the proximate cause of the injury. We find no error.
Basically, appellant’s argument that there was no negligence in the speed of the train is that it is well known that the demands of modern transportation require high-speed operation which makes control difficult and that railroad crossings are, in themselves, danger signals; furthermore, the action of the engineer in lowering the speed of the train to 45 miles per hour was reasonable and prudent.
We recognize that it is a rare case when the speed of a train is an issue for the jury in a crossing collision case. See, Comment, AMI 1803, AMI, Civil, 2d Ed. But there are such cases, usually when the crossing is in a town, and there are obstructions to a motorist’s or pedestrian’s view of the tracks in the direction of the train’s approach, or of the train crew’s view of those approaching the crossing. See Davis v. Scott, 151 Ark. 34, 235 S.W. 407; Zaloudek v. Missouri Pac. R. Co., 193 Ark. 344, 99 S.W. 2d 567.
This is one of those rare cases. The collision occurred in Thornton, population about 750. There are two streets crossing appellant’s double-track line through Thornton. At the time of the collision the train, consisting of only the engine and a caboose, was proceeding south returning to Camden from Fordyce after having completed switching operations along the line between Camden and Fordyce. It was being operated by fireman Hagan, who was then in a training program to qualify as an engineer. Engineer Hall and brakeman Sparks were also in the cab of the engine, which was actually moving backward. The train had travelled the six miles from Fordyce to the scene of the collision in ten minutes. The spur track commenced about one-half mile north of Locust Street. A train of 122 empty cars, with engine and caboose, had been spotted on the spur track in Thornton a short time before the arrival of the remnant of this local freight train, but the crew was aware of its presence through radio communication. The train on the spur track was split into three parts in order to clear the crossings. The car spotted nearest the crossing was a flatcar located 93 feet 10 inches south of Locust Street. The first car north of the crossing was a boxcar 119 feet away. There were nine boxcars, each 54 feet 4 inches long and 15 feet 3 inches high between Locust and Highway 167. Part of the cars of this train were north of Highway 167. As the train approached the Locust street crossing, it first crossed Highway 167 only one block, but 719 feet, from Locust. Fireman Hagan had reduced the speed of the train to 45 miles per hour (or 66 feet per second) as he approached Thornton, because of the presence of the train parked on the spur track. Hagan, who was in the engineer’s seat, was unable to see the approaching Taylor truck until the engine was approximately 146 feet from the Locust Street crossing. It would have been impossible for him to have stopped the train in that distance. The fireman applied the emergency brakes when he first saw the Taylor truck moving very slowly on the passing track. He was then approximately 120 feet north of the Locust Street crossing, but the train did not come to a stop until it was at least 750 feet north of the crossing.
The daily traffic average at the Highway 167 crossing was between 1,100 and 1,200 vehicles per day and at the Locust Street crossing, it was 150 to 200. An average of 22 trains per day pass through Thornton on appellant’s tracks. The highway crossing is protected by an automatic gate which blocks the crossing when a train is passing through it and by flashing electric signal lights and bells. The Locust Street crossing is unprotected except for the conventional railroad crossing signs and stop signs. As a result of the spotting of the empty freight cars, the protective devices on Highway 167 had been in operation for over an hour before the collision and appellant’s dispatcher had been advised of this condition and a signal maintainer had been sent to clear that crossing. He cleared the crossing just seconds prior to the collision. So for at least an hour the Locust Street crossing was the only crossing open in Thornton.
The testimony was conflicting as to a vehicle driver’s visibility of the main track to the north. There was evidence that his view was obstructed until the front wheels of the vehicle were on the main track. Other evidence indicated that he could have seen a train to the north on the main track as soon as his vehicle had passed over the spur track. There was testimony indicating that the rear of the engine, which was moving backwards, collided with the right front of the pickup truck. Obstruction of the train crew’s view of persons approaching a railroad crossing in the town or city and of the view of the approaching train by those approaching the crossing by the spotting of cars on a sidetrack was a factor to be considered along with the speed of the train in determining whether there was negligence in the operation of the train. Zaloudek v. Missouri Pac. R. Co., supra, 193 Ark. 344.
The moment the signal maintainer cleared the highway crossing, he saw this engine and caboose approaching from the north and gave it a “highball” or “go ahead” signal right after it passed him. It is not clear whether this witness saw the headlights of the automobile approaching the Locust Street crossing from the east at the time he gave the signal or immediately thereafter. The headlights of the car were visible to him under the passing train and under the railroad cars spotted on the spur track. The “highball” signal meant that there was no danger to the passing train from the dead freight on the spur and that the train could proceed at its normal, regular speed.
The speed regulator or speedometer on the engine was broken. The speeds were estimated by the train crew, although the fireman said he had checked the speed by his watch and the mile posts. The fireman’s reason for decreasing the speed was to allow him to blow the horn longer in approaching the crossings. A witness who lived near the crossing saw the collision. He could see the headlights of the Taylor pickup truck and could tell that it stopped at the intersection of Locust and South First Streets at a point about 200 feet east of the main track. He said that he could hear the train approaching the highway crossing at that time. The pickup truck, according to him, proceeded toward the crossing at approximately 20 miles per hour but slowed down about one-half way to the spur track, and virtually stopped at that track and then barely moved across this track onto the main track. He saw the brake lights of the truck just as it reached the main track and then it was struck by the train almost immediately. He said that the train was only 50 feet from the crossing when its brakes were applied. The Taylor truck was pushed or “swept” into the end of the flatcar south of the crossing. Mr. Taylor’s body was pinned under the truck which came to rest between the spur track and the main line, but pinned against the flat car. Mrs. Taylor’s body was found some 20 feet further south.
While we have viewed the evidence in the light most favorable to appellee, as we must in determining whether there was an issue of fact, the circumstances existing at the time were sufficient to pose a question whether the speed of the train’s movement through Thornton was negligence. The fact that the railroad had established its own speed limit of 65 miles per hour through Thornton does not mean that reduction of the speed below that figure is, as a matter of law, the reasonable and prudent action of a reasonably careful person. The train crew recognized that a hazardous condition existed in Thornton or the speed of the train would not have been reduced. Cf. St. Louis Southwestern Ry. Co. v. Jackson, 242 Ark. 858, 416 S.W. 2d 273. The extent to which it should have been reduced, in the exercise of due care, was a question of fact. Appellant also seems to be convinced that no conclusion that the train was moving faster than 45 miles per hour could be reached. The jury may well have felt that the train was proceeding faster than the estimate of 45 miles per hour by the engineer, who judged only by the “feel” of the movement or that arrived at by an engineer-trainee by watch checking and pole counting. There is no evidence relating the estimated speed to the time required for the brakes to become operable or to stop the engine and caboose after the emergency brakes were applied. The absence of such testimony is significant. Cf. Missouri Pac. R. Co. v. Nelson, 195 Ark. 883, 115 S.W. 2d 872; Harper v. Missouri Pac. R. Co., 229 Ark. 348, 314 S.W. 2d 696. From the force of the impact and the distance traveled by the “bobtailed” train, the jury might have inferred that the speed was much faster. The engineer had reported the accident by radio before the train was brought to a stop. The jury might also have drawn the inference that the “highball” caused the trainee engineer to take steps to increase his speed as he moved toward the Locust Street crossing. The question whether the speed of the train was excessive was properly submitted to the jury. St. Louis Southwestern Ry. Co. v. Jackson, supra.
The question of proximate cause, given negligence, is more often than not a question of fact, to be determined by viewing the attendant circumstances. Booth & Flynn v. Price, 183 Ark. 975, 39 S.W. 2d 717, 76 ALR 957; 57 Am. Jur. 2d 487, Negligence § 136. It has been said that proximate cause is a rule of physics and not a criterion of negligence. Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W. 2d 74. Proximate cause may be shown by circumstantial evidence. Arkansas Lumber Co. v. Luckett, 201 Arle. 140, 143 S.W. 2d 1107. Such evidence is 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. Biddle v. Jacobs, 116 Ark. 82, 172 S.W. 258. In order to pose a jury question on the causal connection between negligence and an injury, it is not necessary that the evidence exclude every other reasonable hypothesis. Hill v. Maxwell, 247 Ark. 811, 448 S.W. 2d 9. It is only necessary that there be evidence that would tend to eliminate such other causes as may fairly arise from the evidence, and that the jury not be left to speculation and conjecture in deciding between two equally probable possibilities. Hill v. Maxwell, supra; Standard Pipe Line Co. v. Burnett, 188 Ark. 491, 66 S.W. 2d 637; Turner v. Hot Springs St. Rwy. Co., 189 Ark. 894, 75 S.W. 2d 675. But it is not necessary, in order to have sufficient evidence to support a finding of proximate cause, that circumstantial evidence exclude a concurring efficient proximate cause, as distinguished from a totally independent and unrelated cause. Southern Grocery Stores Inc. v. Greer, 68 Ga. App. 583, 23 S.E. 2d 484 (1942); Missouri Pac. R. Co. v. Frye, 214 Ark. 92, 214 S.W. 2d 495; Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W. 2d 338; Oviatt v. Garretson, 205 Ark. 792, 171 S.W. 2d 287; Bennett v. Bell, 176 Ark. 690, 3 S.W. 2d 996. In cases of comparative negligence, the negligence of the plaintiff and that of the defendant are concurring causes. See Hubbard v. Graves, 240 Ark. 64, 398 S.W. 2d 69.
The pickup truck was barely moving when struck. There was evidence from which it might appear that even greater signaling time than the ten seconds the train crew felt it had gained by its reduction of speed would have made a difference in the truck driver’s ability, if the train had been moving even slower, to have applied his brakes in time to stop. There was testimony that the pickup truck would have stopped completely if the driver had merely lifted his foot from the accelerator. Significantly, the train crew testified that it would not have been possible at the train’s speed to have given a normal crossing signal between the two crossings. The evidence on proximate cause was sufficient to justify the submission of the speed issue. See Ford v. St. Louis I.M. & S. Ry. Co., 66 Ark. 363, 50 S.W. 864.
II
The trial court gave AMI 1802, based on Ark. Stat. Ann. § 73-1002 (Supp. 1975). Appellant contends that the evidence that the crew was keeping a lookout is undisputed, that those in the cab saw the truck and at their first opportunity took immediate action. But we will not consider this question because no objection was made to it. Willis v. Elledge, 242 Ark. 305, 413 S.W. 2d 636; Evins v. St. Louis & S.F. Rd. Co., 104 Ark. 79, 147 S.W. 452.
Appellant argues that no separate, specific objection to this instruction was necessary, because it moved for a directed verdict and argued that there was no evidence that a proper lookout was not maintained. This was done at the conclusion of the evidence on behalf of appellee-plaintiff, but the court then refused to rule on separate issues of negligence, simply holding that the evidence was sufficient to present a question for the jury. At the conclusion of all the evidence, appellant renewed all motions previously made in a general, formal manner, without mentioning the lookout issue specifically. The trial judge would not consider the motion for directed verdict issue by issue and said that such matters should be handled in connection with jury instructions. When he stated which requested instructions would be given and which refused, he specifically stated that the issues raised by plaintiff’s allegations of negligence as to lookout would be submitted. When he invited the parties to make objections to his rulings, appellant made objections to certain of these instructions, but did not make any objection to the lookout instruction. The potential for waste of judicial resources, both at the trial and appellate levels, is too great for us to relax the rule that the failure to make a specific objection to the giving of an instruction constitutes a waiver under circumstances such as this.
Ill
Appellant’s requested instruction No. 14 was a modified form of AMI 1804. AMI 1804 reads as follows:
A railroad grade crossing is a place of danger. It is the duty of the driver of a motor vehicle approaching a crossing to use ordinary care to look and listen for trains, which may require stopping his vehicle if necessary to have an effective view of the tracks in both directions.
Appellant’s modification would have substituted the words “persons in an automobile” for the words “the driver of a motor vehicle” and would have eliminated the closing phrase “in both directions. ” The court refused this modification but gave AMI 1804, which was appellant’s requested instruction 14A. Appellant argues that a passenger in a motor vehicle is under the same duty as the driver to “stop, look and listen.”
We find no error. We simply are unable to grasp appellant’s argument that this instruction was mandated because the evidence was hopelessly conflicting as to the identity of the driver. Of course, appellant’s requested instruction would have eliminated the issue as to the identity of the driver, but appellant does not explain and we do not understand why this factual dispute made a passenger’s duty any different from what it would have been had the identity of the driver been established beyond doubt. It is clear that a passenger does not, and cannot, have the same control as the driver has over the operation of an automobile. Cf. Missouri Pac. R. Co. v. Henderson, 194 Ark. 884, 110 S.W. 2d 516. A passenger can look and listen, but he would be hard put to stop the vehicle. The court did give AMI 910 which fully covers the duty of a passenger to exercise ordinary care for his own safety under the circumstances. St. Louis-S.F. Ry. Co. v. Steele, 185 Ark. 196, 46 S.W. 2d 628; Missouri Pac. R. Co. v. Henderson, supra.
Appellant relies upon language in St. Louis S.F. Rd. Co. v. Perryman, 213 Ark. 550, 211 S.W. 2d 647; Chipman v. Missouri Pac. R. Co., 195 Ark. 721, 114 S.W. 2d 14; and Crossett Lumber Co. v. Cater, 201 Ark. 432, 144 S.W. 2d 1074 to justify the in-* struction requested by it. In Perryman, we said that occupants of a car, other than the driver had the duty to comply with the “stop, look and listen” rule. This dictum was supported by citation of St. Louis-S.F. Ry. Co. v. Steele, 185 Ark. 196, 46 S.W. 2d 628. But in that case, we had simply held that a guest of an automobile driver was bound to exercise ordinary care for his own safety under the circumstances. In both Cater and Chip-man, the passenger was found to be guilty of contributory negligence. In Cater, the passenger did see the headlight of the train when the car in which she was riding was at least 100 feet from the crossing, but was held to have been negligent in not ascertaining that the driver was cognizant of the peril. In Chipman, the court was split on the question of propriety of a directed verdict for the railroad in a suit by an automobile passenger. In that case the passenger simply did not see what was plainly to be seen. The automobile in which he was riding struck the side of the second car of a freight train being pushed across the crossing. The plaintiff passenger, although looking ahead and watching the road did not even see the train until the automobile was within ten feet of the freight car struck. We could not base the rule of law appellant urges upon these authorities. The instruction requested was not a correct instruction, and the instruction given adequately covered the issues.
IV
To hold that there was error in the trial court’s failure to direct a verdict would not be consistent with our position on the issue of speed. We certainly cannot agree that appellee’s taking a non-suit as to engineer Hall when appellant moved for a directed verdict as to all of the defendants was virtually tantamount to a concession that there was no issue of fact. The difference in the position of Hall and that of Hagan and of appellant itself is so obvious that further discussion of this argument is inappropriate.
Otherwise appellant argues that both Mrs. Taylor and her husband were, as a matter of law, guilty of negligence that was at least as great as that of appellant. It relied for the most part on cases in which contributory negligence on the part of a plaintiff had been found to exist as a matter of law, during the time when contributory negligence was an absolute bar to recovery. This reliance is, of course, misplaced.
The weighing of relative fault is peculiarly a jury function. Baker v. Matthews, 241 Ark. 539, 408 S.W. 2d 889; Willingham v. Southern Rendering Co., 239 Ark. 858, 394 S.W. 2d 726; Missouri Pac. R. Co. v. Yandell, 209 Ark. 569, 191 S.W. 2d 592. It is only in rare instances that this court should disturb a jury verdict on the issue of comparative negligence, if there is evidence of negligence by both parties. National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W. 2d 488; Hicks v. Hall, 253 Ark. 103, 484 S.W. 2d 696; Willingham v. Southern Rendering Co., supra. In order to overturn a jury verdict on the question, we should have to say that the plaintiff’s (or plaintiff’s decedent’s) negligence was equal to or greater than that of the defendant’s as a matter of law, which actually means that reasonable minds could not differ about the matter. National Credit Corp. v. Ritchey, supra; Missouri Pac. R. Co. v. King, 200 Ark. 1066, 143 S.W. 2d 55; Missouri Pac. R. Co. v. Price, 199 Ark. 346, 133 S.W. 2d 645; St. Louis-S.F. Ry. Co. v. Horn, 168 Ark. 191, 269 S.W. 576. See also, Hicks v. Hall, supra; Willingham v. Southern Rendering Co., supra. It is not the province of this court to compare the negligence of the parties when fair-minded men might reach different conclusions. McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753. If there is any substantial evidence to support the jury’s finding that the negligence of the defendant was greater than that of appellee’s decedent we must affirm the judgment. See Hopper v. Hunter, 256 Ark. 650, 509 S.W. 2d 548; Smith v. Aaron, 256 Ark. 414, 508 S.W. 2d 320; Bryant v. McAlister, 247 Ark. 859, 448 S.W. 2d 13; Easley v. Inglis, 233 Ark. 589, 346 S.W. 2d 206; Missouri Pac. R. Co. v. Yandell, supra; Missouri Pac. R. Co. v. Price supra.
We cannot say that there was no substantial evidence to show that appellant’s negligence was greater than that of Brenda Taylor.
If the jury found that Mrs. Taylor was the passenger, rather than the driver, a distinct possibility, we would certainly be hard put to say that her ability to see the approaching train in time to cause the pickup truck to be stopped in time to avoid the catastrophic collision was so clearly shown or that her negligence in failing to see the train or warn the driver was, as a matter of law, equal to or greater than the negligence of appellant.
V
Separate actions were brought against appellant by the respective personal representatives of the estates of Mr. and Mrs. Taylor. On motion of appellee these actions were consolidated, without any objection on the part of appellant or the administrator of Mr. Taylor’s estate. The cases were then set for trial on February 2, 1976. A pretrial conference was held in both cases on January 27, 1976. A settlement between appellant and the administrator of Robert Lee Taylor, insofar as his next of kin were concerned, was made on January 29, but claims for property damage and funeral expenses (on which State Farm Mutual Automobile Insurance Company had intervened as subrogee) were not settled.
When the consolidated cases were called for trial, no one appeared for the Robert Lee Taylor estate. Appellant moved for a joint trial or a continuance of both cases, so they could be tried jointly at a later date. Appellant had recognized the existence of the subrogation rights of the insurance company. The only prejudice specified by appellant was the great expense of having witnesses present for two different trials. The trial judge announced that he was “unconsolidating” the cases and would try the case as to Brenda Taylor but continue the case as to the Robert Lee Taylor estate.
The attorney for the insurance company was not the attorney representing the latter estate and he had been excused by the trial judge from attending the trial, on the representation that the subrogation rights of his client were being protected by appellant. The judge stated that he had been advised of the settlement on Friday, January 30, and had talked with the insurance company’s attorney, who stated that he could not be ready for trial on Monday. He recalled that, at the pretrial conference, the attorney for the Robert Lee Taylor estate had indicated that he would present the claims for property damage and funeral expense.
The consolidation of the two separate and independent causes of action was proper under the provisions of Ark. Stat. Ann. § 27-1305 (Repl. 1962). Murray v. Jackson, 180 Ark. 1144, 24 S.W. 2d 960. The purpose of this act was conservation of judicial resources and expense to litigants by saving a repetition of evidence and an unnecessary consumption of time and costs in actions depending upon substantially the same evidence or arising out of the same transactions. St. Louis, I.M. & S. Ry. Co. v. Raines, 90 Ark. 482, 119 S.W. 266. By this consolidation the two causes of action were not so firmly welded together that they must of necessity have been tried simultaneously as one case. Each plaintiff would have had to make out his own case. Moore v. Rogers Wholesale Grocery Co., 177 Ark. 993, 8 S.W. 2d 457. They remained separate and distinct causes of action. State Life Ins. Co. v. Goodrum, 189 Ark. 509, 74 S.W. 2d 230; New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S.W. 2d 520; Murray v. Jackson, supra. The jury might have returned inconsistent verdicts had the cases gone to trial, since the verdict in one case would not have been binding on the jury in the other. Leech v. Missouri Pac. R. Co., 189 Ark. 161, 71 S.W. 2d 467; Rudolph v. Mundy, 226 Ark. 95, 288 S.W. 2d 602; Brown v. Parker, 217 Ark. 700, 233 S.W. 2d 64; Green v. West Memphis Lumber Co., 192 Ark. 1177, 91 S.W. 2d 261. Evidence admissible in one case might not have been admissible in the other. Murray v. Jackson, supra.
We have heretofore recognized that where several plaintiffs jointly proceeded against one defendant in a single suit on separate causes of action that could properly have been consolidated if brought separately, the trial court, in the exercise of its discretion, might order a severance if one of the parties would be prejudiced by proceeding with the joint action. Holcomb v. American Surety Co., 184 Ark. 449, 42 S.W. 2d 765. The fact that these causes of action were consolidated instead of having been brought jointly is immaterial and, even though in Holcomb, we hypothecated a situation where a defendant might be prejudiced, the trial court should have the same discretion where the rights of one of the plaintiffs might be impaired.
Although the purposes of the consolidation statute are salutary, they do not override all other considerations.. The act did not mandate consolidation of these causes of action, as it simply permitted the court to “make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice," and to “consolidate said causes when it appears reasonable to do so.” This calls for the exercise of sound judicial discretion. When circumstances change after the discretion to consolidate has been exercised, so that the reasons for consolidation no longer exist, or the consolidation operates to produce unnecessary delay in the administration of justice, then it may no longer appear reasonable to preserve the consolidation. It is only logical that the court then be permitted to exercise its sound judicial discretion to separate the cases for trial by setting aside the order of consolidation in the interest of justice. State v. Randall, 386 S.W. 2d 67 (Mo., 1964). The exercise of this discretion should not be reversed on appeal unless the party appealing has suffered some injury. Young v. Gray, 65 Tex. 99 (1885). Where the result reached in the case first tried will have the same and no other effect than if the cases were tried together, such injury is improbable. Young v. Gray, supra.
We certainly cannot say that the granting of a continuance in the case of the estate of Robert Lee Taylor was an abuse of discretion. But continuing this case when both parties were ready for trial and all witnesses were present, could well have been an injustice to appellee and would be insofar as he is concerned, a delay in the administration of justice. Since appellant’s attorney and all its witnesses were present when the continuance was granted, it had already incurred some part of the duplication of expense to be avoided by consolidation and continuing both cases would not have relieved it of this duplication. To say the least, we cannot say that there was an abuse of discretion in this respect.
VI
This is the point that has given us the most concern. The jury verdict included awards of $2,600 each to William M. Pennington, Chris Castleberry, Lanell Williams, Marcey Ernest and Patsy Pierce, adult siblings of Brenda Taylor. It awarded $35,000 to Florence Pennington, her mother, for loss of contributions and mental anguish. Since the prayer for relief sought only $15,000 for loss of contributions, the $20,-000 remainder of the verdict can only be sustained as an award for mental anguish, and it does seem extremely liberal.
The review of judgments for mental anguish in wrongful death cases has been like an anathema to this court ever since it was made an element of damages recoverable by Ark. Stat. Ann. § 27-906 et seq (Repl. 1962) and its predecessors, Acts 39 and 115 of 1949. This element has been described consistently with our decisions in AMI, Civil, 2d Ed. 2215 and 2216, viz:
Second, let me explain to you what is meant by mental anguish. This term means the mental suffering resulting from emotions such as grief and despair. It must be real and with cause and be more than the normal grief occasioned by the loss of a loved one.
In Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610, we first wrestled with the problem in full recognition of the fact that the legislative enactment changed the Arkansas law which had theretofore barred such recoveries because mental suffering unaccompanied by physical injury was too remote, uncertain and difficult of ascertainment. The statute removed the bar, but did not make this element of damages any more certain or less difficult of ascertainment. The Arkansas Law Review writer of the comments on Acts 39 and 115 of 1949, was indeed a prophet when he concluded with this remark:
*** It may be expected that the Supreme Court will be faced with numerous appeals asserting that the jury allowed excessive damages and that it will be some time before a definite pattern is set.
The pattern has not yet been set, and it often seems that we are no closer than we were when this gloomy forecast was made.
The reasons for the difficulties presenting themselves are at once apparent. The allowance of this element of damages is an attempt to compensate an emotional injury with money damages, or as it has been put, to allay grief by the payment of money. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935). Even though the provision for recovery for mental anguish under our wrongful death statute makes it different from the statutes of a vast majority of the states, and in spite of the argument that these damages are more punitive than compensatory, we have no quarrel with the policy decision of the General Assembly on this score, fully recognizing that there were good arguments supporting the attempt to provide for compensation for grief. But it cannot be gainsaid that such a recovery is a solatium (Interurban Railway Co. v. Trainer, 150 Ark. 19, 233 S.W. 816), i.e., “sentiment, love, or affection, as distinguished from a property loss”; “compensation as a soothing to the affections or wounded feelings, and for loss of the Comfort and social pleasure there is in the association between members of a family.” Annot. 74 ALR 11, 23 et seq (1931); Marshall v. Consolidated Jack Mines Co., 119 Mo. App. 270, 95 S.W. 972 (1906). But there is no yardstick by which this kind of compensation can be measured. Georgia Southern & Florida Ry. Co. v. Perry, 326 F. 2d 921 (5 Cir., 1964). Mental anguish cannot be measured in terms of money. See Knierim v. Izzo, 22 Ill. 2d 73, 174 N.E. 2d 157 (1961). See also, J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W. 2d 176. Mental anguish will vary in every case with the nervous temperament of the individual, his ability to withstand shock, sex, circumstances, positions in life, and in innumerable other respects. Merrill v. Los Angeles Gas & Electric Co., 158 Cal. 499, 111 Pac. 534, 139 Am. St. Rep. 134, 39 LRA (n.s.) 559 (1910). We react differently when shadowed by death because of differences in nervous strain, environment, social background and appreciation for degrees in character, etc. See Florida Dairies Co. v. Rogers, supra.
The problem is neither new nor peculiar to Arkansas. We have long struggled with it in other cases where awards for mental anguish were permissible. For example, in Western Union Telegraph Co. v. Bickerstaff, 100 Ark. 1, 138 S.W. 997, we said:
It is always difficult to measure in money a sentiment or the suffering of an anguished mind; but in cases of this kind the courts are called upon to do this, and it will not do to say that, because these matters cannot be definitely estimated, any sum, without limit, may be assessed as a measurement of such damage.
In the case of W.U. Tel. Co. v. Weninski, 84 Ark. 457 [106 S.W. 486], this court said: “The element of mental anguish allowed by the statute in the assessment of damages for non-delivery of a telegram is so indeterminate in its nature that it must be left to some extent to the trial jury, but there is a limit to the power and discretion of the jury in this respect, and it becomes our duty to set aside an assessment which is palpably excessive. ”
In the case of W.U. Tel. Co. v. Blackmer, 82 Ark. 526 [102 S.W. 366], *** the court said: “No safe and satisfactory rule can be laid down for the assessment of damages in cases like this, but each particular case must be decided upon its own merits. ***”
Ordinarily the amount of damages growing out of mental anguish is left to the determination of the jury. Yet it is also the duty of the court to see that these damages are sustained by the facts and circumstances adduced in evidence in the case, and, where the amount returned by the jury is excessive, to review its assessment. ***
Typical of the cases from other jurisdictions wrestling with the problem is Zorn v. Crawford, 252 S.C. 127, 165 S.E. 2d 640 (1969) where the court said:
The assessment of such intangible elements of damage is most difficult and the court is always reluctant to interfere with the exercise of the jury’s discretion in fixing the amount to be awarded. The loss to parents from the untimely death of a devoted child is not to be minimized. However, there must be some limitation on the amount to be awarded in such cases. As stated in Nelson v. Charleston & W.C. Ry. Co., 231 S.C. 351, 98 S.E. 2d 798, quoting in part from the Mock case, “the propriety of the exercise by this Court of its power to set aside a verdict on the ground that it is so shockingly excessive as to manifestly show that the jury was actuated by passion, prejudice or other considerations not founded on the evidence ‘is inherently difficult where, as in the case at bar, there is no tangible factor of damage, such as earning capacity, and the standard of recovery must be measured only by such imponderables as mental anguish, grief and loss of companionship.’ The valuation to be placed upon these elements is wisely left to the discretion of the jury. But it does not follow that the amount which may be awarded is wholly without any limitation. The determination is not left to the whim or caprice of the jury. There must be some semblance of a basis for justifying the verdict.”
Because of the difficulties inherent in the allowance of such damages, we have undertaken to review the positions we have heretofore taken on such awards to determine whether we have articulated any rules or established any standards for appellate review regarding this element of damages, and to apply whatever principles we are able to discern from our previous decisions to the awards in this case.
The first case reaching this court where there was a judgment for this element in a wrongful death case was Bockman v. Butler, 226 Ark. 159, 288 S.W. 2d 597. Even though the jury verdict for mental anguish was attacked by appellant there on the ground that it was not supported by any evidence of such mental anguish, we settled the question by merely saying that mental anguish was clearly reflected by the evidence, without elaboration. We have done little better since then, in spite of the fact that in Peugh v. Olige, 233 Ark. 281, 345 S.W. 2d 610, we attempted to define mental anguish by reference to earlier cases as something more than normal grief occasioned by the loss of a loved one. Too often, the fact that, in Peugh, we said that the legislature undoubtedly used the words as they had been previously construed by this court, has been overlooked. From these definitions, to be recoverable mental anguish must be real and with cause and not merely the result of a* too sensitive mind or a morbid imagination. It must not consist simply of annoyance or disappointment or a suffering of the mind'growing out of some imaginary situation but must be some actual distress of mind flowing from the real ills, sorrows and griefs of life. In arriving at the “more than normal grief” test, we also resorted to a definition of anguish as extreme pain, agony, distress, pain of mind. However satisfactory this test may be, the problem, as is so often the case, lies not in its statement, but in its application. In J. Paul Smith Co. v. Tipton, supra, 237 Ark. 497, where minor children were killed, we stated that
** * As to the deceased boys, there has not been and never will be devised a definite and satisfactory rule by which to determine the amount of money required to compensate parents for mental anguish. ***
We have never really come to grips with the problem presented by a motion for directed verdict on the issue or an objection to submitting this element of damage to the jury, except as we treated the matter in Peugh. In Peugh, we did set about the task of reversing and dismissing judgments for want of evidentiary support and reducing them for ex-cessiveness. It seems clear from that case that the next of kin who does not appear at the trial, does not testify that he suffered mental anguish, and does not attend the funeral of the deceased is not entitled to recover, at least in the absence of some explanation.
Our approach in Peugh seems to be consistent with the thinking of Prof. Prosser. In a slightly different context, he suggested that a substantial verdict for mental anguish should be reversed where the evidence of damage consists solely of subjective testimony by the plaintiff, unsupported by any independent proof, and that such evidence attesting to the genuineness of the anguish should consist of convincing objective testimony that a plaintiff’s mental anguish was extreme. Recovery should be permitted in this context, he said, when there has been damage of importance and gravity. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. Law Rev. 878, 888 (1938-39).
Our cases subsequent to Peugh provide only weak and indistinct guidelines to indicate when the evidence is and when it is not sufficient to present a jury question. It seems that a verdict will not be sustained where there are no special ties of affection between a mature survivor and an elderly decedent and there is no proof on the subject except that the survivor had love and affection for the decedent. Moore v. Robertson, 244 Ark. 837, 427 S.W. 2d 796. We have, as pointed out in Scoville v. Missouri Pac. R. Co., 458 F. 2d 639 (P Cir., 1972), stressed the necessity of showing exceptional circumstances or a par ticular relationship between the survivor and the deceased to sustain an award. See St. Louis Southwestern Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W. 2d 334.
The difficulty in finding practical approaches to measuring grief in an effort not to cure it, but to compensate it, by the clumsy remedy of money damages is not a problem peculiar to the one we are addressing here. It is common to measurement of damages for physical pain and suffering, disfigurement, malicious prosecution, false arrest, breach of promise, alienation of affections, unlawful search and seizure, defamation and other such injuries. See Knierim v. Izzo, 22 Ill. 2d 73, 174 N.E. 2d 157 (1961). The problem lies in the nature of man’s emotions and our inability to accurately measure their strength and their different effects on different individuals. With no better tests than we presently have for measuring grief, we must resort to evidence of such things as length and intensity of the emotion. See Goodrich, Emotional Disturbance as Legal Damage, 20 Mich. Law Rev. 497 (1922).
Resort to testimony from observers alone tends to reward those who make a display of their emotions, or who are emotionally unstable, at the expense of those more stable or stoic by nature; but justifying an award on appellate review is easier when the evidence of grief can be observed by others. Reliance on testimony consisting of subjective statements tends to “overcompensate” those whose histrionic abilities are great or well developed and to “undercompensate” those whose articulation is restrained or inhibited. Simulation of grief may well be easier than simulation of pain, and for a greater number of reasons. The hazard of misrepresentation or obscuration of truth for economic reasons is at least as great as, if not greater than, it is in cases involving physical suffering. Goodrich, Emotional Disturbance as Legal Damage, 20 Mich. Law Rev. 497, 505. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. Law Rev. 874, 877 (1938).
It seems that it is not required that a survivor testify and subject himself to the observation of the jury in order to recover for mental anguish, but that some evidence of the suffering of more than normal grief, other than a survivor’s subjective statements is required. Usually, the trial judge will be in a better position than are we to determine whether there is sufficient evidence to raise a question whether there was more than normal grief.
We have not found any gauge by which we can measure a verdict for excessiveness. We have sustained, reversed or reduced verdicts upon attack for excessiveness without any real indication of the evidence which either supported or failed to support the verdict. See Tiner v. Tiner, 238 Ark. 222, 379 S.W. 2d 425; Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291; J. Paul Smith Co. v. Tipton, supra; Eisele v. Beaudoin, 240 Ark. 227, 398 S.W. 2d 676; Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S.W. 2d 724; Missouri Pac. R. Co. v. Ward, 252 Ark. 74, 477 S.W. 2d 835.
We have said time and again that the amount of money required to compensate for “more than normal grief” lies largely within the province of the jury. See Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467; Pitts v. Greene, 238 Ark. 438, 382 S.W. 2d 904.
In Strahan v. Webb, supra, we asked, “Who can say how much mental anguish is worth?” We felt prone to state that an answer to the inquiry lay in the realm of speculation. But there must be a more satisfactory answer. Perhaps we came the nearest to an answer in Norman v. Gray, 238 Ark. 617, 383 S.W. 2d 489, and in Tiner v. Tiner, supra, where we quoted with approval a portion from 15 Am. Jur., Damages, § 602, wherein it was said that difficulty in measuring damage of this sort should not preclude recovery and that the amount to be awarded rests in the discretion of the jury, subject to review as in other cases. Apparently, in Norman, we recognized that some degree of conjecture by a jury is permissible in wrongful death cases where an element of damage is incapable of definite calculation. We tersely stated that the determination was the province of the jury in Eisele v. Beaudoin, supra. Our brethren of the United States Circuit Court of Appeals for the Eighth Circuit, in diversity cases from Arkansas, have said that the jury is the tribunal best suited to measure the impact upon the survivors. Vickers v. Gifford-Hill & Co., Inc., 534 F. 2d 1311 (8 Cir., 1976); Connell v. Steel Haulers, Inc., 455 F. 2d 688 (8 Cir., 1972).
Appellate review may present no greater problem than when awards are made for pain and suffering or when conduct is measured by the “reasonably careful person” standard, or any determination is based upon the standard of reasonableness.
An analysis of our decisions discloses that there are certain factors to be considered in evaluating mental anguish, such as: (1) The duration and intensity of the sorrow and grief [Strahan v. Webb, supra; J. Paul Smith Co. v. Tipton, supra; Missouri Pac. R. Co. v. Ward, supra, 252 Ark. 74. See also, Scoville v. Missouri Pac. R. Co., 458 F. 2d 639 (8 Cir., 1972)]; (2) The attitude of the decedent toward the survivor [Strahan v. Webb, supra; Pitts v. Greene, supra; Moon Distributors, Inc. v. White, 245 Ark. 627, 434 S.W. 2d 56. See also, Ellsworth Bros. Truck Lines v. Mayes, supra], and of the survivor toward the decedent [Rhodes v. Bernard, 248 Ark. 869, 454 S.W. 2d 318, 47 ALR 3d 961]; (3) The duration and intimacy of the relationship and the ties of affection between decedent and survivor [Peugh v. Oliger, supra; Modes. Barnett, 235 Ark. 641, 361 S.W. 2d 525; St. Louis Southwestern Ry. Co. s. Farrell, supra, 242 Ark. 757; Moore v. Robertson, 244 Ark. 837, 427 S.W. 2d 796; Rhodes v. Bernard, supra; Missouri Pac. R. Co. s. McDaniel, 252 Ark. 586, 483 S.W. 2d 569. See also Ellsworth Bros. Truck Lines v. Mayes, supra; Connell v. Steel Haulers, Inc., supra] (It appears that the relationship must be closer than that of the average family to support an award. Cf. Strahan v. Webb, supra, and Mode v. Barnett, supra); (4) The violence and suddenness of the death [Peugh s. Oliger, supra; Mode v. Barnett, supra. See, Vickers v. Gifford-Hill & Co., Inc., supra. See also, Scoville v. Missouri Pac. R. Co., supra; Connsell v. Steel Haulers, Inc., supra]; (5) Maturity or immaturity of survivor [Mode v. Barnett, supra; Missouri Pac. R. Co. s. McDaniel, supra ]
In our cases, certain evidence has been considered significant: (1) Sleeplessness or troubled sleep over an extended period [Strahan v. Webb, supra; J. Paul Smith Co. v. Tip- ton, supra; Missouri Pac. R. Co. v. McDaniel, supra; Missouri Pac. R. Co. v. Ward, supra]; (2) Frequency of association and communication between an adult decedent and an adult survivor [Peugh v. Oliger, supra; St. Louis Southwestern Ry. Co. v. Farrell, supra; Ellsworth Bros. Truck Lines v. Mayes, supra; Missouri Pac. R. Co. v. McDaniel, supra]; (3) Obvious extreme or unusual nervous reaction to the death [Peugh v. Oliger, supra; Mode v. Barnett, supra; Norman v. Gray, supra, 238 Ark. 617; Pitts v. Greene, supra; Missouri Pac. R. Co. v. McDaniel, supra]; (4) Crying spells over an extended period pi time [Mode v. Barnett, supra; Rhodes v. Bernard, supra]; (5) Adverse effect on survivor’s work or school [Mode v. Barnett, supra; Pitts v. Greene, supra; Rhodes v. Bernard, supra]; (6) Change of personality of the survivor [Norman v. Gray, supra; Rhodes v. Bernard, supra. See also, Connell v. Steel Haulers, Inc., supra]; (7) Loss of weight by survivor and other physical symptoms [Norman v. Gray, supra; Rhodes v. Bernard, supra]; (8) Age and life expectancy of the decedent [St. Louis Southwestern Ry. Co. v. Farrell, supra; Missouri Pac. R. Co. v. McDaniel, supra].
Other matters which a jury might consider and we have considered when the amount of a verdict is questioned, are: (1) Failure of survivor to appear and testify [Peugh v. Oliger, supra; Mode v. Barnett, supra; Missouri Pac. R. Co. v. McDaniel, supra. Cf. Ellsworth Bros. Truck Lines, Inc. v. Mayes, supra]; (2) Visible signs of grief of survivor while testifying [Pitts v. Greene, supra].
We have indicated that a reversal or reduction of an award for mental anguish would be in order when it: (1) Shocks the conscience of the court [International Harvester Co. v. Land, 234 Ark. 682, 354 S.W. 2d 13; Tiner v. Tiner, supra; Eisele v. Beaudoin, supra, 240 Ark. 227; Moon Distributors, Inc. v. White, supra, 245 Ark. 627]; (2) Demonstrates passion or prejudice on the part of the jury [Moon Distributors, Inc. v. White, supra].
Other jurisdictions have concluded that this is the proper standard for review of such a verdict for excessiveness. See, e.g., Georgia Southern & Florida Ry. Co. v. Perry, supra, 326 F. 2d 921. No other workable standard for review has been found. Of course, Prof. Prosser’s suggestion, that a substantial verdict based on subjective testimony only should be reversed, is as pertinent to review for excessiveness of a verdict as it is to review for substantial evidence of more than normal grief. Prof. McCormick suggests that the matter must be left largely to the restraint and common sense of the jury and that both the trial court and the appellant court should review only in cases of obviously unreasonable awards. McCormick, Damages (1935) p. 315, § 88. We conclude that there is no satisfactory standard of appellate review other than that which we have previously indicated in such cases as Land, Tiner, Eisele and Moon Distributors. These are the same tests we apply in reviewing jury awards for pain and suffering.
There was sufficient evidence to present a fact issue on the question of mental anguish, i.e., more than normal grief in the case of each survivor. Brenda Taylor left her mother, Florence Pennington, then 59, a brother and four sisters. The Pennington family was very close-knit. They went fishing and camping together. They joined in cookouts. They had birthday suppers for every member of the family. They, along with the families of each of the Pennington children, all of whom were married, were together two or three times a week and at least every weekend. When they assembled the^ usually played softball and football. Brenda was described as having “generated the whole family” and as being the “life of the family,” and “the joy of everything.” She had lived with her mother until she married about four years prior to her death. Brenda was very generous in loaning or giving money to every member of the family who needed it, and being without children of her own, bought things for children of her brother and sisters. She had a life expectancy of 44 years when she was killed. There was testimony that the family did not get together after Brenda’s death as often as they had previously. Marcie Ernest, a sister, attributed that to the fact that there was always something missing, because Brenda had been “like the special one.”
Florence Pennington had lived in Bearden since her husband’s death in 1960 until she took up residence with her youngest daughter, Patsy Pierce, a few months before Brenda’s death. She told of the good relationship among her daughters. She was with her children two or three times a week and talked to Brenda on the telephone two or three times a week and sometimes daily. She said that Brenda’s death was mighty bad. Brenda took her to see a doctor and to get medicine and either fixed her hair or took her to a beauty shop. Mrs. Pennington had an expectancy of 16 years when Brenda was killed.
William M. (called “Marion”) Pennington, a brother, told of the great love he and this sister had for one another and said he had experienced regret, some of which he still felt, but that these were things which one had to live with and get over, even though it was hard for a while.
Christine Castleberry, a sister who was a nurse, said that she was ten years older than Brenda and had helped raise her. Knowing that she would be unable to attend Brenda’s birthday supper, she had entertained Brenda and her husband with a Sunday dinner and had given her a present. She said that she and Brenda were together once or twice a week. Brenda and her husband were very fond of the two Castleberry children and that feeling was reciprocal. She said that to her Brenda’s death was like losing a child and she had not gotten over it.
Marcie Ernest, aged 23, Lanell Williams, aged 24, and Brenda Taylor all worked at the same place and took breaks and lunch together. Marcie said that Brenda was the first person to whom she talked every morning after getting to their place of work. Marcie used to ride the bus to Brenda’s house and Brenda would take her to eat or to a show. When Marcie played basketball, Brenda came to watch and was happy with her team’s victories and sad with their losses.
Lanell Williams said that in the fifteen years following their father’s death, Brenda was like a mother. Even though she and Brenda saw each other every day they were working, Brenda would often call her on the telephone, particularly if Brenda sensed there was something wrong. She said that Brenda would not let anyone be sad.
Patsy Pierce, aged 21, was the baby of the family and felt that Brenda was partial to her. She said that after Brenda left home, she would usually come to the Pennington home every Saturday and would often take Patsy to Fordyce, buy clothes for her and take her to lunch. Patsy said that when she graduated from high school, she was enabled to buy her senior pictures by Brenda’s cashing a savings bond and giving her the money. She said, “We won’t ever get over Brenda’s death really.” Patsy’s husband testified that she could not sleep after Brenda’s death and that Patsy had lost several nights of sleep. Patsy and her husband were the hosts for the birthday supper celebrating Brenda Taylor’s birthday and that of a nephew of both Brenda and Patsy.
There was little in the way of objective evidence of actual grief in the testimony, but there was little room for a jury to doubt that this was a happy family whose relationship was unusually close; that Brenda was the catalyst of that relationship; and that the mutual ties of affection and devotion were very strong. The violence and suddenness of the death were significant.
In view of these factors, the jury could have found that each of Brenda’s surviving siblings experienced more than normal grief, even though it may not be easy to understand how Marion Pennington was entitled to the same award as Patsy Pierce, for example. Yet the jury had the opportunity to observe each of these persons testifying and we cannot say that the verdict is so disproportionate to the grief suffered by any of them as to indicate passion and prejudice or to shock the conscience of the court.
The extremely liberal award to Florence Pennington presents greater difficulty. She lived with her youngest daughter Patsy. Her recovery for pecuniary loss adequately compensated for the services rendered to her by Brenda and money she received from her. The award of an amount in excess of that for a mental anguish that the mother could only describe as “mighty bad” is liberal indeed. A majority of the court is of the view, not shared by the writer, that this verdict is not indicative of passion and prejudice and does not shock the conscience of the court.
There is one item of the judgment that must be reduced. The verdict allowed $2,000 to the estate. The only evidence to support any recovery by the estate was the testimony that funeral expenses were $972.32 and the cost of a tombstone $469.32. This totals $1,441.64. The judgment is reduced by $558.36.
The judgment is affirmed, as modified.
The directions are stated to conform to the record and briefs. The bearing of Locust Street is N. 32° 10° W. It is perpendicular to the railroad tracks. For some reason Locust Street which runs more nearly north and south than east and west, is treated as an east-west street and the railroad is treated as if it ran north and south.
See, Thudium v. Dickson, 218 Ark. 1, 235 S.W. 2d 53; Turner v. Smith, 217 Ark. 441, 231 S.W. 2d 110; The Western Union Tel. Co. v. Byrd, 197 Ark. 152, 122 S.W. 2d 569; Cohn v. Hoffman, 45 Ark. 376; Pleasants v. Bank of the State, 8 Ark. 456; Hudspeth & Sutton v. Gray, Durrive & Co., 5 Ark. 157. Furthermore, it is doubtful that the evidence would have supported a larger award for this element of damages.
Pain and suffering of an injured person has been classified as mental anguish. See Spiller v. Thomas M. Lowe, Jr. and Associates, 466 F. 2d 903 (8 Cir., 1972); Merrill v. Los Angeles Gas & Electric Co., supra, 158 Cal. 499.
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Darrell Hickman, Justice.
This is a direct appeal of a case from the Workmen’s Compensation Commission under Act 1227, 1975, of the General Assembly. Section 15 of that act provides for an appeal directly to the Supreme Court of Arkansas rather than to the circuit court.
The first consideration of this court is the constitutionality of Act 1227.
The Arkansas Constitution, Art- 7, § '4, sets forth the jurisdiction and powers of the Supreme Court of Arkansas.
The Supreme Court, except in eases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.
Section 4, in essence, provides that the Supreme Court of .Arkansas, with certain exceptions, shall have appellate jurisdiction only. Appellate jurisdiction means the review of an order or decree of an inferior court. Ex Parte Levy, 204 Ark. 657, 163 S.W. 2d 529 (1942).
Therefore, one of the questions presented by Act 1227 is whether or not the Workmen’s Compensation Commission is a court. The Workmen’s Compensation Commission is an administrative agency which exercises some quasi-jurisdiction functions and makes awards which are considered judgments. Andrews v. Gross & Janes Tie Company, 214 Ark. 210, 216 S.W. 2d 386 (1948). The Commission cannot enforce its own orders. According to Ark. Stat. Ann. §81-1325 (c) (Repl. 1976), the circuit clerk has to file the order or judgment and thereafter the enforcement is in accordance with the procedures used by circuit courts. It can, of course, be argued that the Commission is a court and, therefore. Act 1227 simply provides for an appeal to the Supreme Court. But the General Assembly does not have the power to create courts. Art. 7, § 1, Constitution of the State of Arkansas, 1874. Also, Jansen v. Blissenbach, 214 Ark. 755, 217 S.W. 2d 849 (1949).
Another question to be resolved is an interpretation of Amendment 26 to the Arkansas Constitution which authorized the General Assembly to provide for Workmen’s Compensation benefits. Amendment 26 provides:
Art. V., Sec. 32. The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.
The question that must be resolved regarding Amendment 26 is: Does Amendment 26 amend Article 7 of the Constitution and thereby permit a direct appeal to the Supreme Court of Arkansas? There is no language in Amendment 26 which explicitly provides for such an appeal. The critical sentence in Amendment 26 which must be considered provides :
It [the General Assembly] shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same.
Means refers to the agency or instrument to attain an end. Method is the way, manner or procedure for doing anything. Forum is, of course, a court or tribunal. There is nothing beyond this language, express or implied, which indicates that the system of courts in Arkansas, as provided for in the Arkansas Constitution, will be changed.
We are sure that the legislative intent for Act 1227 is for a good purpose, and is apparently to provide for a speed-up in processing Workmen’s Compensation cases. But this assumes that all cases must be appealed. Wherever the fault lies in the system, with claims, legislation, the commission, or the courts, the problem cannot be resolved constitutionally by Section 15 of Act 1227. We find that Section 15 of Act 1227, 1975, is unconstitutional and void.
Remanded to the Workmen’s Compensation Commission in order that it may transmit the record to the circuit court of Faulkner County.
Fogleman, J., concurs.
Byrd, J., dissents. | [
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Frank Holt, Justice.
This appeal comes from the trial court granting a summary judgment in favor of appellee. Appellant was a subcontractor on a construction project. Its employees, allegedly through negligence or faulty workmanship, caused the general contractor to suffer damages in the sum of $7,207.70. These claims were submitted to appellee, appellant’s insurer under a general liability policy, which refused to pay them except for a $506.25 claim. Appellant then voluntarily indemnified the general contractor for the balance of the claims and filed suit against appellee to recover this amount. As a defense, the appellee pled the “no action” clause of the policy. Based on this provision, the trial court granted summary judgment for appellee. Appellant contends that the court erred in granting the summary judgment because there was a factual issue as to whether appellee insurer was justified in denying liability for the submitted claims. The “no action” clause in the policy provides:
No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.
Appellant argues, however, that the appellee’s refusal to settle and the denial of liability effectively releases the insured from its agreement not to settle.
The rule is that, absent a demonstration of bad faith, a liability insurer acts within its contract rights whenever it refuses to voluntarily settle a claim and insists there be an adjudication of the matter on its merits. The Home Indemnity Co. v. Snowden, 223 Ark. 64, 264 S.W. 2d 642 (1954); and Dreyfus v. St. Paul Fire and Marine Ins. Co., 238 Ark. 724, 384 S.W. 2d 245 (1964). See also Marvel Heat Corp. v. Travelers Indemnity Co., 92 N.E. 2d 233 (Mass. 1950). Here, upon a review of the pleadings, affidavits and exhibits, no bad faith is demonstrated on the part of the appellee. It appears the appellee insurer made an investigation and determined that only one of the claims justified payment without litigation. Therefore, since there was no genuine issue of fact presented as to bad faith on appellee’s part in refusing payment of the claims and it being undisputed that the conditions precedent to a right of action against appellee have not been met, the trial court correctly granted the summary judgment.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ. | [
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George Rose Smith, Justice.
In 1974 the appellee obtained a $3,610 default judgment in Dallas, Texas, against the appellant, a resident of Arkansas. The service of process upon Brace was effected under the Texas long-arm statute. In this suit by the appellee to register the judgment in Arkansas, Brace denied having received notice of the Texas proceeding and questioned the validity of the Texas judgment. This appeal is from a summary judgment holding the Texas judgment to be valid and registering it in Arkansas.
The appellee prefaces his brief with a motion to dismiss the appeal, on the ground that the appellant did not abstract the record as required by our Rule 9. We find appellant’s purported abstract to be wholly deficient; but as Rule 9 (e) states, motions to dismiss the appeal on that ground are not recognized. Instead, as we have explained, if the appellee considers the appellant’s abstract to be deficient, he has the option of supplying the deficiency or leaving it unsupplied. Royster v. Royster, 232 Ark. 684, 339 S.W. 2d 607 (1960). Here the appellee elected to submit a proper abstract, thereby waiving any objection to the defect. (Pursuant to our per curiam order of September 20, 1976, amending Rule 9 [e], the appellee’s attorney has submitted, as an appendix to his brief, certificates showing that his supplemental abstract took three hours to prepare and cost $38.40 to print. An allowance to the appellee of $188.40 will be mgde, to be taxed as costs.)
On the merits, we begin with the basic principle that statutes providing for service of process upon nonresidents must be strictly construed, reasonable notice to the defendant in a lawsuit being essential to due process of law. Kerr v. Greenstein, 213 Ark. 447, 212 S.W. 2d 1 (1948). In Texas, long-arm statutes must be strictly complied with, as a basis for jurisdiction. Scucchi v. Woodruff, 503 S.W. 2d 356 (Tex. Civ. App., 1973); Country Clubs v. Ward, 461 S.W. 2d 651, ref. n. r. e. (Tex. Civ. App., 1970); Aetna Cas. & Sur. Co. v. Dobbs, 416 S.W. 2d 869 (Tex. Civ. App., 1967). The record must affirmatively show that the court had jurisdiction of the defendant’s person. Whitney v. L & L Realty Corp., 500 S.W. 2d 94 (Tex., 1973); Aetna v. Dobbs, supra. The defendant’s actual knowledge of the suit, absent proper service, does not put him in court. Scucchi v. Woodruff, supra.
Under the Texas long-arm statute, a nonresident natural person who engages in business in Texas is deemed to have appointed the Secretary of State as his agent for service in any suit arising out of that business. The plaintiff is required to deliver copies of the process to the Secretary of State, with the name and home address of the defendant. The Secretary of State must then forward to the defendant a copy of the process by registered mail, return receipt requested. Vernon’s Ann. Tex. Stats., Title 42, Art. 2031b (19f>4).
In this case the name and address of the defendant, as furnished to the Secretary of State, were: Harry Brace, 3110 South University, Little Rock, Arkansas. According to the printed postal-department form that was used, a sender of registered mail is offered a choice of four available services. The cheapest one, costing 15 cents, entitles the sender to a return receipt showing only “to whom and date delivered.” An alternative service, costing 65 cents, directs that the registered mail be delivered only to the addressee, with the receipt to be signed by him.
In this instance the sender selected the 15-cent service. The return receipt was signed, “Betty Fleming,” with the date. Thus, when the Texas court entered the default judgment against the defendant, Harry Brace, there was no indication whatever that Brace had received the registered mail or had any reason at all to know that he had been sued in the Texas court. Thus it can hardly be seriously argued that the record affirmatively showed, as required by Texas law, that the court had personal jurisdiction over the defendant.
The trial court, in sustaining the validity of the Texas default judgment, doubtless relied upon the fact that Brace, in this proceeding in Arkansas, admitted, in response to the plaintiff’s requests, that his business address (not his home address, as the Texas statute specifies) was 3110 South University, Little Rock, and that Betty Fleming (who signed the receipt) was an employee of Harry Brace Roman Spa, inc. Even so, the Texas long-arm statute was not strictly complied with, and under Texas law Brace’s actual knowledge of the suit, if that knowledge existed, did not subject him to the personal jurisdiction of the Texas court.
Reversed.
We agree. Harris, C.J., and Holt and Roy, JJ. | [
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Conley Byrd, Justice.
Appellee George A. Reid’s employment as chief of police was terminated by the Civil Service Commission of the City of Harrison. Pursuant to such notice a hearing was held by the Commission which among other things found that “the said George A. Reid did authorize officers of the City Police Department to borrow money from either the city parking meter violation money or bond funds posted with the Police Department.” On appeal to the circuit court, that court found “that the charges against and the reasons for the Commission’s dismissal of Appellant herein are not supported by the evidence, and he should be reinstated as Chief of Police of the City of Harrison, and granted Judgment against the City for a salary from .. . ” the date of discharge. That order was styled in the circuit court as follows:
“George A. Reid Appellant vs. Civil Service Commission of the City of Harrison, Arkansas Appellee”
Thereafter, appellee filed a petition for contempt against the Civil Service Commission and the Mayor of the City of Harrison under the same style. The notice of appeal was carried under the same style and was served by one of the attorneys employed to represent the Commission at the hearing held before it.
To sustain the action of the trial court appellee suggests that appellant has not complied with Supreme Court Rule 9(d) and that the appeal was not taken by the proper party. While we must agree with appellee that the abstract of the record does not literally comply with Supreme Court Rule 9(d), we cannot say that the abstract is so deficient as to call for an affirmance. Neither can we agree with appellee that the appeal was not taken by the proper party. The record shows that the notice of termination to. appellee was given to appellee by the Civil Service Commission apparently pursuant to Article V (5) of its Rules and Regulations. Thus it appears from the record that the Civil Service Commission was at all times the real party in interest in this litigation. As the real party in interest, it was, while acting on behalf of the City, the proper party to give the notice of appeal.
On review in this court from a ruling by the circuit court in an appeal from the Civil Service Commission pursuant to Ark. Stat. Ann. § 19-1605.1 (Repl. 1968), the rule is that we must affirm the trial court if there is any substantial evidence to support the findings thereof.
In reviewing the evidence as to the loaning of money from the parking meter violation fund or the bond fund, numerous officers testified as to its availability to them for purposes of borrowing from it. One officer testified that at one time he owed quite a bit of money and that appellee told him he had to pay it off. Appellee does not deny that the officers were permitted to borrow money. However, he says that the money bag from which the monies could be borrowed consisted of money from the making of copies of accident reports and from the sale of calendars. He says the money was used for different things within the department including the loaning of money to patrolmen who were short that week. In his brief, he asserts that the monies were always repaid and concludes: “While it may not have been the best business practice to co-mingle different funds, this writer fails to see, absent any proof, that APPELLEE willfully or deliberately intended to abscond or embezzle any of these funds that such would justify the extreme penalty here tempting to be imposed.”
In view of the frank admissions on the part of appellee as to the loaning of department funds to the officers, we must hold that the circuit court’s reversal of the Commission’s findings on this issue is not supported by substantial evidence. As to appellee’s contention that the mere loaning of the Police Department’s funds to the officers would not “justify the extreme penalty here tempting to be imposed,” we need only point out that the lending of public funds was prohibited by law, Ark. Stat. Ann. § 41-3920 (Repl. 1964), and that the penalty for violation of that law was confinement in the penitentiary for not less than five (5) years, nor more than twenty-one (21) years, Ark. Stat. Ann. § 41-3922 (Repl. 1964).
It follows that the circuit court erred in directing the Commission to reinstate appellee as chief of police.
Reversed.
We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.
See Arkansas Criminal Code § 41-2203 (1976). | [
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Frank Holt, Justice.
This appeal presents the issue whether the appellant city or the appellee Arkla must pay for the cost of moving appellee’s main pipeline which was necessitated by a street improvement project initiated by the appellant. The chancellor held that the city should pay Arkla SI 5,000 for the costs it incurred by the relocation. Appellant first contends the chancellor erred in finding that the city annexed the “road subject to Arkla’s pre-existing right-of- way easement.” Therefore, appellant argues, Arkla is not entitled to any damages. We cannot agree.
As shown by the stipulation, the appellee had a right-of-way easement in the road before its 1961 annexation by the city. Arkla had a main pipe line under the pavement of the county road. Arkla had a right, pursuant to a franchise from the city, “to locate its facilities in the City’s street rights-of-way.” The city derived an annual franchise tax from Arkla ($472,028 in 1974, $400,439 in 1975). Clearly, subsequent to the annexation, the easement right was continued by virtue of the city wide franchise granted to Arkla and the taxes collected by the city for that privilege. “There is no question but what a public utility owns a property right in its franchise for which it is entitled to compensation in eminent domain proceedings in the same manner as when other property rights are taken.” Ark. State Highway Comm. v. Ark. Power & Light Co., 231 Ark. 307, 330 S.W. 2d 77 (1950). Here, appellee has a compensable property right.
Neither can we agree that the chancello»' erred in finding that appellee was ousted from its easement To secure funds for the needed improvements, the city applied to the Federal Highway Administration and an agreement was reached by which the city would pay 30% and the federal agency 70% of the costs. It was stipulated that Arkla was permitted to place a new main line underneath the pavement of the street with “stub connections” from the new main line to either or both sides of the right-of-way to serve customers without the necessity for cutting the pavement. However, Arkla relocated its line from underneath to the outside of the pavement and within the right-of-way easement. Arkla justifies its relocation and claim for costs on the basis of the stipulation that “Among other requirements, CITY was required by the Federal Highway Administration to guarantee that all routine maintenance on manholes be confined to the hours of 8:00 p.m. to 6:00 a.m. and that no permits for cutting the pavement for the installation of service connections be allowed for a period of five years after the completion of the project. ARKLA placed its new line outside of the pavement because its regular and routine business requires that it be able to tap its line to make new services and to maintain and protect the safety of its gas mains.....The area of this street improvement is a rapidly developing part of CITY and ARKLA is legally bound to provide service to residents of CITY which would necessarily involve adding service lines off of the gas main that is in Geyer Springs Road. CITY has no prohibition against cutting the pavement of its streets in order to maintain ARKLA’s system or to add new customers, other than prohibitions arising out of agreements with the Federal Highway Administration such as set out above.”
When a public utility is ousted from its occupancy of that portion of the street or easement in which the utility has acquired a property right, it cannot be forced to move or relocate without just compensation for its costs. Ark. State. Highway Comm. v. Ark. Power & Light Co., supra; and Ark. State Highway Comm. v. Ark. Power & Light Co., 235 Ark. 277, 359 S.W. 2d 441 (1962). Here, as indicated by the stipulation, Arkla’s maintenance on its man holes was restricted to certain hours. For a period of five years after the completion of the improvement, Arkla was prohibited from cutting the pavement to install service connections. It was necessary for Arkla to place its new main pipeline outside the pavement because the nature of its business required the tapping of its line for new services, maintenance and the safety of its gas mains. We agree with the chancellor that, in the circumstances, there was, in effect, an ouster rather than a mere relocation and the city is required to pay for the SI5,000 costs.
Since we hold that the chancellor was correct in finding there was an ouster and not a mere relocation, we deem it unnecessary to disucss appellant’s contentions for reversal that the court erred in finding that the federal agency was the moving force and not the city in the project expense and the court erred in finding that if Arkla paid the relocation costs, it would result in discriminatory rates to its rural customers.
Affirmed.
We agree: Harris, C.Í., and George Rose Smith and Byrd, JJ. | [
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] |
John A. Fogleman, Justice.
Appellant Ozark Supply Company sued Dr. Sam Machara, Dr. John Ferguson and appellee Owen Glass, alleging that they, as partners in a general partnership known as Circle T. Cattle Company of Perryville, Arkansas were indebted to appellant for purchases of veterinary supplies made by appellee Glass under authority given him by the other partners. Appellant also alleged that it was an Arkansas corporation with its principal place of business in Benton County; and that Machara was a resident of Los Angeles, California, who had been in Arkansas on numerous occasions for the purpose of raising cattle for commercial purposes, and had expressly assented to the purchase of supplies of the kind described in appellant’s invoices for carrying out partnership purposes. Appellant further alleged that Dr. Ferguson was a resident of Bald Knob, Arkansas and that Owen Glass was a resident of Perryville, Arkansas. Machara and Ferguson filed answer, in which they admitted that Maehara was a resident of California, stated their belief that Owen Glass was a resident of Perry County, Arkansas, and denied that Ferguson was a resident of Arkansas, alleging that he, too, was a resident of California. Appellee Glass filed a motion to quash the summons issued for him and served on him in Perry County, Arkansas. This motion was granted on the ground that venue of the action as to Glass was not properly laid in Benton County, because none of the defendants resided in or were served with process in that county. We agree and affirm.
Appellant relies upon Ark. Stat. Ann. § 27-615 (Repl. 1962) and Ark. Stat. Ann. § 27-2501 et seq (Supp. 1975), the Uniform Interstate and International Procedures Act, and argues that “summoned” in Ark. Stat. Ann. § 27-615 includes and extends to extrastate service of process to the extent that venue is proper in the county from which the process issued under the “long-arm” act because the party so summoned is summoned in that county. Appellee disagrees and relies upon Ark. Stat. Ann. § 27-613 (Repl. 1962) as the basic venue statute, requiring actions on contracts to be brought in a county in which a defendant resides or is summoned, as reinforced by Ark. Stat. Ann. § 27-615 (Repl. 1962), citing International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W. 2d 504.
The underlying policy as to venue in this state is that every defendant should be liable to suit only in the county of his residence or place of business, unless for other policy reasons there are statutes to the contrary. Universal C.I.T. Credit Corp. v. Troutt, 235 Ark. 238, 357 S.W. 2d 507. This basic policy has always been considered as primary in construction of venue statutes, and properly so, unless other statutes are clearly in conflict with that basic policy. The convenience of the defendant against whom a judgment may be rendered is usually considered more important than the convenience of the plaintiff. See, Langley, Grounds for Venue in Arkansas — A Survey, 25 Ark. Law Rev. 468, 479 (1971).
Appellant contends, however, that when we consider Ark. Stat. Ann. §§ 27-619, 620 (Supp. 1975) permitting contract actions against a non-resident of this state or a foreign corporation to be brought in the county of the plaintiff’s residence at the time the cause of action arose, we must conclude that venue was properly laid as to Glass. We must disagree, however, with appellant’s contention that “long-arm” service on a non-resident of the state is sufficient to fix venue, so as to permit the “dragging” of a resident of one county to another to defend that action. It is quite true that the “long-arm” statute may affect venue because of its provisions relating to jurisdiction and service of process. See Langley, supra, 25 Ark. Law Rev. at 484. But it is not a statute which controls venue. It is basically a statute giving jurisdiction to local courts in local causes of action, even though the defendant is not subject to service of process locally. Leflar, Conflict of Law, Arkansas, 18 Ark. Law Rev. 135, 136 (1964); Langley, supra, 25 Ark. Law Rev. at 484. In this connection, we must remember that jurisdiction and venue are two separate and distinct concepts, although they are sufficiently interrelated to cause some confusion. Langley, supra, at 469, 471; Gland-O-Lac Co. v. Creekmore, 230 Ark. 919, 327 S.W. 2d 558. See also, Arkansas State Racing Commission v. Southland Racing Corp., 226 Ark. 995, 295 S.W. 2d 617. The confusion usually arises when venue is erroneously equated with jurisdiction of the person. Jurisdiction of the person is the power of the court to hear and determine the subject matter of a controversy between the parties to a suit, i.e., to adjudicate or exercise judicial power over them. Lamb & Rhodes v. Howton, 131 Ark. 211, 198 S.W. 521. It is the power to render a personal judgment in a particular case or to subject the parties to the court’s decisions and rulings. 21 C.J.S. Courts § 15, p. 32; Black’s Law Dictionary, 4th Ed., p. 992. It is based upon appearance of the person or the issuance and service or proper process upon him in the manner required by law. 1 Bouvier’s Law Dictionary, Lawle’s Third Ed., p. 1761; Stevenson v. Christie, 64 Ark. 72, 42 S.W. 418; Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S.W. 2d 696; Healey & Roth v. Huie, 220 Ark. 16, 245 S.W. 2d 813; 20 Am. Jur. 2d Courts § 106, p. 465.
The fact that our “long-arm” statute is basically a jurisdiction-giving statute rather than a venue-fixing one is clearly demonstrated by the provision that the court in which the action is filed has broad powers under the forum non conveniens provision of the act, [Ark. Stat. Ann. § 27-2502 E (Supp. 1975); Bowsher v. Digby, 243 Ark. 799, 422 S.W. 2d 671] and in the fact that it is a cumulative provision for jurisdiction. Ark. Stat. Ann. §§ 27-2502 F, 2506 (Supp. 1975). It is also obvious that there was no intention to make the county from which the summons issues, in an action in which jurisdiction is based on the act, the county of service. Sec. 27-2502 D provides that service may be made outside the state. We have said that the statute was designed to authorize extrastate service of process. International Harvester Co. v. Hendrickson Mfg. Co., 249 Ark. 298, 459 S.W. 2d 62.
We must then look to Ark. Stat. Ann. §§ 27-619, 620 (Act 142 of 1973) for possible venue in Benton County. If Maehara and Ferguson were the only defendants in the case, venue could be in Benton County under the allegations of the complaint and the provisions of the act. Although this statute provides “cumulative” venue, that venue is limited by the language that “this Act shall in no way repeal or modify any other existing venue statute.” Ark. Stat. Ann. § 27-620. In order for the act to have the effect given it by appellant, it would modify Ark. Stat. Ann. §§ 27-613 and 27-615. We would then be compelled to read § 27-613 as if it said, “Every other action, except for contract actions against a nonresident of this state or a foreign corporation, may be brought in any county in which the defendant or one of several defendants, resides, or is summoned;” or § 27-615 would have to be modified to read “Where any action embraced in § 96 (§ 27-613) is against several defendants, the plaintiff shall not be entitled to judgment on the service of summons in another county than that in which the action is brought, where no one of the defendants who reside in Arkansas is summoned in that county, or resided therein at the commencement of the action ...” “Issuance of summons” and “service of summons” are by no means synonymous.
Basic policy reasons can be found for the exceptions from “every other action” in other venue statutes. For, e.g., the reasons for requiring actions pertaining to real property to be brought in the county in which it is located are obvious. Ark. Stat. Ann. § 27-601 (Repl. 1962). The same may be said of the requirement that certain actions be brought in the county in which the seat of government is situated. Ark. Stat. Ann. § 27-603 (Repl. 1962). No basis for an exception to the overriding policy as to venue in this situation is apparent here.
We are of the firm opinion that the General Assembly would have spoken in language clear enough to leave no doubt about its intention to override the state’s primary policy in fixing venue, if it had intended to do so. We read nothing in any of the acts relied upon by appellants to indicate that intention.
The judgment is affirmed.
We agree. Harris, C.J., and Byrd and Hickman, JJ. | [
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Elsijane T. Roy, Justice.
On February 21, 1969, appellant Sam Jones instituted an action in Lafayette Circuit Court against appellees John Hardesty and Howard Richardson seeking judgment for $30,000 on a promissory note. After answer, and upon motion the cause was transferred to Chancery Court and there appellees filed a counterclaim and also third party complaints.
On March 23, 1972, testimony was heard on the complaint and counterclaim but continued for a hearing on the third party complaints until April 20, 1972.
By decree dated April 12, 1972, and filed April 17, 1972, appellant was awarded judgment against appellees in the principal sum of $30,000 with interest, attorney’s fee and costs and appellees’ cross complaint was dismissed.
On April 20, 1972, the trial of appellees’ third party complaints commenced, neither appellant nor his attorney being present.
Before the testimony began attorney for appellees asked the court to withhold “the effect and entry of the original judgment until the entire case can be adjudicated and then our ten days’ notice to appeal would run. We would have thirty days to appear and ten days to file notice of appeal.”
The court in response to this request stated, “. . . [I]n order that time for appeal might coincide, regardless of which party prevails, the Court would state that he considers the Order of April 12, 1972, to be an Interlocutory Order and not a Final Order.” A docket notation to this effect also was made; however, the decree itself was never vacated or modified in any manner.
On April 20, 1972, after completing the testimony in the trial of the third party complaints of appellees, briefs were submitted and the last one was filed June 8, 1972.
No further action by taken by Judge Rowan prior to his death on May 24, 1973. Following his death an interim chancellor served through December 31, 1974. The newly elected chancellor assumed office January 1, 1975, and under authority of Rule 10 of the Uniform Rules and the Standing Order of the Court, without notice to appellant or his attorney, appellant’s case, listed with forty others, was dismissed “for want of prosecution.”
In an independent action appellees herein had obtained judgment against Pine-O-Pine, one of the third party defendants herein. That judgment was appealed and affirmed on April 19, 1976. Before the appeal had been decided appellant, through his then attorney, caused a writ of garnishment to be issued against Pine-O-Pine et al, which answered that the judgment against the corporation in favor of appellees was not final.
On April 20, 1976, appellant then had issued a new writ of garnishment, the first one having been dismissed pending outcome of the appeal as to Pine-O-Pine. The court entered an order on May 21, 1976, holding appellant had no judgment, that his cause had been dismissed and the writs of garnishment were a nullity. On June 28, 1976, the matter was reconsidered and the trial judge reached the same conclusion as previously.
On September 20, 1976, the matter was again reconsidered upon the oral testimony of appellant’s original attorney and the attorney for appellees who was called as a witness by appellant. At the conclusion of questions by the attorney for appellant, counsel for appellees asked permission to remain on the stand and stated, “If the Court please, I will add my testimony as a witness but as rebuttal to Mr. Compton and also further enlighten the Court on some facts,” after which about six pages of testimony by counsel followed. Nevertheless counsel did not withdraw thereafter but continued to represent appellees on appeal, including oral argument before this Court. After the testimony was taken the trial court again refused to vacate the judgment of June 28, 1976, and accordingly this appeal is brought.
Appellant contends a final judgment was entered as to his cause on April 12, 1972, and that the subsequent rulings of the court dismissing appellant’s cause for failure of prosecution deprive him of his property without due process of law.
The court’s decree dated April 12, 1972, filed April 17, 1972, reads as follows:
On the 23rd day of March, 1972, this matter came on to be heard and, by agreement of the parties and with the approval of the Court, oral testimony was taken upon the issue raised by Plaintiff’s Complaint and Defendants’ Answer and Cross-Complaint. No evidence was taken on the issues raised by the Third Party Pleadings. It was agreed that all issues other than those presented by Plaintiff’s Complaint and Defendants’ Cross-Complaint would be reserved and tried on April 20th and 21st, 1972, if trial proved to be necessary.
All parties were given until the 7th day of April, 1972, to file their briefs. Plaintiff declined to file a brief, and Defendants’ brief having been considered by the Court, together with all evidence and the pleadings, now, on this 12th day of April, 1972, the Court finds that plaintiff should have judgment against the defendants, and each of them, on his note in the principal sum of $30,000, together with interest at the rate of six (6%) percent per annum from the 28th day of September, 1967, and an attorneys fee in the amount of 13,000.00, together with his costs herein expended.
The Cross-Complaint of Defendants is dismissed.
This cause is set for trial on the 20th day of April, 1972, at 9:30 a.m., at Lewisville, Arkansas, on all remaining issues.
IT IS SO ORDERED.
Jim Rowan Chancery Judge
(Italics supplied)
Appellees never requested any modification of the original decree, only that effect of the judgment be withheld so that appeal time would run concurrently with that of the third party actions. The court only intended the judgment to be held up for appeal purposes.
In Holloway v. Berezen, 208 Ark. 849, 188 S.W. 2d 298 (1945), this Court stated:
* * * A docket notation is not an entry of judgment or decree upon the records of the court and cannot be used to supply a deficiency in the record of the Court. (Citing Herrod v. Larkins, 183 Ark. 509, 36 S.W. 2d 667; City of Monticello v. Kimbro, 206 Ark. 503, 176 S.W. 2d 152.) * * *
See also Baugh v. City of Pine Bluff, 257 Ark. 768, 520 S.W. 2d 275 (1975).
16 Am. Jur. 2d Constitutional Law § 379 (1964), states:
Rights acquired by a judgment are property rights which cannot be taken without due process of law. * * * (Citing numerous cases in support of the statement.)
We find the delay was occasioned because the third party action was not decided by the original trial court nor his successors in office. This phase of the case has been awaiting decision since June 8, 1972. It would be unconscionable to penalize appellant and deprive him of his judgment under these circumstances. Accordingly the cause is remanded for reinstatement of the judgment.
We also call attention to the case of Canal Insurance Company v. Hall, 259 Ark. 797, 536 S.W. 2d 702 (1976), wherein we stated: Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299 (1969); Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23 (1968); and Rushton v. First Nat’l Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968).
We must again take this occasion to reiterate our disapproval of an attorney testifying in an action in which he is an advocate. McWilliams & Kimes v. Tinder, 256 Ark. 994, 511 S.W. 2d 480 (1974); Watson v. Alford, 255 Ark. 911, 503 S.W. 2d 897 (1974); Montgomery v. 1st Nat’l
Reversed and remanded.
We agree. Harris, C.J., and George Rose Smith and Holt, JJ.
Char-Lite Briquetts, Inc. and Pine-O-Pine Company, appellants v. H. E. Richardson, E. C. Hochendel and W. A. Woolman, appellees, No. 75-126, not designated for publication.
The record reflects that appellant’s original attorney took no part in further proceedings after he was called to testify.
Mr. Compton had not taken the stand, but was examining appellees’ attorney. | [
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John A. Fogleman, Justice.
Appellant Henry Giles was found guilty of the murder of Evelyn Drummond in the commission of a robbery and sentenced to death by electrocution in a bifurcated trial. We find error only in the sentencing procedure, and, since we find no other error, affirm the conviction but modify the judgment to a finding of guilt of life felony-murder with a sentence of life imprisonment without parole unless the Attorney General elects to request a remand for a new trial.
We shall consider the points for reversal asserted by appellant and those raised by amicus curiae to the extent necessary to furnish guidance to the trial court on a new trial, if the Attorney General should elect not to accept a reduction of the sentence. It should be noted that amici curiae must take the case as they find it and cannot introduce new issues into the case. State ex rel Nesbitt v. Ford, 434 P. 2d 934 (Okla., 1967); Taylor v. Commonwealth, 461 S.W. 2d 920 (Ky., 1970), cert. den. Brown v. Kentucky, 404 U.S. 837, 92 S. Ct. 126, 30 L. Ed. 2d 70; State ex rel Baxley v. Johnson, 293 Ala. 69, 300 So. 2d 106 (1974); Hootch v. Alaska State-Operated School System, 536 P. 2d 793 (Alaska, 1975); Shaw v. Industrial Comm., 109 Ariz. 401, 510 P. 2d 47 (1973); Eugene Cervi & Co. v. Russell, 31 Colo. App. 525, 506 P. 2d 748 (1972); Sauerman v. Stan Moore Motors, Inc., 203 N.W. 2d 191 (Iowa, 1972); Robert Williams & Co., Inc. v. State Tax Comm. of Missouri, 498 S.W. 2d 527 (Mo., 1973); Kvaalen v. Graybill, 159 Mont. 190, 496 P. 2d 1127 (1972); Castillo Corp. v. New Mexico State Tax Comm., 79 N.M. 357, 443 P. 2d 850 (1968); State v. Brannan, 85 Wash. 2d 64, 530 P. 2d 322 (1975); Delardas v. County Court of Monongalia County, 186 S.E. 2d 847 (W. Va., 1972). We shall ignore any point asserted by amicus curiae, unless the appellant has properly raised it. In a capital case, or one in which the punishment is life imprisonment, this may be done by a proper objection in the trial court. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977); Robertson v. State, 256 Ark. 366, 507 S.W. 2d 513; Hays v. State, 230 Ark. 731, 324 S.W. 2d 520; Young v. State, 230 Ark. 737, 324 S.W. 2d 524; Rorie v. State, 215 Ark. 282, 220 S.W. 2d 421.
Appellant first argues that the execution of the death penalty in this case pursuant to § 6, Act 438 of 1973 [Ark. Stat. Ann. § 41-4706 (Supp. 1973)] constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. In support of this point appellant and amicus curiae argue that (1) the statute permits arbitrary selectivity in determining whether a defendant charged with capital felony murder shall live or die, because (a) the imposition of the death penalty is discretionary with the jury, (b) the imposition of the death penalty under this Arkansas statute violates the Eighth and Fourteenth Amendments, just as did the Illinois statute condemned in Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972), (c) because the death penalty was vacated by the United States Supreme Court on June 29, 1972, in 117 cases, in spite of the fact that there were a variety of statutes and procedures in the various jurisdictions from which the cases had come for review, (d) because various jurisdictions have invalidated death penalties upon the authority of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and (2) because of the allegedly uncontrolled selective discretion of prosecuting attorneys, trial judges, juries and the Governor in choosing which defendants will live and which will die in cases in which the death penalty might be imposed.
Most, if not all of these arguments have been rejected by us in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), or in Neal v. State, 261 Ark. 336, 548 S.W. 2d 135 (1977), and by the majority through plurality and concurring opinions in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); and Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). We will not repeat what we have previously said in Collins v. State, supra and Neal v. State, supra, but will only give attention to those questions which we have not treated since the above decisions of the United States Supreme Court were rendered.
We do not agree that the vacation of death penalties by the United States Supreme Court in the wake of Furman, is of any particular significance, insofar as our statute passed sub- other jurisdictions mentioned by appellant to be either governing or persuasive as we have viewed the various opinions in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944, Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974, Gregg, Proffitt and Jurek. See Collins v. State, supra; Neal v. State, supra. We find Moore v. Illinois, supra, to be of no particular significance since it was an automatic application of Furman, much as we made in Graham v. State, 253 Ark. 462, 486 S.W. 2d 678; O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618; and Kuehn v. State, 253 Ark. 889, 489 S.W. 2d 505.
It is also urged that the sentencing procedures provided by Ark. Stat. Ann. § 41-4701 et seq (Supp. 1973) violate the Eighth Amendment as interpreted in Furman. This argument is based upon the assertion that there are no standards provided for the jury’s “interjection of any other relevant matter” into the sentencing procedure, under § 41-4710 (c) [Supp. 1973]. That possibility seems to pose no problem of due process. As we interpret the act, the jury’s consideration of aggravating circumstances is limited to those enumerated, but consideration of mitigating circumstances is not necessarily so restricted. See Collins v. State, supra, 261 Ark. 195. This would seem to be to the advantage rather than to the prejudice of a defendant.
Arguments relating to the lack of meaningful and mandatory appellate review are like the arguments treated and rejected by us in Collins v. State, supra and Neal v. State, supra. The contention that the aggravating and mitigating circumstances enumerated in the statute are not sufficiently precise to pass constitutional muster was also answered on our second considerations of Collins and Neal.
We do not agree with the contention that the fact that the jury found that the youth of Giles, who was born May 1, 1954, was not a mitigating factor, while in Collins, the jury found that the youth of that defendant, aged 20, was a mitigating factor, exemplifies the imprecision of the standards and the potential for unlike results in cases presenting similar circumstances. Appellant points out, as we did in Neal v. State, supra, that the jury has an opportunity to observe a defendant in making this determination. While we might agree that chronological age does not necessarily control in the jury’s determination whether a defendant’s youth is a mitigating circumstance, nevertheless, it is certainly an important factor. Cf. Allen v. Slate, 253 Ark. 732, 488 S.W. 2d 712. See our treatment of this question in Meal v. State, supra. Any hard and fast rule as to age would tend to defeat the ends of justice, so the term youth must be considered as relative and this factor weighed in the light of varying conditions and circumstances. It is well known that two young persons may vary greatly in mental and physical development, experience and criminal tendencies. State v. Holtan, 197 Neb. 544, 250 N.W. 2d 876 (1977). One of these factors may have greater significance than the others in some cases, depending upon the circumstances. Of course, Giles was, at the time of the trial only four months short of full majority for all legal purposes in Arkansas. We point out that the jury not only observed the defendant in this case but heard him testify and was able to evaluate his response to and evasion of questions directed to him.
We do, however, find error in the sentencing phase of the trial. The jury unanimously found that there were two aggravating circumstances, i.e., that appellant was, beyond a reasonable doubt, previously convicted of another capital felony, or of a felony involving the use or threat of violence to the person and that the capital felony was, beyond a reasonable doubt, committed for pecuniary gain. The evidence was certainly sufficient to support these findings. For the moment, we find it unnecessary to discuss that evidence in detail. Suffice it to say that there is no room for doubting that Giles had previously been convicted of robbery and little room for doubt that he committed the murder for pecuniary gain, i.e., in the perpetration of a robbery. The jury found no mitigating circumstance, but we find no evidentiary basis for this finding. It seems to us that the undisputed evidence clearly indicates that this crime was committed while the capacity of appellant to conform his conduct to the requirements of law was impaired as a result of mental disease or defect.
There is no evidence that the crime was planned. It seems to have been a matter of impulse, commencing with Giles’ finding a wire which he had picked up from the street. Shortly thereafter, he walked down an alley and looked in a window of the Shoe Outlet on Hill Street in Forrest City. He saw Mrs. Drummond, a clerk, alone in the store. He wrapped the cord around her neck, dragged her to the rear of the store, and, when he noted pulsations in her neck, stabbed her twice with a knife. He then rifled the cash register. Immediately thereafter, he found his brother Everett, to whom he stated, without any elaboration, that he had done something wrong.
Dr. Arthur Rogers, a clinical psychologist, employed by the Veteran’s Administration in North Little Rock, testified that on the Wechsler Adult Intelligence Scale, Giles was well within the retarded range in intelligence, with a verbal IQ of 51, which he classified as “quite, quite low, to put it mildly.” A performance score on a series of puzzles showed an IQ of 76, which was an improvement over a score of 66 on such a test given him at the Arkansas State Hospital, to which Giles had been committed for pretrial observation. Rogers attributed the improvement to practice on the earlier test. Rogers also testified that Giles’ overall intellectual percentage came out at an IQ of 59, well within the retarded range. According to this witness, those with IQ’s in the fifties were in the lowest one percent of intelligence in the population. The testing, this witness said, showed without question, that Giles was retarded “and fairly gross level,” which “in the old language” meant that he was at the borderline between imbecility and moronity in verbal intelligence. In Rogers’ opinion, Giles cannot cope, gets upset and angry, and tends to react immediately without thinking ahead, and his psychological controls are limited. He concluded that Giles had little ability for abstract moral concepts, that the world seemed a very confusing place to him and that he had not “gotten into him,” in any real sense, the moral values of society. Rogers was of the opinion, from his testing, that Giles had the intelligence of an average seven or eight year old person. He said that Giles’ knowledge of arithmetic was essentially nonexistent. He thought Giles could count up to seven and could subtract one from three, but could not figure out change, even from ten cents for a six-cent purchase. He found Giles practically at the zero mark in general information, such as colors of the American flag, etc., and estimated his academic progress at the first or second grade level.
Dr. John Althoff, a psychologist, who examined and tested Giles at the Arkansas State Hospital, was a rebuttal witness for the state. He testified Giles suffered from mental retardation, and assigned a mental age of eight to nine years. He had found some indication that Giles suffered from organic brain syndrome. Another rebuttal witness, Dr. Charles Taylor, a psychiatrist employed by the Arkansas State Hospital, had found a higher IQ of 71 on a Kent Intelligence Test Scale and said that, according to that scale, persons with an IQ of 68 to 83, suffered from borderline mental retardation and between 52 and 67 were commonly known as morons. He had observed appellant having some kind of nervous spell when he was being examined by Dr. Althoff. The State Hospital report had reflected “mild mental retardation, psycho-social deprivation (IQ 66).” Taylor agreed that Giles was on the borderline between a moron and an imbecile.
An imbecile is one of weak mind. Both imbecility and moronity are forms of mental deficiency. While the word “idiot” implies an absence of intellectual or reasoning powers, “imbecile” implies great mental feebleness. An imbecile is commonly incapable of earning a living. A moron is a moderately feebleminded person with a potential mental age of eight to twelve years. Most morons are capable of doing routine work under supervision, and can be happy with tasks too simple and monotonous to satisfy an intelligent person. Moronity is the milder degree of mental deficiency and the moron requires supervision in work, recreation and the general conduct of life as well as in work. See “imbecile,” “moron,” “mental deficiency.” Webster’s New International Dictionary, Second Edition; Webster’s Third New International Dictionary; Attorney’s Dictionary of Medicine, (Schmidt); The American Medical Dictionary, 22nd Ed. (Dorland).
The entire record is indicative of imbecility and organic brain syndrome to the extent that the conclusion is inescapable that the capacity of Giles to conform his conduct to the requirements of law, when the capital felony was committed, was impaired as a result of mental defect. For this reason, we find error in the sentencing procedure in the jury’s failure to find any mitigating circumstances. The jury was not free to arbitrarily disregard reasonable testimony, where other testimony is supportive, rather than conflicting, and no questions of credibility are to be resolved, and it cannot be said that it is physically impossible or that there is no reasonable probability that it is true. St. Louis, I.M. & S. Ry. Co. v. Spillers, 117 Ark. 483, 175 S.W. 517; St. Louis-San Francisco Railroad Co. v. Harmon, 179 Ark. 248, 15 S.W. 2d 310; Kentucky Home Life Insurance Co. v. Mosley, 191 Ark. 1146, 89 S.W. 2d 744; Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370. Cf. Hudson v. State, 17 Ark. 334, 91 S.W. 299.
If, from the record, we could properly weigh this single mitigating factor against the aggravating factors for which there was evidentiary support, and then say that there could be no reasonable doubt that they outweighed this single mitigating factor, we might affirm the sentence. We could reduce the sentence to life imprisonment without parole if we could find, on the record, that the aggravating circumstances did not outweigh the mitigating one. See Williams v. State, 183 Ark. 870, 39 S.W. 2d 295; Simpson v. State, 56 Ark. 8, 19 S.W. 99; Stanley v. Slate, 183 Ark. 1093, 40 S.W. 2d 415; Blake v. State, 186 Ark. 77, 52 S.W. 2d 644.
The weighing process is not simply a matter of counting the number of aggravating and mitigating circumstances and striking a balance. It is a reasoned judgment to be exercised in the light of the totality of the circumstances. State v. Dixon, 283 So. 2d 1 (Fla., 1973). See also, Had v. State, 113 Ark. 454, 168 S.W. 1122. The sentencing authority does not act as a computer, but exercises a reasonable and controlled discretion. Alvord v. Florida, 322 So. 2d 533 (Fla., 1975); State v. Stewart, 197 Neb. 497, 250 N.W. 2d 849 (1977). But this, primarily, is peculiarly a function best performed, in the Arkansas view, in the first instance by a jury. See plurality opinion of Stewart, ]., in Gregg v. Georgia, supra; Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776; Hildreth v. State, 215 Ark. 808, 223 S.W. 2d 757; Young v. State, supra, 230 Ark. 737. If the case were remanded, even if we should assume that only the sentencing phase could be retried, it would be necessary that a jury hear virtually all the evidence introduced at the original trial in order to weigh the circumstances. But since the only error we find is in the sentencing procedure, we choose to modify the judgment and enter judgment sentencing appellant to life imprisonment without parole for life felony-murder without parole unless the Attorney General, within 17 days, requests a remand for a new trial. Williams v. State, supra; Gaskin v. State, 244 Ark. 541, 426 S.W. 2d 407; Rorie v. State, supra, 215 Ark. 282.
Appellant raised three points relating to the trial judge’s excusing three members of the jury venire for cause because of their attitudes regarding imposition of the death penalty. Fundamentally the grounds asserted are variants of the same argument, but each point is directed toward slightly different contentions. The first is that the due process and equal protection clauses of the United States Constitution were violated. Another is that minimum constitutional standards according to the construction of Witherspoon„v. Illinois, supra, were not met. The last is that appellant was deprived of his right to a representative jury under the Sixth Amendment to the United States Constitution. We find it difficult to perform the mental gymnastics that would be necessary to neatly compartmentalize the treatment of these points under the labels given them by appellant.
Despite the fact that at least one of these three veniremen gave seemingly equivocal answers to some questions regarding his scruples against the death penalty, each ultimately made it quite clear that he or she would not vote to impose the death penalty, regardless of whatever evidence might be developed. Their objection to the death penalty went far beyond mere religious scruples against, or general objection to, the death penalty. Venireman Roundtree eventually stated that he would automatically vote against the death penalty without regard to the evidence that might be produced. Venireman Brooks also ultimately concluded that she would do likewise. Venireman Horton also stated that she did not feel that she could vote for the death penalty. She then said that she would automatically vote against it and that the truth was that she could not impose the death penalty. Exclusion for cause in these instances clearly did not violate the rule of Witherspoon v. Illinois, supra, 391 U.S. 510. See Venable v. State, 260 Ark. 201, 538 S.W. 2d 286; State v. Mathis, 52 N.J. 238, 245 A. 2d 20 (1968), judgment rev. insofar as it imposed the death sentence and remanded for further proceedings, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855; State v. Elliott, 25 Ohio St. 2d 249, 267 N.E. 2d 806 (1971), judgment vacated insofar as it left undisturbed the death penalty imposed and remanded for further proceedings, 408 U.S. 939, 92 S. Ct. 2872, 33 L. Ed. 2d 761. The assertion that the trial court pressured Venireman Horton into giving disqualifying answers is wholly without merit. The trial judge must determine the propriety of a challenge and his questions seeking to ascertain the extent of the juror’s unwillingness to impose the death penalty were proper. See State v. Mathis, supra.
Appellant argues that jurors should be permitted to sit during the first or guilt stage of the trial, without regard to their inability to impose the death penalty under any state of facts, totally ignoring the fact that in the bifurcate^! trial mandated by our statute, the same jury is required to sit in both phases. § 10, Act 438 of 1973 [Ark. Stat. Ann. § 41-4710 (Supp. 1973)]. This forecloses any idea that a juror who could qualify for only one phase of the trial can sit in both, and disposes of appellant’s suggestion that, on voir dire, the dual role of the jury should be distinguished. See Venable v. State, supra. The bifurcated trial approach has been approved by the United States Supreme Court. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). See Venable v. State, supra.
Appellant also argues that his Sixth Amendment rights were violated because he was not tried by a jury drawn from a representative cross section of the community because those who would not impose the death penalty, without regard to the evidence, were excluded. It seems far-fetched indeed to entertain the idea that such a group is a cognizable or identifiable group or class entitled to a group-based protection so that it must not be excluded from service on a jury in a capital case. It seems to us that failure to exclude such persons would tend to make the imposition of the death penalty a sort of jury wheel lottery with freakish results, if it did not operate to abolish capital punishment in Arkansas. See State v. Mathis, supra. Be that as it may, in the ultimate, requiring that no distinctive group be excluded from jury service would require that neither felons nor anarchists be excluded from jury service, not because these groups are similar, but because they are, or may be, groups that constitute a part of the population. Permitting such persons as compose the latter groups to serve on juries would certainly be more nearly a mockery of justice than “consistent with our democratic heritage” or “critical to public confidence in the fairness of the criminal justice system.” By the same token, it might well be said that those who would not, regardless of the evidence, vote to impose a sentence of imprisonment, could not be excluded from a jury. The “cross section” idea is certainly not so pervasive as this. It has been said that no group has the right to block convictions. Apodoca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972). By the same token, no group should be permitted to block a jury’s imposition of a legally authorized sentence.
We find no error and no violation of the Sixth or Fourteenth Amendments to the United States Constitution in the excusing of these three veniremen. See Neal v. State, 259 Ark. 27, 531 S.W. 2d 17, judgment vacated insofar as leaves undisturbed the death penalty imposed and remanded for further consideration, 429 U.S. 808, 97 S. Ct. 45, 50 L. Ed. 2d 69; Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885; O'Neal v. State, 253 Ark. 574, 487 S.W. 2d 618.
Appellant also sought reversal on the grounds that the lack of blacks on the jury venire and jury panel deprived him of his Sixth Amendment right to a jury trial and the jury selection process was unconstitutional and in violation of the Fourteenth Amendment. This question was not raised at the trial. It was first raised in a motion for new trial and no record was made or tendered. Appellant asserts now that only one black person was a member of the jury panel. This is not disclosed by the record and we have no evidence of the racial composition of the jury panel, or the jury commission, or the jury. The record is silent on the question, so we cannot consider the matter. See Bailey v. State, 238 Ark. 210, 381 S.W. 2d 467. In the event of retrial, the situation will probably be entirely different, so we forego further discussion of this argument.
A more significant point for reversal is presented by the argument that a confession made by appellant was erroneously held voluntary by. the trial judge. We make an independent determination of this question, based upon the totality of the circumstances, with all doubts resolved in favor of individual rights and constitutional safeguards, but will not reverse the trial court’s holding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515; Watson v. State, 255 Ark. 631, 501 S.W. 2d 609. The statement introduced was given while appellant was in custody; therefore the state bore the burden of proving that it was voluntary. There are many factors to be considered. A statement induced by fear or hope of reward is not voluntary. Greenwood v. State, 107 Ark. 568, 156 S.W. 427. The age, strength or weakness of intellect, and manner of interrogation are matters to which the court should look. Dewein v. State, 114 Ark. 472, 170 S.W. 582. Presence or absence of friends or relatives may be considered. Manner of interrogation, the lapse of time between advice of constitutional rights required by Miranda and the giving of the statement are other factors. Watson v. State, supra.
Appellant places emphasis upon his ninth grade education, mental deficiency, age, the time lapse between advice of rights and the confession. After weighing all these elements, we cannot say that the holding of the circuit judge was clearly against the preponderance of the evidence. There was considerable conflict in professional opinion on the subject.
Arthur Rogers, the clinical psychologist who testified on behalf of the defendant at the trial also testified at the hearing on the motion to suppress. We will not repeat here those portions of the testimony of this witness on the motion which would be a repetition of his trial testimony outlined above. That which follows is either testimony not given in his trial testimony or not considered particularly significant by us in treating the previous point. One test administered by this witness found Giles’ ability to comprehend grossly deficient. On another test, Rogers found Giles to be a self-centered, suspicious, tense person with a dearth of ability to understand the environment, the culture, the society, the people around him and the complex world in which we live, who, when frustrated, becomes even more anxious and resistant, hostile, and totally befuddled. Still he found him, in many ways, extremely mature. Rogers also found that appellant’s reactions were immediate, and that he tended to be very suspicious of other people. He said Giles could not read words of more than two syllables, having an educational level, on a very rough estimate, at the second grade, in spite of his having gone to the ninth grade. It was the professional opinion of this witness that Giles was incapable of knowingly, voluntarily and intelligently waiving his constitutional rights. This opinion was a clinical judgment based upon a behavorial science and derived through tests and observation over a period of two hours at the most. Rogers felt that Giles was incapable of judgment and of comprehending the abstract concepts contained in the warnings given him and that he became confused when called upon to project into the future. He also felt that Giles was capable of understanding the statement, “You have the right to an attorney present here with you,” explained in a unitary concept, but that it was quite possible that he did not understand the concept expressed in the statement, “If you don’t have money to hire an attorney or get a lawyer to represent you in this case, one will be provided for you.” Rogers was of the opinion that an improvement of scores on tests he gave over those administered by the Arkansas State Hospital staff was typical, because the person tested may have learned from the previous test; however, he considered a ten point increase without significance.
Dr. Taylor of the Arkansas State Hospital staff had twice examined Giles for two hours and had seen him informally five or six times, all during a 30-day period of time, during which Giles was under continuous observation in a wing of the State Hospital. Taylor also depended upon daily reports made during this period. It was Dr. Taylor’s opinion that Giles: was intelligent enough to understand the right to remain silent, what a court is and what a lawyer is, as a part of his general understanding and knowledge; had the mental capacity to waive his constitutional rights under Miranda; and was capable of understanding the consequences, implications or import of the admonition as to his rights, partly from his past experience. He found that Giles: was able to converse easily on topics he initiated himself and to discuss abstract ideas in plain, but not in abstract, terms; had a speech defect and a mild hearing defect, both of which were more pronounced upon interrogation or in the presence of persons in authority; became confused and emotionally upset when encountering strangers for the first time; was very capable of answering “no” where it was to his advantage and to just appear blank if not to his advantage; and was very difficult to communicate with until one gets to know him.
When the two opinions are contrasted, we cannot say that the opinion of Dr. Taylor should not have been accorded the greater weight, particularly in view of the longer and more comprehensive observation and the circumstances surrounding the taking of the confession. Dave Parkman, the Chief of Police of the Forrest City Police Department, previously Sergeant and Lieutenant in charge of Criminal Investigation, testified that Giles was told that he was charged with this crime about 3:40 a.m. on January 12 following his arrest at midnight. Giles was then placed in a holding cell for approximately one hour, before Parkman talked with him. Admittedly, Parkman read the pertinent constitutional rights to Giles one by one from a “Statement of Rights” form and obtained Giles’ acknowledgment of his understanding of each of them, individually, in the presence of Officer Buddy Kennedy. Parkman said that when Giles answered affirmatively to the inquiry whether he understood the statement of a particular right, he appeared to understand, and that he did not start to talk with Giles until it appeared that Giles understood each of the statements. When he commenced interrogation, Giles reacted belligerently and said that he had nothing to say, and denied any knowledge of the murder, and, according to Parkman, Giles was then placed in a detention cell for 30 minutes to an hour, after which he was “processed.” When efforts to talk with Henry Giles were renewed for a period of five to ten minutes in the presence of his brother, Henry again said that he did not know what the officers were talking about and that he had nothing to say. Giles was then taken to the St. Francis County jail and Parkman did not again interrogate him or even see him until the day of the suppression hearing. It is admitted that Giles signed a “Waiver of Rights Form” in the presence of Parkman and Kennedy, but Giles testified that, at the time, he did not understand everything on it. Giles admitted that he understood the meaning of the statements at the time of the trial, but said he had learned what they meant while he was in jail after signing a confession. He admitted that he knew what going to court meant, having gone several times, and that he knew what a lawyer was, having had one every time he was put in jail — specifically on two occasions in Forrest City and one in Little Rock. There was no testimony from which it was even suggested that the confession was induced by any promise or extorted. The real basis of appellant’s attack is simply that there was no knowing and intelligent waiver of his privilege against self-incrimination or of his right to assistance of counsel at this critical stage.
Parkman testified that whenever Giles indicated that he did not understand any of the separate statements pertaining to his rights as read to him, that he (Parkman) reread it and explained it. Parkman knew that Giles did not hear well and so he spoke loudly to him. He noted that Giles stuttered pretty badly, but not so that he could not be understood. It seemed to Parkman that the more upset Giles became, the more clearly he spoke, except when he was belligerent and cursing.
Kennedy testified that he was present at 1:20 a.m. on January 23 when Giles signed the waiver of rights. Kennedy had been present when Giles was arrested by Heber Hughes for parole violation, and, a few moments later, by Trooper Sims for possession of marijuana when that officer found a bag of the substance in Giles’ shoes. Kennedy corroborated the testimony of Parkman concerning the explanation of the statements pertaining to Giles’ rights that Giles said he did not understand.
At approximately 9:00 or 10:00 a.m. on January 13, Henry and his brother, Everett Giles, were taken from the St. Francis County jail to the Forrest City Police Department by Forrest City Police Officer Gary Christian, Buddy Kennedy and Arkansas State Police Sergeant Finis Duvall for the purpose of interrogation. It seems that the officers first interrogated Everett Giles and then went to lunch. The two brothers were then left in a detention cell in the Forrest City Police Department with Henry handcuffed to the plumbing of a commode. One of the handcuffs was on his left wrist and the other around a pipe. According to Officer Christian, this left Henry Giles in a sitting position but with enough freedom that he could stand if he liked. Christian said that when the officers returned from lunch at approximately 1:30 p.m., Everett Giles told them that Henry was ready to talk to them about the murder and robbery and asked if he (Everett) could be present. The two brothers were then taken to an interrogation room. The only others present were Sergeant Duvall, Anderson and Christian. Duvall had the waiver of rights on his desk there and asked Henry Giles sequentially if he had been advised of his rights, if he had signed it the night before and if he understood these rights. To each of these individually propounded interrogatories, appellant gave affirmative answers and, according to the officers, proceeded to relate, in his own words, what had happened on the day of the murder-robbery, without any difficulty in communication. Sgt. Duvall testified that he wrote the statement as appellant told it, after questioning by the officer, and then read it back to appellant, who signed it when the officer asked him to do so. Appellant testified that he could hardly understand the written statement the way “he got it.” He admitted signing it, but denied “telling him all that” and then denied making any of the incriminating statements to the officer.
Most of the testimony of the officers went uncontradicted. The only factor that presents any question at all about the voluntariness of the statement is the question of appellant ’s understanding of his rights. In arriving at the conclusion that the circuit judge’s finding was not clearly against the preponderance of the evidence, we consider several factors other than the testimony of Dr. Tayldr, but supportive of it. Some of them are: Rogers’ testimony that, in some respects, appellant was very mature and that he did learn from repetition; the presence of Henry Giles’ brother Everett at the interrogation after the two were left alone during the lunch hour; the cessation of interrogation whenever appellant expressed his unwillingness to answer or to talk about the matter, including the recitation in the statement that it was terminated when appellant decided that he didn’t want to answer any more questions until they (he and Everett) could talk with an attorney; the statement was signed, not only by Henry Giles, but by Everett Giles; the fact that appellant was no stranger to criminal court proceedings and had previously been accorded the assistance of counsel. Mere low mentality is not a sufficient basis for finding a confession involuntary if the accused is nevertheless capable of understanding his rights and the meaning and effect of his confession. People v. Tipton, 48 Cal. 2d 389, 309 P. 2d 813 (1957). See also, Summerville v. State, 253 Ark. 16, 484 S.W. 2d 85; Sheppard v. State, 239 Ark. 785, 394 S.W. 2d 624, cert. den., 387 U.S. 923, 87 S. Ct. 2038, 18 L. Ed. 2d 977; Dewein v. State, 114 Ark. 472, 170 S.W. 582; Mitchell v. State, 206 Ark. 149, 174 S.W. 2d 241.
Appellant suggests that the circumstances surrounding his arrest should be taken into consideration in regard to the voluntariness of his confession, but does not elaborate. We take this to be an effort to argue that the confession, even though otherwise voluntary, was the fruit of the poisonous tree, i.e., an illegal arrest, a point argued more extensively in appellant’s assertion that a search and seizure violated his constitutional rights. He was in a private dwelling when awakened near midnight, January 11, by his parole officer (Hughes), who told him that he was under arrest for parole violation. As he was getting dressed, a trooper, who along with Officer Kennedy, had accompanied Hughes, noticed a bag of marijuana in appellant’s shoes, and told appellant he was under arrest for possession of marijuana. As the three officers were bringing him out of the house, Parkman drove up, and seeing that the arrest had been made, began to search the house for evidence of the murder-robbery, while Giles was being taken to the city jail, where he was later interrogated and charged with the crime. Appellant first contends that Hughes merely participated in the arrest and was only acting to assist the Forrest City officers to arrest him for “investigation of the murder-robbery.” He points out that Parkman testified that Hughes participated in the arrest,.and, when asked to what extent, answered, “To the extent of helping us bring the man out.”
In questioning the constitutional validity of a nighttime arrest in a private dwelling, appellant relies principally upon authorities relating to searches of private dwellings without a search warrant, and advances the argument that the doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) applies to arrests without a warrant in a private dwelling as fully as it does to searches. Arrest by a parole officer without a warrant is clearly permissible under Ark. Stat. Ann. § 43-2810 (Supp. 1975), and the validity of the statute is not questioned. There seems to be no impropriety in a parole officer’s recruiting the assistance of a city policeman or a state policeman, or any other officer authorized to make arrests, to assist him in performing his duty to make an arrest. Appellant concedes that he was on parole. Officer Kennedy stated that he was outside the house looking in the window when Hughes made the arrest. Appellant has not alleged that he had not violated parole or that the arrest was improper for that reason. The arrest was made at the dwelling house of Arnola Anderson in Palestine, where Giles was spending the night. There is nothing in the applicable act to restrict such an arrest to the daylight hours. There was reason for the officers to believe that appellant was in this house on the night he was arrested and he seems to have had an inclination to wander, particularly between Forrest City, Palestine and Little Rock. He was not living with his mother, Roxella Giles, in Forrest City, but he had spent the night at her apartment on the Wednesday before the killing. We do not consider the arrest illegal under these circumstances.
The “search and seizure” contention made by appellant seems to be based only on the argument pertaining to the alleged illegality of the arrest. But the search of the house was made with the permission of the owners of the premises. Therefore it was not a search incident to the arrest. Appellant’s boots were taken from him at the police station. Their seizure as potential evidence was proper. Bailey v. State, 238 Ark. 210, 381 S.W. 2d 467; U.S. v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974); Sheppard v. State, supra. See also, Graves v. State, 256 Ark. 117, 505 S.W. 2d 748. We have some difficulty in reviewing the validity of any search or any seizure of anything other than the boots because, even though appellant moved to suppress the evidence, the trial court never ruled on the motion and appellant never made any objection to any such evidence during the trial. For this reason, perhaps, the facts surrounding the arrest and search may not have been developed as they would have been otherwise.
Appellant also asserts that the court erred in failing to suppress a lineup identification. The identifying witness was June Slinkerd, who saw appellant at the city jail in Forrest City and identified him as a black man she had seen being waited on by Mrs. Drummond in the Shoe Outlet store on the afternoon of the murder.
The lineup was conducted at about 8:00 a.m. on Sunday morning, January 12. Parkman prepared the lineup. Officer Anderson brought Mrs. Slinkerd to view the lineup, which had already been set up when she arrived at the jail. It consisted of Otis Hinton, Cleveland Deer, Henry Giles, Alvin Vick, Everett Giles, and Anthony King, before whom numbers had been placed. Henry Giles was the youngest person in the lineup. The ages of the others ranged upward as much as twelve years. The heights of the participants ranged from 5’8” to 5’10'A" or 11" and their weights, from 160 to 185 pounds.
Anderson testified that Parkman had advised Giles that he had the right to counsel at the lineup. Parkman said that he instructed Mrs. Slinkerd not to make any statement, comment, or gesture toward any individual until they returned downstairs after she had viewed the lineup. Mrs. Slinkerd had been shown some photographs on the preceding Friday, but she had been unable to identify anyone from them, although she had said that one of the persons pictured looked similar to the person she had seen. She was not told that the police had the man they were seeking. In giving the police a description of the person she had seen, she told them that he stuttered, was a black man about 5’10” tall and weighed about 170 pounds. At the discretion of the police, each of the participants stepped forward, stated his name, address and age. Only one of them stuttered. One of them was wearing pants similar to those worn by the person she had seen in the store.
According to Mrs. Slinkerd and Parkman, when she went downstairs she felt that she was confused as to the number of the person she recognized, and did not remember his name because she couldn’t understand him when he spoke, so the officers suggested that she return upstairs. When she did, the participants were in the same positions, but they stepped forward and said something about where they worked or went to school. Mrs. Slinkerd said she gave the officers the number of the person she recognized, which she said was the same number she had recognized before. She said that she had never seen anyone in the lineup previously, except for the person she had seen in the store, and that she had never seen him before she saw him in the store.
When Mrs. Slinkerd testified at the trial she said that the man she had seen in the store was only three or four feet from her, that she had seen his full face and heard him talk.
First we note that there is no indication that Giles ever requested the assistance of counsel, or that he had obtained the services of any attorney, so the lineup did not necessarily constitute a denial of appellant’s right to counsel. Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885. Furthermore, the charges were not filed until January 15, so the per se exclusionary rule did not apply. Kirby v. Illinois, 406 U.S. 682, 92 S. Ot. 1877, 32 L. Ed. 2d 411 (1972); Pollard v. State, 258 Ark. 572, 527 S.W. 2d 627.
The likelihood of irreparable misidentification is the evil to be avoided. Pollard v. State, supra. The court held an in camera hearing on the suppression of the lineup. We are inclined to agree with the trial court that the in court identification was not tainted and was therefore admissible. Appellant argues, however, that the fact that he was the only stutterer in the lineup so tainted the procedure that his right to due process was violated. We have held, in a case where the accused was the only person in a lineup with a tatoo on his arm, that due process did not require that a lineup be composed of persons whose physical appearances were so similar in minute detail that peculiar identifying features cannot be considered in identification. Honaker v. State, 252 Ark. 975, 482 S.W. 2d 111. Voice identification is a part of the same procedure. In any event, the determination is based upon the totality of the circumstances. In that light, we cannot say, when we consider the description given the officers by Mrs. Slinkerd and her opportunity to observe the person in the store, that her in-court identification was tainted.
We are aware that there were many other objections during the course of the trial. None of them warrant any discussion because they are either without merit or harmless.
As previously indicated, the judgment shall be modified unless the Attorney General requests, within 17 days, that the case be remanded for a new trial.
George Rose Smith, Holt and Hickman, JJ., concur in the result but adhere to the views expressed in their dissenting opinions in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).
Of course, we view the evidence in the light most favorable to the jury verdict. The only direct evidence of appellant’s conduct was his confession and the jury obviously accepted it at face value. Accordingly, we treat its recitations as facts. | [
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PER CURIAM
Appellant requests this Court to hold that “the award of the Arkansas Worker’s Compensation Commission is not supported by substantial evidence on the record considered as a whole.” However, appellant has not abstracted the opinion or award of the Workmen’s Compensation Commission nor the judgment or decree of the circuit court approving the Commission’s award, if any. Supreme Court Rule 9(d) provides:
“The appellant’s abstract or abridgment of the record should consist of an impartial condensation.. . of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision ... .”
Supreme Court Rule 9(e)(2) points out that where “the court finds the abstract to be flagrantly deficient . . . the judgment or decree may be affirmed for noncompliance with the Rule.” We have consistently held that the failure of the appellant to abstract a decree or judgment containing findings of fact or findings of mixed law and fact which are necessary to an understanding of the questions presented to this Court is such a flagrant deficiency as to require an affirmance for failure to comply with Rule 9(d). See Reliable Finance Company v. Rhodes, 252 Ark. 1077, 483 S.W. 2d 187 (1972). Since the issue presented here depends upon a review of the findings and conclusions of the Commission, we must affirm for the deficiency in abstracting.
Affirmed.
Harris, C.J., and Hickman, J., dissent. | [
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Conley Byrd, Justice.
In Byler v. State, 257 Ark. 15, 513 S.W. 801 (1974), we quoted liberally from the American Bar Association’s “Standards Relating to Pleas of Guilty” and in doing so we stated:
“. . . we must observe that compliance with the Standards will go far toward achieving the twofold purpose of (1) assuring justice both to the accused and the public and (2) minimizing the dreary necessity of having to reconsider in postconviction proceedings points that should have been set at rest when the plea of guilty was accepted.”
The trial court in the case of appellant Earl A. Wynn did not follow those standards in accepting a negotiated plea from appellant and was forced to go through the dreary necessity of holding a hearing on his post-conviction plea that he was not advised of the consequences of his plea nor did he understand the maximum or minimum penalty that could be handed down. At the post-conviction hearing it was shown that appellant was represented by retained counsel who had previously represented appellant in other matters and that the retained counsel had fully explained those matters to appellant before accepting a negotiated plea of second degree murder on a first degree murder charge. Based upon those facts, the trial court denied any relief to appellant’s post-conviction plea.
We agree with the trial court that under the circumstances appellant was not entitled to any post-conviction relief.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Hoi/r, JJ. | [
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Elsijane T. Roy, Justice.
On January 17, 1976, appellant Samuel Levon Shackleford was charged by information with possession of heroin with intent to deliver, a felony, and possession of marijuana and possession of cocaine, both misdemeanors, in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976). He was tried and convicted. Due to a previous conviction of selling cocaine, a hearing was held so the jury could determine sentence pursuant to Ark. Stat. Ann. § 82-2624 (Repl. 1976) which resulted in sentences imposed as one year on each of the two misdemeanor charges and 25 years on the felony charge. On August 2, 1976, the court heard the State’s petition for revocation of probation from the earlier conviction, and sentenced appellant to serve the additional seven years consecutive to the other sentences.
Appellant raises several points on appeal, the first of which concerns the denial of his motion to suppress the evidence obtained pursuant to a search of his premises.
A search warrant for appellant’s residence was issued on January 17, 1976, based on the sworn affidavit of Detective Mike Sylvester of the Little Rock Police Department who had obtained information from a confidential informant. Under authority of the warrant detectives forcibly entered the house after announcing their identity, arrested appellant and his wife and seized quantities of marijuana, cocaine and heroin. Co-defendant Brunette Shackleford was later acquitted on all charges.
Appellant first contends the affidavit was deficient because it did not set forth with particularity the facts bearing on the informant’s reliability as required in Rules of Crim. Proc., Rule 13.1(b) (1976). That rule provides:
The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.
The sworn affidavit of Detective Sylvester, on which the issuance of the search warrant was based, stated the factors constituting probable cause as follows:
(a) Affiant states that on 1-13-76, a confidential informant, who has proven to be very reliable in the past, and whose information has resulted in the arrest of five (5) felony cases, went to the above mentioned address and purchased heroin from Samuel Shackleford, said in formant was searched before going into the above mentioned residence.
(b) Affiant states that on 1-17-76, the same said confidential informant went to the above mentioned address and purchased heroin from Samuel Shackleford, said informant was searched before going into the above mentioned residence.
(c) Affiant states that said confidential informant has given information that has led to the conviction of three (3) persons in the last three months, other cases are still pending.
(d) Said confidential informant has seen heroin within the last eight hours in the residence of Samuel Shackleford at 1815 W. Roosevelt, Little Rock, Arkansas.
(e) The Little Rock Police Department has on file documented records showing that Samuel Shackleford, BM, DOB, 12-14-42, is dealing in heroin in the Little Rock area.
Since the affiant herein is relying on the observations of an informant, as indicated in Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970), the affidavit must indicate to the issuing magistrate (1) the underlying circumstances from which the informant concluded that the object of the proposed search is where he said it was and (2) some of the circumstances from which the officer concludes that the informant is credible or his information reliable. This two-prong test was set out in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and cited with approval by this Court in Walton v. State, 245 Ark. 84, 431 S.W. 2d 462 (1968).
In the present case subsections (a), (b) and (d) of the affidavit relate underlying circumstances which confirm the belief that drugs were present in appellant’s house. These sections relate the activities and observations of the informant with regard to appellant. Subsections (a) and (c) state the results of other information given by the informant, in- cheating his reliability and credibility. Consequently the affidavit here was legally adequate to meet the requirements of Aguilar, supra.
Appellant next contends the identity of the informant should have been revealed.
In West v. State, 255 Ark. 668, 501 S.W. 2d 771 (1973), we held:
Often, determination whether disclosure is required is ultimately made upon the basis of whether the informant was present or participated in the alleged illegal act with which the defendant is charged or whether the informer merely furnished information concerning criminal activity to law enforcement officers [citations omitted]. * * *
In Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715 (1977), we stated:
* * * In the instant case appellant was not charged with the sale of marijuana to the informant. The informant only supplied the “lead” to law enforcement officers establishing the probable cause for issuance of the search warrant.
The information supplied by the informant here merely directed the investigation of the police to appellant’s residence where they found him in possession of the heroin, marijuana and cocaine. Their subsequent search resulted in the charges brought against him. It was not error to refuse to disclose the identity of the informant since the elements of the State’s case could have been proved without his testimony or participation.
Appellant also contends the search warrant was improperly returned after its execution in violation of Rules of Crim. Proc., Rule 13.4(b) (1976). That rule requires a search warrant to be returned with a verified report and inventory of the items seized.
Under Rules of Crim. Proc., Rule 16.2 (1976), a ruling on a motion to suppress must be governed by a determination of whether the violation was substantial. In pertinent part the rule states:
(e) Determination. A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state. In determining whether a violation is substantial the court shall consider all the circumstances, including:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, the things seized would have been discovered; and
(vii) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceedings in which the things seized are sought to be offered in evidence against him. (Italics supplied.)
In Brothers v. State, supra, we found substantial compliance and no prejudice where a return was mistakenly marked “Investigative Report” even though some of the articles seized were not itemized.
Here, the itemization on the back of the search warrant listed three grams of heroin, one and one-half ounces of marijuana and three credit cards. We do not find that the claimed irregularity resulted in prejudice to the rights of appellant.
The jury found appellant guilty on three counts. However, when the verdict was returned it was discovered that the jury had erroneously been given a verdict form which provided for a finding on a charge of delivery of heroin, and not possession of heroin With intent to deliver, the proper charge. Appellant’s motions for judgment of acquittal notwithstanding the verdict and for a mistrial were denied.
The jury was given the proper verdict form and asked to retire again. Thereafter, a verdict of guilty of possession of heroin with intent to deliver was returned. Appellant renewed his motions, which once again were denied.
Appellant contends the trial court erred in originally submitting an incorrect verdict form to the jury and in making an improper comment on the evidence at the time of submission of the second form. We find nothing improper in the court’s comments to the jury when it was necessary for the jurors to retire for reconsideration of the verdict on one count.
The court stated:
* * * There is a discrepancy in the, on the verdict sheet. You were given an erroneous verdict sheet here, and it was guilty of delivery of heroin, as opposed to the charge of possession with the intent to deliver. You will be given the correct finding sheet after, when you retire to consider your verdict the next time ....
* * *
You will return to the jury room and continue your deliberations and you will, this time, have a proper verdict sheet and you will be asked to find the defendant guilty or not guilty of possession with intent to deliver. You may retire and the verdict sheet will be there shortly-
Only extreme resulting prejudice flowing from an error committed during the course of judicial proceedings will warrant the granting of a mistrial. Russey and Way v. State, 257 Ark. 570, 519 S.W. 2d 751 (1975).
24 C.J.S. Criminal Law § 1450 (1941) states:
Irregularities in the verdict and its reception may warrant or require the granting of a new trial, but such relief will not be given where the rights of accused are not substantially prejudiced. * * *
We do not find the court’s comments prejudiced the rights of appellant in any way.
Appellant contends the trial court erred in revoking his probation. This contention is based on the alleged merit of the motion to suppress. Since we affirmed denial of the motion and determined the evidence obtained admissible, appellant’s argument is without merit. Therefore the probation was properly revoked.
Affirmed.
We agree. Harris, C.J., and Fogleman and Hickman, J.J- | [
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George Rose Smith, Justice.
The appellant was convicted of capital murder committed in the perpetration of robbery and was sentenced to life imprisonment without parole. Her principal points for reversal have to do with’the sufficiency of the evidence to support a finding of an intent to commit robbery and with the trial judge’s communications with the jurors during their deliberations.
Upon the first point there was an issue of fact for the jury. Mrs. Bush and her husband, in hitch-hiking back to Arkansas after a trip to Florida, were picked up by the decedent, Billy John Jones, in his truck and carried from Columbia, Louisiana, to Conway, Arkansas. At a Conway truck stop Bush left his wife and Jones in the truck for a short while. According to the confession of Mrs. Bush (the only eyewitness), Jones climbed into the sleeper, took off his clothes, and tried to pull Mrs. Bush up into the sleeper, assertedly with the intention of raping her. Mrs. Bush had a knife, with which she fatally stabbed Jones, principally in his neck. Upon Bush’s return the couple at first concealed the crime by driving the truck, with Jones’s body in it, to an isolated spot and abandoning it. Mrs. Bush said in her confession that during that trip she was wearing some of Jones’s clothes and took $40 from a wallet she found in one of the pockets. A few days later Bush reported the crime and the location of the truck to the police.
It is argued that Mrs. Bush committed the homicide in defending herself and not in the perpetration of robbery. The jury, however, was not required to accept her account, especially as she was an interested participant. Furthermore, Jones’s widow testified that he had more than $300 in cash when he left home two days before his death. Thus there was substantial evidence to support a finding that robbery was the motive for the crime.
The judgment must be reversed, however, as a result of the circuit judge’s communications with the jury, even though the opposing attorneys were also at fault.
The jury, after several hours of deliberation, reported that they were hopelessly divided. The lawyers in the case, thinking a mistrial to be imminent, discussed the possibility of a negotiated plea of guilty. The prosecutor insisted upon a 21-year sentence, but the defense was unwilling to recommend more than 12 years. The attorneys, in a novel but misguided effort to obtain helpful information, agreed that the judge might confer with the jury to determine two things only: their numerical division and the degree of homicide upon which they were divided.
Judge Roberts rashly agreed to counsel’s joint request and conferred privately with the jury in the courtroom, after the accused, the attorneys, and everyone else had been excused. After a substantial length of time Judge Roberts sent the jury back to the jury room, reported to counsel the information that had been sought, and explained that, upon an inquiry by a juror, he had discussed with the jury the governor’s possible pardoning power with respect to a life sentence without parole. He said he had told the jury that the legislature could not take away the governor’s constitutional pardoning power. The judge also mentioned that one or two jurors had been confused, but he thought they were straightened out. Within five minutes the jury, after having been hopelessly deadlocked, returned a verdict of guilty and fixed the sentence at life imprisonment without parole.
The exact details of what happened are not known, for none of the discussions were recorded by the court reporter, and at the hearing upon the defendant’s motion for a new trial, Judge Roberts refused to make any statement, sworn or unsworn, about his discussion with the jury. Of course the jurors were not competent witnesses; so the accused was left with no means of discovering whether prejudicial error occurred.
The motion for a new trial should unquestionably have been granted. It is immaterial that defense counsel did not at once object to the judge’s having discussed the matter of possible parole with the jury, for that was the judge’s own error. Bell v. State, 223 Ark. 304, 265 S.W. 2d 709 (1954). That the discussion took place at all must be regarded as prejudicial error, for, despite some inconsistencies in our earlier opinions, we made it unmistakably plain in Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971), that jurors are not concerned with the parole system and consequently should not be given even completely accurate information upon that subject. Here it is a reasonable inference that the jurors would not have returned their actual verdict had they not been given Judge Roberts’s explanation of the governor’s pardoning power.
The appellant also complains that the instructions to the jury were misleading and confusing. That is true, apparently as a result of the court’s having interposed oral comments in the course of reading a variety of written instructions. Nothing would be accomplished by an analysis of the court’s charge to the jury; we can only suggest that a complete set of instructions be prepared by counsel before the case is retried. Finally, the availability to defense counsel of the witness MacKenzie’s pretrial statement is moot, counsel eventually having seen it.
Reversed. | [
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Ei.sijank T. Roy, Justice.
Appellant Daniel Eugene Brothers was convicted of possession of a controlled substance with intent to deliver, under Ark. Stat. Ann. § 82-2617(a) (Supp. 1975), and sentenced to 6 years in the Arkansas Department of Correction and fined $1,000. From that conviction Brothers appeals.
His first contention is that the charge should be reduced to a misdemeanor because the penalty provisions of § 82-2617(a)(l )(ii) and of § 82-2618(a)(2) are conflicting since the former makes possession with intent to deliver marijuana a felony while the latter makes it a misdemeanor.
Appellant urges that since he is entitled to have any ambiguity resolved in his favor the court erred in failing to instruct the jury that possession with intent to deliver was a misdemeanor.
This issue was decided contrary to appellant’s position in Johnson v. State, 261 Ark. 13, 546 S.W. 2d 719 (1977), wherein the Court had before it the same statutory provisions we have here. In Johnson attention was directed to Morrison v. State, 40 Ark. 448 (1883), quoting:
It is an established rule in construing statutes that all acts passed upon the same subject, or in pari materia, must be taken and construed together, and made to stand, if capable of being reconciled; .... If any of their provisions are in irreconcilable conflict, the provisions which are the latest expressions of the legislative will must prevail.
Section 82-2617(a)(1 )(ii), supra, was amended by Act 186 of 1973 to specifically provide that a delivery of marijuana would constitute a felony. Since this amendment is the latest expression of the legislative will on the issue it must prevail and the court was correct in refusing to reduce the charge to a misdemeanor. See also Patty v. State, 260 Ark. 539, 542 S.W. 2d 494 (1976).
Appellant next contends the court erred in failing to require the State to disclose the name of the confidential informant relied upon by officers in obtaining the warrant. In the instant case appellant was not charged with the sale of marijuana to the informant. The informant only supplied the “lead” to law enforcement officers establishing the probable cause for issuance of the search warrant.
In McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967), the Supreme Court held that when the issue is not guilt or innocence, but probable cause for search, and the State relies in good faith on credible information supplied by a reliable informant, no due process right is violated by the assertion of informant’s privilege.
No confrontation clause violation occurred since the information supplied by the tipster was not used at trial. See Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967), and McCray, supra.
We find no merit to the contention that the affidavit did not establish probable cause for the search. The information was from a reliable informant according to Deputy Sheriff Findley, and the informant advised Findley that he had made purchases at appellant’s residence on several occasions and had seen a large bag of marijuana there.
Appellant also contends the warrant itself was deficient in several particulars, one being that Rules of Crim. Proc., Rule 13.2(c) (1976) requires the warrant should provide for execution between the hours of 6 a.m. and 8 p.m. unless special circumstances are shown, and none were shown in the warrant. The record reflects the search was started about 8 p.m. and completed as soon thereafter as possible. We do not find this to be a material violation of Rule 13.2(c) when viewed in the light of Rule 16.2(e), which states in pertinent part :
Determination. A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state. (Italics supplied.)
In this particular case the failure to strictly comply with Rule 13.2(c) was not willful, no additional invasion of privacy occurred, and appellant suffered no prejudice. Therefore, suppression was not warranted.
Appellant also alleges jaonsoEapliance with the Return of Search Wárrant provisions in Rule 13.4. The rule requires that:
(b) An officer who has executed a search warrant . . . , shall, as soon as possible and not later than the date specified in the warrant, return the warrant to the issuing judicial officer together with a verified report of the facts and circumstances of execution, including a list of things seized.
The State introduced what was in effect a return but it was mistakenly marked “Investigative Report,” and some of the articles seized were not itemized. However, we do not find this prejudicial since the report contained all the essential information. There were no omissions or inaccuracies which would create a substantial violation of Rule 13.4; therefore, the trial court properly refused the motion to suppress on this ground. However, attention should be called to the fact that the criminal rules were adopted as important guidelines “to protect the fundamental rights of the individual while preserving the public interest,” and we take a critical view of any failure to comply with the rules.
The trial court properly refused to grant appellant’s motion for a directed verdict since the evidence was certainly sufficient to sustain the conviction.
We also have considered appellant’s other allegations, but finding no reversible error the cause is affirmed.
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PER CURIAM
Appellant brought this action to recover an alleged balance due from appellee construction company (appellee insurance companies are sureties) based on a contract to furnish mill work on a construction project. A jury awarded appellant most of the asserted balance, denied the appellee construction company’s counterclaim and its demand for punitive damages. Thereupon, appellees filed a motion for dismissal of appellant’s action, a sanction provided by Ark. Stat. Ann. § 28-359 (b) (2) (Repl. 1962). Appellees also filed a separate motion asking for a new trial pursuant to Ark. Stat. Ann. § 27-1901 (Repl. 1962). The court rendered an order finding, inter alia, that appellant’s answers to the interrogatories were incorrect and prejudicial to the appellees; the uncontroverted evidence at trial proved the documents, supplied by the appellant in response to appellees’ motion and the court’s order to produce the original documents, were not authentic; and the appellant had failed and refused to obey the court’s pretrial order with respect to the production of the original price bulletin documents and price ceiling information in effect at the inception of the contract. The court set the jury verdict aside, ordered a new trial and, also, the production of the original documents, which the court had previously ordered produced, within 20 days. When the appellant did not produce the documents, insisting it was unable to do so, the court dismissed its action.
We must affirm the trial court, as urged by the appellees, because appellant’s abstract of the record is in noncompliance with Supreme Court Rule 9 (d), Ark. Stat. Ann. Vol. 3A (Supp. 1975), and, as amended, Hirrill v. L. R. Civil Service Comm’n, 259 Ark. 226 (1976). The rule requires the abstract of the record to be a condensation of the pleadings, proceedings, facts and documents in the record “as [is] necessary to an understanding of all questions” presented on appeal. In numerous cases we have found it necessary to af firm for noncompliance with Rule 9 (d). For example, the failure to abstract the pleadings and exhibits, Financial Security Life Insurance Co. v. Powell, 247 Ark. 609, 447 S.W. 2d 64 (1969); Tucker v. Haskins, 243 Ark. 826, 422 S.W. 2d 696 (1968); exhibits — Umholtz v. Allen, Ex’x, 254 Ark. 722, 495 S.W. 2d 874 (1973); Webb v. City of Little Rock, 253 Ark. 385, 486 S.W. 2d 29 (1972); Baker v. Trotter, 253 Ark. 247, 486 S.W. 2d 7 (1972); documentary evidence — Wells v. Paragon Printing Co., 249 Ark.950, 462 S.W. 2d 471 (1971); affidavits and contravening affidavits — Rowe v. Druyvesteyn Const. Co., 253 Ark. 67, 484 S.W. 2d 512 (1972).
Here the transcript and record consists of 877 pages and numerous exhibits. It is true that the appellees supplied certain deficiencies in appellant’s abstract with reference to the testimony. However, we do not have the benefit of an abstract of the complaint, the answer, and the counterclaim (pleadings totaling 24 pages) which would enable us to determine exactly what issues were joined. Also unabstracted are certain documents relating to the inception of the contract, the appellees’ motion and the court’s order granting their motion to compel answers to interrogatories, the court’s letter urging the appellant to comply with its orders, the answers to appellees’ interrogatories, which were supplied in a summary form, representing the answers as being true and correct. None of the numerous exhibits are abstracted, as required by Rule 9 (d), as amended. The appellees contend they are not the originals and questioned them as being fraudulent and, at least, inaccurate. These exhibits appear to be the crux of the controversy between the parties.
Of course, the burden was on appellant to demonstrate error by the court and, as abstracted, we would also affirm for failure to meet that burden had we reached the merits of the case.
Affirmed.
Harris, C.J., not participating. | [
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Darrell Hickman, Justice.
The issue in this case involves interpretation of a homeowners insurance policy.
The homeowner, James Waggener, was sued, in a separate case which is still pending, for negligently entrusting a minibike to a minor child who, while operating the bike on a neighborhood sidewalk, injured the minor child of Delores Cunningham. Cunningham sued Waggener and other parties, but the only allegation of negligence against Waggener is that he was wrong in permitting a minor child to use the minibike.
Waggener has an excess indemnity policy with the appellant, Aetna Casualty and Surety Company and a homeowners policy with American Manufacturers Mutual Insurance Company, the appellee. American Manufacturers has refused to defend Waggener in the lawsuit against him. Aetna brought this suit against American Manufacturers for a declaration that American Manufacturers is obligated to defend Waggener and to pay any judgment to the limits of their policy. The lower court held that American Manufacturers’ homeowner’s policy excluded this type of accident and Aetna brings this appeal.
The issue on appeal is interpretation of the American Manufacturers’ policy issued Waggener and primarily concerns a clause in the insurance policy which excludes liability for certain types of accidents.
The theory of Aetna’s lawsuit is that American Manufacturers’ policy has a broad coverage clause of insurance. The clause reads as follows:
This company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.
An “occurrence” is defined as an accident which would result in injury to a person or property. American Manufacturers admits that the coverage clause is broad but defends this lawsuit on the basis of an exclusionary clause in the policy. According to the clause th re is no coverage for an accident arising out of the ownership, maintenance, operation, use, loading or unloading of:
Any recreational motor vehicle owned by any insured, if the bodily injury or property damage occurs away from the residence premises; . . .
We agree with the trial court’s finding that American Manufacturers is not required to defend Waggener. The accident occurred off the premises and undoubtedly from the use of the minibike. Aetna’s argument that the “negligent entrustment”, rather than the “use” of the minibike, is the negligent act ignores the clear language of the exclusionary clause. LaBonte v. Federal Mutual Insurance Company, 159 Conn. 252, 268 A. 2d 663 (1970), Federal Insurance Company v. Forristall, Court of Civil Appeals of Texas, 401 S.W. 2d 285 (1966).
We are not unmindful that several other states have reached the opposite conclusion. See Lalomia v. Bankers & Shippers Insurance Company, 312 N.Y.S. 2d 1018 (1970), McDonald v. The Home Insurance Company, 97 N.J. Super, 501, 235 A. 2d 480 (1967), and Republic Vanguard Insurance Company v. Buehl, 295 Minn. 327, 204 N.W. 2d 426 (1973).
This vehicle accident, off the premises, is best covered by general liability insurance or motor vehicle insurance available for a premium that considers the primary risk involved.
Affirmed.
Fogleman, J., not participating.
Byrd, J., concurs.
George Rose Smith, J., dissents. | [
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John A. Fogleman, Justice.
Appellant Loomis was found guilty of the crimes of rape and burglary alleged to have been committed on 3 March, 1976. He alleges three points for reversal, but concedes that one of them depends entirely upon the other two. Since that is so, we will discuss only two points, i.e., alleged error in denying his motions to suppress evidence, first, of fingerprint identification, and then, of his confession. We find merit in neither point and affirm.
Appellant first contends that his fingerprints were taken by illegal detention and the resulting evidence incriminating him was the fruit of the tree thus poisoned, relying entirely on Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969). He argues that this action is in violation of the Fourth and Fifth Amendments to the U.S. Constitution and Art. 2 §§ 8 and 15 of the Arkansas Constitution. We find no violation of either constitutional provision of either constitution and find this case outside the orbit of Davis. The questioning of Loomis and the taking of his fingerprints were not a part of a “dragnet” operation of the type conducted in Davis, and there was no detention of Loomis for the sole purpose of obtaining fingerprints. The distinctions here outnumber the similarities.
In this case, a well organized investigation, which consumed some 2400 man-hours, was being conducted in the southwestern part of Fort Smith because a series of rapes had taken place in the area in late 1975 and early 1976. The crimes, as reported, fell into a pattern and identifying features given by victims were of considerable similarity. They described a white male, approximately 5’7" to 5'10" (or not over 6’) tall, of medium build, 25 to 30 years of age, weighing 160 to 180 pounds, with short curly hair, and a noticeable body odor, who smelled strongly of cigarettes. A composite drawing of the suspect was made and released to the news media in early March. This drawing was published in a local newspaper. In response, the Fort Smith police department received a number of calls giving the names and addresses of possible suspects. A field investigator went out to locate and interview each such suspect. In all, 177 were interviewed. Of these, 55 were brought to the police department, interviewed and photographed. Only seven of these, one of which was appellant, were fingerprinted. Appellant’s prints matched latent prints which had been taken at the dwelling of the victim in this case. The charge on which appellant was convicted was filed on the day the Fort Smith police department was advised by teletype message from the Federal Bureau of Investigation that comparison of the Loomis fingerprints with those taken at the scene of the crime here charged were “positive for identification.”
The investigation of Loomis came about as a result of the rape of a different victim that was reported at about 4:00 a.m. on March 23, 1976. Detective Sgt. Hatfield arrived at the scene at 4:19. Officer William Champion, in answering the call, stopped a motor vehicle driven by Loomis at high rate of speed approximately 11 blocks from the scene of this alleged rape. Champion stopped the vehicle and asked for the driver’s license. Loomis told Champion he was going to Jenny Lind and Phoenix to meet his brother and take him to work at Southern Steel & Wire Company. Loomis was barefoot, and had a noticeable body odor, described by Champion as a “sweaty, unwashed” type body odor. Champion said that Loomis fit the description of the rapist given police. He noted two things to which he had been alerted in department briefings — Kool cigarettes in Loomis’s car and a lisp in his voice. When Loomis left, he went in the wrong direction for the mission he had indicated. Champion proceeded to the address of the reported rape without passing any other vehicles. He wrote up an interview report.
When Sgt. Hatfield learned of Champion’s encounter with Loomis and Champion expressed the opinion that Loomis was a prime sucpect in the incident that had occurred that morning, Hatfield and Officer Hammond went to the address Loomis had given, attempting to locate Loomis. Hatfield had learned from other officers that Loomis was staying at his mother’s apartment there with a man named James Anderson, but overlooked the fact that one half of a pair of tweezers bearing the initials “J.A.” had been found at the scene of one of the rapes.
When Hatfield and Hammond did not see the vehicle Loomis had been driving at the address he had given, they did not stop, but returned at 8:30 a.m., and, having then seen the vehicle there, went to the door and asked for Loomis. His mother had come to the door. She said that she would get him. When Loomis came to the door a few minutes later, Hatfield asked if he would mind coming to the police department and talking to the officers. Appellant agreed to do so, and, after he went back into the house to dress, was taken there in an unmarked police vehicle, without having been placed under any type of physical restraint, searched or even frisked.
He was taken into an interview room, advised of his rights, told that he was a suspect, and interviewed for 2Vi hours. The officers said that Loomis was nervous, vague and evasive during this interview. Toward the end of this session, he was asked to submit to the taking of photographs and fingerprints. He consented and the prints then taken were forwarded to the FBI. Loomis was asked by Hatfield if he would take a polygraph test, who said he would “cut him loose if he passed it.” Loomis had not previously requested an attorney, but at this point said that he did not want to take this test until he talked with an attorney. The officers then took Loomis to the public defender’s office, and advised Mr. Graves, Deputy Public Defender, of the situation. After Loomis emerged from the office of Graves, where there had been a private consultation between him and Graves, Loomis told the officers that he had been advised to stay away from the polygraph if he was guilty but to take it if he was innocent. He agreed to return to the police department for this test at 2:00 p.m. and was taken home by Officer Hammond. Before Loomis was taken home, James Anderson, who had been waiting at the police department and who accompanied Loomis and the officers to the Loomis residence, was allowed to talk with Loomis. When Loomis did not appear for the polygraph test, the officers did not investigate until the following day, when they learned that Loomis “had packed up everything and left” after he returned from the police department.
None of the testimony of the officers was refuted. Loomis did not testify at the in camera hearing on the motions to suppress. The evidence in this case simply does not show the “investigatory seizure” or detention that characterized the Davis situation. Furthermore, even though the officers did not feel that they had probable cause to arrest Loomis at the time of the interview during which the fingerprints were taken, Loomis, unlike Davis, had become the primary focus of the investigation.
The police procedures in this instance were far different from those employed in Davis. The only description the officers had of the rapist in that case was that he was a negro youth. The suspect there was only 14 years of age. The only reason for his being a suspect was the fact that he had occasionally been employed by the victim as a yard boy. He was exhibited to her on several occasions but she never identified him as her assailant. The state there not only conceded that the police had no probable cause for the detention of the accused, but never contended that the accused voluntarily accompanied the police to headquarters or willingly submitted to the taking of his fingerprints. The state only contended that the detention was during the investigatory, not the accusatory, stage and that probable cause is not required for detention for the sole purpose of taking fingerprints. Here, the testimony that Loomis voluntarily accompanied the police officers to the police department and voluntarily submitted to the taking of his fingerprints is uncontradicted. The reasons for police questioning of Loomis and being interested in taking his fingerprints at least approached probable cause for his arrest; but, at this stage, the police officers were properly acting cautiously and with admirable restraint. We find Davis wholly inapplicable.
When we view the totality of the circumstances surrounding the confession of Loomis, we cannot say that the finding of the circuit judge that it was voluntarily given was clearly against the preponderance of the evidence. Appellant contends that it resulted from his illegal detention on March 23, 1976, and that, when it was given, he was denied the assistance of counsel and was promised psychiatric help if he made a statement.
After the charge was filed and a warrant issued, Loomis was taken into custody in Hot Springs. Detective Sgt. Brooks was dispatched, along with Sgt. Roscoe Smith, to return Loomis to Fort Smith. As soon as Brooks saw Loomis, he advised Loomis of his constitutional rights and received an affirmative answer when he asked whether Loomis understood those rights. Loomis was advised of the crime with which he was charged and asked if he wanted an attorney. He did not request an attorney at that time. Loomis asked Brooks what kind of evidence they had against him, but Brooks told him they were not at liberty to explain that to him at the time.
The Fort Smith officers took custody of Loomis at 1:05 p.m. They arrived at the Fort Smith police department at approximately 3:30 p.m. During the trip from Hot Springs, Loomis was in handcuffs and leg irons. After the officers and Loomis got into the police automobile, he was again advised by Brooks of his rights. In addition, during the trip he was advised of his rights by Sgt. Smith, who specifically told Loomis that anything he said could and would be used against him. The officers did discuss the case with Loomis during the trip, but he wouldn’t talk about it. They also asked questions about some of the offenses, but he would not discuss them, saying that he didn’t want to talk about it. He would not answer any questions about anything and told the officers he wanted to talk to an attorney. He said he didn’t think he’d better say anything without an attorney. He was told that the officers could get an attorney for him. Thereafter, the officers did talk to him about the case and did ask him some questions. No statements pertaining to any crime were made by Loomis and no evidence of an incriminating nature was obtained from him during this trip.
After arrival at Fort Smith, Sgt. Hartman took charge of the interrogation of Loomis. Neither Brooks nor Smith advised anyone that Loomis had said that he thought he had better talk to an attorney. Smith took a few minutes making out reports and then assisted Hartman in the interrogation. The first thing Hartman did was to explain to Loomis his constitutional rights, after which he handed Loomis a form on which these rights were explained. Loomis read it and signed a waiver of his rights. This waiver was on a printed form on which there was a concise but complete statement of waiver in bold capital letter type, which included the statement, “I DO NOT WANT A LAWYER AT THIS TIME.” Otherwise, it was an acknowledgment by Loomis that he had read the annexed statement of his rights, that he understood what his rights were, that he was willing to make a statement and answer questions, that he knew what he was doing and that no promises or threats had been made to him and no pressure or coercion used against him. This was signed in the presence of Hartman and Smith.
The advice by Hartman to Loomis concerning his con stitutional rights started at 3:39 p.m. and ended at 3:43 p.m. There is no evidence to indicate that Loomis did not understand his constitutional rights or that his waiver was not freely, understandingly, knowingly and voluntarily given and executed. After some interrogation, during which Loomis was told about the FBI report on his fingerprints and the finding of a cigarette butt of the type of cigarette he smoked, no incriminating information was obtained from Loomis. He then stated that he would like to see either an attorney or the prosecuting attorney. He was asked if he would like for the officers to call the public defender, but he expressed a lack of confidence in this attorney. He had already indicated his inability to employ an attorney. The officers explained the difference between a defense lawyer and the prosecuting attorney. They said that, since it was approaching 5:30 p.m., the public defender had probably left his office, but they advised him that they could get a public defender and would try to reach a deputy public defender at his home. The officers again asked whether he wanted to apeak to a public defender and he said that the prosecuting attorney would be “okay.”
According to Sgt. Smith, Ron Fields, a deputy prosecuting attorney, was called about 5:25 p.m., and arrived five to ten minutes thereafter. Fields thought the call came at about 4:00 p.m. Fields was introduced to Loomis and immediately explained his position, the duties of the prosecuting attorney and the difference between his position and a defense attorney’s. Fields asked Loomis if he was certain he did not want an attorney present, gave him a synopsis of his rights and told him that, if he could not afford a lawyer, the court would appoint one, and that, even though the court had the power to appoint any member of the Sebastian County bar, it was probable that either the public defender or his deputy would be appointed. Fields said that Loomis was not eager to have the public defender appointed. Loomis stated that the prosecuting attorney’s office had been real fair with him on a previous occasion. After Fields made certain that Loomis was fully aware of his rights and knew the difference between an attorney and the prosecuting attorney, Hartman again interrogated Loomis about the alleged offenses over a period of about 15 minutes, but every time anything that might tend to link him to the offense was mentioned, Loomis stated that he was not ready to talk about the matter. There was some discussion about the fact that making a statement might make matters easier for him, or that he could be helping himself by making a statement. Loomis had asked Fields if he thought that Loomis needed an attorney and Fields thought he had told Loomis on each occasion that he would get a lawyer if Loomis wanted one, after which Loomis would drop the matter. Loomis had stated that he thought he might have a mental problem and was having difficulty facing the situation and that it might help if he admitted to himself, to Fields and to the officers exactly what had occurred. When Loomis said that he thought he might need mental treatment, Fields told him that the prosecuting attorney’s office would do what they could to see that he was examined by competent medical authorities in the event he went to trial. He told Loomis that the prosecuting attorney’s office would not oppose psychiatric help or his seeing a doctor, if this was what he wanted. No “deal” was made but it was indicated by Fields that Loomis could go to the State Hospital for examination.
Fields talked to Loomis three to four minutes in the absence of the police officers and then asked Hartman and Smith to return to the room when Fields indicated that he was willing to talk about the incident on which the charge in this case was based. Loomis made a statement or two relating to some details connected with this and another offense (where fingerprints had matched) and then stated, “I think I may need an attorney.” At this time Fields arose to leave the room. When Loomis asked where he was going, Fields replied that he was going to get an attorney for Loomis. Loomis then told Fields to come on back, that he had something he thought Fields needed to hear. He then commenced admitting the offense of which he was convicted and that which occurred on the evening he was stopped by Officer Champion. Loomis then made a statement admitting several rapes. It was recorded on eight typewritten pages, was rather detailed, and contained revelations of facts not known to the general public. According to Sgt. Smith it was about 5:30 when Loomis called Fields back and commenced giving his statement. Fields left shortly thereafter, at some time between 5:30 and 6:30 p.m. Two or three breaks were taken during the course of the statement which was concluded about 1:00 a.m. While it was still daylight, Sgts. Hartman and Smith and Loomis had gone to the different places where the offenses had taken place.
During the course of the interrogation, someone, probably Fields, had told Loomis it would make him feel better “to get this off your chest.” Fields testified that he had said that this was strictly up to Loomis. Psychiatric treatment or examination had been a topic of conversation before Fields arrived, but Fields was not told this. Fields, in answering an inquiry by Loomis, told him that he ought to tell the truth, that Fields didn’t think it could hurt him, and that being honest with himself could not hurt him. Fields said that at some time he had told Loomis that he would have to have an attorney before the matter was concluded.
There is no doubt about appellant’s right to the assistance of counsel at the time he requested it. But it cannot be doubted that this right can be waived. See Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977). It would be absurd to say that Loomis was not fully aware of this right and his right to remain silent after the numerous occasions on which advice of these rights was given over a period of four or five hours and the repeated explanation of the difference in the functions of a prosecuting attorney and a defending one. There could hardly have been a more thorough waiver of that right than took place when Loomis recalled Fields from his attempt to obtain counsel for Loomis. There is not even a remote suggestion that this action was not both deliberate and voluntary. It is true that the state had the burden of showing that Loomis’s relinquishment or abandonment of his known right to counsel was intentional [Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 ALR 357 (1938)]; but the only evidence before the trial court clearly indicated that it was. Even though he had previously expressed his desire for the assistance of counsel, there was nothing to prevent this adult, whose lack of intelligence is not suggested, from changing his mind. What stronger evidence could there be that the action of Loomis was intentional than his recalling the person who was undertaking to see that his known right to counsel was im plemented? Loomis did not say that it was not intentional. There is no evidence that this waiver was coerced. It would not be reasonable to say that his will was overborne at the very time his request was being honored. At the very least, the conclusion that the waiver was intentional and voluntary could fairly and reasonably be reached by the trial judge, and we are in no position to say that this finding was clearly against the preponderance of the evidence. To hold any statement taken after the accused invokes his right to counsel, or right to remain silent must be excluded from evidence under the rule of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974, as.the product of compulsion would lead to absurd and unintended results. Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). There is no other basis for excluding the confession of Loomis, which did not result from interrogation, but followed his own election to tell the officers of his guilt of the crime that his fingerprint so strongly indicated.
The judgment is affirmed.
George Rose Smith and Byrd, JJ., dissent.
A police officer had found two fresh Kool cigarette butts outside the residence where the crime charged in this case was committed. | [
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Humphreys, J.
Appellant was indicted for murder in the second degree in the Chickasawba district of Mississippi County for shooting and killing Paul Cody, and, upon a trial of the cause, was convicted of voluntary manslaughter, and adjudged to serve a term of four and one-half years in the State penitentiary, from which judgment he has duly prosecuted an appeal to this court. -
The only assignment of error insisted upon by appellant for a reversal of the judgment is that the court permitted the jury to separate for the night after the cause had been submitted to them. Upon the conclusion of the arguments, the court ordered that the jury be kept together, over the objection of appellant, who had filed a motion requesting that they be permitted to separate. The sheriff in charge of the jury reported to the court that it was impossible to obtain accommodations over night for the jury in a body; whereupon, by and with the consent of Mr. Cooper, one of appellant’s attorneys of record, an order was made permitting them to separate. The appellant, who was out on bond, was not present when this order was made. Some three hours after the jury had rendered its verdict of conviction, the appellant entered his objections and exceptions of record to the order of the court allowing the jury to separate the night before.
As authority for his contention that the court committed reversible error in allowing the jury to separate for the night, appellant cites § 3136 of Crawford & Moses’ Digest, which reads as follows: “If the indictment be for a felony, the defendant must be present during the trial. If he escapes from custody after the trial has commenced, or if on bail shall absent himself during the trial, the trial may either be stopped or progress to a verdict, at the discretion of the prosecuting attorney, bul judgment shall not be rendered until the presence of the defendant is obtained.”
The statute, of course, was passed for the benefit off defendants, but there is nothing in the statute preventing a defendant from waiving his presence when substantive steps are taken in the progress of his case. When one of appellant’s attorneys consented to the order for the separation of the jury over night, it, in effect, was a waiver of appellant’s presence. The record does not show to the contrary, so the presumption must be indulged that the attorney had the right to waive appellant’s presence. Scruggs v. State, 131 Ark. 320, 198 S. W. 694.
No error appearing, the judgment is affirmed. | [
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Johnson, C. J.
These consolidated cases arose under the following circumstances:
On June 5, 1933, J. H. Henderson et al., purporting to represent the Arkansas ¡Baptist College, filed in the Pulaski Circuit Court their petition, alleging facts from which a benevolent association might be inferred, and praying that such be declared by the court, under authority of §§ 1788 to 1795, inclusive, of Crawford & Moses’ Digest. On the same date the petition was presented to the court, and the prayer thereof was granted declaring said incorporation for benevolent purposes as follows:
“It is therefore considered, ordered and adjudged by the court that the petitioners be, and they are hereby, created a body politic and corporate, under the name and style of ‘Arkansas Baptist College,! with all the powers, privileges and immunities, and subject to all the liabilities and exemptions granted in the law thereunto appertaining. ’ ’
Thereafter, on June 13, 1933, J. B. Jamison et al. in their own behalf, and as purported trustees for the Arkansas Baptist College for the Arkansas Missionary Baptist Convention, filed their petition of intervention in said cause, in which it was alleged that the Arkansas Baptist College is a corporation organized under the laws of this State in 1887, and that the Arkansas Missionary Baptist Convention was and is the parent body thereof; that the order and judgment made and entered in said cause was erroneous and void, because the name assumed by the incorporators is in conflict with the statutes of Arkansas, and that the Arkansas Baptist College had not been previously dissolved as a corporation. To the intervention thus filed, petitioners responded, denying the allegations of the petition of intervention and alleging affirmatively that, at a meeting of the Arkansas Missionary Baptist Convention held at Helena, Arkansas, in November, 1931, a resolution was duly presented and passed by said convention which had the effect of dissolving and surrendering the charter of said Arkansas Baptist College and transferring all its properties to petitioners as trustees. It was further alleged in petitioners’ response that, prior to December, 1931, there had existed two branches of the Arkansas Baptist Convention, namely, Arkansas State Missionary Baptist Convention and the Arkansas Missionary Baptist Convention Progressive; that on December 9,1931, the two branches, in conformity to proper resolutions theretofore passed, met in joint session and then and there, by proper resolutions, effected a permanent merger and consolidation of said conventions, thereafter to be known and designated as the Consolidated Missionary Baptist Convention of Arkansas; that said joint meeting, then assembled, adopted a constitution and bylaws for its government and elected permanent officers, who thereafter assumed their duties as such and have since managed and controlled the business and affairs of the Negro Baptist in Arkansas ; that interveners are without right or authority in the premises, and that they and each of them should be restrained and enjoined from intermeddling in the affairs of the consolidated convention.
Upon the issues thus joined, a trial was had in the Pulaski Circuit Court on June 20, 1933, which resulted in a judgment dismissing interveners ’ petition as follows:
‘ ‘ The court finds that the petition for incorporation filed in this case on June 5, 1933, was duly authorized by resolutions of the Arkansas Missionary Baptist Convention and the Arkansas Missionary Baptist Convention Progressive; and the court further finds that neither the Arkansas Missionary Baptist Convention nor the Arkansas Missionary Baptist Convention Progressive was a party to this case. ’ ’
The appeal in case number 3408 brings into question the validity of these circuit court judgments, but the evidence adduced upon trial in the circuit court has not been brought before us by bill of exceptions or otherwise.
On June 22, 1933, the Arkansas Missionary Baptist Convention, through its purported trustees, J. R. Jami-son et al. filed its complaint in the Pulaski Chancery Court, which is case number 3459 in this court, in which a permanent injunction was prayed against the agents, officers and trustees of the Arkansas Baptist College restraining and enjoining them from interfering with the possession and control of all properties then and theretofore held or controlled by the Arkansas Missionary Baptist Convention.
The Arkansas Baptist College, as incorporated by the circuit court judgment of June 5,1933, answered this complaint for injunction by alleging its incorporation and affirmatively pleaded that the proceedings had and done in the Pulaski Circuit Court were res juclieatae. A demurrer was interposed to the answer thus 'alleging res judicatae, which was sustained by the chancery court, upon the theory that the circuit court judgment declaring the merger and consolidation of the Arkansas Missionary Baptist Convention and the Arkansas Missionary Baptist Convention Progressive was void. Defendants declining to further plead, a permanent injunction was granted in behalf of petitioners, and against the trustees of the Arkansas Baptist College, and this appeal is therefrom.
From the foregoing recitals, it definitely appears that the Pulaski Circuit Court acquired jurisdiction of the subject-matter and parties in the litigation presented in case number 3408, and its judgment in the premises is conclusive and binding upon all parties thereto. Sections 1788 to 1795, inclusive, Crawford & Moses’ Digest, vests in the circuit courts of this State exclusive jurisdiction in the determination whether an association of individuals should be incorporated, and necessarily draws into question all necessary legal prerequisites thereto. Moreover, jurisdiction was conceded and invoked by the trustees of the Arkansas Missionary Baptist Convention when they voluntarily appeared therein and affirmatively requested and procured a temporary injunction pending the litigation. Organ v. Memphis & L. R. Rd. Co., 51 Ark. 235, 11 S. W. 96; Morton v. Miller, 25 Ark. 108. The' contention is, however, that the circuit court judgment declaring the incorporation and the'merger of the old conventions is void, which appears upon the face of the judgment. It is argued that a merger of two or more corporations is not authorized by statute in this State, and for this reason the circuit court judgment so declaring appears to be void upon its face. All necessary intendments should be invoked in aid of the jurisdiction of this circuit court judgment. Certainly, it must be conceded that any corporation organized or existing under the laws of this State may surrender its corporate, charter and existence and cease to do business as such by proper resolutions of its stockholders, officers and agents. Such procedure is expressly authorized by § 1823, Crawford & Moses’ Digest. When such procedure is invoked and accomplished, no creditors being involved, the property of such corporation reverts to the stockholders. The circuit court was warranted in finding that the legal effect of the resolutions adopted by the various conventions was to dissolve the corporate existence of the respective conventions and coi-porations and thereby vesting their respective properties in the parent bodies. 7 R. C. L. Cor., § 745. In the absence of a bill of exceptions, we must conclusively presume that legal evidence was heard which warrants the judgment entered.
•Since, the circuit court was warranted in finding that the corporations had dissolved by consent of their stock holders and that the property had reverted to the parent bodies, it was fully justified in holding that a merger and consolidation could be effected by the owners. This procedure was expressly recognized by us in the case of Sanders v. Baggerly, 96 Ark. 117, 131 S. W. 49, wherein we stated the rule as follows : “In Christian thought, unity is more desirable than division. All denominational church organizations have as their primary object the propagation of the Christian religión. The individual advancement of each separate organization is looked upon as a contribution that far to the general cause. A union with another church organization having the same purpose may be regarded therefore as a step forward in the consummation of the work in which all are engaged. For this reason the general analogy of any secular corporation or association is misleading. The purpose of such an organization is self-aggrandizement, the advancement of its own interests, its increase in power, in wealth, in strength, without regard to any other organization, to the prosperity or purposes of any other association of individuals. Such organizations have no common purpose, no common head, no invisible cords of union. Each stands alone. Each has property devoted to the special individual purposes of the society, and each has stockholders. A business corporation is organized for profit; and if its life is not limited by its charter, it is regarded as perpetual unless sooner ended for breach of law or duty, or inability to discharge its functions. In case of a termination of corporate rights by efflux of time, or for either of the causes last mentioned, the business is wound up, the property is sold, and the proceeds, after payment of debts, if any, divided among the stockholders. But Avith church organizations it is different. They are not created for either profit or pleasure, but to do good. They have property, but no stockholders. The possession of all churches are [is] devoted to the same broad, general purpose, likewise the efforts of all of their members acting' Avithin the organizations. * * *
‘ ‘ There must he in every church organization an implied or inherent power of union with other church organizations, growing out of the purpose for which all are constituted, vis., the dissemination of the Christian religion. If any two organizations reach the conclusion that they can better subserve this great and fundamental purpose by uniting with each other, and if they can agree, within their constitutional limits, upon the points of difference previously dividing them, there can be no reason, in law, why they should remain apart. There is no soundness in the view that church divisions, once made, must ever continue. If divisions in the Christian church were intended to be perpetual, then the argument for the defendants, on this- head, is unanswerable; if there be such a thing as a universal church of which all the divisions are members or branches, if there be a tendency to unity in Christendom, and if this tendency is in accord with the spirit and purpose of Christianity — then the argument referred to can avail but little. * * *
“The power exists by implication. It exists from the very nature of the case, not only in the Cumberland organization, but in every other Christian society in whose standards there is not an explicit pronouncement to the contrary, because they are all parts of one whole, all engaged in the same work, seeking the same end, and animated by a common purpose.”
It definitely appears from the rule just stated that we are committed to the doctrine that ecclesiastical associations and conventions may merge and consolidate without statutory sanction or authority, as the power so to do exists by implication in the very nature of the subject.
It follows from what we have said that the circuit court judgment of June 5, 1933, and as amended subsequent thereto does not appear to be void upon its face, but on the contrary is a valid and binding judgment and order upon all parties thereto and must be affirmed.
In case number 3459, which is an appeal from the Pulaski Chancery Court, it appears that the chancellor was of the opinion that the circuit court judgment heretofore discussed appeared to be void upon its face, therefore a demurrer was sustained to appellants’ answer therein pleading said circuit court judgment as res judicata. It suffices to say that the chancery court erred in sustaining said demurrer. The plea of res judicata was well pleaded, and was and is a complete bar and defense to the complaint in said cause. It is the well-settled doctrine in this jurisdiction that a judgment of a court of competent jurisdiction is conclusive of all questions within the issue, whether formally litigated or not. It extends, not only to questions of fact and law which were decided in the former suit, but also to the grounds of recovery or defense, which might have been, but were not, presented. Howard-Sevier Road Imp. Dist. 1 v. Hunt, 166 Ark. 62, 265 S. W. 517; Road Imp. Dist. No. 4 v. Burkett, 167 Ark. 176, 266 S. W. 930; Coleman v. Mitchell, 172 Ark. 619, 290 S. W. 64; Prewett v. Water Works Imp. Dist. No. 1, 176 Ark. 1166, 5 S. W. (2d) 735; Akins v. Heiden, 177 Ark. 392, 7 S. W. (2d) 15.
For the reason stated, cause number 3459, is reversed, and remanded with directions to overrule appellees’ demurrer to appellants’ answer, and to enter a decree sustaining appellants’ plea of res judicata. | [
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Mehaffy, J.
The Randolph State Bank of Pocahontas, on October 10,1930, borrowed $20,000 from the Bankers ’ Trust Company of Little Rock, and executed its promissory note- for said amount, and pledged as collateral security for the payment of said note or other indebtedness, notes and warrants aggregating $37,723.37. The Randolph State Bank was also indebted to the Union Trust Company of Little Rock in the sum of approximately $27,000. The payment of this note was also secured by collateral. In November, 1930, the Randolph State Bank became insolvent, and thereafter the Bankers’ Trust Company, the Union Trust Company and the State Bank Commissioner concluded that the collateral held by the Union Trust Company7 as security for the debt due it was insufficient, and that, the collateral held by the Bankers’ Trust Company was more than sufficient to pay the debt due it. They therefore concluded that the Union Trust Company should purchase, and it did purchase, the note held by the Bankers’ Trust Company, which at that time amounted to $7,484.59, and they applied the collections from the collateral held by the Bankers’ Trust Company to the entire indebtedness, treating the debt to the Union Trust Company and to the Bankers’ Trust as one item. Among the collaterals held by the Bankers’ Trust Company were school warrants of the Pocahontas Special School District, amounting to $6,238.23.
In November, 1932, the appellants filed suit in the Randolph Chancery Court against the Pocahontas Special School District and others. They prayed judgment for $3,103.98, the amount of the warrants held at that time by the Union Trust Company against the Pocahontas Special School District and H. L. Haynes, treasurer of Randolph County, and the sureties on his bond, and against the State Board of Education for any part of the money now in its hands. Appellants also asked that a mandamus be granted commanding the treasurer to pay the appellants the amount sued for, together with interest, and that a writ of mandamus be granted directing the State Board of Education, its members and C. M. Hirst, Commissioner of Education, to refund and pay to appellants the sums of money sued for, and they also prayed that said money be impounded by order of the court. Appellants also asked for a restraining order and injunction.
The appellees filed answer denying the sale and delivery of the warrants to the Randolph State Bank; denied the execution of the note to the Bankers’ Trust Company, and denied the transfer of the note to the Union Trust Company, together with the warrants as collateral security; denied that appellants had any right to judgment or injunction or restraining order; and alleged that the appellee, Pocahontas Special School District, had on deposit in the Randolph State Bank, on November 4, 1930, $7,400, and that the treasurer had no opportunity to pay the warrants mentioned in the complaint, and that the loss of the deposit was caused by the negligence and indifference of appellants.
A reply was filed by appellants denying all affirmative allegations in the answer.
A. Brizzolara, Jr., vice president of the Union Trust Company, testified in substance that he had a conversation on August 21,1931, with Mr. Haynes, who represent ed the Pocahontas Special School District, and that Mr. Haynes offered to pay $3,100 in full settlement for the school warrants. Witness referred the matter to Mr. Jernigan, vice president of the Union Trust Company in charge of out-of-town banking matters, and the matter of settlement was left in the. hands of Mr. Tom Bigger, and that said settlement was rejected. Mr. Bigger declined to recommend the settlement because, the value of the remaining pledged assets was doubtful. The school warrants taken over from- the Bankers’ Trnst Company amounted to approximately $6,000. The note of the Bankers’ Trust Company and collateral was purchased by the Union Trust Company at the request of the State Banking Department, and also to strengthen the collateral held by the- Union Trust Company. The note held by the Bankers ’ Trust Company was for $7,484.59. After the Union Trnst -Company purchased the note, it treated the amount due from the Randolph State Bank as one item, and credits were made upon collections of .collateral without reference to the former indebtedness due the Union Trust Company as distinguished from the indebtedness bought from the Bankers’ Trust Company. The authority for consolidating the collateral was obtained from the State Banking Department. Witness does not know whether the collections on the collateral obtained from the Bankers ’ Trust Company exceeds the sum of $7,484.59. The Randolph State Bank still owes the Union Trust Company approximately $12,000 exclusive of the Bankers’ Trust Companj'- note. The purpose of purchasing the note of the Bankers’ Trust Company was for the benefit of the Banking Department, the benefit of the depositors in Randolph State Bank, and for the benefit of the Union Trust Company, and the transaction did result in material benefits. The Union Trust Company took over $37,723.37 in face value collateral from the Bankers’ Trust Company. The amount realized on this collateral has been applied on the entire indebtedness of the Randolph State Bank to the Union Trust Company at the time of the purchase from, the Bankers ’ Trust Company.
We do not deem it necessary to set out tlie evidence in full, nor any further evidence except the evidence' relating to the settlement.
The county treasurer testified in substance that the school district had on deposit in the Randolph State Bank on November 4, 1930, the day the bank became insolvent, approximately $7,400; warrants aggregating approximately $3,160 held by the Union Trust Company had been paid. Witness testified to a conversation with Mr. Brizzolara, offering to pay $3,100. The amount of warrants held by the Union Trust Company at that time was something over $6,000; that Brizzolara told him that the proposition sounded interesting, and that he would write Mr. Bigger, and that, if Mr. Bigger thought it would be satisfactory, he would accept the proposition. Witness took the matter up with Mr. Bigger, who had received a letter from Mr. Jernigan, about the compromise. When asked to state his understanding about the compromise, witness said: “Well, I just paid him according to the agreement, and the agreement Avas that he was to pay half to them, and we would talk about the matter of the offset.” The reason all the Avarrants were not demanded AA^as that witness understood there would have to be an order of the chancery court authorizing the offset.
G-. S. Jernigan testified that they were holding the warrants and other collateral which they received from the Bankers’ Trust Company as security for the total indebtedness due from the Randolph State Bank. As to the settlement, this witness testified in substance that he did not favor the settlement unless he was absolutely assured that the remaining collateral would be sufficient to pay the full indebtedness. Bigger was given authority to settle if he thought the remaining collateral would be sufficient. He had never heard from Mr. Bigger. Witness did not know how much had been collected out of the collateral attached to the Bankers’ Trust Company note, but would furnish a list showing collections. The purpose of purchasing the note from the Bankers’ Trust Company Aras to strengthen the position of the Union Trust Company, and assist the Randolph State Bank in protecting collateral. Mr. Bigger had no authority to make any compromise except by consent of Union Trust Company.
Mr. Bigger also testified that the note of the Bankers ’ Trust Company and collateral were taken over by the Union Trust Company with the consent of the State Banking Department; that the collateral and other unpledged assets of the Randolph State Bank would be security to the Union Trust Company for the total indebtedness of the Union Trust Company. This witness also testified about receiving a letter from the Union Trust Company authorizing him to accept 50' per cent, compromise if he thought that the remaining collateral would be sufficient to make the Union Trust Company absolutely safe. Mr. Haynes, the treasurer, paid to witness $3,100, and told witness he would get a letter from Little Rock authorizing him to release all the warrants.
Contract between Union Trust Company and Bankers’ Trust Company, with the approval of the Bank Commissioner, was introduced in evidence; letter from Jernigan to Bigger, and letter from Bigger to Jernigan; a list of school warrants and other collateral was introduced.
The court found for the defendants, and the case is here on appeal.
It is contended by the appellants that the Union Trust Company had a right to apply the proceeds of the collateral which it received from the Bankers’ Trust Company to the payment of the pre-existing indebtedness of the Union Trust Company, as holder of the note. The word “holder” used in the note from the Randolph State Bank to the Bankers’ Trust Company had reference only to negotiable instruments. The statute defines the word “holder” as follows:
“Holder means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.” Section 7761, Crawford & Moses’ Digest.
The first case to which attention is called by the appellants is the case of Oleon v. Rosenbloom, 247 Pa. 250, 93 Atl. 473, Ann. Cas. 1916B, 233, and the same case in L. R. A., 1915F, 968. This case was discussing a nego liable note as collateral, and the court said: “The term ‘holder,’ as applied to negotiable paper, has always had the well-recognized legal meaning of the payee or indorsee of it, entitled, to receive the sum for which it calls.” The court further said in the same ease: “These notes were in every respect negotiable, and these, plaintiffs had given them that character. * * * With knowledge which the law presumes the appellants had that their notes, negotiable in form, might, .and probably would, pass from the payee into the hands of another holder, no other meaning is to be given to their agreement as to the right of a subsequent holder to use the collateral than that given to it by the superior court.”
Appellant calls attention to the case of Richardson v. Winnissimmet National Bank, 189 Mass. 25, 75 N. E. 97, and to the case of Mulert v. National Bank of Tarentum, 210 Fed. 857. These cases both are to the effect that the word “holder” means either the payee or his indorsee; and since the note gives power to sell, this power may be exercised by the indorsee.
In the case of Richardson, supra, the note is not set out, but the court said: “This note plainly shows the. intention of the parties that the right to enforce the payment of it should pass to the order of the payee, and that the party thus designated would be the holder.”
The court however called attention to Gillet v. Bank of North America, 160 N. Y. 549, 55 N. E. 292, and the court in that case said: “The note was a printed one prepared by the defendant, which, -in addition to the promise of payment, contained provisions as to the collateral security furnished and its application by the bank. *= # The undersigned further agree that upon transfer of this note, the Bank of America may deliver said col-laterals or any part thereof to the transferee, who shall thereupon become vested with all the powers and rights above given to said bank in respect thereto. * * ’* The respondent’s contention is that this agreement on the note authorized the defendant to hold the property pledged, not only as security for the sum loaned, and such other liabilities as were contracted or existed between them as bank and customer, but also for any and all claims against the plaintiff’s assignors which it might purchase, regardless of their character, so long as they were liabilities of the assignors and owned by the defendant. It further claims that under the contract it. could have transferred the note and collaterals, and that thereupon the transferee, would be entitled to retain and sell the property pledged or in its possession for safe-keeping or otherwise, not only for the payment of the liabilities of the assignors to the defendant, but also for the payment of all and any claims or liabilities of theirs held by the transferee.”
The court further said: “If there is any uncertainty or ambiguity as to the meaning of agreement, it should be resolved in favor of the plaintiff, as it was the defendant who prepared this contract. * # * If the language can, without violence, be interpreted to include only such liabilities to the defendant as resulted from transactions between the plaintiff’s assignors as customers and the defendant as a bank, or their liabilities which came into its hands in the ordinary course of its banking business, it should be adopted.”
The court then held that the collaterals could be resorted to only for The payment of the debts due the bank, to which the note was made.
In the other case relied on, Mulert v. National Bank of Tarentum, supra, the note involved there expressly provided for the payment of this or any other liability or liabilities of the undersigned to the holder thereof.
But the note given by the Randolph State Bank pledges the collateral security for the payment of this note or any other indebtedness or any other liability of the said undersigned to the Bankers’ Trust Company. It does not say, “or the holder.” Therefore there is no authority in this note to give the assignee, as holder, a right to apply the collections from this collateral to any other indebtedness. It is true that the clause giving a right to sell the collateral uses the word “holder,” but there is no authority in the note for the payment to any holder except the Bankers’ Trust Company.
This transfer or sale by the Bankers’ Trust Company to the Union Trust Company would not, in any event, deprive the debtor of any defense that he might have had against the original assignor previous to the assignment. Section 477, Crawford & Moses’ Digest. The question then is, what defense would the debtor have as against the Bankers’ Trust Company?
Evidently when it paid the debt due the Bankers’ Trust Company, it would be entitled to a return of its collateral. The Bankers’ Trust Company could not hold' it to pay the debt of another. Moreover, the Randolph State Bank, being insolvent, the title to all of its assets was vested in the State Bank Commissioner. The Bankers ’ Trust Company had the right to resort to its collateral for payment of its debt, and nothing more.
The Randolph State Bank became insolvent on November 4,1930, and the Union Trust Company purchased the note from the Bankers ’ Trust Company on March 19, 1931. The sale and transfer was made without any order of the chancery court, and without any authority of law. After the Randolph State Bank failed, no one had authority to make a contract by which the collateral held by the Bankers’ Trust Company could be used to pay the debt of the Union Trust Company, and, even if the sale and transfer were valid, and the securities liable for the payment of the Bankers’ Trust Company note, the collateral could not have been used to pay anything except the indebtedness due the Bankers’ Trust Company. The sale, as we have said, could not have been lawfully made without permission of the chancery court. Section 720, Crawford & Moses’ Digest; Act 496 of 1921.
“Where the principal debt is sold and the collateral is transferred with it, the purchaser takes the debt and collateral on the same footing on which it was taken by the original creditor, being charged with the same duties respecting it, and entitled to the same benefits therein. He stands, so to speak, in the shoes of the seller. Thus the assignee holds the collateral subject to the right of redemption by the pledgor on payment of the debt.” 21 R. C. L., 673.
The Bankers’ Trust Company held this collateral subject to the payment of its debt. The pledgor had a right to pay that debt and redeem the collateral. No contract by any of tbe parties- could deprive him of this right.
When the Bandolph State Bank failed, the rights of its creditors became fixed, and it would be a fraud on its creditors to permit anybody to make a contract whereby any portion of its assets should be applied to the payment of a debt other than the debt which they were given to secure.
Appellants also contend that there was no compromise made, and they call attention to several authorities discussing the law of accord and satisfaction. This principle of law is not involved. In the first place, it is not claimed that the debt was reduced in any way, or satisfied by paying a sum less than the debt. The Union Trust Company held no obligation of the school district, except certain school warrants. The school district did not owe the Union Trust Company any debt, and there was therefore no compromise of a debt. The undisputed evidence shows that the school district had refused to pay the warrants held by the Union Trust Company, but that the school district agreed to pay approximately $3,100 if the Union Trust Company would deliver to them all the warrants, amounting to something' more than $6,000.
Mr. Bigger was given authority to make the settlement. He however testifies that he did not approve it because there was not enough collateral remaining to pay the entire debt. He evidently meant the debt due the Union Trust Company, and the debt due the Bankers’. Trust Company, because all the evidence shows that they treated the two debts as one item and applied the collections from the collateral attached to the Bankers’ Trust Company note to the payment of both notes. This they had no right to do. But Mr. Bigger knew that they had at all times refused to pay the warrants; he knew that the $3,100 which he. received was paid with the understanding that all the warrants would be delivered. It cannot be. claimed that the payment was made except on this condition, because all of the evidence shows that the school district had refused to pay. Mr. Bigger was told by the treasurer, who acted for the school district, that he would receive a letter from the Union Trust Company with reference to the compromise, and he did afterwards receive this letter. Mr. Haynes, the treasurer, after his conversation at the bank with Mr. Brizzolara, went back to Pocahontas and gave Mr. Bigger a check for $3,134.25, which Mr. Bigger accepted and kept for several days, and then sent to the Union Trust Company.
We think there was substantial evidence to show that this compromise was made. If it was not the intention to carry out the agreement, the check should not have been kept.
There is some evidence about an offset, and Mr. Haynes said that they could attend to that later. The offset that he had in mind evidently was to use its deposits in the Bandolph State Bank as an offset against the warrants, and to do this, the treasurer understood that they would have to have authority from the chancery court.
As to whether the compromise was made was purely a question of fact, and we cannot say that the finding of the chancellor was against the preponderance of the evidence. The decree is therefore affirmed. | [
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Smith, J.
The State Highway Audit Commission filed a complaint in the Pulaski Chancery Court against the Refunding Board of Arkansas, which contained the following allegations: After alleging the creation of the Highway Audit Commission, and also that of the Refunding Board, and the functions of each, it was alleged that the People’s National Bank had presented to the Refunding Board a certain Auditor’s warrant in the sum of $2,500, which had been issued to a firm of contractors operating under the name of Altman-Rodgers Company. The warrant was dated April 30, 1932, and was directed to the State Treasurer. The complaint alleged that the warrant was issued to the contractors for construction work performed under a valid contract, upon a voucher duly and legally issued 'by the Arkansas State Highway Commission, and was on the same date of its issuance indorsed and delivered to the People’s National Bank, in the due course of business and for value.
It was alleged that, although the warrant constituted a valid obligation on the part of the State, it should not be refunded, because the State has a claim against the Altman-Rodgers Company, which arose as follows: On August 27, 1930, a contract was entered into between the said Altman-Rodgers Company and Dwight H. Black-wood, at that time chairman of the State Highway Commission, whereby said Altman-Rodgers Company undertook to do and perform certain road construction work there described. The Altman-Rodgers Company performed said construction 'work and furnished material at an actual cost of $801.13. That contract was alleged to be invalid and without legal and binding effect because it involved the payment of more than a thousand dollars, and was not advertised or let on competitive bidding, nor was it executed by at least three members of the Arkansas State Highway Commission, as required by law, nor was it attested by the Secretary of the Commission, as required by law, and for each and all of these reasons was unenforcable as a contract.
The Altman-Rodgers Company was paid by the State, upon voucher issued by the State Highway Commission and warrants issued thereon by the State Auditor, in the sum of $1,411.62. By reason of the fact that the fair and reasonable cost of the labor done and material furnished on said contract was only $801.13, the said Altman-Rodgers Company was overpaid in the amount of $610.49. Final estimate was made by the State Highway Engineer of the work on November 6, 1930, on which date the State Highway Commission approved the work and accepted it, and on said date paid the full amount of $1,411.62 under said irregular and invalid contract. By reason of this overpayment the Altman-Rodgers Company was indebted to the State in the sum of $610.49 on the date on which it received the $2,500 warrant, and is still so indebted, which said in debtedness the State is entitled to setoff against said $2,500 warrant.
It was alleged that, although the Bank had received the $2,500 warrant without actual knowledge of the facts here recited, it was charged with knowledge of the set-off in favor of the State and took said $2,500 warrant charged with all equities, defenses and set-offs in favor of the State against it.
It was alleged that the State Refunding Board is about to allow the full amount of said $2,500 warrant to the People’s National Bank, under the provisions of act 11, passed at the Extraordinary Session of the General Assembly and approved February 14, 1934, and is about to authorize the payment of fifty per cent, of said warrant in cash and issue 'bonds, under the terms of said act, for the remaining fifty per cent. Special Session Acts 1934, page 28.
Complainants alleged that they constitute a Commission created by law and charged with the duty of detecting irregularities in connection with the operation of the State Highway Commission, and as such, and also as citizens and taxpayers, are interested in the action -about to be taken by the Refunding Board, and that they have no adequate remedy at law to prevent the action the said Board is about to take.
Wherefore they pray that the Refunding Board be prohibited, and enjoined from permitting said $2,500 warrant to be refunded until there is definitely decided by the Audit Commission, or by a. court of competent jurisdiction, the amount of overpayment, if any, made by the State/on the invalid and irregular contract entered into between the State. Highway Commission and Altman-Rodgers Company on August 27, 1930.
: A demurrer to this complaint was filed, upon the ground that it did not state facts sufficient to constitute a cause of action, or to entitle the complainants to the relief prayed, or to any relief. The demurrer was overruled, and, respondent announcing that no further pleadings would be filed, it was ordered that the Refunding Board be prohibited and restrained from allowing the $2,500 warrant until it is determined, either by the State Highway Audit Commission, or a court of competent jurisdiction, what amount, if any, the State is entitled to recover from Altman-Rodg’ers Company by reason of the irregular and invalid contract entered into between said company and the State Highway Commission on August 27, 1930.
It is unnecessary to review the legislation creating the State Highway Audit Commission and the Refunding Board of Arkansas, as their respective functions are not called into question. Other questions are decisive of the issue raised by the demurrer.
The recent case of State of Arkansas v. Rogers & Jones, cited and relied upon by appellant decided by the Supreme Court of Tennessee, does not appear to have yet been officially published. In that case' the complaint alleged that a contract had been let to repair the approach to the Harahan Bridge over the Mississippi River, at the contract price of $393,706.57, whereas the actual and reasonable value of the work done and services performed under the contract was only $167,688.93. The complaint alleged that the contract had been let in violation of act 65 of the Acts of 1929, page 264, which act provided that all contracts in excess of a thousand dollars should be let on a competitive basis, after advertisement, to the lowest responsible bidder, and should be signed by at least three members of the State Highway Commission, whereas the contract there in question had been undertaken and signed by the Engineer of the Highway Commission alone, and had not been advertised for letting on a competitive basis to the lowest responsible bidder, as the act required should be done. An amendment to the complaint was filed which recognized the right of the defendant contractors to retain, by way of quantum meruit, the reasonable value of the services performed in the repair of the approach to the bridge.
The Supreme Court of Tennessee recognized and stated that the case was controlled by the law of this State, but interpreted certain decisions of this court, there cited, as holding that the contract, having been fully performed, and the agreed consideration having been paid upon the work being accepted by the commission, there could be no recovery in the absence of specific allegations of fraud in letting the contract. The court said that: “To be regarded as a badge of fraud, the consideration for a contract must be so grossly excessive or so grossly inadequate as to shock the conscience of the court,” and the allegation that $393,706.57 had been paid to perform work reasonably worth only $167,689.93, in the absence, of other or specific allegations of fraud, was not regarded as sufficient to meet the test stated.
The court cited as the basis of its decision the following Arkansas cases: Leonard v. State, 185 Ark. 998, 50 S. W. (2d) 598; Arkansas State Highway Commission v. Keaton, 187 Ark. 306, 59 S. W. (2d) 481 ; Forrest City v. Orgill, 87 Ark. 389, 112 S. W. 891; Shackleford v. Thomas, 182 Ark. 797, 32 S. W. (2d) 810.
It was held by this court, in the case of Forrest City v. Orgill, supra, that, although a purchase by municipal officers of machinery for waterworks, which was not authorized by an ordinance, resolution or order of the city council, wherein the yeas and nays were called and recorded, and which was not ratified by any formal action of the city council, was not binding upon the city, yet, the city could not retain such machinery, which could have been purchased in a proper manner, and at the same, time defeat a recovery for the contract price thereof.
In the case of Shackleford v. Thomas, supra, it was held that a school district, having made payments under a contract not executed in the mode prescribed by law, was estopped from recovering back such payments.
The other two cases will be later referred to and discussed.
It will be observed that, in the two cases first above cited and quoted from, the governmental agencies held to be estopped by the acceptance of services or the subject matter of the contract were, in one case, a city of the State, and, in the other, a school district, but the State itself was not a party to either case. We are of the opinion that a wholly different rule is to be applied when the State itself is a party, for the reason that the doctrine of estoppel is not applicable to and cannot be applied against the State.
With all deference to the great court and the able members thereof who failed to recognize this distinction, we may say that all the members of this court are of the opinion that the distinction exists. Upon this point we are all agreed. Our difference arises out of the question to be later discussed.
At % 993 of Bishop on Contracts (Second Enlarged Edition), page 419, it is said: “The government is never estopped, as an individual or private corporation may be, on the ground that the agent is acting under an apparent authority which is not real; the. conclusive presumption that his powers are known rendering such a consequence impossible. So that the government is bound only when there is an actual authorization. And this principle may extend to the agent of a municipal corporation and his contract, but it does not necessarily; as to which, the distinctions in the differing cases will be obvious.”
The authorities on this subject were reviewed in the case of State v. Chilton, 49 W. Va. 453, 39 S. E. 612, in which it was sought to invoke the doctrine of estoppel against the State.. It was there said: “A public officer cannot ratify expressly his own unauthorized act, and surely cannot do so by mere implication. State v. Hays, 52 Mo. 578; Dalafield v. State, 26 Wend. 192. Having no power to make credit sales, by his own knowledge that he did make them, neither he nor his predecessors could by that knowledge ratify the acts to protect themselves against the State demands. Estoppels do not generally bind a State; that is, estoppel by conduct of its officers. ‘ Clearly, the State cannot be estopped by unauthorized acts of its officers/ Bigelow, Estop. 341; U. S. v. Kirkpatrick, 9 Wheat. 735, 9 L. Ed. 199.”
In the case of Leonard v. State, supra, a suit was brought to enjoin the .State Auditor from issuing and the Treasurer of the State from paying, certain vouchers issued by the State Highway Commission, in payment of contracts in excess of a thousand dollars, which had been let without advertising for bids, as required by act 65 of the Acts of 1929, volume 1, acts 1929, page 264. It was there held that the authority of the State Highway Commission to let contracts for construction or maintenance of highways is statutory, and any contract not let in the prescribed manner is unauthorized and voidable at the State’s election. It was there also held, in a suit to enjoin the issuance and payment of vouchers based upon such illegal contracts, that relief might be. granted without joining the claimants as parties to the suit.
Much of the relevant legislation was reviewed in the case of Arkansas State Highway Commission v. Keaton, supra. In that case a suit was brought and a judgment recovered against the State Highway Commission for the value of certain labor performed and materials furnished in the. construction of bridges which were a part of the State highway system. The contract was similar to the one sued on in the case of Leonard v. State, supra, and upon the authority of that case we held that it was unenforcible- as such, for the reason that it had not been let in the manner and form prescribed by law. We held, however, as had been previously held in the case of State Highway Commission v. Dodge, 186 Ark. 640, 55 S. W. (2d) 71, that the State, having accepted and being in possession of the results of a performed contract, could be held liable, on a quantum meruit basis, for the value of the materials furnished or the services performed, this right being conferred by act No. 2 of the Special Session of 1928. Acts Special Ses-' sion 1928, page 2.
It was pointed out in the Keaton case, supra, that at the time of the rendition of the opinion in the Dodge case, supra, it had not been decided whether § 17 of act No. 15, passed at the Second 1932 Extraordinary Session of the General Assembly (page 34), was valid legislation or not, as 'being within the call of the Governor convening that session. But, before the rendition of the opinion in the Keaton case, it had been decided, in the case of State Note Board v. State ex rel. Attorney General, 186 Ark. 605, 54 S. W. (2d) 696, that the act 15 was within the Governor’s call, and that § 17 thereof authorized the maintenance of these suits on a quantum meruit basis. But it was said in the Keaton case that: This § 17 recognized that there- were outstanding many claims against the highway commission which had not been adjudicated or paid, and authorized the State Note Board to issue notes in payment, with the proviso, however, that * * this act shall not validate any claim, voucher or warrant or other evidence of indebtedness issued under or pursuant to an illegal contract, and provided further, that no note or notes shall be issued in lieu of any such claim in excess of $150 where such claim is based on a cost plus contract or a contract not let on competitive bidding until such claim is approved and the issuance of such notes are [is] authorized by the State Highway Audit Commission, or until the validity of such claim is finally adjudicated and determined by a court of competent jurisdiction.’ ”
We there also said that we were unaware of any legislation which had repealed § 17, from which we quoted, either expressly or by necessary implication, although the provisions of that section, with respect to the manner of payment of those claims appear to have been changed by the provisions of act No. 167 of the Acts of the 1933 Session of the General Assembly, which was approved March 28,1933, and, having an emergency clause, became a law on that date.
These-.cases — the Dodge and the Keaton cases — appear to decide very definitely that a recovery might be had on these various claims and warrants on a quantum meruit basis-, hut on that basis only.
It appears with equal clearness to the majority that the legislation there reviewed did not operate to waive the State’s right to set-off against any claim, or voucher, or warrant, or other evidence of indebtedness, issued under or pursuant to an illegal contract, such as the one here involved and sought to be set-off is alleged to be, a fact which the demurrer concedes.
Now, if the original contractors, to whom the warrant here in question was issued, had brought suit to enforce their demand, it is certain that § 1197, Crawford & Moses’ Digest, confers the right to apply any set-off which the State might have against it. This section reads as follows: “A set-off may be pleaded in any action for the recovery of money and may be a cause of action arising either upon contract or tort. Civil Code, § 119, as amended by act March 21,1917, p. 1441.”
In construing this section in the case of Futrall v. McKennon, 187 Ark. 377, 59 S. W. (2d) 1035, we said of it: “Act 267 of the Acts of 1917 (vol. 2, Acts 1917, page 1441) is the most comprehensive legislation on the subject of counterclaim and set-off of which we have any knowledge. It is there provided that a counterclaim ‘may be anjr cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, ’ and that ‘a set-off may be pleaded in any action for the recovery of money, and may be a cause of action arising either upon contract or tort.’ We think this statute is sufficiently broad to admit a defense against one,- not being the holder of a note in due course, that there were credits which should be applied against the note.”
It will be observed that it was there held that the right of set-off, under this statute, was sufficiently broad to admit a defense against one, not being the holder of a note in due course, that there were credits which should be applied upon a note of which the holder thereof had not received the benefits.
The bank, which is alleged to be the holder for value of the warrant here in issue, is in no better attitude than was the holder of the note there sued on. Indeed, the concession is here expressly made that warrants, orders, and certificates of indebtedness issued by the. State, or, for that matter, by a county or a municipality, are not negotiable in the sense of the law merchant so as to cut off, in the hands of a bona fide purchaser for value or holder in due course, any defense which might have been made against them had they remained in the hands of the original holder. That this is the law is definitely settled. Vale v. Buchanan, 98 Ark. 299, 135 S. W. 848; First Nat. Bank v. Whisenhurst, 94 Ark. 583, 127 S. W. 968; Harriman Nat. Bank v. Pope County, 173 Ark. 245, 292 S. W. 133.
So, therefore, the bank has those rights — and those only — which Altman-Rodgers Company might now assert if they had never assigned the warrant or voucher, or if it were reassigned to them, and we conclude, therefore, that the right of set-off, which the State seeks to assert, exists and should be accorded.
It is insisted, however that the State may ratify, and has ratified, these unauthorized contracts to the extent that they cease to be the subject of a set-off and has directed its agents to pay all claims otherwise valid, and the correctness of this contention is the controlling point of difference between the majority and the minority of the court. The majority concedes that the State may ratify these contracts and direct the payments of warrants issued under them, but we insist that it has not done so.
It is the opinion of the majority that this has not been done, and that the State has only authorized the payment of valid claims. If it was intended that all claims, whether valid or not, should be paid, the Audit Commission has been deprived of one of its chief functions. Why audit a claim if it must be paid, whether valid or not! It appears that the legislation was not so construed in the Keaton case, supra, where we said, as has been stated, that § 17 of act 15 of the Special Session of 1932 recognized that there were outstanding many claims against the Highway Commission which had not been adjudicated or paid, which that section authorized to be adjudicated and paid, provided that “this act shall not validate any claim, voucher or warrant, or other evidence of indebtedness, issued under or pursuant to illegal contracts.” And we there said also that we were aware of no legislation repealing that section, expressly or by necessary implication, except only with respect to the manner of payment of such claims as were adjudged to be valid. We held, in the Keaton case, that the claim there sued on did not have to be presented to the Refunding Board, not because the State had ratified all such contracts and had ordered them all paid, whether valid or not, but because a court of competent jurisdiction had, prior to the passage of act 167 of the Acts of 1933, passed upon its validity, and for that reason — but for that reason only — the Refunding Board had only the ministerial duty to perform of certifying the claim foi: allowance and exchange for a State bond.
Later legislation on the subject, which, it is insisted, evidences the intention of the State to ratify and to authorize. payment of this warrant excluding the right of set-off, are act 18 of the Special Session of 1933, page 69, and act 11 of the Special Session of 1934, page 28.
We do not so construe this legislation, and we think that construction is not authorized when these acts are read in their entirety. Section 2 of act 18 authorizes the payment to be made “to the legal holders of valid claims against the Highway Commission,” but § 1 of this act authorizes the Refunding Board, created by act 16 of the Acts of 1933, “to compromise or settle any suit or claim, either on behalf of the. Arkansas State Highway Commission or against the Arkansas State Highway Commission, growing out of any contract between the Highway Commission and any person, firm or corporation for work, labor, materials, supplies or services, or arising out of any transaction between the Highway Commission and any member or employee thereof. ’ ’ And, as indicating that the State had not relinquished its right to continue the prosecution of any such claims as the one here involved, and in anticipation that some of these cases might be decided in favor of the State, it was further provided, in § 1 of act 18, that “Any funds due the Highway Commission from any settlement or compromise shall be paid into the State Treasury to the credit of the Bond Refunding Fund.” And, finally, as if to make certain what might otherwise be doubtful, it was provided in § 4 of act 18 that: ‘ ‘ This act shall not validate any claim, voucher or warrant, or other evidence of indebtedness issued under or pursuant to an illegal contract, and no note except as provided in § 2 hereof shall be issued in lieu of any claim of $100 or more where such claim is based on a cost plus contract or a contract not let on competitive bidding until such claim is approved and the issuance of the notes authorized by the Refunding Board or until the validity of such claim is finally adjudicated and determined by a court of competent jurisdiction.”
The only other act cited as sustaining the contention that the State had ratified these illegal contracts and warrants is act 11 of the Special Session of 1934, page 28. This is a most comprehensive act, consisting of fifty-five sections, and supersedes much of the prior legislation. It is entitled: “A Bill for an Act to be entitled: ‘An Act to Refund Highway and Toll Bridge Obligations of the State and Road Improvement District Obligations; to Provide for the Payment and/or Funding of Certificates Issued in Aid of Municipal Improvement Districts; to Provide for the Funding and/or Payment of Claims Against the State Highway Commission, and for Other Purposes.’ ”
This act deals in minutest detail with the various obligations arising out of the State’s entire road-building program. Section 15 of the act authorizes the Refunding Board, “in cases in which in the judgment of the board the best interest of the State will be served thereby, to refer to the Highway Audit Commission any note, bond or obligation presented to it for refunding hereunder, or any account or claim against the Highway Commission growing out of any contract between said Commission and any person, firm, or corporation, for work, labor,'material, supplies or services, or arising out of any transaction between the Highway Commission, or any member or employee thereof, presented to the Refunding Board for payment or refunding under the provisions of this act.” It is there further provided that; “It shall be the duty of the Highway Audit Commission to investigate and make a full and complete report as to the validity of any such item referred to it by said Refunding Board; provided, however, that when a court shall determine the validity or invalidity of any such note, bond, obligation, account or claim, or whether or not it comes within the provisions of § 2 of act No. 11 of 1927, or of § 19 of act No. 65 of 1929, such adjudication shall be final and conclusive.”
But, before conferring' the authority to investigate and adjudicate all such claims, it had been provided, in § 10 of act 11, that: “This act shall not validate any claim, voucher, warrant or other evidence of indebtedness issued under or pursuant to any illegal contracts; no payments thereon or notes or bonds therefor shall be issued until such claim, voucher or warrant is approved by the Refunding Board or until its validity is finally determined by the Highway Audit Commission or by a court of competent jurisdiction. Provided that this act shall not affect the full termination of any litigation now pending in any of the courts as to the validity of any bonds now in litigation.”
Anticipating that the discharge of these duties would entail an expense, act 141 of the Acts of 1933, page 453, appropriated funds for protecting the State’s interests in controversies arising- by reason of the Highway Audit. In the preamble to this act it is recited that:
“Whereas, As a result of the. Highway Audit there now exists a great many controversies between the State of Arkansas and contractors who dealt with the State Highway Commission prior to January 1, 1933, and a great many controversies growing out of payments of money on orders of the State Highway Commission to various and sundry persons, and
“Whereas, There are now pending suits brought by the State of Arkansas to recover such funds and other suits on behalf of contractors against the State Highway Commission, and
“Whereas, It is necessary for the State’s interests to be properly protected that a fund be made avail able with which auditors and engineers may be used as witnesses, and
“Whereas, There is an unexpended balance to the credit of the appropriation made for the benefit of the State Highway Audit Commission in the sum of Thirty-three Thousand Nine Hundred Ninety-nine and no/100 ($33,999.00) Dollars.”
In anticipation of this litigation, and in order that the State’s rights might be fully protected, the sum of $33,999 was appropriated for these purposes. .
We conclude therefore that while provision has been made for the payment of all valid demands against the State, the right of set-off has not been abandoned, and that the warrant here in suit is valid only to the extent of its face — as its validity is not questioned— less the State’s right of set-off against it:
It is our opinion, therefore, that the decree of the court below is correct, and should be affirmed. It is so ordered.
Mehaeey, McHaney and Butler, JJ., dissent. | [
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Smith, J.
Appellant was the duly elected and acting sheriff of Logan County, and as such was the legal custodian of the prisoners confined in the jails of that county. He was indicted for permitting two of these prisoners to escape. One of these prisoners was named Richard Warren Holly, the other was named Ed Kle-ier, and both were under indictment for the commission of a felony. Appellant was suspended temporarily from his office upon the return of the indictment against him, and upon his conviction, his removal from office was made permanent, and he has prosecuted this appeal to reverse that judgment.
The authority and the duty of a sheriff in regard to the custody and control of prisoners confined to his keeping was thoroughly considered in the case of Houpt v. State, 100 Ark. 409, 140 S. W. 294, and the responsibil ity of a sheriff for the escape of a prisoner was so fully stated that the subject need not again be reviewed. It was there pointed out that it had been held in the case of Martin v. State, 32 Ark. 124, that permitting a prisoner to escape through the negligence of his custodian was not a statutory offense, but only one at common law, yet an indictment would lie for its commission, and a person convicted therefor was subject to removal from office, although the offense was only a misdemeanor and punishable as such under chapter 22, 772-773, of Gantt’s Digest, which appear as §§ 1432-1433, Crawford & Moses’ Digest.
A question arose — which we find it unnecessary to decide — whether the indictment charged a common-law offense or a violation of the statute (§§ 2574-2584, Crawford & Moses’ Digest), for the reason that the trial court construed the indictment as charging only a misdemeanor.
The theory upon which the case was tried is indicated by the questions which the court permitted the prosecuting attorney to ask the jurors in qualifying them for service. For instance, a juror was asked: “Q. If Bryan Godfrey, the deputy sheriff, permitted him (the prisoner) to escape, and Mont (appellant) knew or should have known about it, and the court tells you it would be your duty, would you convict?”
Logan County has two judicial districts, with a jail in each, one being located at Paris, the county seat, the other at Booneville, the town in which the courthouse and county jail for the Southern District of the county are located. The sheriff resides in Paris, and ordinarily visits Booneville when the circuit court is not in session at that place only about once each week. Bryan Godfrey, the person referred to in the question of the prosecuting attorney above quoted, resides in Booneville, and represents the sheriff there, and had charge of the jail at that place. There was testimony to the effect that Godfrey allowed Kleier, one of the prisoners referred to in the indictment, much freedom of action, but whether enough to constitute an escape under the law as declared in the Houpt case, supra, we need not decide, as he is not a party to this proceeding. It was the theory of the prosecution that the sheriff himself was criminally responsible for the acts of his deputy; in fact, the court read § 2581, Crawford & Moses’ Digest, as a part of one of the instructions given in the case, this being done over appellant’s objection and exception. This section reads as follows: “If any officer, or his under officer or deputy, having the lawful custody of any prisoner, for any cause whatever, shall voluntarily suffer or permit or connive at the escape of such prisoner from his custody, or permit him to go at large, he shall upon conviction be punished in the same manner as if convicted of aiding or assisting' such prisoner to escape.”
The theory upon which the charge was defended is indicated by an instruction numbered á which was requested by appellant but was refused by the court. This instruction reads as follows: “If the jury should believe from the testimony that deputy sheriff and jailer, Bryan Godfrey, was guilty of a crime in connection with the escape of Holly and Kleier, or either of them, this will not be sufficient to authorize the jury to convict Mont Perrymore, unless the defendant, Perrymore, knew of and participated in, or consented to such criminal conduct, if any, on the part of the said Godfrey in connection with such escape. ” '
It is our opinion, for reasons hereinafter stated, that this instruction was a correct declaration of law, and the refusal to give it was an error calling for the reversal of the judgment.
The most serious question in the case is whether, under the law as thus announced, there was any competent or sufficient testimony to support the verdict, and we have reached the conclusion, after giving the testimony tending to support the verdict its highest probative value, that there was not.
There appears to be no testimony that Holly, one of the prisoners who escaped, was accorded such freedom of action as to constitute an escape. The testimony relates to the liberty of movement accorded Kleier, but all this testimony relates to the conduct of Godfrey, and it was not shown that the sheriff himself had authorized, or had consented to, or was aware of the fact, that Kleier was not kept properly confined. The only relevant testimony tending to show any knowledge of or any participation in Godfrey’s conduct was given by appellant himself, who testified that the presiding judge had told him Godfrey was not sufficiently careful in his surveillance of Kleier. The undisputed testimony shows, however, that, immediately upon hearing the judge express this opinion, appellant directed Godfrey to confine Kleier in the jail, and he did so except that on certain occasions he took Kleier out of the jail to get coal and build fires, but Godfrey testified that this was done in his presence. On the night of the escape Kleier was not confined in a cell, but was locked up in what was called the “runaround,” the area around and within the walls of the jail surrounding the cells. There was a lock to the door affording entrance to this run-around. Godfrey did not regard this as an unsafe thing to do, as Kleier had been twice tried upon the charge for which he was in jail, and there had been a mistrial in each case. This liberty was accorded that night because Kleier had been given salts and the commode was in the run-around. We are not required to decide whether this liberty would constitute an escape, as Godfrey was not on trial. In any event there is no testimony whatever to the effect that appellant knew of, or consented to, or connived at, the-extension of even this liberty.
We have reached the conclusion that the negligence, if any, resulting in the escape of the prisoners was the sole act of Godfrey, and not that of appellant. We have also concluded that the judgment must not only be reversed, but, inasmuch as the case appears to have been fully developed, the cause should be dismissed.
The case of State of Alabama v. Kolb, 201 Ala. 439, 78 So. 817, considers the liability of an officer for the acts of his deputy, and is exhaustively annotated in 1 A. L. K. 218, from pages 218 to 264. On the liability of sheriffs, constables, and marshals, for the acts of their deputies, the annotator, at page 236, says: “The general rule has long since been settled that sheriffs and other officers performing similar duties are liable civilly but not criminally for the acts and omissions of their deputies when acting officially or under color of the office. This general rule, which is recognized in and constitutes the basis of most of the decisions dealing with this phase of the question, is expressly stated in Rogers v. Marshal, (1863) 1 Wall. (U. S.) 644, 17 L. Ed. 714” A large number of cases are there cited which support the text just quoted.
Our own case of Edgin v. Talley, 169 Ark. 662, 276 S. W. 591, was a suit against a sheriff for a wrongful arrest made by his deputy, which was aggravated by an assault made by the deputy upon the person arrested, and we there held the sheriff was liable for the act of the deputy committed under the color of his office. We said: “The general rule is that for all civil purposes the acts of a deputy sheriff or constable are those of his principal. Hence a sheriff or constable is liable for the act, default, tort, or other misconduct done or committed by his deputy, colore officii
But, unlike that case, this is not an action to enforce a civil liability. This is a criminal prosecution, and we have no statute imposing criminal liability on an officer for the act of his deputy which he did not authorize, or connive at, or consent to, or otherwise aid or abet in its commission.
It follows, from what we have said, that the judgment must be reversed, and the cause will be dismissed. | [
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Johnson, C. J.
In 1926 J. B. Lilly, now deceased, applied for and was granted a loan in the sum of $2,500 by the Federal Land Bank of St. Louis, Missouri. As a condition precedent to the granting of this loan, the borrower was required to purchase and pay for twenty-five shares of stock of the par value of $5 per share in appellant Western Clay National Farm Loan Association, and the association in turn was required to purchase a like amount of stock from the land bank. Subsequent to the granting of this loan, J. B. Lilly died, and thereafter on June 1, 1931, Mrs. J. B. Lilly, appellee here, and wife of the said J. B. Lilly, paid the loan in full to the Federal Land Bank of St. Louis. Upon payment of the loan the land bank canceled its stock issued upon this loan and gave the association credit on its contingent liabilities for the full value thereof. Thereafter, due demand was made upon the local association for the retirement of the shares of stock held by appellee which was refused by appellant, and this suit was instituted to compel retirement. Upon trial a judgment was rendered in favor of appellee and against appellant, and the cause is here on appeal.
Appellant is a corporation organized under the Federal Farm Loan Act, same being 12 USCA, c. 7, § 641, approved July 17, 1916. The Federal Land Bank of St. Louis is a corporation organized under said act, and is domiciled at the city of St. Louis in the State of Missouri, and as such serves the territory embraced in Arkansas, Illinois and Missouri making farm loans.
By § 7 of the act referred to, appellant is a separate and distinct corporation from the Federal Land Bank of St. Louis. Under the provisions of said act, appellant association is required to indorse all paper handled by the borrowers of such association and therefore has a contingent liability upon such indorsed paper. Section 4 of said act creates twelve Federal Land Bank districts and creates therein a Federal Land Bank for the purpose of making loans on farm lands situated in such districts. The act further provides that the original capital stock of each Federal Land Bank shall be divided into shares of the par value of $5' each.
The theory of the act is co-operative in purpose, spirit and effect. Upon approval'of a loan by the.local association, it issues stock to the borrower in the amount of 5 per cent, of the loan applied for, and the local association is thereupon required to purchase from the Federal Land Bank in the district capital stock therein to the amount of 5 per cent, of the loan granted by it. The borrower by the terms of the act is liable to the local association for an assessment against this stock to the extent of 100 per cent, thereof upon insolvency. In each instance the issued stock is held as collateral security to the loan.
No contention is made that the Federal Land Bank of St. Louis is liable to appellee for stock held by her in the local association; therefore this question and the cases bearing thereon have no application to the facts of this case.
Appellee does contend, however, that the local association which issued her stock is liable upon the. retirement thereof for its par value, regardless of the solvency or insolvency of the local association.
The question here under consideration was determined by the Supreme Court of North Dakota in Byrne v. Federal Land Bank, etc., 61 N. D. 265, 237 N. W. 797, and the logic and reasoning of the opinion are such as to warrant the following quotation therefrom:
“It is true the act says upon payment of his loan ‘the national farm loan association shall pay off at par and retire the corresponding shares of its stock which were issued when such land bank stock was issued. ’ The plaintiff, however, is a stockholder in a corporation. The corporation cannot pay off at par the. stock held by the plaintiff if it be insolvent, or if it has no money. The pleadings and the stipulated facts admit the practical insolvency of the Farm Loan Association. The shareholders are ‘individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association to the extent of the amount of stock owned by them at the par value thereof, in addition to the amount paid in and represented by their shares.’ Section 9 of the act. Consequently it is possible for the plaintiff to be held for double liability.
“Plaintiff contends that the pleadings do not show the insolvency of the loan association at the time of the repayment of the loan; that is, at the time the land bank bid in the property for the full amount. It may be the answers are somewhat indefinite on this point; but it is shown the land bank applied the value of the stock held by the loan association on its debts to the bank, because of the inability of the association to pay them. Then, also, if the. association was insolvent at the time of the commencement of the action and is still insolvent, it cannot be compelled to pay plaintiff the value of his stock when it is not yet known whether he may lose, not only the $500 which he has already paid, but in addition be required to pay an assessment of $500 or part thereof. While the statute requires the retiring of the shares at par, it contemplates a solvent institution. The plaintiff, by merely paying his loan, cannot escape the responsibility which he assumes as a stockholder. The relationship which he bears to the other shareholders and to the whole, system is such that he cannot evade responsibility. When he applies for and receives a loan under the provisions of the act, he takes the loan according- to the tenor of the law. The act makes provision for earnings and for dividends on his stock, and it provides also that in case the dividends are sufficient the directors of the loan association ‘with approval of the Federal Farm Loan Board’ (12 USCA, § 721) may in their discretion pay off at par, and retire the stock, even if the loan be not paid. The payment of the loan does not relieve the borrower from his liability as a stockholder. The only assets which a Farm Loan Association has or can have are the shares which it takes in the Federal Land Bank to counterbalance. the shares of stock in the association taken by the borrower, such dividends as the shares of stock in the land bank taken by the association may earn, and such ‘reasonable initial charges to be made against applicants for loans and, to borrowers in order to meet the necessary expenses of the association’ as specified in subdivision 3' of § 11 of the act; but such charges can ‘in no case exceed 1 per centum of the amount of the loan applied for.’ It is true the association may acquire and dispose of property, real and personal, that may be necessary or convenient for the transaction of its business, and it may invest its earnings so as to have increased income; but this is the extent of its capital and assets. The statute. contemplates that when the loan is paid the stock shall be. canceled, and the necessary corollary of this is that the par value of the stock be returned; but it is evident from the statute that Congress had in mind the possibility that such Farm Loan Association may become insolvent.
“Section 29 of the act makes provision for the dissolution of a Farm Loan Association upon insolvency, and the appointment of a receiver. The power to declare an association insolvent and to appoint a receiver therefor is vested in the Federal Farm Loan Board. But ‘no national farm loan association shall be declared • insolvent by said board until the total amount of defaults of current interest and amortization installments on loans indorsed by national farm loan associations shall amount to at least $150,000 in the Federal Land Bank district, unless such association shall have been in default for a period of two years.’ 12 USCA, § 961.
“It is true the pleadings do not allege that the Federal Farm Loan Board declared this association to be insolvent; but the facts alleged in the pleadings show that the status described by the act obtains, and it is therefore insolvent. Manifestly the association cannot be compelled to pay the plaintiff the value of his stock when it has no assets out of which the stock can be paid. This association has no property, received no dividends, has no earnings, and there is no fund which the association can be compelled to distribute to its stockholders. The only source from which it could pay is this stock in the Federal Land Bank. The pleadings show this had been pledged and was held by the land bank as collateral. The plaintiff proceeds on the theory that, as soon as the loan is repaid, the Farm Loan Association must ‘pay off at par and retire’ the shares of stock in the association issued to him. The last paragraph of § 7 of the act (12 IISCA, § 721) describes the procedure for subscription of stock in the Federal Land Bank and requires the association to subscribe for capital stock when it applies for a loan to a borrower. After making provision for this capital stock to be held as collateral to the loan, it says: ‘■Such stock (that is the stock in the land bank taken by the loan association) may, in the discretion of the directors (that is the directors of the land bank), and with the approval of the Federal Farm Loan Board, be paid off at par and retired, and it shall be so paid off and retired upon full payment of the mortgage loan. In such case the national farm loan association shall"pay off at par and retire the corresponding shares of its stock which were issued when said land bank stock was issued. ’ But this is only a portion of the act. When we consider the act as a whole, it is apparent ‘Congress did not intend the Farm Loan Association to pay off the stock at par when it had nothing with which to pay the stock.
‘ ‘ The plaintiff is a stockholder in a corporation. He has rights therein, but he has also corresponding duties and liabilities. As shown heretofore, he is individually responsible equally and ratably for the debts of the corporation in which he is a stockholder. Section 9 of the act. This provision for double liability is similar to the one regarding liability of stockholders in banking-corporations, both State and National. His responsibility to his corporation is the same.
“As we have already pointed out, the principle involved in the act is co-operative in nature. It is only through the co-operation of his neighbors, with their assistance, upon their recommendation and the pledge of their liabilities he can secure his loan. They pledge their faith and credit to aid him, and he pledges his faith and credit to aid them. Having secured their co-operation and assistance and finding his loan paid,- he now wants to avoid his responsibilities to those who made it possible for him to get his loan. His rights are not superior to the rights of any stockholder in the corporation.”
Appellee tacitly admits that the opinion just quoted reached the correct conclusion of no liability against the local association under the facts and law there discussed and decided, but contends that the opinion overlooked or ignored the amendatory act of 1923 as follows:
“Upon liquidation of any national farm loan association, the stock in the Federal Land Bank held by such association shall be canceled and the Federal Land Bank shall thereupon issue to the borrowers through such association an amount of stock in the Federal Land Bank equal to the amount of stock held by such borrowers in the liquidated association, such stock to be held by the bank as collateral to the loans of such borrowers and to be paid off and retired at par in the same manner as stock held by borrowers in farm loan associations, and the Federal Land Bank shall pay to the borrowers holding' such stock the same dividends as are paid to national farm loan associations by such bank. The personal liability of the stockholders in such liquidated association to the association shall survive such liquidation and shall be vested in the bank in that district, which may enforce the same as fully as the association could if in existence.” Section 966, USCA, chapter 7. Section 29 of the original act so amended provides: '
“If any national-farm loan association shall be declared insolvent and a receiver shall be appointed therefor by the Farm Credit Administration, the stock held by it in the Federal Land Bank of its district shall be canceled without impairment of its liability, and all payments on such stock, with accrued dividends, if any, since the date of the last dividend shall be first applied to all debts of the insolvent farm loan association to the Federal Land Bank, and the balance, if any, shall be paid to the receiver of said farm loan association: Provided, that in estimating said debts contingent liabilities incurred by national farm loan associations under the provisions of this chapter on account of default of principal or interest of indorsed mortgages shall be estimated and included as a debt, and said contingent liabilities shall be determined by agreement between the receiver and the Federal Land Bank of the district, subject to the approval of the Farm Credit Administration, and if said receiver and said land bank can not agree, then by the decision of the Farm Bank Commissioner, and the amount thus ascertained shall be deducted in accordance with the provisions of this section from the amount otherwise due said national farm loan association for said canceled stock. Whenever the capital stock of a Federal Land Bank shall be reduced, the board of directors shall cause to be executed a certificate to the Farm, Credit Administration, showing such reduction of capital stock, and, if said reduction - shall be due to the insolvency of a national farm loan association, the amount repaid to such association.” 12 USCA, c. 7, § 964
The amendatory act just quoted amends § 29 of the original act of 1916 in the particular that, upon -liquidation of a local association, it is the duty of a land bank in that district to cancel out all stock in the possession of the local association and re-issue same to the individual borrowers of such local associations and subsequent thereto all dealings in reference to such stock shall be had and done between the Federal Land Bank and the borrower. No contention is made that the association stock here in controversy was ever reissued by the Federal Land Bank of St. Louis as is provided for in the amendment, but it is contended that the amendment of 1933 demonstrates the legislative policy of such institutions with and towards the borrowers therein, and that the amendment evinces a clear legislative intent that the borrower’s stock, whether it be issued by the local association or by the Federal Land Bank of such district, shall be retired upon payment of the loan of such borrower, regardless of the solvency or insolvency of the local association. We can not agree with this contention. We are convinced that the amendment of 1923 has application to solvent local associations only which are in process of voluntary liquidation. Any other construction of the amendment nullifies and destroys the clear intent and purposes of the original act, and would nullify and destroy the whole theory of co-operation by the borrowers which is significantly demonstrated by all provisions of the original act. If a borrower be permitted to pay off his loan and withdraw his capital stock at par value in an insolvent association, there is no cooperation left.
Manifestly co-operation is the groundwork of the original act. Ten borrowers are required to co-operate in the formation of a local association, and each borrower is required to purchase capital stock in the local association to the approximate amount of 5 per cent, of his loan. This stock is never surrendered to the borrower, but is held by the local association as collateral security to the borrower’s loan. In other words, each borrower in a local association, to the extent of his stock plus an individual liability upon insolvency of a 100 per cent, assessment on such stock, is surety for the loans of all other members and borrowers in such local association, and this liability continues until the loan is paid off and retired during the solvency of such local association.
The co-operative feature of the original act also extends and applies to the Federal Land Banks, but it is not deemed necessary to go into this phase of the situation. It suffices to say that the destruction of the cooperative features of the original act would nullify and destroy the clear and unmistakable intent of the Congress as exemplified in the act, and we are unwilling to give the 1923 amendment such construction and interpretation.
The conclusion thus reached leaves only the question of whether or not the local association was solvent on June 1, 1931, when appellee retired her loan. On August 23, 1930, appellant and the Federal Land Bank of St. Louis, its principal creditor, made and entered into a written contract or agreement, lo the effect “that, whereas defaults have accrued, etc. * * * and whereas the association desires to reimburse the bank for the actual loss, etc.” This contract defines the respective rights and liabilities of the local association and the Federal Land Bank which are dealt with in minute detail, but we deem it sufficient to say that the parties to this contract definitely determined the insolvency of the local association on the date of its execution and arranged the date for final reckoning of the aggregate of the liability by the local association to the Federal Land Bank on January 1, 1935. Moreover, the agreed statement of facts upon which this cause was submitted and decided provides:
“That, at the time said loan was paid off, on June 1,1931, the total outstanding capital stock of the Western Clay National Farm Loan Association was two thousand fifty-seven shares (2,057) of a par value of $10,285, including the twenty-five (25) shares of said capital stock issued to John B. Lilly.
That from time to time, prior to June 1, 1931, defaults had occurred under the terms and conditions of the aforesaid indorsed first mortgages taken by the Federal Land Bank of St. Louis from the members of said association and pursuant to the terms and provisions of § 25 of said Federal Farm Loan Act, said association had been notified of said defaults and had been called upon by said bank to make good each of said defaults either by the payment of the amount unpaid thereon in cash or by the substitution of an equal amount of Federal farm loan bonds with all unmaturecl coupons attached. Notwithstanding its liability as indorser as aforesaid, said association has failed, and still fails, to make good such defaults and was indebted on June 1, 1931, and still is so indebted by reason thereof; and that said association had been in default in the payment of its said obligations for more than two years prior to June 1, 1931, and still so in default.”
Section 921, USCA, c. 7, provides in reference to defaults:
“If there shall be default under the terms of any indorsed first mortgage held by a Federal Land Bank under the provisions of this chapter, the National Farm Loan Association through which said mortgage, was received by said Federal Land Bank shall be notified of said default. Said association may thereupon be required, within thirty days after such notice, to make good such default, either by the payment of the. amount unpaid thereon in cash or by the substitution of an equal amount of Federal farm loan bonds, with all unmatured coupons attached.”
Clearly, it appears that on June 1, 19:31, when appellee retired her loan in the Federal Land Bank of St. Louis, the Western Clay National Farm Loan Association had defaulted in its obligations to the Federal Land Bank and had been in such default for more than two years prior thereto. This was a state of insolvency on the part of the local association, and the mere fact that no receivership was procured thereon in no wise alters the situation under consideration. We know of no rule of law, and have been cited none by counsel, which permits a stockholder in an insolvent corporation to withdraw his capital investment at par. True, if the amendment of 1923 had the purpose and effect contended for by appellee this would be the result, but, as has been shown, the amendment produced no such result.
Since we have concluded that the Western Clay National Farm Loan Association was insolvent in 1930 and was insolvent on June 1,1931, when the loan was retired, appellee has no lawful' right to maintain this suit as a stockholder against the local association.
The conclusion reached renders it unnecessary to consider or decide other questions argued orally and in briefs.
For the reasons stated, the judgment is reversed, and the cause of action dismissed. | [
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Smith, J.
Appellee was employed at appellant’s factory in making baskets, and, while so employed, sustained an injury, to compensate which she recovered the judgment from which this appeal comes. A machine was used which required the service of three persons, who were designated as a band-ringer, a band-puncher, and the operator who controlled the movement of the machine. The machine was operated by two foot pedals, one of which controls the folding ring, which moves up and forms or shapes the web or mat into basket shape and holds it while the bands or hoops are stitched on, and the other pedal releases the folding ring and causes it to back up and stay out of the way while the finished basket is removed from the form. When the pedal which starts the folding ring in motion is stepped on and the folding ring actually starts, there is no way of stopping it until it closes over the form. The folding ring moves about twenty inches, and moves at uniform speed. Pressure on the pedal starts it. The form is round and bucket-shaped, and it is over the form that the web or mat of thin pieces of veneer is molded or formed into basket shape.
At the time appellee was injured she was band-ringer on the machine. Leona Johnson was band-puncher, and Doyle Bruce was operator. In making a basket, the following procedure was had. Appellee would first put a band or hoop over the form, then Bruce would place a web in the rack against the bottom of the form, then he would press the foot pedal which started the folding ring in motion and shaped the web over the form. After the folding ring closed over the form holding the web in basket shape, Leona Johnson would start pushing strips through little slats or guides, and the operator would start the machine to stitching, and the form would turn around as the bands were being stitched on. After the basket had been stitched all around, it would then be a completed basket, and Bruce would step on the release pedal, causing the folding ring to back up or to move off the form, releasing the basket, which Bruce would then slip off the form and stack on a pile behind him. This finished the operation, and the basket was complete.
An instruction numbered 2, given at the request of appellant, declared the law applicable to appellant’s theory of the case. It reads as follows: “If you find from the evidence that plaintiff had been instructed and warned never to attempt to straighten or unhang a hoop if it hung, or she dropped or fumbled it, and you further find that on the day she was injured she caught, dropped or fumbled a hoop as she attempted to place it on the form, and that she violated the instructions and warnings given to her and attempted to loosen or adjust the hoop, and that her hand was caught and injured by the folding ring as it closed over the form in the usual and customary manner, then plaintiff is not entitled to recover herein, and your verdict should be-for the defendant.”
Much testimony was offered by appellant to the effect that appellee dropped or fumbled a hoop as she attempted to place it on the form, and that, in violation of her instructions and the warnings given her for her own protection, she attempted to loosen or adjust the hoop after the folding ring was put in motion and closed over the form in the usual and customary manner, there being no way of stopping it after being put in motion. Instruction numbered 2, set out above, told the jury that, if appellee was injured in this manner, she could not recover.
Appellee testified that, before she had time to place the hoop on the form, but while she was engaged in so doing, Bruce released the folding ring, which he was not expected to do, thereby catching her hand between the folding ring and the form and crushing it. We do not review the testimony, as it suffices to say that it is in sharp and irreconcilable conflict, and this conflict has been resolved by the jury in appellee’s favor.
The court gave, at appellee’s request, an instruction reading as follows: “No. 3. You are instructed that contributory negligence cannot be presumed, but must be proved, and the burden of proving is on the defendant. ’ ’
Appellant requested that the instruction be modified by adding thereto the phrase, “unless it should be shown by the evidence introduced on behalf of the plaintiff.”
This instruction is usually given in the form it would have appeared if modified, but the refusal to so modify the instruction was not prejudicial error under the facts of this case, for the reason that, in view of instruction numbered 2 referred to, the jury could not have been misled.
The court gave, at appellee’s request, an instruction numbered 5, reading as follows: “The court instructs the jury that, if you find from a preponderance of the evidence that the witness, Doyle Bruce, was in the employ of the defendant, and as such employee was operating the machine at which the plaintiff worked at the time she was injured, and that he negligently, in the operation of such machine, at a time when plaintiff was in a place of danger, released the iron rim, or follower, on said machine forcing said follower against the basket web and over the drum or form of said machine, and that plaintiff’s hand was caught by said follower and jammed between the said follower and the drum, or form, and plaintiff was injured thereby; and you further find at the time she was exercising due care for her own safety, and had not assumed the risk; and if you further find from the testimony that, due to such negligent operation of defendant’s machine, if any, Marion Hartsfield was injured, then the court tells you that Hope Basket Company is liable for all injuries and damages suffered as an approximate and natural result of such negligence.”
Specific objection was made to the phrase, “at a time when plaintiff was in a place of danger,” for the reason that there is no question of “discovered peril” in the ease.
We think, however, that the objection is not well taken. The controlling question of fact in the case is whether Bruce released the iron rim or follower at a time when it endangered appellee’s safety to do so. In other words, appellee was in a place of danger if Bruce prematurely released the rim, as appellee testified he did, and the instruction makes no application of the doctrine of discovered peril. It was not contended that Bruce could have done anything to avert the injury after putting the rim or follower in motion. His alleged negligence consisted in prematurely starting the machine at a time when to do so endangered appellee’s safety, and we conclude therefore that there is no error in the instruction.
It is finally insisted that the verdict, which was for $5,000, is excessive. But we do not think so. Appellee is unmarried, and was only seventeen at the time of the trial. She testified that her hand was mashed flat like a biscuit, and that she was confined in the hospital for eighteen days, where she suffered g’reat pain, and that she continues to suffer pain. There was a shortening and misplacement of the bones in healing, which has resulted in the disfigurement of the hand, and the attending physician testified that appellee’s fingers were not only of no service to her but were rather in her way, because they were stiff.
There appears to be no error, and the judgment will therefore be affirmed. | [
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Mehaffy, J.
J. O. Magee died on July 17, 1932. The record shows that in 1918 J. O. Magee made a will, which was left with the bank in Texarkana, Arkansas.
On January 23,1924, J. O. Magee made another will. This will.made in 1924 was written by Judge Pratt P. Bacon, who was at that time practicing law in Texarkana, Arkansas. At Judge Bacon’s suggestion, Mr. Magee gave him $1 to pay to the clerk and the will was deposited with the county clerk of Miller County.
After the death of J. O. Magee, this will was probated and F. F. Magee, the. executor named in the will, took charge of. all the property of the deceased. F. F. Magee was a brother of J. O. Magee. On November 18, 1932, F. F. Magee died, and his widow, Mallie Magee, was appointed administratrix of the estate of J. 0., Magee.
The will made in 1924 was identical with the will made in 1918, except the will in 1918 did not mention the brothers and sisters of J. O. Magee, and the will of 1924 gave them $1 each. All of the estate of J. O. Magee, except $1 each to his brothers and sisters, was bequeathed to F. F. Magee. In the will of 1918, all the property was bequeathed to F. F. Magee.
After the death of F. F. Magee, on April 21, 1933, the appellants filed suit in the Miller Chancery Court, alleging that prior to the death of J. O. Magee, on or about the last day of March or the first day of April, 1932, he executed his last and final will and testament, and by its terms revoked all former wills; and that said will, alleged to have been executed by J. O. Magee, had been lost, destroyed or suppressed, and that a former revoked will had been probated. It was alleged that F. F. Magee, a brother of J. O. Magee, was named as practically the sole beneficiary in the will alleged to have been revoked; that he had caused the same to be pro bated, and letters testamentary issued to himself, by virtue of which he took possession of all the property of J. O. Magee, deceased; that either Fleet F. Magee, who had since died, suppressed, lost or destroyed said will during his lifetime, or the same at his death fell into the hands of his successor in administration, Mallie Magee, or into her hands as administratrix of the estate of F. F. Magee, and said administratrix had suppressed, lost or destroyed said will; that said last will was written entirely in the handwriting of J. O. Magee, and was declared by him to be his last will and testament, and the written terms thereof revoked any and all former, wills made by him.
The complaint then set out the provisions of said lost, suppressed or destroyed will. It further alleged that Mallie Magee was appointed administratrix of the estate, of J. O. Magee, and also administratrix of the estate of Fleet F. Magee; that Mallie Magee as administratrix has made no report of the property that came into her hands, and that she was at that time asking for an order of distribution. It was also alleged that the estate was of the value of $120,000.
The complaint prayed that they be permitted to prove the. existence and possession of said will and contents of same, and the. legal execution; that said lost will be restored and caused to be probated, and that the will already probated be canceled and set aside. The appellees filed answer denying all the material allegations in the complaint. The appellants prosecuted an appeal from the probate court to the Miller Circuit Court, and there filed the complaint, which was substantially the same as the complaint in the chancery court.
On May 16, 1933, the chancery court heard the case in the suit to restore the lost will, and dismissed the complaint for want of equity. On November 29, 1933, the case was tried in the circuit court, and judgment entered admitting the will executed in 1921 to probate as the last will and testament of J. O. Magee, and approving and confirming the judgment of the probate court admitting said will to probate. The chancery case is here as No. 33'64 and the appeal from the circuit court is here as No. 3469. The two cases are consolidated and briefed together.
It is admitted that the will probated, the one executed in 1924, was duly made and published, but appellants contend that it was revoked by a later will, which is alleged to have been lost, destroyed or suppressed.
Mrs. Will Green testified that she had known Mr. J. O. Magee the last six years of his life; that she and her husband lived about one-half mile from Magee’s house; that Magee talked to her about making a will several times before he made it; that there were some he felt he should leave things to; that she and her husband witnessed the will made some time the last of March or first of April; that Jake Davis, a negro boy, came to their house and took them over to Mr. Magee’s, and he said he wanted them to witness a will for him; he had not prepared the will at the time; he prepared it in the presence of witness and her husband; they went to his house about ten o’clock, and he sat down and got some paper and said he had a general form to go by; he said that the donations and gifts he was going to make he had on a slip of paper; said he had made two former wills, but this one revoked all other wills; the will said J. O. Magee declared it to be his last will" and testament, and something about sane and disposing mind; said he revoked all former wills; this was in the will; that he wanted Paralee Brown to have $500 and 60 acres of land; gave a description of the land, but witness does not remember it; he gave I. D. Miller $500 and Jake Davis $250 and any car he would have at Ms death; and Mrs. Bettie Dodson at Garland $5,000 and a brick store building; witness does not know the description of the property, but testified that he gave it to Bettie Dodson before the will was made; that he gave to Fleet Magee $1, and a $5,000 life insurance policy and forgave Fleet Magee all his debts; he said he wanted the balance of his property to be divided among his brothers and sisters; said he wanted it distributed according to the laws of inheritance; that Magee signed the will and read it to witness and Mr. Green; there was a little paragraph after he signed it, and witness and her husband signed it at his request and in his presence and in the presence of each other; witness read it before she signed it; his mental condition was normal; the will was dated at the top; she saw the will again on Sunday before Magee went to Texarkana sick, and read the will at that time; Mague took the will out of a wallet where he kept it in the right-hand drawer of a dresser locked; he kept money and other papers there; some insurance and receipts and some notes; he wrote the will with an indelible pencil; made his will in March or April, 1932, using large sheets of heavy writing paper; it took one and one-half sheets; this was the first will witness ever saw; no one was present except Magee, witness and her husband; she does not think her husband read the will over; she said Magee told them he had made two other wills; she remembers that because she asked him; his mental condition was all right; she testified that the occasion of Magee’s showing her the will was, she asked him about some notes he had of theirs; she asked Magee to let her see their notes, and he did, and it was then she saw the will again and read it.
Will Green, husband of Mrs. Will Green, testified to substantially the same facts as Mrs. Green about the writing and the bequests and the signing of the will. He never saw the will again; he testified that he read the will and just signed on one page, the last- one; this was the only will witness ever saw or had anything to do with.
Several witnesses testified that J. O. Magee, during his lifetime, told them he had made a will.
Numbers of witnesses testified for the appellees that Magee had talked to them during his lifetime and told them that he intended for his brother, Fleet Magee, to. have all of his property.
Judge Pratt Bacon testified that he had known J. O. Magee and Fleet Mague all their lives, and had represented them both for probably 25 years. He prepared the will made in 1924. There was a prior will made in 1918. He testified that the will made in 1924 was the last will made by J. O. Magee. Witness testified that the last time he saw Mr. Magee he was very sick, and that his right arm was paralyzed; he was there in February, 1932, and ate dinner there, and Magee could not use his right arm to cut his food; he fed himself with his left hand; the relation between J. O. Magee and his brother, Fleet, was the very best; it was always stated by him in all their conversations that at his death he wanted Fleet to have all his property; he testified that the Greens owed J. O. Magee $3,000 and it was evidenced by three notes; that he drew the notes and mortgage and kept them; turned them over to Fleet Magee after J. O. Magee died. Since the death of Fleet Magee, a payment has been made on the Green notes, and new notes have been made, and witness has possession of them; he prepared the papers; they never were down in the wallet of Jake Magee; were always in witness’ possession until J. O. Magee died; one note was past due, and J. O. Magee had been talking about foreclosing when he became sick; that Mrs. Green, on February 17th, paid $250 cash and signed new notes; witness returned to Mrs. Green the $3,000 notes and mortgage; witness went down to the farm with Mrs. Magee after Fleet Magee died to get an inventory of the property; Paralee Brown had been Magee’s cook for some time; witness asked her if she ever heard Mr. Magee say anything about the disposition of his property ; she said Mr. Magee always said Fleet was to get it; she did not say anything about $500 and 60' acres of land; and when Will Green executed the notes, he did not say anything about having seen the draft of another will.
The undisputed evidence shows that J. O. Magee had a stroke of paralysis about December, 1931, and he died July 17, 1932. There is some conflict in the testimony as to his ability to write after the first stroke of paralysis. He could sign his name, but after the stroke he did not write checks nor other instruments, but, when necessary, he. would sign his name. This condition continued up until May or June, at which time he arranged with the bank for Mrs. Mallie Magee to sign all his checks, because his handwriting became so bad that the bank would not pay checks signed by him.
Section 10,545 of Crawford & Moses’ Digest reads as follows: “No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being equivalent to one witness.”
The Greens, husband and wife, testified that about the last of March or the first of April, 1932, J. O. Magee wrote with an indelible pencil his will, and that he signed it, and they signed it as witnesses. They then undertake to give the provisions of the will. Each of them testifies that this was the first will they ever saw; they have no knowledge, about such instruments at all.
While there is some conflict in the eivdence as to J. O. Magee’s ability to use his hand, we think the evidence as a whole cleaiiy shows that he could not have-written the will with all the provisions testified to by the Greens in the manner in which it is alleged to have been written. The preponderance of the evidence shows that Magee kept his valuable papers in a bank at Texarkana, and the Greens testify that he wrote this will, signed it and they signed it, and that he put it in a wallet and put it in a dresser drawer. The key to this drawer, as shown by the undisputed evidence, was kept by Magee’s negro cook. After it is alleged that this will was written, nothing was said about it by either of the Greens, except one witness testified that the Greens told him immediately after it was done. Magee died, and the will that was in the custody of the county clerk was probated, Fleet Magee made executor, and no claim was made that a will had been made and lost until November 18, 1932. The suit was filed in chancery court April 12, 1933, more than a year after it is claimed the will was made.
There is a total lack of evidence that either Fleet or Mallie Magee destroyed the will. When all the circumstances are considered, we think the proof fails to establish that the will claimed to be lost Avas ever made.
“The policy of the law has thrown around last wills and testaments as many, if not more, shields to protect them from frauds, impositions and undue influence than any mode of conveyance known to the law. Can there be a doubt that, in cases like the present, where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy does require the contents of such paper to be established by the clearest, the most conclusive, and satisfactory proof? We think not.” Allnutt v. Wood, 176 Ark. 537, 3 S. W. (2d) 298.
“The burden of proof to establish the execution and contents of the lost will is upon the party who claims under it. The petitioner is usually required to prove the execution and the contents of the lost will by evidence which shall be strong, cogent and convincing. It is sometimes said that the evidence must be clear, full and satisfactory, though he is never required to produce evidence sufficient to remove all reasonable doubt from the mind of the court.” 1 Underhill on Law of Evidence, § 275.
“To support a recovery upon or under a lost instrument, the evidence must be clear and satisfactory that the instrument once existed, but has been lost, and, though diligent search for it has been made, cannot be found, and as to its contents it must be proved in all its substantial parts.” 8 Enc. of Ev., 359.
“On no subject, perhaps, are statutes so strict in requiring a writing executed and attested in certain forms as in the. case of wills, and, while it is firmly established that a lost will may be proved by secondary evidence, the courts have always required such evidence to be direct, clear, and convincing’.” Clark v. Turner, 38 L. R. A. 433; 14 Enc. of Evidence, 465.
We think the circumstances introduced in evidence are sufficient to overcome the evidence of the Greens as to the execution of the will. The persons testifying to the execution of the will, as we have already said, had never seen a will before, knew nothing about instruments of that kind, and were called to testify about a year afterwards. We think the circumstances also show that Magee could not have written the will in the manner in which it is alleged to have been written.
“The settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.” Pekin Wood Products Co. v. Mason, 185 Ark. 167, 46 S. W. (2d) 798; 23 C. J. 48.
There are other circumstances tending to disprove the execution of the will. All of the evidence shows the good feeling between the brothers, J. O. and Fleet Magee, and the evidence also shows that when J. O. Magee would come to Texarkana, he always stayed at Fleet Magee’s house; that after it is alleged this will was executed he authorized the bank to accept checks signed by Mrs. Magee. He told many people that all of his property would go to his brother, Fleet Magee. He had made two wills, one in 1918 and one in 1924, and in each of them Fleet Magee was the beneficiary. We think therefore, when all the evidence is considered, that appellants have not established the execution of the will by that land of evidence required under the law. Having reached the conclusion that the. evidence fails to show the execution of the will that is alleged to have been lost, it becomes unnecessary to decide the other questions discussed by counsel.
The judgment of the circuit and decree of the chancery courts are affirmed. | [
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Carleton Harris, Chief Justice.
This is the second appeal involving these parties. In Walls v. Walls, 227 Ark. 191, 297 S. W. 2d 648, this Court upheld the action of the Chancellor in refusing to grant appellee, Pearl Roberson Walls, a divorce, but modified the court’s decree by directing that appellant, D. C. Walls, be given custody of the three older children born of the marriage, and Mrs. Walls retain custody of the two younger children. The trial court’s order directing appellant to vacate the farm home, owned as an estate by the entirety by Mr. and Mrs. Walls, was set aside. Since that time, appellant, and the children whose custody was placed in him, have continued to occupy the home place. Mrs. Walls did not return to the home, and has lived with the two younger children at the Bramble Courts in Texarkana. She is presently employed, and earns “take home pay” of $37 per week.
Appellant instituted suit for divorce on February 16, 1959, alleging desertion, and continuous separation for a period of three years without cohabitation. An answer was filed by appellee, admitting the three years separation, but denying that Mr. Walls was the injured party. On hearing, the court granted appellant a divorce upon the ground of three years separation; awarded the custody of the two older children, Clovis Wayne Walls, age 15, and Janice Walls, now 13, to appellant, and awarded the custody of the two younger children, Cathy Ann Walls, age 9, and Terrell Walls, age 5, to appellee. Appellant was directed to pay to Mrs. Walls the sum of $25 per week for the care and support of the minor children in her custody. The court further ordered appellant to pay certain hospital and medical bills that had accrued, and an additional fee of $100.00 to appellee’s attorneys. No order was made relative to the home property, other than a finding by the court that Mr. and Mrs. Walls owned this property as an estate by the entirety. From such decree, appellant brings this appeal.
Appellant contends (1) that the court erred in awarding the custody of the two younger children to Mrs. Walls, (2) that the decree should have granted appellant the right of subrogation upon payment of the mortgage indebtedness on property belonging to the parties, (3) that the court erred in ordering the payment of attorneys’ fees to appellee’s attorneys because she was the party at fault, (4) the court erred in ordering Mr. Walls to pay hospital and doctor bills for the reason that appellant had adequate insurance for such purposes, and was entitled to co-operation from appellee in filing proof of loss, (5) that the court erred in failing to protect the equitable estate of Mrs. Zora Walls, mother of appellant, in the property involved in this litigation, and (6) that the award for maintenance for the two smaller children was excessive.
Appellant argues that since Mrs. Walls left her husband, and the home, without cause (See Walls v. Walls, supra), the awarding of custody of the two younger children to her was improper. In the first case we stated:
“Determining the custody of the children presents a more difficult problem. It is well established that children, where possible, should remain together. It is likewise true that the law favors granting custody of small children to the mother. This, however, is not a ‘hard and fast’ rule, and each case must be governed by its own particular circumstances. We feel that the two young children, taken away from the home by the mother, should remain with her. We think, however, that the Chancellor should have left the custody of the three remaining at home, with the father. As far as the record shows, the children, in each location, have been well cared for, and both parents seem to be morally qualified to have the custody. Near the home place, appellant constructed a residence for his invalid mother and sister, and the sister seems capable of looking after these children, all of whom are of school age. It is with reluctance that we separate these youngsters, but it is felt that under the circumstances, their best inter ests will be served, as well as the best interests of their parents.”
There was no evidence in the present hearing which indicates that circumstances have varied to the extent that a change in custody would be justified. We have held that “a decree fixing the custody of a child is, however, final on the conditions then existing, and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.” See Blake v. Smith, 209 Ark. 304, 190 S. W. 2d 455, and cases cited therein.
Relative to his second contention, the record reflects that the home property was mortgaged in the amount of $1600.00, payable in annual installments of $400.00, for which the parties hereto are jointly liable. In the first place, the right of subrogation is not sought in the pleadings, appellant only asking “that the title to his property be clear ’ ’; nor is there anything in the record to suggest that appellee will not join in the payments. At any rate, it appears that the indebtedness has not yet been satisfied, and we have held on numerous occasions that subrogation cannot be claimed until the entire indebtedness is paid. See North Arkansas Milling Company v. Lipari, 231 Ark. 965, 333 S. W. 2d 713, and cases cited therein.
In regard to point three, the awarding of attorneys’ fees is within the sound discretion of the trial court, and the order of that court will not be disturbed unless there has been an abuse of discretion. In Laird v. Laird, 201 Ark. 483, 145 S. W. 2d 27 (1940), a divorce was granted the husband, the court finding the wife to be at fault. The trial court allowed alimony, and an attorney’s fee for appellant’s attorney. This Court, though affirming the decree of divorce, and thereby sustaining the trial court’s view that the wife was at fault, not only upheld the right of the trial court to award alimony, and fix an attorney’s fee for the wife’s attorney, but also held that the amounts granted by the trial court were too small, and directed that larger allowances be made. We find no abuse of discretion by the Chancellor in the order relating to attorneys’ fees in the cause before us.
Appellant was ordered to pay accrued medical bills (the record is silent as to the amounts involved), which appellee testified were bills due for services rendered to the children in her custody. We have held that the father is liable for medical services rendered to his children. Bradas v. Downing, 202 Ark. 90, 150 S. W. 2d 27 (1941). Appellant does not question the amount involved; his complaint is that he carried insurance which would have covered these bills, but that appellee did not notify him in time for a claim to be timely filed. Mrs. Walls testified that she did not know that the insurance provided complete medical care for the children, until so advised by appellant, and this knowledge was obtained at a time when it was too late to file for benefits. Of course, appellee could not be expected to give notice concerning coverage which she knew nothing about. We think it well, however, to point out, that Mrs. Walls certainly is now aware of the fact that Mr. Walls carries this type of insurance, and henceforth, she should co-operate in every respect with appellant by notifying him immediately of any medical bills incurred, and assisting, as may be required, in filing claims for benefits.
The next alleged error deals with the failure of the court to convey one acre of the property herein involved to Mrs. Zora Walls, mother of appellant. The record reflects that at the time the house was built on the land, the mother and a sister of Mr. Walls provided approximately $650.00 to apply on the construction of the house. According to both appellant and appellee, there was an agreement that the mother and sister could stay in the house as long as they lived, but Mr. Walls, though admitting the agreement, testified: “I feel like we should deed her an acre of ground myself.” Since an agreement to deed an acre is neither alleged nor testified to by any party, it is apparent that no consid eration can be given this contention. The interest of this mother and sister, Zora Walls and Bessie Scoggins, seems to be fully protected in conformity with the agreement reached, as appellee testified, “As long as they live and want it as a home, it is theirs, as far as I am concerned.”
Finally, appellant contends that the amount of maintenance ordered for the support of the minor children is excessive. As stated, this amount was $25 per week, or $12.50 per child. The proof reflects that Mr. Walls has “take home pay” of approximately $360.00 per month. He has possession of the home place, while it is necessary that appellee, from her earnings, rent quarters in which to live, together with the children placed in her custody. Under these circumstances, we cannot say that the maintenance awarded is excessive.
The decree is affirmed.
Appellee’s attorneys seek a further fee on this appeal, and of course, additional time and labor have been required to represent Mrs. Walls in this Court. We think, considering appellant’s income, the obligations presently incumbent upon him under the decree, and the fact he has already paid the sum of $200.00 to Mrs. Walls’ attorneys, that an additional fee of $50 is proper and equitable. Costs against appellant.
The eldest child, a daughter, has since married and moved away.
Appellant had already paid $100.00 to appellee’s attorneys. | [
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J. Seaborn Holt, Associate Justice.
Rachel Anderson was the named insured in an assigned risk automobile liability insurance policy issued by the appellant, Allstate Insurance Company. Dee Mathis and two of his children were injured when an automobile owned by Rachel Anderson collided with the Mathis car. At the time of the collision the automobile was not being driven by Rachel Anderson but by Harry Davidson, a friend of Rachel Anderson’s brother, James Vines. James Vines lived in the home of his sister Rachel Anderson. The present suit was commenced by Mathis against Allstate to enforce the policy provisions which Mathis claims covered Davidson, and which Allstate denies. A jury trial resulted in a verdict in favor of appellee, Mathis, and Allstate has appealed.
For reversal appellant relies on the following points:
(1) That the trial court erred in refusing to instruct a verdict in favor of appellant, Allstate Insurance Company, and
(2) In giving certain instructions requested by appellee, and in refusing to give Defendant’s requested instructions No. 2 and No. 4 and
(3) Erred in allowing appellee an attorneys’ fee of $2,000.00.
The insurance policy here involved, contained this provision:
“With respect to insurance for bodily injury liability and for property damage liability the unqualified word 'insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.”
The evidence discloses that Rachel Anderson had expressly told her brother, James Vines, on several occasions not to let Davidson drive the car, however, on the Saturday preceding the collision on the following day, Sunday, Davidson came to the home of Rachel Anderson and asked for her car to go to his mother’s home. Miss Anderson testified that she allowed him to have the car but did not let him drive alone but accompanied him to his mother’s home. While at his mother’s home Miss Anderson allowed Davidson to take the car to a nearby store to procure medicine for his mother. Later that day, Rachel Anderson gave permission to her brother, James Vines to use the car. Vines and Davidson left in the car and drove by to pick up their girl friends. After picking the girls up, it was decided to drive to Louisiana. They drove all night to Louisiana and arrived back in Little Rock Sunday morning. The boys drank beer and Vodka during the trip and they both drove the automobile. After arriving back in Little Rock, they went to a motel where Vines registered and remained with his date. Vines instructed Davidson to take the other girl to work. While Davidson was gone on this trip to town, after delivering the girl to her work, the collision occurred.
After a careful review of the evidence presented, viewed in the light most favorable to appellee as we must, we do not agree with appellant’s contention that the Court should have instructed a verdict in its favor. We hold that there was some substantial evidence sufficient to take the case to the jury, and if it had been properly instructed, to have sustained the jury’s verdict.
Among the instructions given were the following:
Plaintiff’s Instruction No. 3
“You are instructed that if you find from a preponderance of the evidence that James Vines had permission of Rachel Anderson to use the automobile in question, and further that at the time the automobile was involved in the accident it was being used for a benefit, advantage or purpose of James Vines, then you are advised that the automobile was being used within the permission given and yonr verdict will be for tbe Plaintiffs. Unless yon find that Harry S. Davidson had actually been forbidden to drive the automobile by Rachel Anderson and that such refusal had not been revoked. ’ ’
This instruction was correct.
Plaintiff’s Instruction No. 2
“You are instructed that if you find from a preponderance of the evidence that Harry Steve Davidson was told by the named insured, Rachel Anderson, not to use the automobile in question, if at all, and further that after such refusal of permission was made, if at all, she knowingly permitted Harry Steve Davidson to drive said automobile, then you are instructed that her previous refusal of permission to the said Harry Steve Davidson, if at all, was thereby revoked and in determining whether or not there was implied permission for Harry Steve Davidson to use the automobile in question, you should consider all of the facts and circumstances of the case relating to that particular matter.”
We would affirm but for the error in giving, over appellant’s general objections, appellee’s instruction No. 2. The vice in this instruction is in the use of the phrase:
“... then you are instructed that her previous refusal of permission to the said Harry Steve Davidson, if at all, was thereby revoked.”
Whether Rachel Anderson’s permission to Davidson to drive the automobile after she had previously refused him permission, automatically revoked her previous refusal of permission to Davidson, was a question of fact for the jury under a proper instruction.
Accordingly, the judgment is reversed and the cause remanded. | [
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J. Seaborn Holt, Associate Justice.
January 6, 1960, appellant, A. C. Silas, was tried and convicted on an information charging the crime of possessing stolen goods, under § 41-3938, Ark. Stats., 1947 (1959 Supp.). His punishment was fixed at ten year's in the penitentiary.
The original information, filed August 6, 1959, charged “the defendant, A. C. Silas, of the crime of Possession and disposal of stolen goods, committed as follows, to-wit: The said defendant in May and July, 1959, in the Eastern District of Clay County, Arkansas, did unlawfully, willfully, knowingly, and feloniously possess stolen goods which exceeded the aggregate value of thirty-five dollars ($35.00), knowing said goods to be stolen, with the intent to deprive the true owner thereof, and did dispose of same for a valuable consideration, and that said goods possessed are as follows: One 10 horsepower Evinrude outboard motor, Serial No. 10008-02643; One 10 horsepower Johnson outboard motor, Serial No. 1927540; One 10 horsepower Evinrude outboard motor, Serial No. 10014-09212; One 12 horsepower West Bend outboard motor, Serial 1652, Model 12902; One 2 horsepower West Bend outboard motor, Serial 1983 or 1980 Model 2901; and against the peace and dignity of the State of Arkansas.”
The information was later amended by striking out the words “and disposal” from the charge; by correcting and changing the serial number of one of the motors from 10008-02643 to 10018-02643; and by adding another outboard motor describing it as follows: £ ‘ One 18 horsepower Evinrude Outboard Motor, Serial No. 15024-14804.” A long list of the State’s witnesses was also attached to this information at appellant’s request.
From the judgment comes this appeal. For reversal appellant contends that the trial court erred in allowing the information to be amended, as indicated above, and in refusing to quash it; that the court erred “in allowing the trial to proceed after amending the original information by striking the words ‘and disposal’ without any notice to the Appellant or Appellants Counsel;” that the court erred in refusing to grant appellant a continuance; and “by proceeding to trial without the State having first filed a Bill of Particulars as requested by Appellant.” And finally Silas contends that on account of the above alleged errors, he has been deprived of due process of law. We do not agree to any of these contentions.
Appellant, although a barber by trade, dealt in buying and selling many things, among them being automobiles, firearms and outboard marine motors. The evidence appears to be overwhelming that appellant induced several teenage boys to steal outboard motors for him and pursuant to this arrangement, six outboard marine motors were stolen and possession delivered to Silas. Silas paid the boys $300.00 for four of these motors. The owners of the stolen motors testified as to the ownership and identified them. One of the youths instrumental in stealing them testified that he, along with companions, delivered the stolen goods to Silas during the late hours of night. Serial numbers of the motors stolen corresponded with those in Silas’ possession. Numerous advertisements appeared in the local newspaper offering the sale of motors by Silas with horsepower identical with those stolen.
At the outset appellant is confronted with the fact that he did not file a motion for a new trial incorporating his alleged errors. Therefore, under our long established rule, only such errors as may appear on the face of the record will be considered by this court on appeal. In Holliman v. State, 213 Ark. 876, 213 S. W. 2d 617, we said: “There is no motion for a new trial in this record, and * * * it is a well settled rule of this court that, where there is no motion for a new trial, only errors appearing on the face of the record will be considered on appeal. ’ ’ As to what constitutes ‘ ‘ the record”, we said in Baker v. Allen, 204 Ark. 818, 164 S. W. 2d 1004: “The record proper includes the pleadings, any exhibits thereto, statement showing service of summons, any material order of court preceding judgment, the judgment iself, motion for new trial, the order overruling same, and the grant of appeal.”
The trial court did not err in allowing the State to amend the information by striking out the charge of “disposal” of stolen goods and thereby eliminating and reducing the charge to the one charge of “possession” of stolen goods. Obviously the nature and degree of the crime charged (§ 43-1024, Ark. Stats.) was not changed. The change made was clearly to appellant’s benefit and he cannot complain. “The only limitation on such amendment is that it relates to ‘matters of form,’ and not ‘change the nature or the degree of the crime charged,’ ” Ingle and Michael v. State, 211 Ark. 39, 198 S. W. 2d 996. In 42 C. J. S., Indictments and Informations, § 237, the author says: “No amendment of the information is necessary in order that the prosecuting attorney may abandon a greater charge and proceed against accused on a lesser one included therein; a simple motion, made verbally in open court, or an announcement of such intention, suffices if made before the trial begins,” and § 240, “Accused is not prejudiced by an amendment of an information to charge an offense included within that stated in the original information; and it has been held that an amendment which diminishes the accusation cannot injure accused.”
In 27 American Jurisprudence, Indictments and In-formations, § 118, we find this language: “Amendments in respect to the description of the offense or of the property involved, where they do not change the nature or degree of the offense are generally held to be proper under statutory authority permitting amendments as to form, ” and § 121, “ * * * it has been held proper, where no substantial change in the nature or degree of the offense is worked thereby * * * to permit an amendment * * * as to the property forming the subject matter thereof.”
Appellant contends that the amendment to the information “correcting the serial number of one of the outboard motors, which was otherwise properly described, by the changing of one number, was prejudicial error, and that the amendment of the information by the addition of an outboard motor also constituted error, alleging that these amendments were made without leave of the court.” The record reflects that these alleged errors were not made in appellants motion to quash the information, in his motion for bill of particulars, or in his motion for a continuance and were not made to the court prior to trial, and, as indicated, were not presented in a motion for a new trial; therefore, these contentions came too late and he is now estopped.
We find no merit in appellant’s contention that the trial court abused its discretion in refusing to grant his motion for a continuance. Since this alleged error, as indicated, was not preserved in a motion for a new trial, it comes too late. We also quickly dispose of it on its merit by holding that the court did not abuse its discretion in denying a continuance. The court pointed out in overruling this motion that Mr. Hugh Trantham, appellant’s attorney of record, contacted the court concerning the bond at the time of appellant’s arrest in August and that attorney Trantham had represented appellant since August, 1959. “The fundamental principle running throughout the subject of continuances is that the granting or refusal of a continuance rests in the discretion of the court to which the application is made. Its ruling in reference thereto will not be disturbed by an appellate tribunal unless an abuse of discretion is shown . . .”, 12 Am. Jur., Continuance, § 6.
We also hold that the trial court properly denied appellant’s request that the State be required to file a bill of particulars. This too was a matter within the sound discretion of the trial court. Our statute relating to Bill of Particulars, § 43-804 Ark. Stats., 1947, provides: “The bill of particulars now required by law in criminal cases shall state the act relied upon by the State in sufficient details, as formerly required by an indictment; that is, with sufficient certainty to appraise the defendant of the specific crime with which he is charged, in order to enable him to prepare his defense . . . ’ ’ The amended information here clearly charged appellant with the possession of stolen goods (Describing them) which is a felony. The information here itself was sufficient compliance with the law. In addition to the information, appellant, as indicated, was furnished with a copy of the State’s witnesses before the trial.
Finally, appellant’s contention that he was deprived of due process of law hy being pnt to trial without being informed of that with which he was charged and not furnished a bill of particulars, after a request for same, may also be disposed of against appellant’s contention since appellant made no objection on this ground at the trial and did not incorporate it in a motion for a new trial. We point out, however, that in 16-A, C. J. S., Constitutional Law, § 587, under Form and Contents of Indictments or Informations, the text writer has this to say on due process: “* * * a statement of the facts as to matters of detail is not essential. Due process is not denied by charging accused in an indictment containing several counts, each count alleging a different offense, by grouping several misdemeanor counts in one indictment, or by charging that both principals and accessories committed the crime in question . . .
“While it is not doubted that in a sufficiently extreme case, refusal of a bill of particulars would be a deprivation of due process, such refusal does not deny due process where accused has long understood the general nature of the charge and it is evident that, if given, a bill of particulars would be confined to the overt acts alleged.
“* * * So accused is not deprived of his liberty without due process of law by a verdict convicting him of a lesser offense than that charged in the indictment or information, but of the same generic class, or by a statute permitting accused to be charged as a principal and convicted as an accessory.”
On the whole ease finding no error, the judgment is affirmed. | [
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Jim Johnson, Associate Justice.
This case involves a boundary line dispute. Appellants H. A. Carney and Olva Carney, his wife, own a farm in the "Western District of Craighead County. This farm is situated immediately north of the farm owned by appellees D. A. Barnes and Ethel Barnes, his wife. Appellee Lloyd Browning is a tenant on the Barnes farm. The disputed boundary line runs between these two farms.
At the conclusion of appellants ’ proof, appellees filed a written demurrer to the evidence which was sustained by memorandum opinion of the court. Appellants made formal objections and were granted leave to file specific objections to the court’s ruling which were duly filed, and the court thereafter entered its order sustaining the demurrer and dismissed appellants’ complaint, from whence comes this appeal.
The only real question presented here is whether the demurrer to the evidence was properly sustained. This depends under our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, upon whether the proof, viewed in its most favorable light, would have presented a question of fact for the jury if the case had been tried at law.
Viewing appellants’ proof under this rule, we find evidence to the effect that as early as the year 1921 there existed a woven wire fence with two strands of barb wire between appellants’ land and the adjoining owner to the South and said fence and/or fence row remained in position through the years until the Spring of 1959. The record gives the exact geographic location of most of that fence. In the Spring of 1959 appellee Barnes (owner of South Farm) tore the fence down, or what remained thereof, and cleared out and disked down the elevation of the fence row and cut ditches across the fence row and the land immediately beyond, draining his land to the North thereby changing the drainage from a natural southern and eastern flow to a northern and western flow into an old slough bed on appellants’ farm which had no natural outlet.
Appellant had possession and claimed ownership of all the lands lying North of the fence and fence row from the time of his purchase in 1938, and former adjoining owners to the South, at least as early as 1941 and 1946, acquiesced in the fence and fence row being the line between the adjoining owners. Appellees acquiesced in the fence and fence row being the line between the adjoining owners until the Spring of 1959.
Certainly we cannot say that the proof set out above is not substantial upon the controlling question of fact. Therefore, we must conclude as we did in the recent case of Neely v. Jones, 232 Ark. 411, 337 S. W. 2d 872:
“We are of the opinion that the demurrer to the evidence should have been overruled, for the appellants’ proof raised a question of fact as to the existence of a boundary by acquiescence. As we said in Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490: ‘We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. [Citing cases.] ’ In such cases the existence of a boundary line by acquiescence is an issue of fact, to be determined upon the evidence in each individual case. Thompson on Real Property (Perm. Ed.), § 3309.”
Reversed. | [
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Jim Johnson, Associate Justice.
This is a second review by this Court of matters arising out of the same litigation between appellant Elza Lewis and appellees W. G. Brown, et ux.
Elza Lewis commenced action against W. Gr. Brown and wife to be declared equitable owner of certain lands in Chicot County. Summons was served on November 17, 1958, and demurrer was filed by W. G. Brown and wife on December 6, 1958. On January 12, 1959, the regular Chancellor disqualified himself and a Special Chancellor was duly elected. On April 3, 1959, the demurrer was overruled and the defendants were given ten days to answer. On April 23, the defendants having not answered, the Special Chancellor vacated his order of April 3, 1959, and granted defendants until April 25, 1959, to answer and ordered the cause tried on May 18, 1959. On May 18, 1959, the defendants failed to appear and after a trial a default decree was entered in favor of plaintiff.
On July 18, 1959, W. G. Brown and wife filed complaint to vacate decree of May 18, 1959, and on July 18, 1959, filed petition for injunction restraining execution on decree of May 18, 1959. On August 8, 1959, after trial, the Chancellor denied the petition for injunction. On August 27, 1959, after trial, the complaint to vacate decree of May 18, 1959, was denied. Appeal was then taken to this Court on denial of complaint to vacate, Brown v. Lewis, 231 Ark. 976, 334 S. W. 2d 225, wherein the action of the Chancellor in denying the Complaint to Vacate Decree of May 18, 1959, was affirmed, and rehearing denied on May 9, 1960, on which date the mandate of this Court was issued.
On June 1, 1960, W. C. Brown filed a Petition for Bill of Review. On the same date, Elza Lewis filed a demurrer to this petition which was treated as a Motion to make more Definite and Certain by the Chancellor, and plaintiff was “granted 20 days in which to comply with said Motion, in default the action be dismissed.”
On June 22, 1960, two days beyond the granted time to comply with the motion, the appellant filed a petition to dismiss with prejudice the Petition for Bill of Review.
On June 29, 1960, appellant’s petition to dismiss reached regular call on the docket. The Chancellor, upon inspecting his docket, found a notation thereon dated June 28, 1960, written by Solicitor for appellee. The notation is as follows: “The Chicot Chancery Court being in vacation, the Petitioners, by their attorney hereby take a non-suit in this action (case No. 9194) and the cost having been fully paid, Petitioners petition in this case is hereby dismissed without prejudice to Petitioners.” The Chancellor thereupon dismissed appellant’s petition for dismissal with prejudice thereby sustaining appellees’ action in taking a non-suit. From such order comes this appeal.
For reversal appellant urges two points. The first point contended that: “The Chancellor erred in treating appellant’s demurrer as a motion to make more definite and certain.” This order of the Chancellor, treating the demurrer as a motion, was not final and appealable; it was a matter clearly within the Chancellor’s discretion and here, contrary to appellant’s eloquent argument, we cannot say that the trial court abused this discretion.
Appellant’s second point contended that “The Court erred in dismissing appellant’s petition for dismissal with prejudice.”
Ark. Stats., § 27-1406 is as follows:
“The plaintiff or his attorney may dismiss any suit pending in any of the courts of this State, except actions of replevin, in vacation, in the office of the clerk, on- the payment of all costs that may have accrued therein.”
This statute has been construed by this Court many times and upon compliance with its terms the Court has never departed from the rule that “The plaintiff has an absolute right to dismiss his case at any time before submission to the Court.” St. Louis, I. M. & S. R. Co. v. Ingram, 118 Ark. 377, 176 S. W. 692. While it is true, as appellant argues, the dismissal notation was made by the solicitor for appellee on the court’s docket some seven days in default of a prior order of the court, yet it isn’t contended that the court was not in vacation at the time, nor is it contended that all costs had not been paid, and since we do not find that the motion to dismiss with prejudice filed by appellant constituted a cross-complaint [See Ark. Stats., § 27-1407] we have no choice but to affirm the order of the Chancellor thereby concluding that there was no appealable order before this Court.
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Carleton Harris, Chief Justice.
This appeal relates to an award made by the Workmen’s Compensation Commission for the benefit of Mrs. Doris Dorman, widow of Oscar L. Dorman, and four minor children. Following the award, appellants appealed to the Washington County Circuit Court. The court confirmed the award, and from such order of the court, appellants bring this appeal. Appellants rely upon only one point for reversal, viz, “It is medically unsound to permit the finding of a causal relationship between effort and myocardial infarction unless the attack follows an episode of severe and unusual exertion.”
Dorman, age 35, a carpenter by trade, suffered a heart attack that was described as a myocardial infarction on September 9, 1958, while engaged in carpentry work for his employer, Box Construction Company, during the construction of a residence at Fayetteville. The evidence reflected that Dorman first suffered a heart attack in the middle of July, 1957, and was hospitalized in the Veterans Administration Hospital from that time until August 13th, at which time he was released. During October and November of the same year, he worked as a night watchman during the construction of a factory in Fayetteville, and had no other employment until May 7,1958, when he returned to work for Box Construction Company at his usual occupation of carpentry. During the period between May 7th and September 9th, Dorman suffered intermittent chest pains, which were relieved by rest or the taking of nitroglycerin tablets. According to Mrs. Dorman, her husband complained of pain anytime he exerted himself, and, after returning to work for the construction company, would make complaints of chest pains following his engaging in lifting or heavy work. She stated that the pains were worse the last day or two before the attack on September 9th. Following this last attack, which occurred about 3:30 in the afternoon, Dorman went to Dr. Joe Hall, of Fayetteville, and obtained an examination; he then went home, ate very little supper, and retired. Around midnight, the pains became more severe, and Mrs. Dorman took him in their car to the Veterans Hospital. According to her testimony, he lost consciousness before they arrived, and vomited after entering the hospital; death occurred less than 48 hours later.
Lloyd Box, employer of Dorman, testified that Dorman worked a forty hour week from May 7, 1958, until September 9th, and was doing general carpentry work. Since he (Box) had knowledge of the previous heart attacks, an effort was made to see that Dorman obtained lighter duties, and he heard no complaints from Dorman concerning chest pains during this four months of employment. Box was working with Dorman on the morning of the 9th, being engaged in constructing the ceiling on the porch. The witness stated that this first required sawing, and that construction of the ceiling required Dorman to stand with his arms overhead. About 10:30 in the morning, Dorman complained that he was having a dizzy spell, “had pain up kinda high in his chest”, but they continued to work on the ceiling since but little complaint was made. Thirty minutes was taken off for lunch, and at 12:30 the two men resumed work. Some complaint was made during the early part of the afternoon, but about 3:30, while Dorman was nailing the ceiling, the pain became more severe, and Box advised Dorman to go to the doctor. The witness stated that he did not consider the work on that day as particularly strenuous, though he stated that nailing a ceiling is as hard work as a carpenter is required to perform, with the possible exception of lifting or building a scaffold.
Three carpenters, Orville Foster, Arthur Ledford, and Carl Lewis, testified on behalf of claimant. Foster testified that reaching up over one’s head and nailing is “most strenuous”, and is the most strenuous part of carpentry work. Ledford, a carpenter of fifteeen years, testified that because construction of the ceiling requires overhead work, and requires the body to be out of its normal position, it places a strain on the worker, and “hurts me worse” than other phases of carpentry. Lewis likewise testified that overhead nailing or plastering of ceilings was the most difficult type of work to him, and produced the most strain upon his body.
Dr. Joe B. Hall of Fayetteville, specializing in internal medicine, testified that he saw Dorman on September 9th around 5:30 in the afternoon; that this was past the regular office hours, but the nurses recognized that Dorman was ill, and asked the doctor to see him. The witness stated that he obtained a history from Dorman, in which the facts heretofore set out were related, and that Dorman was having pain in the chest at the time of the interview. Dr. Hall testified that after making; an examination and taking a cardiogram, he was of the opinion that Dorman was having a myocardial infarction. The doctor then staged, that based on the history, and his examination of the patient, “I think that the work he was doing was an aggravating factor which precipitated the heart attack.” On cross-examination, the witness reiterated that the effort in which Dorman was engaged contributed to his death. Dr. Hall had no opinion, as to the immediate mechanism which brought about the formation of the thrombus, and stated that some mechanisms that precipitate thrombi have no relation to effort. He also testified, on cross-examination, that the effort could have contributed to Dorman’s condition, even though there was no thrombus.
“The effort might have produced a subendomal hemorrhage. It might have produced a loosening of an arteriosclerotic plaque. It might have produced a narrowing of a coronary vessel which resulted in a myocardial infarction, without a thrombosis. ’ ’
The doctor admitted that an occlusion of the artery could occur simply by degeneration of the artery in the arteriosclerotic process, and in such event, effort would have nothing to do with the attack. Dr. Hall stated that in many instances, acute myocardial infarction occurs without relation to effort, but in this instance, he considered the work Dorman was doing to be an aggravating factor which precipitated the heart attack.
Dr. W. J. Butt, upon being interrogated with a hypothetical question embracing the facts of the case, stated, that in his opinion, there was a direct causal relationship between the work in which Dorman was engaged and his heart attack. Dr. Butt stated there was no way of determining the cause of occlusion of the artery without an autopsy being performed (which had not been done), and lie accordingly could not give the specific reason for the attack.
The doctor stated that it was normally his policy to order heart patients to bed for absolute rest, and that he had never recommended that a heart patient exercise when first suffering a coronary thrombosis.
Dr. Frank Biggall, in response to a hypothetical question, expressed the opinion that effort plays no part in the end result of the decay and degeneration of the coronary supply resulting in myocardial infarction, and was therefore of the opinion that there was no causal relationship between Dorman’s actions as a carpenter, nailing on the ceiling, and his death. Dr. Biggall explained that there are five mechanisms that occasion the blocking or closing of the arteries. One of the five, according to the doctor, is coronary thrombosis, which Dr. Biggall stated is the most common, and he explained,
“* * * due to a further lack of nourishment there is further decay and further degeneration and the surface of the plaque becomes roughened. It is dying but not dead. That allows the cells in the traveling blood to be arrested on that roughened surface — to pile up — slowly in some cases, moderately fast in another, rapid in another, so that a thrombus is formed at the site of the roughened plaque. We call that coronary thrombosis. It may pile up sufficiently there to block the artery or it may not block the artery but a piece of it breaks off, again as an embolus, and blocks the artery lower down so as to deprive the heart muscle of its nourishment and produce infarction.” Upon being asked whether effort plays any significant part in the two processes mentioned, he replied, “They are perfectly normal, natural processes of decay and degeneration in the particular plaque. ’ ’ The witness stated that he had made a survey of the cardiovascular cases in Elizabeth Hospital over the last twenty years. According to the doctor:
‘ ‘ Three of our cases were between 30 and 40. Two of them died in the acute attack, one of them died in a second attack. One of them was riding in a car in Fort Smith which was being driven by his wife down Garrison Avenne in the middle of a block when he had his attack. Another occurred while he was shopping in Fayetteville and the third one occurred while he was shaving in his own bathroom. On the other cases of 230 it works out roughly that one-half of them were at rest, one-fourth of them, roughly, were at their usual vocation, and one-fourth of them appeared to be doing something unusual for them at that particular time. In three-quarters of them we could find no relation to activity; one-quarter doubtful.”
He also testified relative to other surveys which had been made in various parts of the country, and stated that these surveys had,
“* * * changed all of our ideas, really, on treatment, although we are in a somewhat difficult position. I was taught, as I said, the classical view. I still with some fear and trembling hesitate to tell a man to resume activity * * *. Where we used to keep our heart patients in bed recumbent, flat, we get them up quicker, and we have them sit up because we know more about the effects of the circulation. When a man is sitting up in bed or is standing up, the heart only has to pump the blood to the arch of the aorta. From there on it falls by gravity. When he is lying in bed the heart has to pump it along the level. Those are some of the things that these newer ideas have given us in handling these cases.”
Dr. Eiggall testified that surveys in Utah, Washington, and California, indicated no relationship between effort and myocardial infarction; however, he admitted that there is a wide divergence of views on the subject.
Dr. Spencer Brown, in response to a hypothetical question embracing the facts of this case, was of the opinion that Dorman’s exertion had nothing to do with the heart attack. The doctor stated that exertion will not precipitate an acute coronary insufficiency in a person whose arteries are already diseased, because the insufficiency is already present, and the exertion only makes it manifest. He stated that any unusual exertion beyond the person’s limit could produce pain, but would not produce infarction. However, the doctor admitted that exertion would increase the demand of the heart for blood. Also, both Dr. Riggall and Dr. Brown agreed that the doctor who examines the patient is in a better position to render an opinion than a doctor who had no personal contact, but renders an opinion simply on the basis of a hypothetical question.
Dr. Charles T. Chamberlain, a physician of Fort Smith, stated that the mechanism that occluded a coronary artery could not be determined in the absence of a postmortem or autopsy; and though agreeing that work involving the use of the hands above the head is more strenuous than work at heart or chest level, he was of the opinion that no specific act can be held responsible for the production of a myocardial infarction through the mechanism of a thrombosis or occlusion, except in very rare instances.
As indicated by appellants’ sole point for reversal, this appeal is primarily an attempt to persuade this Court to re-examine and modify prior holdings in “heart attack” cases. In Bryant Stave and Heading Company v. White, 227 Ark. 147, 296 S. W. 2d 436, this Court held that it is unnecessary to make a showing of unusual strain or exertion in order to sustain an award under the compensation law. That rule has been applied to all workmen’s compensation cases, including those based on death or disability resulting from heart attacks. In their brief, counsel state:
“Appellants have no quarrel with the Bryant case, for it is clear that an individual’s ordinary work load may over a period of time by a process of attrition, produce injuries which are in every respect as disabling as those brought about by sudden or fortuitous events. But it is appellants’ purpose here to try to demonstrate to the Court that a rule established in a case concerned with a ruptured intervertebral disc is, in the light of recent medical developments, scientifically unsound when applied to a case involving the altogether distinct condition of myocardial infarction resulting from coronary occlusion. ######
The area of controversy among medical men centers around the question of whether effort or exercise can ever, under any circumstances, trigger an arterial spasm, a subintimal hemorrhage, or a coronary blood clot, so as to produce a coronary occlusion and consequent myocardial infarction. On this point, medical opinion is divided into three groups. Those who believe that effort sometimes can and does activate these mechanisms, those who believe that effort never is causally related to a coronary occlusion and those who believe that violent or extreme effort may, in rare instances, cause the rupture of an atheromatous plaque and the consequent formation of a subintimal hemorrhage or hematoma. The vast majority of leading internists and cardiologists in the United States believe either that effort never plays any part in this kind of heart attack or that it contributes to the attack rarely and only then when the episode of effort is violent or extreme.”
During examination of the medical witnesses, counsel for appellants brought out that certain eminent physicians hold the opinion that effort is not a significant factor leading to coronary thrombosis, and appellants rely to large extent upon the testimony of Dr. Riggall relative to the medical surveys heretofore set out. Of course, these particular surveys favor appellants’ contention, though some items appear irrelevant to this appeal; for instance, there is no contention here that work was the cause of Dorman’s heart disease, and it is admitted that he had suffered previous heart attacks. Appellants ’ own medical witnesses agreed that there is, over the country, a wide divergence of views concerning the part that effort plays in a myocardial infarction, and Dr. Riggall stated, “I still with some fear and trembling hesitate to tell a man to resume activity * * *” At any rate, we are unpersuaded that there is such unanimity of opinion among medical authorities that it can now be said, as a matter of law, that effort never, or at most, only when violent or extreme, plays any part in producing a coronary occlusion and consequent myocardial infarction. We are still of the opinion that this is a question of fact, to be decided on the basis of evidence developed at each particular hearing, and we take occasion to re-affirm our holdings in Safeway Stores v. Harrison, 231 Ark. 10, 328 S. W. 2d 131, Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489, and E. P. Bettendorf & Co., et al v. Kelly, 229 Ark. 672, 317 S. W. 2d 708.
Appellants also contend, that even though we disagree with this primary contention and hold that exertion can contribute to a coronary occlusion, the evidence in the present case is insufficient since appellees’ medical witnesses were unable to pinpoint the specific mechanism precipitating Dorman’s attack. We find no merit in this contention. Appellants state, “There is no way to determine which of the several mechanisms have occluded a coronary artery in the absence of a post mortem.” Were we to agree with this contention, it would simply mean that recovery could never be made in a heart attack case unless an autopsy had been performed. Though helpful as pertinent evidence, we do not agree that such a requirement is absolute. Doctors frequently reach their conclusions on the basis of physical examinations, together with case histories. It might be mentioned that one can, of course, suffer a heart attack without dying, and can draw disability payments if the attack was occasioned or contributed to by work on the job; it goes without saying that proof establishing such disability could not include an autopsy. The same contention was made in the case of American Life Insurance Company v. Moore, 216 Ark. 44, 223 S. W. 2d 1019. While this was not a compensation case, the same logic applies. In that case, the doctor who testified for appellee stated that after examining the body and learning the history of the case, he attributed death to a pulmonary embolism resulting from a fracture. Quoting:
“On cross-examination Dr. Monroe admitted that there are cases known to the medical profession in which pulmonary embolism has been caused other than by accidental injury or surgery. In this case an autopsy would have been required to determine the cause of death with certainty. Nevertheless, Dr. Monroe reiterated his opinion that Looney’s death resulted from pulmonary embolism caused by the accidental injury. On the other hand, appellant’s medical witness — who stated that he was as familiar with the subject as the average physician —testified that an embolism never occurs more than three weeks after the injury. In his opinion, based on his own experience and the textbooks he had examined a few days before the trial, it was not possible for an injury sustained on May 31 to produce pulmonary embolism on July 12— an interval of forty-two days.
“Appellant insists that Dr. Monroe’s testimony is speculative, since he admitted the possibility that death was due to some other cause. But medicine, like the law, is not an exact science. If mathematical certainty were required, a surgeon would act at his peril in advising his patient to undergo an operation. The law does not compel adherence to a standard so precise. The effect of Dr. Monroe’s testimony is that in his opinion the most probable cause of death was a pulmonary embolism attributable to the fractured leg.”
In Herron Lumber Company v. Neal, 205 Ark. 1093, 172 S. W. 2d 252, we held that circumstantial evidence is sufficient to support an award of the Workmen’s Compensation Commission, and it may be based upon the reasonable inference arising from the reasonable probabilities flowing from the evidence, and absolute certainty is not required. ......., . ,, ,
Witnesses classed as experts aré permitted to give their opinion for the very reason they are considered experts, and their opinions are frequently based, and expressed, purely in answer to a hypothetical question — without ever seeing the patient — as is the case with appellants’ expert witnesses in this litigation. Dr. Hall was designated as an outstanding heart doctor by appellants’ medical witnesses, and in addition, he, as already stated, was the only one of the doctors to actually personally examine deceased.
In Bettendorf v. Kelly, supra, Kelly was engaged in driving nails into boards when he suffered his heart attack. Repeating our language in the Bryant Stave and Heading Company v. White, supra, we held:
“ * * * ail accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”
Dorman was engaged in driving nails into the ceiling (which incidentally, though not the controlling or determinative factor in this case, is considered rather strenuous carpentry work), and we hold, under the authority of the cases cited herein, that there was substantial evidence to justify the Commission’s finding “that the exertion put forth by the deceased on September 9, 1958, was either the sole or contributing cause of the injury.”
Affirmed.
Dr. Hall explained a myocardial infarction as follows: “Well, that implies that there has been a coronary thrombosis in the vast majority of cases; that there is disease of the coronary arteries in the form of arteriosclerosis which produces a narrowing of these arteries, and that this, combined with spasm or the rupture from the surface of one of these vessels or one of the sclerotic plaques precipitates a blood clot which shuts off the blood supply to a portion of the heart muscle, resulting in the death of this muscle and the death of this muscle is called a myocardial infarction.”
According to Dr. Eiggall, a survey conducted by medical authorities in New York revealed that of 398 internists and cardiologists, 93.9% agreed that work did not produce heart disease; 93.4% agreed that atherosclerosis of the coronary arteries must exist before there can be an infarction of heart tissue; 88.5% were of the view that ordinary or moderately heavy work does not produce coronary effects, and 88.9% thought that later heart attacks were due to the natural progression of coronary arteriosclerosis, and not related to previous attacks.
Among others, Dr. Samuel A. Levine, Dr. Herman L. Blumgart, and Dr. Meyer Texon. In the textbook of medicine, “Cecil and Loeb”, in which the section on cardiovascular disease is written by Dr. Blumgart, he states: “In most instances, acute myocardial infarction occurs without relation to effort or other discernible clinical event.” | [
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J. Seaborn Holt, Associate Justice.
This appeal involves the construction and interpretation of the provisions of a lease. Appellants, Edward S. Back, Phillip G. Back and William S. Back as trustees, had leased to appellee, J. O. Penney Company, for a number of years a retail store building at 505 Main Street, Little Rock, Arkansas, which appellants owned. On April 9, 1952, the parties entered into a continuation lease on the property beginning June 1, 1952, for a period of ten (10) years, ending May 31, 1962. The building under lease was to be used by Penney for the sale of ready-to-wear clothing and similar lines of merchandise. The lease provided for a rental which would be three percent (3%) of the monthly net sales of the Penney Store. However, in no event was the rent in any one year to be less than $13,500.00. The lease provided that the Penney Company could, at its option, install a freight elevator and air conditioning to make the building more suitable. Penney, under the terms of the lease, would pay the initial cost and would recoup this capital outlay (or cost), which amount was admitted to be $76,698.75, by deducting one-tenth (l/10th) of the rentals each year in excess of $48,000.00. Penney elected to install the above mentioned items and proceeded to recoup its outlay according to lease provisions. Penney, on January 25, 1958, vacated the premises and continued to pay rent on the basis of "$63,216.93, the yearly average, less the sum of $7,669.88 [being one-tenth the cost of improvements]. The contention of appellants, Back trustees, is that Penney should not be allowed to deduct $7,669.88 now that it has quit the premises and the trustees filed suit to recover this amount. The lower court dismissed appellants’ complaint and this appeal followed.
For reversal, appellants rely on two points. (1) Upon vacating the leased premises, the J. C. Penney Company was obligated under the lease to pay a sum in lieu of percentage rentals, and the formula for the computation of said sum did not provide for a deduction for the cost of elevator, air conditioning, or other improvements. (2) Any language in the lease intimating that J. C. Penney Company had the right to withhold for improvements from the sum paid in lieu of percentage rentals after it vacated the premises is in conflict with the formula previously mentioned, and any ambiguity so created should be construed against Penney since its employees prepared the lease.
We do not agree with either of these contentions. They are so related that we will consider them together. The lease, under IMPROVEMENTS, relating to Penney’s right to deduct one-tenth (l/10th) of the cost of the air conditioning system and the freight elevator, provides: “If, as, and when Tenant shall complete installation of air conditioning and/or a freight elevator, and if the cost thereof shall be determined to be less than the aforesaid sum of Ninety Thousand Dollars ($90,000.00) that Landlord has agreed to contribute towards the cost thereof, then there shall be an adjustment of the amount to be withheld each lease year out of said percentage rentals as aforesaid, to the end that Tenant shall withhold or recover one-tenth (l/10th) of the actual amount so expended by Tenant for each lease year of the term hereof as aforesaid, provided always, however, that Tenant shall, in no event, recover or withhold an amount in excess of the sum actually expended by Tenant in connection with the installation of air conditioning system and/or a freight elevator, or the sum of Ninety Thousand Dollars ($90,000.00), whichever shall be the lesser of the two.”
We think there could be no question, therefore, but that the parties clearly intended that Penney be fully reimbursed for the cost of the air conditioning and elevator if percentage rentals due in excess of $48,000.00 annually permitted recoupment, and it is undisputed that the percentage rentals averaging $63,216.93 annually from June 1, 1952 through January 25, 1958 have been paid by Penney to appellant and were sufficiently in excess of $48,000.00 per year to permit recoupment of $7,669.88 annually by Penney.
Appellants made no complaint about deductions under the lease until after Penney vacated the building on January 25, 1958. Prom that date they complain about further deductions, or recoupments. After Penney vacated the building, Penney contended that it had the right, under the plain terms of the lease, to continue to deduct $7,669.88 out of its average annual payments of $63,216.93 due to the Backs until it had been fully repaid for the $76,698.75 it had advanced and expended in installing the air conditioning and freight elevator. The lease provided that if Penney vacated the building, the percentage rental formerly used up to the vacation date [January 25, 1958] would not apply but instead the lease provided that the rental should be: “An amount each month until the end of the term . . . equal to the average of the amounts actually received each month by the Landlord under the foregoing provision for rentals during the period between the beginning of the term of the lease and the time when the Tenant ceases to use the demised premises for its business.” Clearly, then, under the above language, appellants [Backs] were entitled to receive for the remainder of their lease term what is admittedly being paid to them, namely $55,547.05 cash, which represents the average of $63,216.93 paid to them annually during the period that Penney occupied the building before vacating it, less the amount $7,669.88 deduction provided for. This lease appears to have been carefully drawn and agreed upon by the parties. Its meaning is clear and unambiguous. Under its plain terms we hold, as indicated, that Penney was clearly entitled to the annual recoupment of $7,669.88 until fully reimbursed in the amount of $76,698.75 for the improvements. Appellants will continue to receive, from May 28, 1958 until May 31, 1962, an annual cash rental of $55,547.05 and further will be allowed to retain valuable improvements on their property amounting to $76,698.75, all under a lease which contained a minimum guarantee rental of only $13,500.00 per year.
On the whole case, finding no error, the judgment is affirmed.
George Rose Smith, J., not participating. | [
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J. Seaborn Holt, Associate Justice.
This is a suit by appellees seeking reformation of a deed. The lower court granted the relief which appellees sought and this appeal followed.
On February 14, 1944, C. E. Mills (now deceased) and the appellant, David É. McCullough, entered into a written contract for the purchase of 480 acres of land in Logan County. This contract provided that McCullough was to pay Mills for the land over a period of years in installments, and that a clear title to the land would be delivered to McCullough by Mills upon receipt of the last installment subject, however, to the following reservation in the contract of the mineral rights in all of the 480 acres of land: “It is agreed and understood by all parties concerned that all oil, gas or/and mineral rights are reserved in, on and under the land described in this contract, and no oil, gas or mineral rights go to the party of 2nd part herein. ’ ’ McCullough was the second party referred to. Before all payments under the contract were completed, Mills died and his wife, acting as the personal representative of his estate, petitioned the probate court for permission to carry out the terms of her husband’s contract with McCullough and deliver title to McCul lough upon receipt of all payments. The court granted this petition and on August 11, 1951, a deed was given by the personal representative, joined in by the heirs at law of the deceased, Mills, giving the appellant, McCullough, surface title to all the land and also mineral rights to the 80 acres now in dispute. In June of 1956, McCullough conveyed the surface rights to the 480 acre tract and reserved the mineral rights in this 80 acres to himself. On January 28,1958, the appellees, heirs at law of C. E. Mills, Sr. and Maude Mills, both deceased, filed suit against McCullough to reform their deed of August 11,1951, alleging that the 80 acres of mineral rights were conveyed to McCullough through mistake. The trial court granted appellees this relief and this appeal followed.
For reversal, appellant relies on the following points: “ (1) The findings, conclusions and decree of the trial court were not supported by substantial evidence and on the case as a whole the appellees failed to prove they were entitled to the relief sought by clear and convincing evidence (2) The trial court erred in permitting appellees to introduce additional evidence after the filing of appellant’s motion to dismiss because of insufficiency of the evidence (3) The trial court erred in failing to sustain appellant’s motion to dismiss at the time it was filed (4) The trial court erred in overruling appellant’s motion to dismiss after allowing appellees to introduce additional testimony.”
Appellant’s principal contention is that the appellees failed to meet by clear and convincing evidence the burden of proof that a mutual mistake had occurred. A review of the record presented discloses the following facts: Mrs. Callahan, a long-time secretary of Mr. C. E. Mills, testified that she drew the original contract between C. E. Mills and David R. McCullough to execute the deed and that the copy attached to the petition of appellees was a true and correct copy of the original contract, which, as above indicated, reserved the mineral rights in the 480 acres of land. Mrs. Phillips, the deputy circuit clerk, testified that a copy of the probate pro ceedings, above referred to, was true and correct. This order of the probate court, approving execution of the deed to Mr. McCullough, contained a specific reservation of the mineral rights, and gave authority to the administratrix to convey only the surface rights of the 480 acres. The reservation was as follows: “That on the 14th day of February, 1944, the decedent, C. E. Mills, did enter into a sales contract with the said David E. McCullough to sell and convey unto the said David E. McCullough the lands herein above described, except all oil, gas or/and mineral rights were reserved in on and under said lands, no oil, gas and or any mineral right to be conveyed to party of the second part, David E. McCullough. ’ ’
There was in evidence a letter, dated December 11, 1957, written by McCullough to C. E. Mills, Jr., stating that he was under the impression that the Missouri Pacific Eailroad had reserved all the mineral rights on the 480 acres because he, McCullough, had in his possession a letter written by Mr. Mills (C. E. Sr.,) on January 26, 1944, to that effect. This letter recites, in part — “On Jan. 26th, 1944,1 have a letter from your father written to Tonopah, Nev. where I was running sheep at the time to the effect that the land involved of 480 acres was acquired from the Missouri Pacific Eailroad Co. and they reserved the Oil, Gas and mineral rights on this 480 acres. ’ ’ There was other testimony that the Mills heirs, appellees, have been claiming and paying taxes on the mineral rights in this 80 acres at all times since the purported conveyance by them. Francis H. Leftwich testified that the Mills heirs have been leasing this 80 acres and drawing royalty checks from the Gulf Oil Company since 1956 and that the Mills heirs have assessed and paid taxes on it. Mrs. Norma L. Leftwich testified that she is the daughter of C. E. Mills, deceased, and prior to his death and after she was familiar with the land transactions ; that she worked in his office after his death and was acquainted with the above contract between her father and McCullough: “Q. Do you recall, I will ask you to examine that instrument and state to the court if you signed it? A. Yes, sir, I did. Q. Was it or was it not the intention of your mother and of the C. E. Mills children to convey any of the mineral rights in that deed or to reserve them? A. We meant to reserve them. Q. Under how many acres? A. 80 acres. Q. There is an error in the deed if it conveys 80 acres of mineral rights to Mr. McCullough? A. Yes, sir.”
We have concluded, after reading the entire record, that the testimony set out above was sufficient to sustain the heavy burden on appellees to prove by clear and convincing evidence that a mutual mistake occurred and that the court correctly granted appellees the relief prayed. See Black v. Been, 230 Ark. 526, 323 S. W. 2d 545.
(2-3-4)
Appellant’s contentions two, three and four, which we consider together, are without merit. We hold that the court did not err in allowing appellees to introduce additional evidence following appellant’s motion to dismiss because of insufficiency of the evidence. This action of the court was clearly a matter within its sound discretion and unless abused, does not constitute error. We find no abuse of this discretion on the record before us. In Oak Leaf Mill Company v. Cooper, 103 Ark. 79, 146 S. W. 130, we held: “Where the plaintiff closed his case, whereupon defendant moved for a peremptory instruction to find in its favor, it was not an abuse of discretion for the court to permit the plaintiff thereafter to introduce other testimony in order to develop his case further.” The text writer in 88 C. J. S. Trial § 105, p. 220 announces the rule in this language: “It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused.”
On the whole ease, finding no error, the decree is affirmed. | [
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Paul Ward, Associate Justice.
This appeal involves the interpretation of the provisions of an insurance policy executed by appellant in favor of appellee on November 20, 1956. The provisions of the policy in dispute provide for payment of $200 per month for loss of time due to an accident. Appellee sued appellant for the sum of $400, being the amount claimed for time lost from August 28,1958 to October 28,1958. The trial court, sitting as a jury, found in favor of appellee and appellant now prosecutes this appeal for a reversal.
Most of the essential facts were stipulated or are undisputed. Appellee, who was engaged as a contractor to supply pulp wood, suffered an injury to his back while so engaged on January 11,1958, he was disabled and unable to work from that date until March 7,1958, and he was paid by appellant the sum of $376.66 for the loss of time. On the latter date appellee tried to resume his regular duties and worked intermittently until August 28, 1958, when, as he says, he had to quit work entirely because of the aforementioned injury to his back, and he was unable to work or at least did not work any more until October 28, 1958. It is for the loss of this two months time that he seeks to recover $400 under the insurance policy.
In seeking a reversal appellant relies on three designated points, viz: The court erred in refusing to dismiss appellee’s complaint; the court erred in refusing to direct a verdict in its favor at the conclusion of appellee’s testimony, and; the court erred in finding in favor of appellee. On all of these points, all discussed together by appellant, and from this discussion it appears that it relies on two principal contentions: ONE; Two “Riders” attached to the policy on June 1, 1958, preclude recovery. TWO: In the alternative, the disability (causing the loss of time) was not continuous as required by the policy.
ONE: It was stipulated by the parties that the insurance policy was in force, subject to all provisions, up to September 1, 1958. On June 1, 1958, an “Impairment Rider” was attached to the policy which provides, in effect, that “the policy shall not cover disability or loss resulting from or caused by any injury to or disease of the spine.” Also, on June 1,1958, another “Rider” was likewise attached to the policy which reduced payments for the loss of an eye, arm or limb and certain combinations thereof. Both of these ‘ ‘ Riders ’ ’ were signed by appellant and appellee.
We are unable to agree with appellant’s contention that these “Riders” precluded appellee from recovering for loss of time resulting from the original injury. The trial court, sitting as a jury, had the right to construe the provisions of these “Riders” strictly against appellant. See Washington Fire & Marine Insurance Company v. Hodge, 230 Ark. 42, 320 S. W. 2d 926, and Metropolitan Life Insurance Company v. Hawley, 210 Ark. 855, 198 S. W. 2d 171. Applying this rule of construction to the language in the “Riders” it is fairly deducible that they are effective prospectively and not retroactively. Appellant of course was aware that appellee had suffered a back injury on January 11,1958 at a time when the policy was in full force and effect; that it had paid appellee for his loss of time following that injury, and; it was aware that appellee had not fully recovered from said injury since he had not been working re'gularly up to the time that the “Riders” were attached. If appellant had wanted to make it cleat to appellee that it would not be obligated to pay him for any more loss of time resulting from thé original injury it could have easily so stated. This it did not do.
TWO: Part I of the policy provides for payments of stated amounts for the loss of an eye, arm or limb and certain combinations thereof caused by an accident referred to throughout the policy as ‘ ‘ such injury. ’ ’ Part TV of the policy reads as follows:
“If ‘such injury’ does not result in ány of the specific losses named in Part One but causes continuous total disability and total loss of time within twenty days from the date of the accident and requires regular and personal attendance by a licensed physician, surgeon, osteopath or chiropractor, other than the Insured, the Company will pay at the rate of the Monthly Benefit stated in the Policy Schedule for one day or more from the first medical treatment so long as the Insured lives and is so disabled.” (Emphasis Supplied)
The Policy Schedule provides for a monthly benefit of $200.
. It was under Part IV of the policy that appellant paid appellee for his loss of time from January 11th to March 7th, 1958: It is not seriously contended by appellant that appellee’s loss of time from August 28th to October 28th, 1958 was not due to the original injury. Nor is it contended that appellee was not totally disabled and suffered a complete loss of time during that period.. The record shows that appellee received medical treatment at a. doctor’s office-on July 28th and 30th; on August 2nd, September 23rd and 25th; and October 10th, 20th and 23rd. Thus it appears that there was a compliance with all the provisions of the. policy.
It appears to be appellant’s contention, with which we can not agree, that appellee’s disability was not continuous because he was able to work intermittently for a périod of time previous to August 28,1958. Such an interpretation is clearly not in accord with the rule of this court as previously pointed out. The answer to appellants contention is found in the fact that appellee is not seeking to be paid for the time that he was partially disabled and is only asking for that period of time during which he was totally disabled, unable to work and was regularly attended by a physician. In view of the above, we think the trial court dearly interpreted the policy in favor of appellee. The findings of the court, sitting as a jury, has the same force and éfféct as the findings of a jury. Casteel v. K. Lee Williams Theatres, Inc., 221 Ark. 935, 256 S. W. 2d 732 and Stewart v. Hedrick, 205 Ark. 1063, 172 S. W. 2d 416.
Affirmed. | [
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Jim Johnson, Associate Justice.
This is a criminal case. The action originated with the filing of an information against the appellant H. C. (Dusty) Warren in Garland County charging him with the crime of violating Amendment No. 10 of the Constitution of Arkansas. The information alleged that the appellant in his capacity as county judge did in and during the fiscal year of 1959, in violation of Amendment No. 10, make or authorize contracts and/or make allowances of claims in excess of the revenue from all sources for the said fiscal year in which the said contracts and/or allowances were made and that he did sign or issue script, warrants and/ or make allowances in excess of the revenue from all sources for the fiscal year of 1959. A warrant was duly issued, the appellant was arrested, and allowed to make bond. The case was set for trial on June 20,1960, and the appellant at that time entered a plea of not guilty to the charge. Trial ivas had before a jury which returned a verdict of guilty and assessed punishment at a fine of $500 with a recommendation that the fine be suspended.
Formal judgment and sentencing took place on June 24,1960, and the trial court followed the recommendation of the jury and assessed a fine of $500 and suspended the fine but did formally remove the appellant from his office as county judge in accordance with the provisions of Amendment 10.
A motion in arrest of judgment was filed on June 24, 1960, and the same was overruled on that date. A motion for new trial was then filed; the court overruled that motion and granted an appeal to this Court.
Since this case arises out of an alleged violation of Arkansas Constitution, Article 12, Section 4, which was amended to its present form by Amendment 10, passed in 1924, we here set out the pertinent part of this Amendment as follows:
“. . . The fiscal affairs of counties, cities and incorporated towns shall he conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk or other county officer, sign or issue any script, warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; . . .
“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities, and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid.
“Where the annual report of any city or county in the State of Arkansas shows that script, warrants or other certificates of indebtedness had been issued in excess of the total revenue for that year, the officer or officers of the county or city or incorporated town who authorized, signed or issued such script, warrants or other certificates of indebtedness shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined in any sum not less than five hundred dollars nor more than ten thousand dollars, and shall be removed from office. ’ ’
The evidence reveals that soon after appellant took office as County Judge of Garland County in January 1959, he purchased $80,000 worth of road machinery from Paul Goodwin and entered into a sales contract for the payments to be made over a two-year period. Eegarding this purchase, appellant testified as follows:
“When I assumed office as county judge the road department had been closed down since the first of December until January 1. This was a cold spell and lots of ice and snow. When I took office, it cost the county better than $4,000.00 to get the machinery started and took us about a month. In my opinion the county needed additional equipment because the county had progressed, there being new subdivisions and new roads and the demands of the people and to give the people service, I thought that they needed, I felt we needed more and better machinery.
“The county didn’t have enough money then to purchase new equipment and the only way we could do it was to buy it on installments. New graders cost $23,000.00 each; we had seven graders and some of those we couldn’t ever use so the only way I could work it out was on installments to be paid out of the state turnback. I entered into a contract for the purchase of some used equipment and some new equipment and the agreement was that the county couldn’t pay cash and the payment would have to be made out of the state turnback and I authorized payments out of the county road fund and the warrants that were paid were paid out of the county road fund.”
Because of the payments on the contract thus entered into by appellant, auditors with the County Audit Division of the State Comptroller’s Office, while cheeking the Garland County records, found that claims for the payments on this contract were allowed and warrants of the county were written in 1960 which were for expenses incurred in 1959 (purchase of machinery). The amount of these warrants was charged back to the year 1959 thereby causing a deficit or overdraft for that year in the amount of $1,039.57. Odell Moudy, one of the auditors assigned by the Comptroller’s Office to audit the books of Garland County, testified relative to their audit as follows:
“I kicked back certain claims which were allowed in 1960 to the year 1959 and these came under the heading of disbursements. The total amount of these claims I kicked back was approximately $20,000.00. I put them back in 1959 based upon what I thought the law was . . . even though they were allowed in 1960. That is the rule followed in every county in Arkansas by my department. If you took the actual expenditures and disbursements of 1959, approved and allowed during that year, and forgot about 1960 there would be no deficits but $21,000.00 to the good . . .”
Applying the facts in this case to the prohibitions contained in Amendment No. 10, we must proceed on the premise that a portion of this amendment is a penal law and that part constituting a penal law is to be strictly construed. Key 241(1) Statutes, West’s Digest.
In speaking of contracts such as appellant here entered into, this Court said in Cook v. Shackleford, 192 Ark. 44, 90 S. W. 2d 216:
“. . . The only question for us to decide is whether contracts made, or indebtedness created in excess of the revenues from all sources for the years in which the contracts are made, are void.
“Amendment No. 10 has been construed by this Court many times and in the case of Standfield v. Friddle, 185 Ark. 873, 50 S. W. 2d 237, we said: ‘The law may therefore be regarded as definitely settled that any contract entered into or allowance made in excess of the revenues of the year in which the contract was entered into, or the allowance made, is wholly void, and the issuance of any county warrants based thereon, adds nothing to their validity, as the warrants are also void.’ ”
Following the rule set out above, the contract for the purchase of machinery entered into by appellant in the case at bar was “wholly void” as were the warrants issued for payment on the same.
The provision of Amendment No. 10 relative to contracts made for the payments of amounts in excess of revenues from all sources for the year in which the contracts are made is separate and apart from the penal provisions under which the appellants was prosecuted.
The penal provision under which appellant was convicted refers only to the issuance of script, warrants or other certificates of indebtedness in excess of the total revenues for the year. The Amendment refers to certificates of indebtedness as being in the nature of interest-bearing bonds. The contract in itself cannot be considered as a certificate of indebtedness. Here it is not shown that appellant issued script, warrants or other certificates of indebtedness in excess of the total revenues for the year 1959, as charged, and it is not shown that the paper be issued in 1960 exceeded the revenues for that year, nor is he charged with issuing excessive paper for 1960. Therefore, following the rule of strict construction and adhering to the prohibition against extending penal provisions to include that which is not by its plain language clearly included [Key 241(1), Statutes, West’s Digest, supra] we reach the conclusion that the undisputed evidence shows appellant did not violate that part of Amendment No. 10 making it a misdemeanor to issue script, warrants or other certificates of indebtedness in excess of the total revenues for the year in which such paper is issued.
Reversed and dismissed.
Harris, C. J., concurs. McFaddin, J., dissents. | [
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George Rose Smith, J.
On the night of November 22, 1958, Noble Waller, who was then almost nineteen years old, was driving his father’s car in the city of Dardanelle. Shortly before midnight the youth ran a stop sign at an excessive speed and struck the appellees’ ear, inflicting personal injuries and property damage. The appellees brought suit against Noble Waller, alleg ing carelessness in his operation of the automobile, and also against his father, the appellant Eugene Waller, alleging that the elder Waller was negligent in permitting his son to drive “after having prior knowledge that his son habitually drove in a fast, reckless, and wanton manner.” The jury imposed liability upon both the father and the son, fixing the plaintiffs’ total damages at $10,-300. Eugene Waller alone has appealed, contending that there is no substantial evidence to show that he was negligent in entrusting his ear to his son. We are of the opinion that this contention must be sustained.
Before this accident Noble had been driving for at least two years, and probably somewhat longer than that. During that time he was never arrested for any traffic violation. The city marshal, called as a witness by the appellees, testified that he had closely observed young Waller’s driving for 32 months preceding the trial, that he had never seen the youth driving in a fast or careless manner, and that he had never had occasion to caution the boy. There is no substantive proof (disregarding some testimony admitted for impeachment purposes only) that Noble had ever been involved in a traffic accident before this one.
The appellees produced fourteen witnesses whose testimony was intended to indicate that young Waller was an incompetent driver. Much of this testimony related to conduct not inherently dangerous to others, such as proof that Noble would start off so rapidly that his wheels would spin or spurt gravel, that his tires often squealed as he turned a corner, and that he was inclined to stop too suddenly. Several witnesses, however, also expressed their belief that Noble Waller drove ‘ ‘ too fast, ’ ’ “pretty fast,” “at what I thought was too fast a speed,” “a little too fast,” “too fast to be in town,” and “pretty recklessly.” One witness, a schoolmate of Noble’s, described an occasion upon a trip to Russellville when Noble was “doing somewhere around ninety,” but otherwise the criticism of Noble’s driving consisted of generalized statements of opinion like those that we have mentioned.
In order for the appellees to make a case for the jury it was incumbent upon them to show not only that Noble Waller was an incompetent driver but also that his father knew or should have known that fact. It is not necessary to decide whether the proof sufficiently established Noble’s incompetence as a driver, for even if that fact be conceded the appellees failed to show that Eugene Waller had notice of his son’s driving habits. Since the family purpose doctrine is not recognized in Arkansas, the appellees had the burden of showing that Eugene Waller was at fault in allowing his son to use the car. Norton v. Hall, 149 Ark. 428, 232 S. W. 934, 19 A. L. R. 384; Richardson v. Donaldson, 220 Ark. 173, 246 S. W. 2d 551.
On the issue of the appellant’s awareness of his son’s faulty driving the appellees offered only one witness, W. W. Warren, a former city marshal who went out of office on December 31, 1956 — about two years before this accident. Warren testified that during his tenure as marshal he talked to Noble two or three times about his driving. “I just talked to him like I would to anyone else about his driving. He needed to slow down. ” Warren also testified that he discussed the matter at different times with Noble’s father. He does not relate what was said in his discussions with the elder Waller, but the jury might fairly have inferred that Warren warned the appellant that his son“ needed to slow down. ’ ’ There is no basis for an assumption that anything more than this was said.
We are unwilling to hold that Warren’s testimony established a prima facie case for the plaintiffs. The one affirmative fact shown is that the city marshal, at some time before the end of 1956, told Mr. Waller that his boy needed to slow down. At most Noble was then barely seventeen years old. His father continued to let him use the car for two years or more, and in that time Noble was not arrested nor involved in any sort of traffic accident. Mr. Waller says, and there is no testimony to the contrary, that he had no reports of any kind about his son’s driving, that Noble “was always pretty careful -when I was with him,5 ’ and that he never had any occasion to inquire about how his son drove. It seems to us that we should really have to adopt the family purpose rule in order to fix liability upon the appellant on the basis of the marshal’s mild warning some two years before this accident happened.
In addition to the proof that we have mentioned the plaintiffs offered to show that Noble Waller had the reputation of being a reckless and incompetent driver. The defendants’ objection to this proof of reputation was sustained, but under our decisions the evidence was admissible. Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S. W. 2d 341, 8 A. L. R. 2d 261; Ark. La. Lbr. Co. v. Causey, 228 Ark. 1130, 312 S. W. 2d 909. Inasmuch as the plaintiffs may be able to show by such evidence that the appellant had notice or knowledge of his son’s incompetency as a driver, the case cannot be said to have been fully developed and will therefore be remanded for a new trial.
Reversed.
McFaddin, J., dissents. | [
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Sam Robinson, Associate Justice.
This is a contest between appellant, Jane Tibbels, and appellee, Aurelia J. Tibbels, as to which one of the two is entitled to the proceeds of a policy of life insurance issued by the Metropolitan Life Insurance Company on the life of John W. Tibbels. There is no indication or inference that more than one policy was issued to Tibbels by the insurance company. Jane Tibbels and John W. Tibbels were formerly husband and wife but were divorced on May 26, 1958. The policy in question was issued on the 17th day of June, 1958. Jane Tibbels was named beneficiary in the policy. About a year later, on April 4, 1959, John was killed in an automobile accident. The policy, which was a group policy, provides:
“Section 13. CHANGE OF BENEFICIARY.— Any Employee insured hereunder may, from time to time, change the Beneficiary designated in his certificate by filing written notice thereof with the Insurance Company accompanied by the certificate of such Employee. Such change shall take effect upon endorsement thereof by the Insurance Company on such certificate and unless the certificate is so endorsed, the change shall not take effect. After such endorsement, the change shall relate back and take effect as of the date the Employee signed said written notice of change, whether or not the Employee be living at the time of such endorsement, but without prejudice to the Insurance Company on account of any payment made before receipt of such written notice.”
Sometime prior to 11:00 a.m. on April 4, 1959, a letter written by John W. Tibbels, the insured, dated March 31, 1959, addressed to the Metropolitan Life Insurance Company, was mailed. John was killed about 1:30 p.m.. April 4th, the same day the letter was mailed. The letter to the insurance company is as follows:
“3/31/59
“Dear Sir
“As my wife and I are divorced I would like to have my beneficiary changed to my mother Mrs. Chas. D. Tibbels 508 Gibson West Memphis Ark-
“ Thanks
“John W. Tibbels”
On April 8, 1959, following receipt of the above letter, the insurance company wrote to John W. Tibbels as follows: “We are unable to act upon your recent letter because of our inability to determine the correct number of the policy to which you refer. Please furnish the following information and return this letter in the envelope provided.” Following the letter was a form to be completed, requiring the insured to furnish considerable information.
Mrs. Aurelia Tibbels, mother of the insured, who had possession of the policy at the time, furnished the insurance company the number and serial letter of the policy and the exact name of the insured, and informed the insurance company of the insured’s death. Jane Tibbels, the original beneficiary named in the policy, furnished the insurance company proof of the death of the insured and demanded payment under the terms of the policy. The insurance company filed this cause of action — an interpleader — in a court of equity, naming Aurelia J. Tibbels and Jane Tibbels as defendants, and deposited in court the principal sum named in the policy for accidental death of the insured. From a decree in favor of Mrs. Aurelia Tibbels, Jane Tibbels has appealed.
There is only one real issue in the case, and that is: Was John W. Tibbels’ letter to the insurance company above quoted sufficient in all the circumstances to change the beneficiary from Jane Tibbels to Aurelia Tibbels?
The provision of the insurance policy regarding change of beneficiary was not complied with. On this point there are two lines of authority, the minority holding that there must be strict compliance with the provisions of the policy pertaining to change of beneficiary, but the great weight of authority is that a substantial compliance is sufficient. 19 A. L. R. 2d 30 and cases cited therein. This State is among the majority. Robinson v. Robinson, 121 Ark. 276, 181 S. W. 300. It will be recalled that the insured was killed about two and one-half hours after the postmark time appearing on his letter to the insurance company asking that the beneficiary be changed. Of course, the insured could do nothing further about the matter, and could not respond to the insurance company’s request for additional information. In these circumstances we think there was a sufficient compliance. The weight of authority is that if the insured has done everything reasonably possible to effect a change in beneficiary, a court of equity will decree that to be done which ought to be done. True, the insured could have sent his policy to the insurance company along with his letter requesting a change in beneficiary, but there is no showing that Tibbels was an expert on insurance matters or realized the necessity of sending in the policy.
In the case of Bell v. Criviansky, 98 Mont. 109, 37 P. 2d 673, the insured wrote to the insurance company indicating his desire to change the beneficiary in a policy of insurance, but before he was able to complete the forms sent to him by the insurance company to effect the change he became ill and died. The court said: “Admittedly, the insured did not comply with the policy provisions with reference to change of beneficiaries in the following respect: (a) He made no written request, upon the company’s form, for change of beneficiary; (b) he did not return the policy to the company; (c) he did not deliver the written request on the prescribed form in his lifetime to the company.” And the court went on to say: “By the letter he indicated that he desired to change the beneficiary and that it was his purpose to change the beneficiary from his then wife to his four children, although he did not name them. At the time he received this blank, and continuing on to the time of his death, his physical condition according to the record was such as to render him unable to complete and execute the furnished blank form. ’ ’ The court further said: “We think the true rule is that, if the insured has pursued the course pointed out by the laws of the association and has done all in his power, under the facts and circumstances of the case, to change the beneficiary, but before the new certificate is actually issued or the change of beneficiary is indorsed on the old, he dies, a court of equity will decree that to be done which ought to be done, and act as though the certificate had been issued or the indorsement made.” The court held that in the circumstances the insured had changed the beneficiary.
A situation similar to the case at bar existed in the case of United Benefit Life Ins. Co. v. Elliott, 11 Alaska 466. There the court said: “While the question is not free from doubt, the weight of authority would seem to support the view that the failure to transmit or deliver the policy to the insurer with a written request for a change of beneficiary does not preclude the application of the rule of substantial compliance, even though the policy was available or could have been obtained upon demand, where it appears that the insured did everything that it was reasonably possible for him to do before death.
“It must be conceded, of course, that it may be argued with plausibility and much force that where the insured has failed to transmit the policy to the insurer with the request for a change of beneficiary he has not done every thing possible to effect the change. But where the insured does not know where the policy is or dies before the receipt of the insurer’s blanlc and instructions for its execution and return with the policy, no reason is perceived why a court of equity should order the proceeds of the policy disposed of in a manner directly contrary to the clearly expressed wishes of the insured.” [Emphasis ours]
Appellant argues that even though the insurance company could waive the provision of the policy requiring that certain things be done in order to effect a change of beneficiary, such waiver could not affect the interest of the original beneficiary; that such interest vested immediately upon the death of the insured. The answer to this proposition is that the rights of the new beneficiary, Mrs. Aurelia J. Tibbels, are not based on a waiver of a policy provision by the insurance company. Theré was a sufficient compliance by the insured with the policy to effect the change. Hence the new beneficiary is entitled to the proceeds of the policy regardless of whether there was a waiver by the insurance company.
Affirmed. | [
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Sam Robinson, Associate Justice.
The appellant Geraldine Mabry is the daughter of appellee, J. W. Covington. This suit was filed by Covington, contending that he is the owner of Lots 1 and 4, Block 2, North Benton Addition to Benton, Arkansas; that he bought the lots May 22, 1950; paid the down payment of $1,180; and had the property conveyed to his daughter, Geraldine Mabry, under an oral agreement with her that she was to pay the balance of the purchase price in monthly installments of $33.70 each, and that Covington and his wife would have the right to occupy the premises for the remainder of their natural lives. Covington also alleges that in June, 1957, Mrs. Mabry took possession of the real estate and, without his knowledge or consent, moved his household furnishings out of the house and converted them to her own use. He prayed that the title to the property be vested in him and for damages for the conversion of the personal property.
Mrs. Mabry denied the allegations of the complaint and by way of cross complaint contended that her father is indebted to her for something over $9,000. Of this amount she claims as damages the sum of $1,950, alleging that the house has a monthly rental value of $75.00 and that it remained vacant for 26 months because of threats made by her father that he would “burn out” any renters. Her cross appeal is only from the failure of the chancellor to give her judgment for the alleged rental value. Covington testified in support of the allegations in the complaint, but there is very little corroborating evidence. The chancellor found that he had made three monthly payments of $33.70 each and that all of the remaining payments on the property, from the time it was purchased in 1950, had been made by Mrs. Mabry, who is a school teacher. Covington occupied the property for about seven years. Mrs. Covington died in January, 1957.
The chancellor found that Mrs. Mabry owned the real property and had not converted the household furnishings of her father but had merely moved them out of her own house, which she had a right to do. She offered to return this property to Mr. Covington, and the court ordered her to do so. In addition, the court gave Covington a judgment for $101.10, covering the three monthly installments he had paid on the place. We do not find a preponderance of the evidence shows that the house remained vacant because of threats made by Mr. Covington. Mrs. Mabry testified that she and her father were not on good terms but that she bought the property to give her mother a comfortable place to live the balance of her life. The parties were before the chancellor, who had a better opportunity than this Court to judge the veracity of the witnesses. We cannot say that the chancellor’s decree is against the preponderance of the evidence.
Affirmed both on appeal and on cross appeal. | [
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Sam Robinson, Associate Justice.
The issue here is whether the appellants, Tennessee Gas Transmission Company, Trunkline Gas Company, and American Louisiana Pipe Line Company, are liable for nominal damages to the State of Arkansas for having constructed pipe lines used in transporting natural gas in interstate commerce under the bed of the Mississippi River at a point in Chicot County, Arkansas, the line crossing the river from Chicot County to the State of Mississippi. The trial court ruled that the pipe line companies are liable for such damages. There is no dispute as to the facts; only questions of law are involved.
The State of Arkansas ex rel. the Attorney General of the State filed separate suits against the appellant companies, asking for judgments in ejectment requiring them to remove their pipe lines from that part of the bed of the river which is in Arkansas, and for large sums as damages. The cases were consolidated for trial. The Tennessee Gas Transmission Company has five lines crossing the river at the point involved; the Trunkline Gas Company has four lines; and the American Louisiana Pipe Line Company has two lines crossing the river. The trial court refused to order ejectment because U. S. Code, Title 15, § 717(f) provides that no natural gas company shall abandon any portion of its facilities without the permission and approval of the Federal Power Commission. There is no cross-appeal by appellee from the judgment. The court rendered judgments for the State against the Tennessee Company in the sum of $5,000, against Trunkline in the sum of $4,000, and against the American Company in the sum of $2,000 ($1,000 for each line), as nominal damages. Appellants make no point on appeal that the judgments are excessive as nominal damages, but do contend that the pipe line companies are not liable to the State of Arkansas in any amount by reason of the pipe lines having been laid across the bed of the Mississippi Eiver.
The pipe line companies, acting pursuant to the Natural Gas Act (15 U. S. C. § 717), obtained from the Federal Power Commission certificates of convenience and necessity authorizing the construction of the gas lines. In making applications for certificates of convenience and necessity, maps of the exact routes the proposed lines would traverse were filed. The necessity of crossing the Mississippi Eiver at a point in Chicot County is shown on the maps. Also, the pipe line companies obtained from the Secretary of the Army and the Chief of the United States Engineers “permits” showing no objec tion to laying the lines across the bed of the river. These so-called permits provide inter alia: “It is to be understood that this instrument does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. It merely expresses the assent of the Federal Government so far as concerns the public rights of navigation.”
The Rivers and Harbors Act of March 3, 1899 (U. S. Code, Title 33, § 403) does not authorize the Secretary of the Army or the United States Engineers to grant permits to build pipe lines or bridges across navigable streams. Hubbard v. Fort, 188 F. 987. The Act does provide, however, that such crossing of the river cannot be made without approval of the Chief of the United States Engineers and the Secretary of the Army.
The pipe line companies obtained permits or easements signed by the Governor, Secretary of State and Attorney General of the State of Arkansas, purporting to authorize the laying of the lines across the river. The Arkansas Legislature has not authorized the Governor, Secretary of State or Attorney General to grant such easements, although the Legislature could give to the officials named such authority. State ex rel v. Southern S. & M. Co., 113 Ark. 149, 167 S. W. 854. But without such authorization the State is not bound by the act of the officials. Pulaski County v. State, 42 Ark. 118; Rankin v. Chancery Court of Pulaski County, 221 Ark. 110, 252 S. W. 2d 551; Arkansas State Hwy. Commission v. McNeil, 222 Ark. 643, 262 S. W. 2d 129.
It is the principal contention of appellants that Congress, by adoption of the Natural Gas Act, 15 U.S.C. § 717, gave the Federal Power Commission authority to grant permits to cross the beds of navigable waters with pipe lines used in transporting gas in interstate commerce and that the certificates of convenience and necessity granted by tbe commission carry with them permits to make such crossing.
In State ex rel. v. Southern S. & M. Co., 113 Ark. 149, 167 S. W. 854, the question was whether the State had the right to sell sand and gravel in navigable streams. It was held that the State has this right; that the State owns the beds of the navigable waters, subject to the paramount right of Congress to control navigation. Judge McCulloch quoted the language of the Supreme Court of the United States in Scott v. Lattig, 227 U. S. 229, 33 S. Ct. 242, 57 L. Ed. 490, as follows: “. . . ‘it was settled long ago by this court, upon a consideration of the relative rights and powers of the Federal and State Governments under the Constitution, that lands underlying navigable waters within the several States belong to the respective States in virtue of their sovereignty, and may be used and disposed of as they may direct, subject, always, to the rights of the public in such waters and to the paramount power of Congress to control their navigation so far as may be necessary for the regulation of commerce among the States and with foreign nations.’ ”
The National Gas Act does not specifically give the Federal Power Commission authority to grant permits to lay pipe lines across the bed of the Mississippi River, nor does the Act imply such authority. In fact, if there is any implication one way or the other, it is to the effect that the Commission does not have such authority. The Act provides that the gas companies have the right of eminent domain in constructing their pipe lines in interstate commerce. State lands are subject to be taken by eminent domain. State of Missouri ex rel and to Use of Camden County, Mo., et al v. Union Electric Light & Power Co., et al., 42 F. 2d 692; City of Davenport v. Three-fifths of an Acre of Land, 147 F. Supp. 794, aff’d 252 F. 2d 354; Union Bridge Co. v. United States, 204 U. S. 364, 27 S. Ct. 367, 51 L. Ed. 523.
Moreover, 43 U.S.C. § 1311 provides: “(a) It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath naviga ble waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States . . .”
Appellants rely on Stockton v. Baltimore & N. Y. Rd., 32 F. 9, as support for the assertion that Congress may grant an easement over the bed of a navigable stream without the grantee compensating the State. We do not need to discuss this point, because here Congress has not granted any easements to the pipe line companies, whereas in the Stockton case Congress did grant such authority. A pipe line company having no authority from Congress cannot legally lay a pipe line across the bed of a navigable stream separating two states without the consent of the states involved. Hubbard v. Fort, 188 F. 987. But of course the pipe line company can proceed by eminent domain as authorized by the Natural Gas Act. This was not done in the case at bar.
Appellants argue that the State’s action to recover damages because of the use of the bed of the river by appellants tends to obstruct or interfere with interstate commerce. There is no merit to this contention. The State has not refused to permit appellants to lay their lines across the river. Of course, appellants are engaged in interstate commerce and the State could not prevent such crossings. As heretofore pointed out, the appellants have the right of eminent domain, which they failed to exercise. Furthermore, on appeal appellants do not contend that if they owe anything as nominal damages, the amount of $1,000 per line is excessive. Certainly $1,000 is a nominal sum, in view of the fact that it appears to have cost more than a million dollars to lay a line across the river.
Appellants further argue that Ark. Stats. § 35-601 gives to domestic corporations the right to lay pipe lines across navigable streams, and to deny foreign corporations engaged in interstate commerce the same right is to discriminate against interstate commerce. In effect, the statute gives to the corporations engaged in the numerous businesses mentioned in the statute the right of eminent domain. The appellants have this same right under the Natural Gas Act. On this point appellants rely heavily on Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229, 31 S. Ct. 564, 55 L. Ed. 716. That case turns squarely on the proposition that the Oklahoma statute was for the avowed purpose of preventing gas developed in the State of Oklahoma from being transported in interstate commerce. The United States Supreme Court said: “We place our decision on the character and purpose of the Oklahoma statute.” Here it cannot be said that the purpose of Ark. Stat. § 35-601 is to interfere with interstate commerce.
The appellants have mentioned other points, all of which we have examined carefully, but we find no error.
The judgments are therefore affirmed.
George Bose Smith, J., not participating; Ward, J., dissents. | [
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Jim Johnson, Associate Justice.
This case arises out of an automobile collision. The sole question presented is whether appellant was a guest in appellee’s car as a matter of law. The complaint, insofar as pertinent, alleged:
“That the plaintiff’s (appellant’s) presence in the automobile driven by the defendant was necessary by reason of the joint undertaking of the plaintiff and the defendant in selling and distributing 'Go to Church Stamps’ for the Church of God of the City of West Helena, Phillips County, Arkansas, where the plaintiff’s husband is the regular pastor and the defendant is a member of the said church. That the plaintiff and the defendant were jointly engaged in the undertaking, for their joint benefits, under a plan adopted by them whereby the defendant’s husband’s car was used in the morning and the plaintiff’s husband’s car would be used in the afternoon for the joint purpose of selling and distributing the religious media.”
Prom a judgment of the trial court sustaining a demurrer and dismissing the complaint, the appellant, upon appeal, relies upon the following three points for reversal.
1. The appellant was engaged in a joint venture with the appellee for their mutual benefit and as such may maintain a suit for the recovery of damages based upon allegations of ordinary negligence;
2. The appellant was not a guest or invitee of the appellee but was a passenger in the automobile under a plan of sharing the expenses which constitutes a passenger for hire; and
3. The question of fact, presented by the allegations in the complaint as to whether the appellant was a guest of appellee, is one of fact and could be determined only by a jury.
Tbe general rule for determining tbe status of a passenger in an automobile is that if the transportation or carriage in its direct operation confers a benefit only on the person to whom the ride is given and no benefits other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes (Ark. Stats. § 75-913 to 75-915), but if the carriage tends to the promotion of the mutual interests of both the passenger and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest. Ward v. George, 195 Ark. 216, 112 S. W. 2d 30.
We have repeatedly held that when the status of an occupant of a ear is questioned and conclusions must be drawn from the evidence, then the issue is one for the jury. Corruthers v. Mason, 224 Ark. 929, 227 S. W. 2d 60; Whittecar v. Cheatham, 226 Ark. 31, 287 S. W. 2d 578; Rogers v. Lawrence, 227 Ark. 117, 296 S. W. 2d 899. Certainly in testing, on demurrer, the sufficiency of the allegations in the complaint as regards status, the analogy would be that evidence should be allowed to clarify the allegations. This is true because on a demurrer the complaint, together with all reasonable inferences deducible therefrom, is to be construed most strongly in favor of the plaintiff. (See cases collected in West’s Arkansas Digest, Pleadings, Sec. 214.) The complaint in this case alleged that the plaintiff and defendant were engaged in a joint undertaking. If it was a joint enterprise then the guest statute would not apply because in Am. Jur. Vol. 5A, p. 560, “Automobiles and Highway Traffic”, § 521, cases and annotations are cited to sustain this text:
‘ ‘ The automobile guest statutes, relieving the owner or operator of an automobile from consequences of ordinary negligence which result in injury to a passenger in the car do not apply if tbe owner or driver of a motor vehicle and a passenger therein are engaged in or embarking on a joint adventure or joint enterprise for their mutual advantage and the ride is an integral part of the venture or if the joint enterprise is a motivating influence in providing the transportation for the passenger ...”
When the complaint alleged that the ladies were on a joint undertaking, certainly the plaintiff had a right to introduce evidence to establish that fact and bring herself within the quoted rule above which is that on a joint enterprise the guest statute does not apply. There is an annotation in 59 A. L. R. 2d, p. 336 entitled: “Mutual Business or Commercial Objectives or Benefits as Affecting the Status of a Eider under the Automobile Guest Statute” and in that annotation cases from various jurisdictions are reviewed. It seems clear to us that the allegations in the case at bar were sufficient to allow the introduction of evidence.
The appellee, while recognizing the rule permitting recovery for ordinary negligence where the carriage or transportation of a passenger is for the mutual benefit of both the passenger and the driver, points to the case of Henry v. Henson, 1943, Tex. Civ. App., 174 S. W. 2d 270, and to our own case of Payne v. Fayetteville Merc. Co., 202 Ark. 264, 150 S. W. 2d 966, and argues that the benefit accruing to the driver must be a business or pecuniary benefit and that since any pecuniary benefit resulting from the fund-raising drive in this instance flowed directly to the church, the transportation of appellant in no way resulted in a business or pecuniary benefit to appellee.
In the case of Henry v. Henson, Tex. Civ. App., 174 S. W. 2d 270, which was appealed from a jury verdict finding that the passenger was not a guest on the basis that certain courtesies had been performed by the passenger to the driver, the Texas Court of Civil Appeals said:
“Mrs. Henry and Mrs. Henson, the record shows, were friends and co-workers in the Women’s Missionary Society of the Methodist Church. It is undisputed that each gave a great deal of her time and talents to that work. They were engaged in advancing missionary work, which is a necessary function of that great religious institution, the Methodist Church. These ladies were devoting much of their time to the spiritual uplift of their community through the channel of their society. Their work was for the church, and the benefit accruing to them was the advancement of the Christian religion through their joint efforts as delegates to this conference and the Christian education there received by each of them. But we are unable to say from the facts in this record that such mutual benefit accruing to each of them, or that the benefit to be derived from the trip by Mrs. Henry, the transporter, was of such nature ‘as to change the status of plaintiff (appellee) from that of a guest.’ As said in the recent case of Franzen v. Jason, Tex. Civ. App., 166 S. W. 2d 727, 728, writ refused:
‘In Blashfield’s Cyclopedia of Automobile Law and Practice (Perm. Ed.), in the 1942 pocket part of Vol. 4, § 2292, in construing said Article 6701 b, it is said that “the benefit accruing to or conferred upon the operator of one of the guest class must be a tangible one growing out of a definite relationship.” ’
“In support of that statement of the Law the author has cited the case of Voelkl v. Latin, 58 Ohio App. 245, 16 N. E. 2d 519, 523, wherein the Court of Appeals of Ohio said in part: ‘ The relationship which will give rise to the status of a “passenger” rather than a “guest” must confer a benefit upon the owner of a definite tangible nature.’
“The positive testimony of Mrs. Henson, appellee, part of which is set out above, negatives the contention that appellant furnished her transportation to and from College Station in exchange for certain courtesies to be performed by appellee ...”
Thus, this authority relied upon by appellee does not substantiate her contention that the benefit flowing to the driver which takes the passenger out of the guest statute must necessarily be a business or pecuniary benefit measured in dollars and cents. The complaint her« alleges that the plaintiff and defendant were engaged in a joint undertaking in selling and distributing the “Go to Church Stamps.” The appellee’s contention that no benefit flowed to the appellee in collecting money for the church we hold to be without merit for otherwise a great host of religious workers have wasted many valuable hours. Nor is the contention supported by the case of Payne v. Fayetteville Mer. Co., supra. There the liability of the Fayetteville Mercantile Company depended upon the doctrine of respondeat superior and it was readily apparent that if the driver, who was primarily responsible for the injury, was not liable in that he received no benefit from the transportation, then of course his employer was not.
The question of whether the arrangement for the sharing of car expenses by using appellee’s husband’s car in the morning and the appellant’s husband’s car in the afternoon constituted a payment for transportation is one of fact. See: Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906, where we said: “. . . It is certainly true that when a trip is undertaken for social and recreational purposes, a passenger may be found to be a guest even though he buys a tankful of gasoline for his host or contributes in some other way to the expense of the journey. Ordinarily, however, the issue is one of fact . . .” The appellee’s argument that only the church benefited from the car pool agreement we do not consider to be logically sound for it nowhere appears that the coffers of the church were benefited nor charged with respect to any arrangement made by the parties for transportation.
Reversed.
Holt, George Rose Smith, and Ward, JJ., dissent. | [
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Sam Robinson, Associate Justice.
Appellants, Poland and Stephens, white men, were charged in separate felony informations with the crimes of concubinage. Two informations were filed against Poland, one charging him with committing the crime of concubinage with Euthie Lee Smith, a Negress, on December 11, 1959, and the other information charging him with a like offense committed with the same woman on the 17th day of December. The felony information filed against Stephens charged him with committing the crime of concubinage on the 17th day of December, 1959, with Lula Mae Wallace, a Negress. All the cases were consolidated for trial. The only issue we reach is whether according to the undisputed facts the appellants are innocent as a matter of law of the crimes charged.
Concubinage is a felony. Ark. Stat. § 41-806. The crime is defined by Ark. Stat. § 41-807, which provides: “The living together or cohabitation of persons of the Caucasian and of the Negro race shall be proof of the violation of provisions of section one [§ 41-806] of this act. For the purpose of this act [§§ 41-806 — 41-810], concubinage is hereby defined to be the unlawful cohabitation of persons of the Caucasian race and of the Negro race, whether open or secret.”
The question is: Did the white men and the Negro women cohabit within the meaning of the statute? According to the evidence, the appellant Poland on two separate occasions, the 11th and the 17th of December, went to a tourist court with the Negress, Euthie Lee Smith, and engaged in sexual intercourse, and appellant Stephens went to the same tourist court with Lula Mae Wallace on December 17th and engaged in sexual intercourse. There is not any evidence of any illicit relationship between the individuals at any other time or place. This case is controlled by other cases heretofore decided by this Court. In Hovis v. State, 162 Ark. 31, 257 S. W. 363, Mr. Justice Frank Smith said: “The testimony shows that appellant had met the colored girl for the purpose of having sexual intercourse with her on the night of his arrest, and that he had met her on frequent prior occasions for the same purpose. This, however, does not constitute concubinage as defined by the statute. The statute creates and defines the offense. There is no testimony that the appellant and the colored woman were living together, or had ever done so. ’ ’ In Wilson v. State, 178 Ark. 1200, 13 S. W. 2d 24, evidence proved beyond a reasonable doubt that a white person and a Negro had engaged in sexual intercourse. Mr. Justice Mehaffy, speaking for the Court, said: “The testimony in this case is ample to show that the appellant and the negro were guilty of adultery, but that does not constitute concubinage.”
In McClure v. McClure, 205 Ark. 1032, 172 S. W. 2d 243, a divorce case, the Court held that cohabitation as used in the three year separation statute means an act of sexual intercourse; but that in determining the meaning to be given to words used by the Legislature, recourse often must be had to the context in which the language is used. The Court cited and left unimpaired the decisions in Sullivan v. State, 32 Ark. 187; Taylor v. State, 36 Ark. 84; Bush v. State, 37 Ark. 215; Turney v. State, 60 Ark. 259, 29 S. W. 893; and Hovis v. State, 162 Ark. 31, 257 S. W. 363, all of which hold that cohabitation as used in the unlawful cohabitation and concubinage statutes means something more than occasional acts of sexual intercourse.
The State contends that Act 108 of 1959 amending Ark. Stat. § 41-805 has the effect of amending the concubinage statute. The 1959 act has no application to the concubinage statute at all. It applies to Ark. Stats. § 41-805, making it unlawful for a man and woman of any race to cohabit together as husband and wife without being married. Under § 41-805 as amended by Act 108 of 1959 the first two offenses are misdemeanors, whereas any violation of the concubinage statute is a felony.
Reversed and dismissed. | [
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Jim Johnson, Associate Justice.
This is a child custody ease. It is a contest between the mother, Mrs. Grraydon Edwards, appellant, and the grandmother, Mrs. Larkin Martin, appellee, over the custody of a minor child, Eichard James Foord. This is the second appearance of this matter before this Court. The first appeal came to this Court from an order of the Ouachita County Probate Court granting custody of the child to the grandmother, appellee herein. On appeal, this Court in Edwards v. Martin, 231 Ark. 528, 331 S. W. 2d 97, held that probate courts are without power or authority to determine a contest over the care and custody of a minor and ordered the cause remanded with directions to transfer the case to the Chancery Court for further proceedings. The mandate of this Court was followed and a different judge in the same district presided. Eather than retry the entire case before the Chancery Court, the parties chose to stipulate that the record and evidence adduced at the trial of the case before the Probate Court be submitted to the Chancery Court as a base for its decision and opinion. The custody of the child was again awarded to the grandmother, Mrs. Larkin Martin. From such order comes this appeal.
For reversal, appellant relies only upon the contention that: “The Court erred in failing to grant custody of Eichard James Foord to appellant.”
The record reveals that appellant and her child were severely injured in an automobile accident October 22, 1952, in which her husband was killed. After considerable hospitalization appellant and her child went to the home of her parents, appellees here. Appellant bought a home in 1953 for her parents, using a large part of the insurance proceeds from her husband’s death. Appellee retained physical custody of the child and this was the situation when appellant remarried. The child’s aunt, Euby Mae Foord, was appointed his guardian in March of 1956, but this appointment was set aside because of failure to comply with the necessary statutory requisites of notice. On October 23, 1958, Mrs. Larkin Martin petitioned for custody of the child. Appellant resisted this petition, hence the controversy here.
The evidence is undisputed that appellee from the time the child was eight months old in 1952, until the date of trial, November 28, 1958, cared for, loved, protected, and reared the child in a good Christian home; that she carried him to church and Sunday School; that he is being reared in a proper environment and is happy and healthy and knows no other home than that of appellees. On the other hand, the record reflects that appellant, from the time of her accident until some fifteen or sixteen months before the filing of the present action, lived a life which, to say the least, was not conducive to that of a worthy mother. It would serve no useful purpose to here review the testimony against appellant other than to say it was established that appellant suffered from a disease, drunkenness, and spells of depression. She attempted suicide a number of times and left home with a truck driver and was away over a year before she married him.
To appellant’s credit, however, it is uncontradicted that since her marriage to Graydon Edwards in 1957 and for more than a year prior to this trial, appellant has conducted herself in an exemplary manner, both as a wife and as a stepmother to her present husband’s children. The testimony as to appellant’s present conduct shows a remarkable change for the good.
From these facts we must agree with the following excerpts from the learned Chancellor’s opinion, who also had only the cold written record before him:
‘ ‘ This is a case which presents a great responsibility on the Court. It arises out of a multitude of most unfortunate circumstances. It involves, the future welfare of a small boy whom fate has deprived of the care, love and protection of his own father, who was killed in an automobile accident when the child was about eight (8) months of age.”
As we review the Chancellor’s findings and the record before us, certainly the child’s welfare is paramount in our minds. It is obvious tbat tbe Chancellor cbose the course that it is better to be safe than sorry. He must have concluded that the mother’s exemplary conduct immediately preceding the trial was not of sufficient duration to show any permanent improvement in her character since, as the testimony reflected, there was much to overcome. It is well settled, of course, that in a child custody case the present conditions are those on which the decree will rest. Willis v. Bell, 86 Ark. 473, 111 S. W. 808. Therefore, if other circumstances remain the same, we conclude that a continued course of conduct of the sort here established to have existed within one year preceding this trial would show such a permanent change in appellant’s character as would obviously merit favorable consideration of a reinstituted custody petition by the mother.
Affirmed. | [
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Paul Ward, Associate Justice.
This is a Workmen’s Compensation case, and the sole question is whether there is substantial evidence to support the finding of the Commission which ruled the claim to be noncompensable. This finding of the Commission was reversed by the Circuit Court, and this appeal is prosecuted by the employer. The facts are not materially in dispute except for the expert medical testimony and the conclusions to be drawn therefrom.
W. E. Rogers, claimant and appellee herein, began working for the Auto Salvage Company sometime in 1956. His duties as a manual laborer included the use at times of an electric torch in cutting up scrap iron such as automobiles. In the early spring of 1958 a piece of metal lodged in claimant’s ear, causing considerable injury and requiring extensive medication and treatment. The result of this injury was that claimant underwent an operation and has suffered pain somewhat continually up until the beginning of this litigation, although he resumed his regular work a few weeks after the injury. He has been paid in full for this injury, loss of time and medical treatment.
On Wednesday, October 29,1958, while claimant was working at his regular job he noticed symptoms indicating a heart condition, when at about 4 p.m. he suffered pains in his chest. After resting a few minutes he resumed work until quitting time. On Thursday and Friday the chest pains continued, and on Friday the pains were constant until about 9 p.m. On Saturday claimant reported for work at the usual time, still feeling uains, and shortly thereafter he informed his employer that he was going to a doctor. He reported to Dr. Charles Taylor of Batesville at about 8 o’clock that morning. After a somewhat thorough examination Dr. Taylor diagnosed claimant’s condition as a coronary thrombosis and had Mm hospitalized for about two weeks, after which claimant returned to Ms home for rest.
It is conceded that claimant suffered a heart ailment, correctly diagnosed as coronary thrombosis, that this condition still exists, and that he has not been able to work at Ms regular job since November 1, 1958.
The Referee found that the injury was not compensable and later the Commission, after reviewing the evidence taken before the Referee and additional evidence presented to it, found that claimant had not proved that Ms heart attack occurred by reason of and in the course of his employment.
There is some testimony in the record to the effect that claimant first felt the chest pains on Wednesday (previous to the attack on Saturday) while he was engaged in trying to move a 450 pound scrap of metal. The Commission found that this fact was not substantiated by all of the evidence, and we think correctly so. Therefore, we consider this case as if there was no showing of unusual exertion on the part of the claimant. However, in accordance with our previous announcements, it is conceded that this is no bar to compensation. In other words, it is recognized that if claimant’s normal working activities caused or contributed to his heart attack compensation may be established.
To sustain the judgment of the Circuit Court (which reversed the Commission) appellee’s most serious contention is that his heart condition was caused or aggravated by the work in which he was regularly engaged, by the stress on his nervous system resulting from the injury to his ear, and by the anesthetic administered in connection with the ear operation. Specifically, then, appellee contends that there is no substantial testimony in the record to support the finding of the Commission. Appellant contends, of course, just to the contrary. The decisive question then is: Was claimant’s heart attack caused or contributed to by all or any of the incidents previously mentioned, and the answer to this question depends largely upon the medical testimony.
Dr. Taylor stated that, basically, coronary thrombosis is a disease of the arteries that supply the heart muscle with nourishment and oxygen, and it is the result of a pre-existing coronary disease called arteriosclerosis. In his opinion the claimant had a pre-existing arterial disease, and it was his opinion that claimant’s work was a contributing factor to the coronary thrombosis; it was also his opinion that the stress caused by the ear injury was a contributing factor.
“Q. . . . I’ll ask you if it is your opinion that but for this additional stress placed upon his heart by this infection and, also, by the emotion and worry and pain that the heart attack would not have occurred at the time it did in your opinion?”
“A. In my opinion, I think that the heart attack would have been postponed into the future had it not been for additional factors mentioned here of stress and additional work load placed on his circulation mechanism. ’ ’
Dr. Taylor was asked if it was possible, with any degree of medical certainty, to tell what causes a coronary thrombosis, and his answer was:
“You asked me if there was any certainty of what precipitation cause could cause thrombosis. My answer to that is no, not exactly.”
The doctor was also of the opinion that the anesthetic incident to the ear operation was a contributing cause but on cross-examination he stated that an anesthetic affects the heart only a few days or possibly a week after its administration.
Dr. Drew Agar of Little Rock, a specialist in internal medicine and diagnosis, testified as an expert but made no examination of the claimant. At the end of a long hypothetical question propounded to him relative to claimant’s condition, was asked:
“Q. . . . Doctor, could you express an opinion as to whether or not the work which this man was doing, a normal work that he was doing, was the cause or a precipitating factor of a coronary thrombosis?”
“A. Well, it would be my opinion that the work in no way contributed to the coronary occlusion.”
Dr. David T. Hyatt, a recognized authority in heart diseases with extended experience, who examined claimant on March 23,1959, at his office in Little Rock, stated that the electrocardiogram showed evidence of an old cardiac damage found in coronary thrombosis of long standing. After testifying at length he was asked and answered the following questions on cross-examination:
“Q. You certainly wouldn’t say to this Commission that you know with a reasonable amount of certainty that if these factors had not been present in Mr. Rogers that he would have had the attack anyway.”
“A. No; nobody but the Lord himself could say what’s going to happen to anybody. All you can go by on that type of thing is the fact that many hundreds and thousands of other people go through the same type of things and don’t have one.”
“Q. Then you can’t say that his work, his infection and his worry did not cause the heart attack, can you?”
"A. I can’t say it didn’t; but I can say I don’t believe it did.”
“Q. If you add, Dr. Hyatt, to the fact that Mr. Rogers was doing his normal work, if you add to that strain which the heart was already under the infection, the pain, worry, concern, is there any way of saying, in your opinion that those factors were not related to his heart attack?”
“A. Well, I don’t know whether they’re related to his heart trouble or not. We simply know that many hundreds of patients his age develop coronary thrombosis. Some of them are sitting at a desk in a-bank and doing nothing much except mental work; some of them are doing hard physical work; some of them have this and that, and I don’t know. I don’t know if he’d had an attack, if he had not had this or that.”
The applicable rules by which we are governed in considering, on appeal, this, kind of a case are well established and need only to be stated without discussion.
The burden is on the claimant to show a causal connection between his heart attack and his employment. See: Pearson v. Faulkner Radio Service Company, 220 Ark. 368, 247 S. W. 2d 964. We must give the testimony its strongest probative force in favor of the action and findings of the full Commission. See: The Pearson case supra; Springdale Monument Company v. Allen, 216 Ark. 426, 226 S. W. 2d 42; and, Ark. Power & Light Co. v. Scroggins, 230 Ark. 936, 328 S. W. 2d 97. The findings of the Commission have the same force and effect on review as the findings of a jury, and must be sustained if supported by substantial evidence. See: Mosley v. Temple, 231 Ark. 502, 330 S. W. 2d 719.
After carefully reviewing all of the testimony in the record, including that set out above and, also, the testimony of the claimant himself, we are forced to conclude that there is substantial evidence in the record to sustain the full Commission in finding “that claimant did not prove by a preponderance of the evidence that his heart attack was an accident that occurred by reason of and in the course of his employment.”
To sustain the judgment of the Circuit Court (reversing the Commission) appellee has well presented some strong arguments to the effect that we should re-examine our decisions on what constitutes substantial evidence; that we should give more weight to the testimony of a doctor who had repeatedly seen and examined the claimant than to one who had not, and; that we should entirely discount and disbelieve the testimony of a certain doctor who testified. We find nothing in these contentions that justifies us in changing the conclusion above indicated. We have many times discussed what constitutes substantial evidence and we think no useful purpose would be served in re-examining those decisions at this time. It is true that in some circumstances there would be good reasons for giving additional weight to the testimony of a doctor who examined the patient on numerous occasions and we have recognized this fact. Certainly this would be the case if such doctor had knowledge of facts not known to other doctors. However, in this case, it appears to us that all doctors were equally in possession of all the significant facts bearing on the causes of claimant’s heart condition. Also, we have no way of knowing just what factors the Commission considered. It is not the province of this court to say which witness to believe or disbelieve. In the Pearson case, supra, we said: “The Commission had a right, just as a jury, would have had, to believe or disbelieve the testimony of any witness.”
From a careful study of appellee’s entire argument it seems he would have us hold that any time an employee, in the course of his regular employment, suffered a heart attack his claim should be compensable. Perhaps, due to the conflict and uncertainties in medical theories relative to the cause of heart attacks, this contention of appellee merits some consideration. However, any implementation of that contention is a matter for the legislature and not the judiciary. As the law now stands the burden is on the claimant to show a causal connection between his work and his heart attack. As we have frequently said in effect, the Workmen’s Compensation Act is not an insurance policy.
Since we have concluded that the Commission’s determination should be affirmed, it follows that the judgment of the Circuit Court must be and it is hereby reversed.
Reversed.
Johnson, J., dissents. | [
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George Rose Smith, J.
On tbe afternoon of April 28, 1959, the appellant shot and killed her husband, Joseph E. Connelly, from whom she had been separated for several months. Charged with murder in the first degree the appellant was convicted of second degree murder and was sentenced to fourteen years imprisonment. We find it necessary to discuss only one of the points relied upon for reversal, an asserted error in the admission of incompetent evidence.
The prosecution, presumably for the purpose of showing that the deceased was unarmed, introduced a number of articles found upon his person, such as a wallet, a cigarette lighter, cards, pictures, a bunch of keys, a ring, etc. These items are conceded to have been admissible, but the appellant complains of the court’s action in permitting the State to introduce an unsigned letter, apparently written by the decedent to his estranged wife and also found upon his person, which read as follows:
“I have every right to hurt you — but to hurt you I have to hurt someone very dear to me. You have depended upon that for some many years. You thought you had me under some kind of trance. But there has been only one reason you got by, by treating me as you did. If you had loved Bonnie Jo [the couple’s only child] half as much as I we would still be together. You have only thought of yourself and had only one thing in mind to destroy the two persons in your life — the two that lived in hell to be with you. I know you are very proud of yourself. It is too bad you can’t hear what some of the ones you know say. By sending you this money in your name — I’m losing what little self respect I have left — if I have any at all, that you left me.” (The reference to “this money” seems to have meant a check for $20, drawn by the decedent in favor of the appellant, which was also found upon Connelly’s person, though it had been torn in two.)
This letter, unsworn and not subject to cross-examination, was manifestly not competent proof of the truth of the statements contained in it. Indeed the State does not suggest in its brief that the document was admissible; it is argued only that no objection was made by the defense. As we read the record, however, there was a sufficient objection, as reflected by this excerpt from the transcript:
“Mr. Holt: We object on the ground it is incompetent, irrelevant, and immaterial.
“The Court: Let me see it, Mr. Hebert.
“Mr. Hebert: It is what they found on his body, it is in his handwriting.
“The Court: Overrule the objection. It will be admitted.
“Mr. Holt: Note my exceptions.”
The point that has given us concern is whether the letter, even though incompetent, can be said to have been prejudicial to the accused. The note certainly suggests that there had been discord between Connelly and his wife, but there is much other evidence to this effect, including the testimony of the appellant herself. If the existence of marital disharmony were the only inference to be drawn from the letter then we might say with confidence that it could not have had any prejudicial effect upon the jury.
There are, however, other conclusions that may be derived from the language of this note. The statement that Mrs. Connelly meant to destroy the two persons in her life might be taken in retrospect to support the charge of premeditated murder. Much more important is the letter’s positive implication that it was the appellant who had mistreated her husband, rather than the other way around. This implication stands almost alone as the State’s contradiction of the testimony of the appellant and her daughter, who both say that Connelly struck and bruised his wife upon a number of occasions. Thus the letter had a direct bearing upon the appellant’s credibility and at least an indirect bearing upon her insistence that she acted in self-defense. In criminal cases in the absence “of an affirmative showing to the contrary” we must presume that incompetent testimony was prejudicial to the accused. Doles v. State, 166 Ark. 37, 265 S. W. 663. In the case at bar we are left in doubt, which means that the presumption of prejudice has not been completely rebutted.
Eeversed and remanded for a new trial.
Holt, J., not participating. | [
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Carleton Harris, Chief Justice.
This is a will contest. Mary Gavet, a resident of Little Rock, died on July 19, 1959, at the age of 82. Mrs. Gavet had executed a will on April 14,1953, wherein certain bequests were made to various institutions and individuals, the bulk of the estate, including real estate located at 806 Center Street in Little Rock, being bequeathed and devised to Theresa Korte Raines, appellant herein. Mrs. Raines was not related to Mrs. Gavet, but had been a good friend for a long number of years. This will was turned over to Mrs. Raines, named co-executrix in the instrument, by Mrs. Gavet, together with a codicil, executed in 1955, and remained in possession of appellant until after the death of Mary Gavet. On October 23,1956, Mrs. Gavet executed a second will, wherein all former wills were revoked, and some twenty-eight bequests were made to institutions and individuals, including a bequest to appellant in the amount of $4,000. C. H. Richter and Warren Baldwin of Little Rock were named executors. Item 12 of this will, which occasions the present litigation, provides:
“12. At the present time I own and reside in my home place, which contains rental units, located at 806 Center Street, Little Rock, Arkansas. If I am the owner of this property at the time of my death, I direct that the Roman Catholic Bishop of the Diocese of Little Rock be given the first opportunity to buy the property at its fair market value. If the Bishop elects to make an offer for the purchase of the property, the court having jurisdiction of my estate shall pass upon the reasonableness of the offer and shall direct the sale of the property to the Bishop if the court determines that the offer represents fair market value of the property at the time.”
Following the death of Mrs. Gavet, Mrs. Raines offered the 1953 will and the 1955 codicil for probate; subsequently, the 1956 will was offered for probate. Following a hearing, at which numerous witnesses testified, the Probate Court found that the testamentary dispositions executed by Mrs. Gavet on April 14, 1953, and December 14, 1955, “are not the last will and testament of the decedent”; and admitted to probate the will dated October 23, 1956. From the order refusing to admit to probate the earlier instruments, and admitting the latter will, Mrs. Raines brings this appeal. For reversal, appellant relies upon two points:
“I.
‘ ‘ The execution of the 1956 will was procured through undue influence at a time when deceased did not possess testamentary capacity.
“II.
‘ ‘ Deceased was mentally incompetent to execute a will on October 23, 1956.”
I.
The proof reflected that the title to property on either side of 806 Center Street was held by the Catholic Bishop of Little Rock, and the evidence reflected that the Bishop, through Richter, had endeavored on several occasions over the years, to purchase Mrs. Gavet’s property. Mrs. Gavet did not consent to sell the property. Mrs. Raines contends that undue influence was exercised over Mrs. Gavet by Harry Richter, as agent of the Bishop; next, by the attorney who prepared the 1956 will, as an agent of the Catholic Church ; and finally, by “somebody” — “I’m saying she was influenced to make this will by somebody, because she would not have done it.” When interrogated as to her reason for stating that the attorney who prepared the will exercised undue influence, and that such attorney represented Bishop Fletcher, appellant answered: “Just because I believe that is what it is. * * * I know that somebody influenced her.” She then mentioned several priests that she thought exercised undue influence over deceased, but when asked her basis for making this statement, said: “Well, those are the people it would be since she did it. Somebody influenced her, and those are the people it would be since she did it. Those are the people that are closest connected to it that I could put a finger on.”
Appellant admitted on cross-examination that she did not know whether Richter ever mentioned anything to Mrs. Gavet about the provisions of her will. The only other person testifying on behalf of appellant, whose testimony even remotely touched the issue of undue influence, was Beatrice Anthamatten. Mrs. Anthamatten testified that Mrs. Gavet did not want the Bishop to have her property, and told her (Mrs. Anthamatten) that she was leaving her place to “the one that has done the most for me. The Bishop has never raised his hand for me. ’ ’ The witness testified that Mrs. Gavet stated that her deceased husband would not have wanted the property sold to the Bishop. “They felt that they had done enough for the church.” She stated that Richter had tried to purchase the property several times from Mrs. Gavet, and that these conversations would always upset the latter. This is the sum total of the evidence offered by appellant on this point, and obviously falls far short of establishing undue influence. In fact, appellant was unable to point to any specific person who suggested the disposition of the property as made in the 1956 will — or any specific act of undue influence. Mrs. Raines simply feels that undue influence must have been exercised, because, in appellant’s view, Mrs. Gavet would not have otherwise thusly disposed of the property. In Dunklin v. Black, 224 Ark. 528, 275 S. W. 2d 447, this Court quoted with approval from the case of McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, as follows:
“As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties.”
We find no merit in this contention.
II.
The record reflects that Mrs. Gavet was declared incompetent on July 3,1957, some eight months after the 1956 will had been executed. Evidence on behalf of appellant discloses that she underwent an operation in the latter part of 1954, and another in the summer of 1955. She suffered a broken hip in December of 1955, and was hospitalized until the middle of the following January. From January 13th through May, Mrs. Gavet lived with Mrs. Raines. Six witnesses, in addition to the latter, testified at the hearing in behalf of appellant, namely, Beatrice Anthamatten, heretofore referred to, and her daughter, Margaret Rose Anthamatten, a registered nurse, both of whom were long time friends of Mrs. Gavet; Josephine Branscum, who took care of Mrs. Gavet from October, 1957, until May, 1958; Addie Thomason, a tenant of Mrs. Gavet’s; Fred Perry, an acquaintance of Mrs. Gavet for the last fifteen years of her life; and Dr. Elizabeth D. Fletcher, a physician of Little Rock specializing in psychiatry. Testimony from the lay witnesses was to the effect that during the year 1955, Mrs. Gavet became confused, disorientated (in that she did not seem to realize where she was living), was unable to carry on a coherent conversation, suffered a loss of memory, and did not recognize people she had known for a long period of time; several of the witnesses stated that Mrs. Gavet was of the opinion that her mother (who had been dead for many years) was living in the house with her. Further, according to some of the witnesses, though she had formerly been a quiet, kind, and religious person, Mrs. Gavet became loud, “almost wild”, would curse, and Margaret Rose Anthamatten testified that she called the Catholic priest a vile name; that she underwent a complete personality change. Dr. Fletcher testified that she saw Mrs. Gavet on October 12, 1957, December 26, 1957, and January 1,1958. The Doctor stated that she found the patient to be a very sick woman, physically and mentally; that she was psychotic, incompetent, suffering from arteriosclerosis, both generalized as well as the cerebral type. Dr. Fletcher was emphatically of the opinion that Mrs. Gavet was not mentally competent in October, 1956 (a year prior to the first visit of the doctor), to make a will, and that probably she had been incompetent for several years. However, on cross-examination, Dr. Fletcher admitted that the rate of progress of arteriosclerosis varies considerably in different patients.
Mrs. Raines testified that Mrs. Gavet was not mentally capable of making a will after she left appellant’s home in the latter part of May, 1956, and stated that the names of some of the legatees of the 1956 will were listed incorrectly by Mrs. Gavet, though the latter had known these legatees quite well.
In contrast to this testimony, Edward L. Wright, attorney of Little Rock, testified that his first professional contact with Mrs. Gavet was in 1953 when he prepared a will for her, covering her property in France; that in July of 1956, in response to her request, he went to her residence, and obtained the information for a will relating to her American property. Mrs. Gavet gave him complete information about her property and the bequests she desired to make, entirely from memory, without any sort of written memorandum. The witness stated that he had never represented Bishop Fletcher, nor any of his predecessors. Mr. Wright testified that Mrs. Gavet made it plain to him, that though she was grateful to Mrs. Raines for personal ministrations following the breaking of her hip, the testatrix was apprehensive that appellant was seeking to “get her property”; further, she did not want her will in the physical custody of Mrs. Raines. The Attorney stated that he had known Mrs. Gavet quite well, and there was no question in his mind as to her complete mental competence to make the will. Subsequently, on October 19th, Mrs. Gavet called Mr. Wright and desired to make some small changes in the July 27th will. Since he was scheduled to be away from the city the following day, his partner, Wayne Upton, was requested to draft the new will. These changes did not relate to the property at 806 Center Street, for the provisions of the July 27th instrument and the October 23d instrument, relative to that property, are identical. Mr. Upton, and James D. Storey, who witnessed both wills, testified that Mrs. Gavet was very alert, and apparently clearly understood what she was doing. This testimony was concurred in by Robert Schults and Alston Jennings, who witnessed the will of October 23d.
Daisy Pinkley, one of Mrs. G-avet’s tenants, testified that, in her opinion, deceased was competent throughout 1956, though she began to have hallucinations after returning from the hospital in 1957. Judge and Mrs. Audrey Strait of Morrilton, who had known Mrs. Gavet for a long number of years, and who visited with her a number of times throughout 1956, testifi ed that she appeared entirely rational, and discussed business matters on a clear basis. She always recognized both, and Judge Strait testified that Mrs. Gavet expressed the desire that the church acquire title to the 806 Center Street property. Mrs. Strait testified that during the visits in the latter part of 1956, Mrs. Gavet appeared as normal as ever.
Dr. Amail Chudy, engaged in general medical practice in North Little Rock, and Dr. Jerome S. Levy, a physician of Little Rock, specializing in Internal medicine, testified in behalf of appellee. Dr. Chudy expressed the opinion that Mrs. Gavet was competent in 1956, and stated that she seemed to be rather alert for a person of her age. Dr. Levy, likewise, commented as to her alertness in 1956, and observed no evidence of mental confusion until she entered a hospital in June, 1957.
The competency — or incompetency — of Mrs. Gavet was, of course, entirely a fact question, and the testimony was in irreconcilable conflict. We have frequently stated, —so frequently as to require no citation of authority,— that we will not disturb the findings of a Chancellor on a question of fact, unless such findings are clearly against the preponderance of the evidence. In the case before us, we think the evidence fully supports the findings of the trial court. This is not a case wherein a beloved and close relative is left destitute for the benefit of strangers. Rather, though Mrs. Raines was not a blood relative, she was left a substantial bequest of $4,000. For that matter, the property in question was not devised to the Bishop of the Catholic Church; instead, he was only given the opportunity to purchase it, and only then, after the Probate Court passed upon the reasonableness of his offer, and determined that it represented a fair market value of the property.
Summarizing, we are of the opinion that the weight of the evidence reflects that Mrs. Gravet was entirely competent to execute a will on October 23, 1956, and that the provisions of the will so executed on that date, were arrived at by her own mental processes, and entirely free from undue influence or duress.
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Carleton Harris, Chief Justice.
This is an appeal from a decree of the Saline County Chancery Court, wherein the court found that appellant, Benjamin Carroll, by reason of threats, intimidation, and duress, caused appellee, Peeda Carroll, to procure a divorce decree on June 19, 1950, against her wishes, and without her consent, the court cancelling, setting aside, and holding for naught, the June 19th decree.
The parties were married in South Carolina on July 3,1942, and at the time of the decree in June, 1950, were residents of the state of New York. On June 21, 1948, after appellee had consulted an attorney friend of New York City, Martha Duff, the parties entered into an agreement in the nature of a property settlement, in which, inter alia, appellee acknowledged receipt of $5,000. The agreement further provided:
“6. That, while both parties hereto shall remain alive, and so long as the Second Party remains unmar ried, in the event that the parties hereto are divorced by a valid decree of divorce, the First Party shall pay to the Second Party the sum of Nine Thousand Three Hundred ($9,300.00) Dollars, in monthly equal installments on the first day of each and every month beginning with August 1st, 1948, said installments to be in the sum of Eighty-five ($85.00) Dollars, however, in the event of the Second Party’s remarriage, this sum shall be no less than One Thousand ($1,000.00) Dollars.”
Two years later (June 3, 1950), the complaint for divorce was instituted in the name of appellee in the Saline County Chancery Court, appellant waiving service of summons, and entering his appearance. The decree was granted on June 19th 2on the deposition of appellee and Larry Drews, a witness on her behalf. From the evidence of these two persons, the court found that appellant willfully, and without cause, deserted appellee on August 1, 1948, and “had absented himself from her since that time.” On June 5, 1952, the decree was amended to incorporate the provisions of the property settlement entered into by the parties in 1948 On October 9, 1958, appellee filed the petition to vacate the decree of divorce, alleging that appellant, through threats and duress, had induced her to consent to being made the plaintiff in the divorce action. Following a hearing, in which both parties testified orally before the court, the decree was entered from which this appeal is taken.
Appellant, in seeking to uphold the divorce decree, asserts several alleged errors by the Chancellor, but, under the view that we take, a discussion of these alleged errors is unnecessary.
According to appellee, the parties, off and on, continued to live together in the same apartment. Mrs. Carroll stated that he would leave for a few weeks, and go to a hotel or to the home of his mother, but would come back after a period of time. Likewise, she would be gone for a few weeks, but would return to the apartment. She stated that this relationship continued until sometime in 1956, and they did not live in the apartment together after that time. Dr. Carroll testified that, following the divorce, since his wife would not move out of the apartment, he moved, and remained away for the balance of the year 1950, and “for many years thereafter.” He did state that he used the apartment as an office when his wife was not present.
It is apparent to this Court that the parties colluded together, practiced fraud upon the Saline Chancery Court, and through such collusion and fraud obtained the divorce decree of June, 1950. We proceed to a discussion of the evidence that reflects the attitude, actions, and intent of each of the parties.
Mrs. Carroll contends that she acted under duress in consenting to the divorce action. Though she stated that Dr. Carroll did not mistreat her physically, appellee testified that he would criticize and ridicule her; would say “nice” things one day, and then ignore her and treat her as a stranger for three or four days. The witness stated that her husband told her to “get out” in 1948, which occasioned the property settlement. However, both parties admitted living together until after the divorce decree was obtained some two years later. Mrs. Carroll testified that she went to attorney Duff in 1948 of her own accord, and subsequently, Dr. Carroll went to the attorney’s office with her. Appellee stated that Mrs. Duff was acting for both parties. She also testified that it was understood at the time of the agreement that the monthly payments were not to be made unless the divorce was granted. Appellee stated, that pursuant to this agreement, the divorce was granted in Arkansas in 1950. Mrs. Carroll testified that she did not come to Arkansas, denied that she signed the deposition (stating that it was a forgery), and denied knowing anyone by the name of Larry Drews (the witness in her behalf). Admittedly, however, Mrs. Duff mailed to the parties two copies of the divorce decree, in which there is a definite finding that Dr. Carroll had deserted Mrs. Carroll on August 1, 1948, and had been away from her since that time. Admittedly, appellee directed a letter to her New York attorney, several years subsequent to the decree, in which she asked the attorney to “complete the matter of the court decree regarding the financial arrangement.” Admittedly, Mrs. Carroll accepted benefits under the provisions of the decree, not only during the period in which, according to her testimony, the parties were still living together, but also for about eight months after the parties were living separate and apart. In fact, from her evidence, Mrs. Carroll did not institute her action to set aside the divorce decree until over two years after she had last lived with Dr. Carroll, and approximately eighteen months after he had ceased making the payments. The record reflects that he paid to her something over $1,300 after they ceased living together.
We are accordingly unimpressed with the assertion by appellee that she acted “under duress”. For that matter, irrespective of whether she voluntarily instituted the original divorce action (or instituted it at all), Mrs. Carroll was cognizant of the fact that fraud had been practiced upon the court, for she had the divorce decree in her possession, and was certainly aware that it had been rendered on false grounds and false testimony (even if she was not familiar with the residence requirements in Arkansas). We have concluded that the Chancellor’s finding that Mrs. Carroll acted under duress was against the weight of the evidence. No citation, of course, is required to the effect that we try Chancery cases de novo, since this has been established by a long line of decisions.
Dr. Carroll testified that he took no part in obtaining the divorce, other than signing the waiver and entry of appearance; that he did not know whether his wife came to Arkansas; he denied any collusion, and the rendering of any aid in practicing fraud upon the court. The record disputes this testimony. In the first place, the entry of appearance, admittedly signed by appellant, states: “My name is Benjamin Carroll, and I am the husband of Peeda Carroll; I have read a copy of the complaint filed herein and fully understand the contents thereof.” The complaint charged that Dr. Carroll had deserted his wife on August 1, 1948, and had “absented himself from her since that time.” Dr. Carroll admitted that he was living with his wife until the divorce decree in 1950. The record also reveals a letter in which Dr. Carroll stated that he had made an initial payment to Mrs. Duff on the divorce proceedings. Of course, he, like his wife, had a copy of the fraudulent decree throughout the years.
We think the evidence reflects that these parties conspired and colluded to obtain a divorce decree in Arkansas in a court that had no jurisdiction, and we are of the opinion that this case is controlled by Oberstein v. Oberstein, 217 Ark. 80, 228 S. W. 2d 615. The circumstances there were quite similar to the circumstances in the present litigation. Mrs. Oberstein received payments under the decree from November, 1947, until May, 1948, and did not file a motion to vacate the decree until December 20th of the latter year. This Court said:
“In the case at bar Mrs. Oberstein’s receipt of the weekly payments from November 6, 1947, to May, 1948, and her further delay until December 20, 1948, before filing the motion to vacate the Arkansas divorce decree— these facts together with others in the record — convince us that her Arkansas divorce proceedings were not caused by any duress exerted on her; but that she willingly traded her husband an Arkansas divorce decree for a property settlement.”
The quoted reasoning is equally applicable here. In the present case, of course, Mrs. Carroll received payments for a much longer period, and delayed the institution of her action to set aside the decree for a considerably longer time.
In the Oberstein case, this Court likewise found that the husband had conspired and colluded to obtain the Arkansas divorce. From the Opinion:
“From the facts previously detailed, it is clear that both of the parties are culpable in this case. We do not want any Court of any sister State, or of the Federal system, to afford full faith and credit to the void divorce decree rendered in the Oberstein case by the Garland Chancery Court. Neither do we want either of these parties to profit to the slightest extent by reason of their trifling with the Arkansas Courts. Such is the problem confronting this Court. * * *
Thus, if we affirm the Chancery Court, we would be allowing Mrs. Oberstein relief to which she is not entitled because of her fraud; and if we reverse the Chancellor’s decree, we would be allowing Mr. Oberstein to have relief to which he is not entitled because of his fraud. Each of them is estopped, because of collusion and fraud, from obtaining the sought relief.”
This reasoning expresses completely our views in the instant cause, and in accordance therewith, we render the same holding that was rendered in the Oberstein case; in fact, we use the identical language, except for the substitution of names and the proper court.
“ (1) — We hold that the divorce decree rendered in this cause by the Saline Chancery Court on June 19, 1950, was and is void; and this adjudication of invalidity prevents the divorce decree from being entitled to full faith and credit in this, or any other State.
(2) —We hold that each of the parties — Dr. and Mrs. Carroll — is precluded from any relief of any kind involving the said decree: she from having it vacated, and he from having it recognized.
(3) —We refuse to adjudge costs in favor of either party, since both are culpable; and, without reversing or affirming, we direct that a mandate issue remanding this cause to the Saline Chancery Court so that the holding here will be entered as the decree of that Court.”
It is so ordered.
Robinson, J., dissents.
The Arkansas attorney who filed this complaint and obtained this decree apparently subsequently left the state.
On April 17, 1954, Mrs. Carroll wrote her New York attorney asking that this agreement be incorporated in the decree. Since the decree had already been so amended, it is not clear why the letter was written, unless it be that the parties did not know that the attorney had already taken such action.
Dr. Carroll testified that he had paid Mrs. Carroll somewhere between $15,000 and $20,000 since the divorce. Mrs. Carroll testified that he had paid about $6,000 during that period. Neither party married again. | [
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WAYMOND M. BROWN, Judge.
liThis is a termination-of-parental rights appeal brought by Vertís Davis. On April 17, 2009, the Pulaski County Circuit Court terminated her parental rights to D.W., born March 13, 2000, and M.L., born October 28, 2004. Appellant’s attorney has filed a motion to withdraw pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), asserting that there are no issues of arguable merit to support the appeal. Under Rule 6 — 9(i)(l) of the Arkansas Rules of the Supreme Court and Court of Appeals, counsel’s motion is accompanied by an abstract, addendum, and brief listing all adverse rulings made at the termination hearing and explaining why there is no meritorious ground for reversal, including a discussion of the sufficiency of the evidence to support the termination order. The clerk of this court sent a copy of counsel’s motion and brief to appellant, informing |2her that she had the right to file pro se points for reversal. See Ark. Sup. Ct. R. 6-9(i)(3). Appellant filed pro se points for reversal on August 26, 2009.
DHS filed a dependency-neglect petition on March 5, 2007. The supporting affidavit stated that D.W., who is autistic and has ADHD, came to school in what appeared to be the same diaper in which he had left school the day before. There was a bowel movement in the diaper; the child smelled as if he had been soaked in urine all night; and there were sores and a rash on his diaper area. When a DHS worker interviewed appellant on February 14, 2007, appellant’s home smelled strongly of urine and had no gas or running water. DHS implemented a safety plan for appellant and the children to stay with appellant’s mother, Vertís Brown, when it was cold. Although the gas was turned on by February 16, 2007, the water was still off on March 1, 2007. On May 22, 2007, DHS implemented another safety plan for the children to live with their grandmother until appellant could find adequate housing (with DHS’s help). On June 1, 2007, the circuit court accepted the parties’ stipulation that the children were dependent-neglected because of environmental neglect. The court directed that the children would remain in appellant’s legal custody but that, until she obtained appropriate housing, they would live with Mrs. Brown, pursuant to the safety plan.
DHS moved for an emergency change of custody on September 4, 2007. In the attached affidavit, the DHS worker stated that appellant’s housing referral was approved on June 18, 2007; on June 21, 2007, however, appellant went to jail for third-degree domestic battery after an altercation with Nathan Love, M.L.’s putative father. Appellant was released |sfrom jail with a no-contact order. When the DHS worker saw appellant walking home from jail and gave her a ride home, appellant told the worker that the children were staying with their grandmother only “off and on” because she had breast cancer. On August 27, 2007, DHS held a second staffing with appellant, who admitted that the children and Mr. Love were living with her. The water at appellant’s home was not yet turned on. On August 31, 2007, DHS placed a seventy-two-hour hold on the children because appellant had violated the safety plan. The circuit court ordered an emergency change of custody on September 5, 2007.
On September 24, 2007, the circuit court entered a probable-cause order and gave appellant weekly supervised visitation. The court held a review hearing on October 3, 2007. The goal was reunification. The court stated that appellant had minimally complied with the case plan and court orders; she had missed her appointment for the psychological evaluation; had not yet attended parenting classes; and was still attempting to obtain housing. The court directed appellant to submit to a psychological evaluation; to complete parenting classes; to obtain and maintain appropriate and stable housing and income; and to comply with the district court’s orders in the domestic-violence case. The court said that, if all parties agreed at the scheduled November 2007 staffing, appellant’s visitation could be increased. On February 7, 2008, the court stated that the “most recent order” had placed the children in appellant’s custody but that it was contrary to the children’s welfare to remain with appellant.
A review hearing was held on March 20, 2008. The court stated that the case plan would remain reunification, with a concurrent plan of guardianship and permanent custody, [4and noted that appellant had partially complied with the case plan and court orders, although she had not obtained stable housing.
The court held a permanency-planning hearing on August 20, 2008. It continued the goal of reunification, finding that appellant was complying with the case plan and court orders. The court noted that appellant had completed parenting classes; had completed her psychological evaluation; and had appropriate housing; the only negative factor, however, was her positive drug screen for marijuana that week. The court stated that she could have weekly visitation after testing negative on three consecutive drug screens.
On December 12, 2008, DHS filed a motion to clarify the court’s oral order at the fifteen-month permanency-planning hearing held on November 6, 2008, where the court ordered appellant not to use marijuana when the children were in the home. DHS stated that, on November 17, 2008, appellant tested positive for marijuana, and admitted that she had used it on November 11, 2008. DHS asked the court to clarify what effect appellant’s positive drug test and admission would have on her visitation.
DHS filed a petition to terminate appellant’s parental rights on February 19, 2009. It alleged that other factors or issues had arisen subsequent to the filing of the original petition for dependency-neglect that demonstrated that the return of the juveniles to the custody of appellant was contrary to their health, safety, or welfare, and that, despite the offer of appropriate family services, appellant had manifested the incapacity or indifference to remedy the subsequent issues or factors. See Ark.Code Ann. § 9-27-341(b)(3)(B)(vn)(a) (Supp.2009). |sDHS stated that appellant’s drug use came to light after the filing of the original petition and, although she had complied with the case plan and court orders regarding stable and appropriate housing, she had continued to use marijuana, which affected her ability to be a parent, and she had allowed her sister and her sister’s children to live with her, in violation of the court’s order. DHS also listed another ground, that the children had been adjudicated dependent-neglected and had continued out of appellant’s custody for twelve months and, despite a meaningful effort by the department to rehabilitate appellant and correct the conditions that had caused removal, those conditions had not been remedied. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a).
On February 6, 2009, appellant tested positive for cocaine and THC. She tested positive for THC on February 13, 2009, and on February 18, 2009. Appellant tested negative for all drugs on March 6, 2009. Even though appellant said that she was clean, she tested positive for THC on March 13, 2009. . Appellant tested positive for cannabinoids on March 19, 2009. On April 17, 2009 (the date of the termination hearing), appellant tested positive for THC, even though she denied using marijuana.
The court held the termination hearing on April 17, 2009. Tracie Brown, an investigator with the Crimes Against Children Division of the Arkansas State Police, testified (over appellant’s objection) that appellant’s seven-month-old nephew was admitted to Arkansas Children’s Hospital for a spiral fracture of his left tibia that occurred while he was in appellant’s care. Ms. Brown said that appellant told her that she had placed the infant on |fia top-bunk-bed mattress, which had rails on three sides, on the floor. Brown said that, although she could not prove that appellant personally inflicted the injury, by putting him in an inappropriate bed, appellant had placed him in a position that caused the injury. She believed that appellant had inadequately supervised and endangered him.
Tiffany Harper, the caseworker, testified about the history of this case, beginning with D.W.’s dirty diaper. She said that, although this case began because of environmental neglect, on which appellant made significant progress, appellant’s drug use later emerged as a problem and was never remedied. She said that appellant had denied using drugs on February 6, 2009, and produced her prescribed medication bottles, one of which was hydroco-done. She stated that appellant had, on recent drug screens, also claimed that her use of aspirin or Aleve had led to false-positive results. Ms. Harper testified that appellant first tested positive for THC in August 2008; at that hearing, appellant testified that she did not have a problem with marijuana and could stop anytime. Ms. Harper said that the court instructed appellant not to use marijuana; appellant, however, later admitted that she had used marijuana on November 11, 2008. At the subsequent hearings, she said, appellant denied smoking marijuana at all; nevertheless, the lab confirmed one of the positive results [on March 19, 2009]. Additionally, she said, Mr. Love had testified that he and appellant smoked marijuana together when the children were in the home. Ms. Harper acknowledged that appellant had obtained housing; had completed her psychological evaluation; had sought counseling with Fritzie Hemphill, a social worker; had SSI income; and worked at Taco Bell. Ms. Harper said that the two |7foster families wanted to adopt the children. She did not believe that appellant had the patience to take care of a special-needs child like D.W. and a very active child like M.L., because she had seen her become very frustrated with the children’s behavior during visitation. Because of appellant’s continued drug use and denial of having a drug problem, along with the injury suffered by appellant’s nephew, Ms. Harper recommended that appellant’s parental rights be terminated.
-Kasheena Walls, an adoption specialist, testified that the foster parents wanted to adopt the children, and that she had matched twelve families to children with these characteristics, including age, race, autism, and hyperactivity. She recom mended that the case’s goal be changed to adoption.
Jan Davis, M.L.’s foster mother, testified that she wanted to adopt her. She said that, although M.L. had a bad problem with bed-wetting at first, especially after visits with appellant, they had overcome that problem. She also stated that M.L. had caught up in the developmental skills on which she was originally behind. She described M.L. as “smart as a button,” “an angel,” and “my baby.” D.W.’s foster mother, Bertha Brown, also testified that she was willing to adopt him.
Fritzie Hemphill testified that appellant had been in counseling with her since March 2008, with some gaps in treatment between June to September 2008 and November 2008 to April 2009. She said that they worked on appellant’s anger and depression, which can go along with mild mental retardation like appellant’s. She said that, at first, appellant made some |8progress with anger management and coping skills, but her attendance became sporadic, and there were times when she did not show up for appointments. Ms. Hemphill said that she was unaware of any drug use by appellant until September 2008; because appellant had led her to believe that it was simply recreational, she had not recommended treatment. She said that she currently believed that appellant was in denial and that she needed drug treatment. She added that appellant’s drug problem would have to be treated before she could even address her ability to parent a special-needs child.
Appellant testified that she did not have a drug problem and did not need drug treatment, regardless of the test results. The last time she used marijuana, she said, was November 2008; the other test results were caused by her prescribed medications, including Adderall, as well as aspirin and Aleve. She brought copies of some medicine bottles (erythromycin and hydrocodone, dated January 19, 2009, and metoprolol tartrate, dated November 18, 2008). Appellant admitted using marijuana on November 11, 2008, which was her birthday.
In the order terminating appellant’s parental rights, the court found that appellant had partially complied with the court orders and case plan, but had not stopped using marijuana. In addition to the drug screens mentioned above, the court stated that appellant had tested positive for drugs on August 29, 2008; September 19, 2008; October 8, 2008; October 17, 2008; and November 6, 2008. The court acknowledged that appellant had housing; had attended counseling; had SSI income; and was working; however, she had violated the |9housing-authority rules by allowing her sister and her sister’s children to live with her. The court found that “other factors” had arisen after the filing of the original petition for dependency-neglect, which appellant had shown the incapacity or indifference to remedy.
The court was also troubled about the injury that appellant’s infant nephew suffered while in her care:
Returning the juveniles to the custody of the mother could harm the juveniles’ health and safety because she has not ceased her use of marijuana; she violated the no-contact order issued by District Court regarding Nathan Love with whom she had battery charge; a true finding was made against her for neglect/inadequate supervision for incident 2/21/09 with nephew N.P., who suffered a spiral fracture.
The court stated that it would not assume that N.P.’s injury was intentional, but considered it in finding neglect and inadequate supervision by appellant, which demonstrated that she was not a fit and proper parent for her children. The court found that there were two foster families willing to adopt the children and that there were twelve families willing to consider children with these characteristics, including autism. The court found that appellant had not demonstrated an ability to make good decisions that were in the children’s best interest, noting that she had continued to use marijuana, and that she was indifferent to the potential harm her drug use posed to her children. The court noted that appellant had allowed Mr. Love back into her home in violation of the no-contact order. The court stated that, although appellant had remedied the environmental-neglect issues that caused the case to be opened, she could not properly parent the children. Appellant filed a timely notice of appeal.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A) (Supp. 2009), an |10order terminating parental rights must be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parent. The harm referred to in the termination statute is “potential” harm; the circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 285 S.W.3d 277 (2008). In addition, the proof must establish at least one of several statutory grounds. Ark.Code Ann. § 9-27-341(b)(3)(B).
The adoptability requirement was satisfied by the testimony of the adoption specialist and the caseworker, who said that the children were in pre-adoptive foster placements and that twelve families willing to adopt children with these characteristics had been identified. The caseworker’s testimony about appellant’s continued drug use and her nephew’s injury satisfied the “potential harm” factor.
The trial court found that the children had been adjudicated by the court to be dependent-neglected and had continued out of appellant’s custody for twelve months and, despite a meaningful effort by the department to rehabilitate appellant and correct the conditions that had caused removal, those conditions had not been remedied. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a). The court also found that “other factors” had arisen, which appellant did not remedy. See Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a). The children were in foster care for over nineteen months. Although appellant partially complied with the case plan and court orders, she continued to live her life in such a way that her children were still |uin serious danger of neglect. Continuing drug use shows both an indifference to remedying the problems plaguing the family and potential harm to the children. Carroll v. Ark. Dep’t of Human Servs., 85 Ark. App. 255, 148 S.W.3d 780 (2004). A parent’s rights may be terminated even though she is in partial compliance with the case plan. Chase v. Ark. Dep’t of Human Servs., 86 Ark. App. 237, 184 S.W.3d 453 (2004). Even full completion of a case plan may not defeat a petition to terminate parental rights. Wright v. Ark. Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). What matters is whether completion of the case plan achieved the intended result of making the parent capable of caring for the child. Id. Appellant’s nephew’s injury illustrated the potential harm of returning the children to appellant while her drug problem remained untreated.
Appellant argues in her pro se points that she did everything that the court ordered her to do. She admits making mistakes in the past while struggling to rear the children alone, and asks this court to give her a second chance. The love for her children that appellant expressed in her letter to this court was recognized by the trial court. Sadly, that love was accompanied by appellant’s persistent use of drugs and her refusal to admit that it was a problem. A parent’s continued denial of personal responsibility demonstrates her indifference or incapacity to remedy the “subsequent issues” and properly care for her children. Wright, supra.
Appellant objected at trial to Trade Brown’s testimony on the ground that anything that occurred after the filing of the petition for termination should be excluded. The court admitted her testimony because it was relevant to the “other factors” ground alleged in the | ^petition and appellant’s ability to remedy the causes for the children’s removal. This ruling was proper. Appellant’s drug problem, which became apparent after this case was opened, clearly was related to her ability to take care of her children and to protect them from harm. Although she obtained appropriate housing, she engaged in other behavior, abusing drugs, which demonstrated that she was not yet a fit parent. Evidence of her nephew’s injury was relevant to show that she was not yet able to take care of children. Additionally, appellant and her attorney were present at a staffing the week before the hearing when this issue was discussed, so it was not a surprise.
Appellant unsuccessfully attempted to enter into evidence some documents that were objected to as hearsay. Exhibit 2 was a letter from appellant’s sister. Exhibit 4 consisted of appellant’s medical records from outpatient surgery at St. Vincent Infirmary on March 10, 2009. Research that appellant printed about false-positive drug-test results, from an internet website, ask.web.com, was Exhibit 5. The trial court properly excluded all of these exhibits. Further, appellant’s counsel expressly stated that she would not proffer them.
We hold that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit termination cases and that appellant’s appeal is wholly without merit.
Affirmed; motion to withdraw granted.
GLADWIN and GLOVER, JJ., agree. | [
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