text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
JOHN B. ROBBINS, Judge.
I,The Washington County Circuit Court terminatéd appellant’s parental rights to L.S. (born July 24, 2000), L.E. (born October 24, 2001), K.T. (born February 2, 2004), and N.T. (born December 6, 2005). For reversal, appellant argues that the circuit court erred in finding that termination was in the children’s best interest and in finding that the Arkansas Department of Human Services (“DHS”) made a meaningful effort to reunite her with the children. We affirm.
On April 22, 2008, DHS placed a seventy-two-hour hold on the children after appellant’s husband, Gary Thomsen, was arrested for the rape of six-year-old L.E. DHS filed a petition for emergency custody and an affidavit stating that appellant knew that Thomsen phad exposed the children to pornography and had given them alcohol. The affidavit also stated that DHS had been involved with appellant’s family in a protective-services case since 2005 and that appellant had not followed through with services for the children. On these allegations, the circuit court granted emergency custody to DHS on April 23, 2008.
Approximately two weeks later, the court found probable cause to issue the emergency-custody order and to maintain the children in DHS custody. The court granted appellant one hour per week of supervised visitation and ordered appellant to cooperate with DHS and follow court orders; to keep DHS informed of her place of residence; to maintain contact with her attorney; to refrain from using illegal drugs or alcohol; to obtain and maintain stable housing and employment; to maintain a clean, safe home; and to demonstrate the ability to protect the children and keep them safe from harm.
On July 3, 2008, the court adjudicated the children dependent-neglected after finding that the allegations in the DHS affidavit were true and correct. The court established a goal of reunification and reiterated its previous directives to appellant. The court also ordered appellant to undergo a psychological evaluation and follow recommendations; to participate in individual counseling; to complete parenting classes and demonstrate improved, appropriate parenting; and to follow through with her attempts to obtain disability benefits or a job.
A subsequent review order found appellant in partial compliance with the court’s orders. The court continued the goal of reunification and emphasized that appellant should call her DHS caseworker once a week and obtain employment.
[jOn December 3, 2008, the court held a permanency-planning hearing and changed the goal of the case to termination of parental rights. The court found that, although appellant had attended counseling and completed parenting classes, appellant could not “put into practice what she should have learned,” despite three years of DHS services. The court noted that appellant had not called her DHS caseworker once a week; that appellant had not obtained employment; and that appellant’s mother, with whom appellant lived, could not pass a DHS home study due to the mother’s own previous involvement with DHS. The court scheduled a termination hearing for February 25, 2009, and ordered appellant to “get a job by Jan 15th, 2009 and keep the job.”
The evidence at the termination hearing revealed that appellant had divorced Gary Thomsen and was living with her mother, Teresa Bearden, and Bearden’s boyfriend, David Turner. Bearden testified that appellant was unemployed and that Turner provided for the family. Bearden also stated that appellant was pregnant by Turner’s brother, who was married to another woman. Bearden said that she had frequently told appellant to “get rid of’ Thomsen but that, when appellant tried to do so, Thomsen would “sweet talk” his way back into the home. Bearden admitted to having a long history with DHS, to abusing one of her sons, and to sending appellant to live with a relative when appellant was sixteen.
Appellant testified that she lived with her mother and had applied for jobs without success. She also stated that she was thirty-three weeks pregnant and had no relationship with the baby’s father other than friendship. Appellant testified further that she had made Gary |/Thomsen leave her home in December 2007 (prior to the children being taken into custody) but that DHS caseworker Darla Hash encouraged her to let Thomsen return, even after the sexual-abuse allegations came to light. Appellant also stated that she wanted to participate in family counseling and that Ms. Hash had arranged for it, apparently during the protective-services case, but that Gary Thomsen would not permit it.
Caseworker Darla Hash testified that DHS opened a protective-services case on appellant’s family in 2005. Hash stated that DHS had provided numerous services to appellant since that time, including transportation, Medicaid, Christmas gifts, food stamps, drug-and-alcohol assessments, drug tests, psychological evaluations, daycare services, children’s counseling, clothing, and supervised visitation. Hash also said that DHS offered intensive family services and counseling to appellant during the protective-services case but that appellant did not participate. In the present case, Hash stated, appellant underwent a psychological evaluation, participated in individual counseling, took parenting classes, passed her drug screens, and visited the children regularly. However, according to Hash, appellant had no driver’s license or transportation, had no job or disability income, had no home of her own, and was seven months pregnant. Hash also testified that appellant did not have a Medicaid card and had not received prenatal care for her current pregnancy. Further, Hash stated, DHS had denied a home study on appellant’s mother’s residence due to the mother’s long history with DHS. Hash concluded that the mother’s home was not an appropriate place for the children and that DHS could never close the protective-services case if the children | swere placed there.
Hash also testified that she may have told appellant that it was advisable for Gary Thomsen to move back into the home, given that Thomsen paid all of the bills, took the children to their appointments, and cooperated with the school. However, Hash stated unequivocally that, if she did give such advice, she did so prior to Thomsen’s arrest on rape charges. Finally, Hash testified that the children were adoptable and that it was in the children’s best interest to terminate appellant’s parental rights.
DHS also introduced appellant’s psychological evaluation, which was performed by Dr. Martin Faitak. According to the evaluation, appellant told Dr. Faitak that Gary Thomsen began drinking and engaging in violent behavior in 2005 and that she tried to end her relationship with him twice, including in December 2007. However, appellant reported Thomsen would pay child support if he was in the home and that this encouraged her to allow him to return. Dr. Faitak observed that appellant possessed some of the skills and capacities normally required for parenting but that she demonstrated weakness and dependence in relationships. The doctor also noted that appellant was physically healthy, appropriately groomed, and a high-school graduate but that she had never held a regular job or had a driver’s license and that she reported spending most of her time at her mother’s house cleaning and watching television.
Other witnesses testified that appellant’s visits with the children were appropriate and that the children were doing well in foster homes, other than K.T., who exhibited bizarre [fibehavior and suffered from post-traumatic stress disorder. Additionally, appellant introduced a report from her counselor, Kathleen Housley, which stated that appellant needed family counseling with L.E. and L.S. before reunification could occur.
On March 19, 2009, the circuit court entered an order terminating appellant’s parental rights to her four children. The court found that appellant had never been in full compliance with court orders and that appellant did not have a job or her own place to live. The court also found that appellant continued to show poor judgment in choosing men and continued to have dependent relationships. The court ruled that termination was in the children’s best interest and that the following grounds for termination were proved by clear and convincing evidence: 1) the children were adjudicated dependent-neglected and had continued out of appellant’s custody since April 22, 2008, and, despite meaningful efforts by DHS to rehabilitate appellant and correct the conditions that caused removal, those conditions were not remedied by appellant; 2) the children were adjudged dependent-neglected as a result of neglect or abuse that could endanger their lives, sexual abuse, or sexual exploitation, any of which was perpetrated by the children’s parent or parents; 3) other factors or issues arose subsequent to the filing of the original dependency-neglect petition that demonstrated a return of the children to appellant’s custody was contrary to their health, safety, or welfare and that, despite the offer of appropriate family services, appellant manifested an incapacity or indifference to remedying the subsequent issues or factors or rehabilitating her circumstances that prevented returning the children to her. See Ark.Code Ann. § 9-27-341 (b)(3)(B)(i)(ct ),Ji(vi)(a), (vii)(a) (Supp. 2009). Appellant appeals from that order.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 285 S.W.3d 277 (2008). An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence that termination is in the child’s best interest and that at least one statutory ground for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(A), (B). When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. Lee, 102 Ark.App. 337, 285 S.W.3d 277. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. We review termination-of-parental-rights cases de novo. Id.
Appellant argues first that DHS presented insufficient evidence that termination was in the children’s best interest. In deciding the best-interest question, the circuit court must consider two factors: 1) the likelihood that the child will be adopted if parental rights are terminated, and 2) the potential harm in returning the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Appellant does not challenge DHS’s proof of the children’s adoptability. Instead, she argues that DHS did not present sufficient evidence of potential harm.
We note at the outset that section 9-27-341(b)(3)(A) does not require DHS to prove | ¡^potential harm by clear and convincing evidence; rather, the statute simply identifies potential harm as a factor the circuit court must consider in its best-interest analysis. See Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark.App. 180, 314 S.W.3d 722; Lee, 102 Ark.App. 337, 285 S.W.3d 277. The circuit court’s obligation is to determine, after considering all factors, whether there is clear and convincing evidence that termination is in the child’s best interest. See McFarland v. Ark. Dep’t of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005). The circuit court is hot required to affirmatively identify a potential harm or to find that actual harm would result if the child were returned to the parent. Dowdy, 2009 Ark.App. 180, 314 S.W.3d 722. The potential-harm analysis is to be conducted in broad terms. Lee, 102 Ark.App. 337, 285 S.W.3d 277.
In light of these standards, we cannot say that the circuit court clearly erred in finding that termination was in the children’s best interest. Beginning in 2005, DHS offered appellant numerous services. Yet, appellant did not profit from those services or fully participate in them. In 2008, appellant failed to protect the children from harm by knowingly allowing Gary Thomsen to expose them to pornography and give them alcohol. After the children were removed from the home, the court repeatedly emphasized that appellant should obtain suitable housing and employment. However, by the time of the termination hearing, ten months into the ease, appellant had not met, nor did she appear likely to meet, these basic requirements for supporting herself and her children. The evidence shows that she had virtually never been employed, that she spent her days at her mother’s housing cleaning and 19watching television, that she permitted her mother’s boyfriend to support her, and that she was pregnant with another child whom she had no prospects of being able to support on her own. Under these circumstances, we conclude that the circuit court was mindful of all factors presented by the evidence and met its statutory duty to consider the potential harm in returning the children to appellant. We therefore see no flaw in the court’s best-interest analysis nor any reason for reversal on this point.
Appellant argues, however, that DHS “undermined” her by advising her to let Gary Thomsen return home after she had evicted him. During appellant’s testimony, she went so far as to say that caseworker Darla Hash gave her this advice after Thomsen had been charged with raping one of the children. Hash denied this, and the circuit court found appellant’s testimony in this regard completely incredible. We defer to the circuit court on such credibility questions. See Posey v. Ark. Dep’t of Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). Furthermore, even if Hash did recommend that appellant allow Thomsen to return home during the protective-services case, she did so because Thomsen appeared to be the more rehable party in terms of meeting day-to-day responsibilities. There is no evidence that, at that point, Hash was aware of any inappropriate behavior by Thomsen toward the children. In any event, we fail to understand how DHS’s recommendation regarding Gary Thomsen during the protective-services case had any bearing on appellant’s failure, ten months into the present case, to obtain appropriate housing or employment.
For her second point on appeal, appellant argues that the circuit court erred in finding | inthat DHS made a meaningful effort to reunite her with her children. Specifically, appellant contends that DHS should have provided her with family therapy, as recommended by one of the children’s counselors and her own counsel- or, Kathleen Housley.
Appellant bases her “meaningful efforts” argument on the statutory ground for termination found at Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a), which reads as follows:
That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
(Emphasis added.) However, this ground ■does not apply to appellant because, at the time the court entered the termination order, the children had not yet been out of appellant’s custody for twelve months. Moreover, the order lists two other grounds for termination that do not depend on the amount of time the children have been removed from the home, and appellant challenges neither of those grounds. When an appellant fails to attack the trial court’s independent, alternative basis for its ruling, we will not reverse. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989); Morehouse v. Lawson, 90 Ark.App. 379, 206 S.W.3d 295 (2005); Camp v. State, 66 Ark.App. 134, 991 S.W.2d 611 (1999). In any event, the record contains evidence that appellant received numerous services from DHS and that she previously declined to participate in family therapy when it was offered.
For these reasons, we affirm the termination order.
Affirmed.
MARSHALL and BAKER, JJ., agree. | [
113,
-20,
-11,
108,
27,
-31,
26,
-100,
82,
-77,
103,
-45,
-93,
-18,
21,
121,
75,
43,
112,
121,
-45,
-73,
87,
97,
82,
-13,
-80,
-43,
-77,
79,
36,
-44,
95,
112,
-118,
113,
66,
-56,
-25,
-112,
-126,
3,
-118,
104,
80,
-122,
40,
107,
18,
14,
53,
-82,
-77,
110,
30,
-53,
108,
78,
89,
52,
88,
48,
-54,
23,
-53,
6,
-109,
36,
-102,
-124,
120,
46,
-116,
48,
-127,
-24,
51,
22,
-126,
116,
67,
25,
5,
96,
98,
2,
-116,
-25,
-4,
-120,
-50,
-66,
-115,
-90,
-103,
120,
11,
7,
-121,
-76,
124,
20,
14,
-6,
107,
70,
111,
100,
4,
-53,
28,
-111,
-115,
-119,
28,
11,
-29,
101,
48,
117,
-53,
-26,
84,
-57,
115,
-37,
-82,
-78
] |
MOTION FOR RULE ON CLERK
PER CURIAM.
I,Appellant Jo Anne Davilla, by and through her attorney Roy Gean Jr., has filed a motion for rule on clerk to file her record and have her appeal docketed. The record was tendered by Appellant on July 30, 2009. However, Appellant was notified by the Arkansas Supreme Court Clerk that the order granting an extension of time did not comply with the language of Arkansas Rule of Appellate Procedure-Civil 5(b)(1), which provides:
(1) If any party has designated steno-graphically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
li>(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
While we note the late response to the motion, we decline to grant Ms. Davilla’s request. This court has held that we expect strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. Jackson v. Jackson, 2009 Ark. 380, 329 S.W.3d 677 (per curiam). Where an order fails to comply with Rule 5(b)(1), we may remand the matter to the circuit court for compliance with the rule. Id.
Upon remand for compliance with Rule 5(b)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. Id. The circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Id. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. Id. Because the order of extension in this cases makes no reference as to whether “all parties have had the opportunity to be heard on the motion,” and because there must be strict compliance with the rule, we remand the matter to the circuit court for compliance with Rule 5(b)(1).
Motion for rule on clerk remanded.
GUNTER, J., dissents. | [
116,
-14,
-12,
76,
-86,
-31,
52,
-66,
99,
67,
109,
83,
-11,
-14,
28,
107,
-117,
127,
85,
105,
-60,
51,
87,
73,
102,
-13,
-61,
87,
45,
79,
-20,
95,
72,
32,
-118,
-107,
70,
66,
-119,
84,
-18,
11,
-119,
-20,
113,
67,
56,
33,
56,
15,
53,
-42,
-29,
44,
89,
-57,
-20,
105,
-55,
38,
72,
-80,
-101,
15,
127,
23,
-111,
-107,
-98,
4,
88,
40,
-120,
57,
2,
-8,
54,
54,
-122,
20,
107,
89,
0,
98,
98,
1,
68,
-25,
-88,
-88,
55,
58,
29,
39,
-102,
41,
107,
111,
-106,
-75,
61,
20,
7,
124,
-26,
-123,
82,
44,
-104,
-50,
-48,
-79,
39,
81,
4,
11,
-30,
-127,
48,
117,
-52,
-27,
92,
78,
59,
27,
-50,
-76
] |
MOTION FOR RULE ON CLERK
PER CURIAM.
liAppellant David Oekerman, by and through his attorney, Jonathan Lane, has filed a motion for rule on clerk. Oekerman was found guilty of criminal attempt to commit battery in the first degree by a Pulaski County jury, and a judgment and commitment order was entered on May 28, 2010. Ockerman filed a notice of appeal on June 25, 2010, making the record due in this court by September 28, 2010. Appellant tendered the record to this court on September 24, 2010, which date counsel concedes was untimely. Now, in seeking this court’s leave to file the record, Mr. Lane accepts full responsibility for failing to timely lodge the record.
This court clarified its treatment of motions for rule on clerk in McDonald, v. State, 856 Ark. 106, 146 S.W.3d 883 (2004). There, we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at |2fault, or there is “good reason.” McDonald, 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or the attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id. at 106, 146 S.W.3d at 883.
In accordance with McDonald, supra, Mr. Lane has candidly admitted fault. The motion is, therefore, granted, and a copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion for rule on clerk granted. | [
118,
-28,
-40,
29,
-118,
97,
50,
-66,
-47,
87,
63,
83,
39,
-54,
-100,
127,
-77,
127,
-43,
-7,
-64,
-77,
7,
73,
98,
-77,
-63,
87,
52,
-21,
-11,
-77,
72,
-16,
-54,
-43,
70,
-54,
-123,
88,
-114,
-114,
-101,
-27,
-120,
40,
48,
40,
16,
15,
53,
86,
-30,
42,
63,
71,
-88,
40,
79,
-65,
-48,
-80,
-71,
13,
127,
20,
-95,
-124,
-34,
4,
80,
40,
-88,
25,
18,
-24,
48,
-74,
-122,
84,
111,
-71,
40,
104,
100,
33,
-100,
-17,
-88,
-87,
15,
62,
29,
38,
-101,
65,
75,
39,
-106,
-99,
53,
52,
37,
-2,
-18,
-115,
89,
44,
2,
-113,
-110,
-107,
47,
113,
-124,
-86,
-21,
17,
16,
113,
-55,
-27,
92,
70,
59,
-101,
-34,
48
] |
JIM GUNTER, Justice.
I,Appellant was convicted of aggravated residential burglary and rape and now appeals his convictions, arguing the circuit court erred in (1) denying his motion to admit other acts regarding prior sexual conduct with the victim; (2) denying his motion for mistrial during voir dire; and (3) allowing improper impeachment evidence during sentencing. We find no error and affirm on all points.
Because appellant is not challenging the sufficiency of the evidence supporting his convictions, only those facts necessary for a basic understanding of the case and those pertinent to the points on appeal will be discussed. In a felony information filed August 31, 2009, appellant was charged with aggravated residential burglary and rape. On January 21, 2010, appellant filed a motion to admit evidence of other acts with the complaining witness under the Arkansas rape-shield statute, codified at Ark.Code Ann. § 16-42-101 (Repl.1999). In ^response, the State argued that appellant’s suggestion of prior sexual contact between himself and the victim was in stark contrast to the statements he initially made to the police, in which he denied any knowledge of the victim, and the State asked that the motion be denied.
On January 26, 2010, immediately prior to trial, a hearing was held to decide the motion. At the hearing, appellant testified that prior to the night of the alleged attack, October 11, 2008, he did not know the victim, Brenda Drake, as “Brenda Drake”; instead, he knew her as “Bren.” He testified that she worked at the Tobacco Outlet and that he frequented both the Tobacco Outlet and the carwash next door. He said that she used to stand in front of the store, smoke a cigarette, and tell him how pretty his car was. He said that they spoke on several occasions. Appellant testified that he had previously had sexual relations with Ms. Drake and that the night of October 11, 2008, was the second time he and Ms. Drake had sex.
On cross-examination, he explained that the first time they had sex involved a similar situation to the second time, namely involving drugs. Specifically, he stated that, both times, he bought some hydroco-done pills for Ms. Drake because she asked him to. He also stated that they had consensual sex at her house both times and that she had invited him to her house.
Brenda Drake testified that she knew appellant only as a customer, that she knew him only by his nickname, Cornbread, and that she knew he drove a white Cadillac because she had seen it at the store. She testified that he had never been to her house prior to October 11, 2008, and that no one called her “Bren” for short.
^Officer Don Hollingsworth testified that he had several previous dealings with ap pellant. He testified that approximately ten months after the incident occurred, a CODIS hit from the State Crime Lab identified appellant as a match for the evidence collected from the victim. The police obtained an arrest warrant based on the CODIS hit, and appellant was arrested and interviewed. In a videotaped statement, appellant denied knowing the victim. Later, after the information was filed, appellant told Officer Hollingsworth that Ms. Drake was just mad because appellant had taken her money. Officer Hollingsworth also testified that Ms. Drake had never identified appellant as her attacker.
After hearing testimony, the court ruled that this was a “classic case” for application of the rape shield statute. The court held that appellant could testify as to his version of what happened on the night of the alleged incident, but the court would not allow testimony on prior acts.
The case then proceeded to trial, and during the voir dire of the jury pool, the prosecutor made the following statement: “Now, in this case, the Defendant has told us that his defense is that this was consensual sex.... Does anybody have a reasonable doubt now because I told you the Defense is saying it was consensual sex?” After the prosecutor posed this question to at least twelve individual prospective jurors, and briefly questioned one of those jurors about a conversation the juror had with the defendant prior to the trial that morning, defense counsel asked to approach the bench and moved for a mistrial. Defense counsel stated: “Your Honor, Mr. Cason [the prosecutor] has just told the jury that the Defendant is going to say it’s consensual sex; thus, taking his right to not testify away from |4him. He now has to testify. And I would move for a mistrial.” The prosecutor denied that he had spoken for the defendant and argued that he had just stated the defense he had been told would be offered. The court made the following ruling: “I sure don’t think that’s going to prejudice the jury. It may mean — it may even help you. You may not have to call him. He’s already said it. No. I don’t have a problem with that.” The court then denied the motion for mistrial.
During the State’s case-in-chief, Robert Jackson, an emergency ambulance service employee, testified that he was working on October 10, 2008, and responded to a call to the Exxon Station in Warren. He testified that the victim had obvious injuries to her face and that most of the blood on her face appeared to be dried, although there was some wet blood on the top of her head. He testified that she had blood smeared on her arms and her face, that she had scuff marks on her knees, and that she complained of some pain to her side area. Jackson testified that the cuts on the victim’s face were fairly deep.
Tiffany Spencer Holland, an employee of the Bradley County Medical Center, testified that the victim was brought to the emergency room and had multiple lacerations on her face. The victim also had lacerations on her hand and the bottoms of her feet, and she told Holland that she had been the victim of a sexual and physical assault in her home. She told Holland that someone had entered her home, pinned her down on the bed, choked her, and raped her. Holland testified that the victim had visible redness on her neck and some abrasions. The | Bvictim told Holland that she was unaware if her attacker had used a weapon to cut her, and she refused pain medication, stating that she was numb. Dr. Kerry Pennington, the victim’s physician, also testified as to the extent of the victim’s injuries and noted that she had sustained a direct-type blow to the head that caused a laceration of the scalp.
Officer Jeremy Chapman testified that he responded to a call to the Exxon Station and found the victim standing outside in a bloody t-shirt. The victim told him that she had been raped in her home, that she had run out of the house and to the Exxon Station, and that the man sounded like he was black. He also testified that there was a report of items stolen from the victim that night, specifically a .22 Ruger handgun and a Motorola cell phone.
Jennifer Beaty, a forensic DNA examiner at the Arkansas State Crime Lab, testified that the DNA taken from vaginal swabs of the victim was consistent with appellant and originated “within all scientific certain[ty]” from appellant.
The victim, Brenda Drake, testified that she recognized appellant as a customer at both Carl’s Shoe Store, where she previously worked, and the Tobacco Outlet. She testified that she knew his nickname because, several months previous to the night in question, his car had “burned up” at the Exxon Station, and he had come in the store and was talking about it. She said that, at that time, she asked the cashier who he was. She stated that she knew his nickname, but that she never called him by name and that he had never called her by her name. She testified that on the night of October 11, 2008, she awoke to a swishing sound and then she couldn’t breathe because someone was choking her. She testified that she lost consciousness several times. She testified that her assailant raped her and that he called her by 16name, Brenda. After the attack, she told her assailant that she needed to use the bathroom and then ran from the house and to the Exxon Station for help. She testified that she did not know who did it, but that the man was tall, slim, and sounded black, with a deep, gravelly voice.
Officer Don Hollingsworth testified that he developed appellant as a suspect and questioned him after administering his Miranda rights. The videotape of this interview was then shown to the jury. The officer explained that the interview took place approximately ten months after the alleged rape and that, during the course of the interview, he never showed appellant a picture of the victim.
During the defendant’s case-in-chief, appellant testified that he had stated in his initial interview that he did not know Brenda Drake, but that was because he knew her as “Bren” and they had not shown him a picture of her. Appellant testified that on the day in question, he was washing his car at the carwash beside the Tobacco Outlet and Drake was outside smoking. She spoke to him and asked him to “check with her,” meaning to come by her house. He went by her house that night, and she asked if he could get her some pills, specifically Xanax. She gave him $60, so he left and bought $40 worth of Xanax and a $20 rock of crack cocaine for himself. He returned to her house and smoked the crack in the front room while she did her pills in the bedroom. When he went back into the bedroom, she had already started taking off her clothes. He stated that they had consensual sex, and afterward, she asked if he could get her some more pills. She gave him $100 and he left, but he came back and told her that someone had stolen the money, although it was really in his pocket. |7She grabbed the money out of his front pocket as he was trying to leave and followed him out the door, and she told him that she was going to get the last laugh.
The jury found appellant guilty of aggravated residential burglary and rape. During the sentencing phase, the defense presented the testimony of Relinka Lawson, appellant’s girlfriend who was pregnant with his child. When the prosecutor asked if this was Lawson’s first child, the defense objected on relevance grounds. The prosecutor stated that it was a credibility issue, arguing that “[i]t has to do with the fact that she has two previous children and that she, while one of them, one of her children’s fathers was facing capital murder, she was with this guy. And she told me personally that she was still with the other guy.” The court sustained the objection. The prosecutor then asked “You also had another man, didn’t you, Kenny Ray Daniels?” Defense counsel again objected, and the following colloquy took place:
Mr. Leonard [defense counsel]: That’s the one with the capital murder. He’s trying to bring in the fact that, the father of her previous child. He was convicted of capital murder.
The Court: Now, just a moment. I don’t know what he’s—
Mr. Cason [prosecutor]: Now, let me tell you this. Let me explain. I still don’t understand what the legal objection is, because she’s not on trial.
Mr. Leonard: It does not matter.
Mr. Cason: Can I finish?
The Court: Yes.
Mr. Cason: 403(b) [sic] and 404(b) has [sic] to do with defendants.
Mr. Leonard: No.
Mr. Cason: Yes, they do.
Mr. Leonard: Prior bad acts doesn’t have to be—
[The Court: Just a minute. Where are you going with this evidence.
Mr. Cason: We had a capital murder defendant in this courtroom that she came right back there and she would be here day in and day out during the time that she says they were preparing for a child with this guy. Now, she gets up on the stand and cries and tries to—
The Court: Okay. I didn’t understand that. At the same time?
Mr. Cason: Yes. Same time period. And she tells me that she’s still with the other guy.
Mr. Leonard: It’s still 403, more prejudicial than probative.
The Court: No. I’m going to allow that.
Lawson then testified that Kenny Ray was the father of another child of hers and that he was recently sentenced for killing her baby. She acknowledged that the time she says she was planning a child with appellant is the same time that Kenny Ray was on trial, but she denied that she was still with Kenny Ray. She did admit that she was at Kenny Ray’s trial and talked to him at the bar every time the court took a recess.
The jury recommended a sentence of fifty years for each charge, to be served consecutively. The court accepted the recommendation and sentenced appellant accordingly. A judgment and commitment order reflecting this sentence was entered on January 27, 2010, and an amended judgment and commitment order was entered on January 28 to reflect that appellant was required to register as a sex offender. A timely notice of appeal was filed on February 16, 2010.
On appeal, appellant first asserts that the circuit court erred in denying his motion to admit other acts regarding prior sexual conduct with the victim. Under our rape-shield law, ^evidence of a victim’s prior sexual conduct is not admissible by the defendant to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Ark. Code Ann. § 16-42-101(b); Turner v. State, 355 Ark. 541, 141 S.W.3d 352 (2004). An exception is granted where the circuit court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Turner, supra. The statute’s purpose is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Id. Accordingly, the circuit court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the circuit court’s decision unless it constituted clear error or a manifest abuse of discretion. Id.
This court has held that prior acts of sexual conduct may be evidence of consent in a subsequent sexual act. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1980). However, prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act; there must be some additional evidence connecting such prior acts to the alleged consent in the present case before the prior acts become relevant. Id. In this case, appellant asserts that there was undisputed evidence that the victim knew appellant by his nickname, that she knew his vehicle, and that they were “on speaking terms.” Appellant argues that this evidence, coupled with his testimony, is sufficient to connect the prior sexual encounter. Appellant | Tnfurther contends that the probative value of the prior sexual encounter substantially outweighed any prejudicial effect.
In response, the State asserts that the present case is similar to Graydon v. State, 329 Ark. 596, 958 S.W.2d 45 (1997). In Graydon, the defendant sought to introduce testimonial evidence of prior sexual conduct between himself and the victim as evidence of the victim’s consent. At the pretrial hearing on the issue, the defendant stated that he had been engaged in a sexual relationship with the victim, whom he referred to as “Pee Wee,” for about four months prior to the time of the offense. He stated that every time they had sexual intercourse, the victim was a willing participant. The victim, on the other hand, testified that she did not know the defendant at all until the day of the rape. She stated that she had never had sexual intercourse with the defendant and that no one called her “Pee Wee.” The circuit court held that the uncorroborated evidence of prior sexual conduct between the defendant and the victim would not be admissible at trial. This court affirmed the circuit court, finding that the only evidence presented that supported the defendant’s version of events was his own self-serving testimony. This court held:
The primary purposes of the rape-shield statute are to protect the victim and encourage rape victims to participate in the prosecution of their attackers. Such worthy purposes would surely be thwarted if every defendant in a rape case was allowed to present uncorroborated “evidence” that he and the victim had previously engaged in sexual intercourse over the victim’s denial that she had ever known her assailant before the incident. Particularly in this case, where the victim was badly beaten and injured, the minute probative value of allegations of prior consensual intercourse between the victim and the attacker are clearly outweighed by the inflammatory nature of the alleged evidence.
Id. at 602, 953 S.W.2d at 48 (internal citation omitted).
In The State asserts that in this case, as in Graydon, appellant has offered nothing beyond his own testimony suggesting that he and the victim had any relationship other than as customer and store employee. Also similar to Graydon, the victim in this case was found bloody and bruised, and the small probative value of the allegation of prior consensual sex between the victim and the defendant is clearly outweighed by the inflammatory nature of the alleged evidence.
We find the reasoning in Graydon to be persuasive and applicable to the case at bar. Despite his assertions to the contrary, appellant’s “corroborating” evidence does nothing more than establish that he and the victim were acquaintances at best; it certainly does not corroborate the existence of any sort of prior relationship such as the one described by appellant. In Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000), this court explained that the allegation of a prior sexual encounter with the victim, which is unrelated to the incident being prosecuted and denied by the victim, is “the very type contemplated to be excluded under the statute.” Id. at 442, 17 S.W.3d at 78. Therefore, we hold that the circuit court did not abuse its discretion in not allowing the testimony.
For his second point on appeal, appellant argues that the circuit court erred in denying his motion for mistrial during voir dire. A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002). The circuit court has broad discretion 112in granting or denying a motion for a mistrial, and this court will not reverse the circuit court’s decision absent an abuse of discretion. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).
When a prosecutor is alleged to have made an improper comment on a defendant’s failure to testify, we review the statements in a two-step process. Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006). First, we determine whether the comment itself is an improper comment on the defendant’s failure to testify. Id. The basic rule is that a prosecutor may not draw attention to the fact of, or comment on, the defendant’s failure to testify, because this then makes the defendant testify against himself in violation of the Fifth Amendment. Id. A veiled reference to the defendant’s failure to testify is improper as well. Id.
On appeal, appellant asserts that the prosecutor’s comment to the jury pool during voir dire concerning his defense of consensual sex was an improper comment on the absolute right of the defendant not to be compelled to testify. Appellant cites to Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974), in which this court found reversible error in the circuit court’s denial of a motion for mistrial after an improper comment by the prosecutor during opening statements. In Clark, the prosecutor remarked in his opening statement that the homicide victim would not be present to tell his side of the story and that the story of what happened would have to come from the defendant. • The defendant argued that, because of that statement, she was compelled to testify when she would not have otherwise done so. This court agreed that the remark “resulted in pre-evidentiary coercion which is just as forbidden | isas is post evidentiary comment.” Id. at 661, 509 S.W.2d at 815. In this case, appellant asserts that, similar to Clark, he was compelled to testify after the prosecutor’s comment, and thus the remark was improper and prejudicial.
In response, the State asserts that, in the case at bar, the prosecutor was merely questioning potential jurors about whether the assertion of a consent defense would raise a reasonable doubt in their minds as to the guilt of the defendant. The prosecutor did not say that the defendant himself would take the stand, nor did the prosecutor’s statement lead the jurors to assume that the defendant would take the stand. Therefore, the State argues, there was no abuse of discretion in denying the motion for mistrial.
We find that we are unable to reach the merits of appellant’s argument on this point because his motion for mistrial was untimely. This court has been resolute in holding that a motion for mistrial must be made at the first opportunity. Ellis v. State, 366 Ark. 46, 233 S.W.3d 606 (2006). The reason for this is that a circuit court should be given an opportunity to correct any perceived error before prejudice occurs. Id. Here, defense counsel did not make his motion for mistrial until the prosecutor had already repeated his question to numerous individual jurors and briefly engaged in questioning one of those jurors on another matter. Accordingly, because the motion was not made at the first opportunity, we hold that appellant’s argument is procedurally barred. See Rodgers v. State, 360 Ark. 24, 199 S.W.3d 625 (2004).
For his final point on appeal, appellant contends that the circuit court erred in allowing improper impeachment evidence during sentencing. This court has held that circuit courts | 14are afforded wide discretion in evidentiary rulings. Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006). We will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion, and, likewise, we will not reverse absent a showing of prejudice. Id.
On this point, appellant argues that the circuit court erred when it allowed the State to impeach Relinka Lawson by cross-examining her about her prior relationship with a man convicted of murdering one of her children. Appellant asserts that the evidence should have been excluded under Rules 608(b) and 403 of the Arkansas Rules of Evidence. Appellant cites Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983), to explain this court’s three-part test for determining admissibility under Rule 608: (1) the question must be asked in good faith; (2) the probative value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness’s truthfulness. Appellant argues that in this case the second and third prongs of this test were not met.
With regard to the second prong, appellant contends that the only probative value provided by the evidence was the fact that the witness was possibly involved in a relationship of some kind with two separate men at the same time. Appellant argues it offered no probative value with regard to her credibility but had a substantial prejudicial effect. The evidence was clearly meant to prejudice the jury by showing that she was present in the courtroom and on speaking terms with a man who had killed one of her children. With regard to the third prong, appellant maintains that whether the witness maintained a relationship with two or more men at the same time is certainly not probative of truthfulness.
[^Appellant also argues that the evidence should have been excluded under Rule 403 because any probative value was substantially outweighed by the prejudicial effect. Appellant suggests that there was a danger of unfair prejudice by citing this court’s definition of unfair prejudice as an “undue tendency to suggest decision on an improper basis, commonly, though not nec essarily, an emotional one.” Berry v. State, 290 Ark. 223, 233, 718 S.W.2d 447, 453 (1986) (citing the advisory committee’s commentary to Fed.R.Evid. 403). He argues that the only value the evidence had was to show that Lawson was not credible, and any conclusion that the jury reached about Lawson’s credibility would have been improperly based on emotion. Therefore, the evidence should not have been allowed under Rule 403. And finally, appellant argues that he was prejudiced because the jury imposed two consecutive fifty-year terms of imprisonment.
In response, the State first notes that appellant’s objection below was based on Rule 403 and did not mention Rule 608, so appellant should be barred from raising any argument based on Rule 608 for the first time on appeal. The State also argues that the court did not abuse its discretion by allowing the evidence under Rule 403. The prosecution sought to introduce the evidence to show that, at the time Lawson said she was planning to raise a child with appellant, she was also maintaining a relationship with Kenny Ray Daniels. The State asserts that this was probative as to her sincerity in her request for leniency for appellant. And while this may have prejudiced the jury against her, it did not establish unfair prejudice against appellant. Finally, the State also contends that appellant failed to demonstrate prejudice |1Rbecause the sentence he received was within the allowable statutory range and less than the maximum allowed.
We agree that Rule 608 was not the basis for appellant’s objection below, and a party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997). With regard to the Rule 403 argument, we find that the evidence was probative of the witness’s credibility, and it was not unfairly prejudicial such that it was an abuse of discretion to allow it. This court has traditionally taken the view that the cross-examiner should be given wide latitude because cross-examination is the means by which to test the truth of the witness’s testimony and the witness’s credibility. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999). Therefore, we find no abuse of discretion on this point and affirm.
Affirmed.
. While this witness names the date of October 10, 2008, the incident actually took place in the early morning hours of October 11, 2008. | [
85,
-20,
-83,
-65,
8,
-63,
-86,
-90,
98,
-125,
119,
-13,
-89,
-54,
0,
123,
-38,
-1,
77,
105,
-35,
-73,
23,
65,
50,
123,
106,
85,
51,
-53,
-20,
-75,
12,
113,
-50,
85,
38,
-54,
103,
92,
-114,
11,
-70,
-20,
82,
-64,
36,
51,
60,
15,
49,
-108,
-13,
40,
20,
-61,
73,
44,
75,
60,
-56,
25,
-104,
7,
-53,
52,
-93,
53,
-67,
4,
-16,
44,
-104,
49,
0,
104,
-13,
-90,
-126,
116,
77,
-101,
40,
98,
98,
32,
-119,
-29,
40,
-127,
39,
47,
-99,
-89,
-104,
33,
73,
109,
-65,
-67,
126,
84,
14,
-6,
-11,
-52,
85,
108,
-117,
-49,
-108,
-79,
13,
96,
16,
59,
-29,
53,
80,
117,
-51,
-30,
92,
87,
122,
-37,
-82,
-9
] |
DONALD L. CORBIN, Justice.
^Appellants Paul Tucker Jr. and Andrew Raybon Tucker appeal the order of the Craighead County Circuit Court dismissing their action for an accounting of the Maurine M. Sullivant Trust (the “Trust”). On appeal, the Tuckers argue that the circuit court erred in dismissing their action for failure to comply with the Arkansas Savings Statute, codified at Ark.Code Ann. § 16 — 56—126(a)(1) (Supp.2005), because they filed an amended complaint under the same docket number of the original complaint that had been voluntarily nonsuited. We assumed jurisdiction of this case as it requires clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(b)(5) (2009). We reverse and remand.
Appellants are two of four beneficiaries of the Trust. The other two beneficiaries are Appellee Rosemary Sullivant, who is also Appellants’ aunt and trustee of the Trust, and Peggy Sullivant Tucker, Appellants’ mother. On or about April 11, 2003, Appellee decided to dissolve the Trust and thereafter liquidated the remaining Trust assets. Appellants filed an paction for accounting on February 20, 2004. Appellants subsequently took a voluntary non-suit, and on April 16, 2008, an order to that effect was entered.
Appellants filed an “Amended Complaint for Accounting By Trustee” on March 31, 2009. The amended complaint was filed under the same docket number as the previously nonsuited complaint. Timely service was completed. On April 28, 2009, Appellee filed a motion to dismiss. Therein, she argued that Appellants had filed an amended complaint that was a mere recitation of the prior complaint and because the prior complaint had been dismissed, the case could not be reopened pursuant to Ark. R. Civ. P. 59 or 60, as no applicable grounds existed. Appellee further asserted that the statute of limitations, which was five years, was not tolled and any suit for an accounting had to have been filed on or before April 11, 2008. Finally, Appellee asserted that Appellants were not entitled to the benefit of the savings statute, as the filing of an amended complaint did not commence a new action. Appellants asserted that they had complied with the requirements for commencing an action, in that they filed a complaint and timely obtained service on Appellee and, thus, complied with the requirement of the savings statute. Appellants also argued that the savings statute is remedial in nature and is to be liberally construed so as to preserve their cause of action.
A hearing was held on June 9, 2009. Appellee argued that her motion to dismiss should be granted for three reasons: (1) the amended complaint was a nullity; (2) the circuit court lacked jurisdiction to act on the amended complaint because of its prior nonsuit of the original complaint; and (3) Appellees failed to comply with the savings statute by commencing |sa new action within one year of the nonsuit. Appellants countered that the savings statute did not define “new action” and they believed filing the amended complaint and timely completing service complied with the requirement of commencing a “new action.” The circuit court ruled from the bench that while the law needed to be clarified, it was granting the motion to dismiss on the basis that the filing of an amended complaint did not comply with the savings statute’s requirement that a new action be commenced.
Appellants filed a motion for reconsideration following the circuit court’s oral pronouncement. The trial court subsequently entered a written order memorializing the bench ruling and also entered a written order denying the motion for reconsideration. This appeal followed.
When a complaint is dismissed on a question of law, this court conducts a de novo review. Dollarway Patrons for Better Schs. v. Morehead, 2010 Ark. 133, 361 S.W.3d 274. Accordingly, the circuit court’s ruling is given no deference on appeal. Ark. Dep’t of Health & Human Servs. v. Storey, 372 Ark. 23, 269 S.W.3d 803 (2007).
The issue presented to this court is whether Appellants’ filing of a complaint under the same docket number, as a previously nonsuited case, constituted the commencement of a new action for purposes of the savings statute. Appellants argue that their filing of an amended complaint under the previous docket number was sufficient to comply with the savings statute’s requirement that a new action be commenced within one year. More specifically, Appellants argue that the savings statute does not define a “new” action but that under Ark. [4R. Civ. P. 3, which provides that an action is commenced by filing a complaint with the clerk of the court, there is no mention of a docket number. Appellee argues that the circuit court correctly dismissed the complaint because it lacked jurisdiction due to Appellants’ failure to comply with the savings statute.
We begin our analysis by reviewing the relevant provision of the savings statute, which provides as follows:
If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 — 16-116-107, in §§ 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the judgment is arrested, or after judgment for him or her the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.
Ark.Code Ann. § 16-56-126(a)(l). The statute is silent as to what the commencement of a new action is, but this court has addressed the applicability of the statute on numerous occasions. Most recently in Rettig v. Ballard, 2009 Ark. 629, 362 S.W.3d 260, this court explained that the savings statute requires an action to be commenced before the statute will apply. We further explained as follows:
For purposes of the savings statute, a suit is commenced when the complaint is timely filed and service of the complaint and summons (effective or defective), is completed within the 120-day period required by [Ark. R. Civ. P.] 4(i):
In sum, to toll the limitations period and to invoke the saving statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. A court’s later ruling finding that completed service invalid does not disinherit the plaintiff from the benefit of the saving statute. Our interpretation of § 16-56-126 meets with the liberal and equitable construction which must be given it in order to give litigants a reasonable time to renew their cause of action when they are compelled to abandon it as a result of their own act or the court’s.
Id. at 4, 362 S.W.3d at 263 (quoting Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 177, 866 S.W.2d 372, 374 (1993)).
The issue of whether the filing of that new complaint under a previous docket number satisfies the commencement requirement has heretofore never been addressed. In support of its motion to dismiss, Appellee relied primarily on the court of appeals’ opinion in Technology Partners, Inc. v. Regions Bank, 97 Ark. App. 229, 245 S.W.3d 687 (2006). In that case, Technology Partners, Inc. (“TPI”), brought suit against Regions Bank after discovering that the company’s sales manager had intercepted certain rebate checks and deposited them into his personal account at Regions. Initially, TPI filed suit against its sales manager but then dismissed that action after the manager declared bankruptcy. In June 2003, TPI filed an amended complaint in the previously dismissed action, attempting for the first time to add Regions as a defendant. That case was filed under the previous docket number, Pulaski County Docket No. CV02-2845. The circuit court dismissed the amended complaint, ruling that it had no jurisdiction because the initial suit had remained in a state of dismissal and had not been reopened. Thereafter, on January 14, 2004, TPI brought a new suit against Regions, but the circuit court granted Regions’ motion for summary judgment on the basis that the suit had been filed outside the statute-of-limitations period. In so ruling, the circuit court rejected TPI’s argument that its complaint had been rendered timely by the savings statute. On appeal, TPI argued in relevant part that its original suit filed against its manager in 2002 was dismissed in 2003 and, therefore, its suit against Regions filed on January 14, |fi2004, was filed within one year of the prior dismissal. In affirming the circuit court, the court of appeals stated the following:
This argument fails for several reasons, but we need only mention one. TPI’s lawsuit in Docket No. CV02-2845 was originally filed against Newson only. That suit was dismissed on June 17, 2002. On June 16, 2003, TPI tried to sue Regions by simply amending the complaint in the dismissed action. According to West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994), a new action was required to be filed, not simply an amended complaint adding a new defendant in the dismissed action. The 2002 dismissal therefore remained in effect for over one year, and Regions was not made a party to any valid lawsuit until January 2004. The saving statute therefore did not apply, as the trial court correctly ruled.
Id. at 238, 245 S.W.3d at 695.
The circuit court found this case to be dispositive of the instant matter, as opposed to Hill-Rom Co. v. Swink, 65 Ark. App. 71, 984 S.W.2d 834 (1999), a case advanced by Appellants in support of their contention that they had complied with the savings statute. In Hill-Rom, the Swinks filed suit against a hospital, alleging that Mr. Swink had been injured when an electrical hospital bed, sold to the hospital by Hill-Rom, malfunctioned. The circuit court dismissed the action against the hospital because it was filed outside the two-year statute of limitations for medical malpractice. The Swinks subsequently filed a pleading titled “Amended Complaint,” as serting a produets-liability action against Hill-Rom. Hill-Rom filed a motion to dismiss, arguing in relevant part that the circuit court lacked jurisdiction of the complaint because more than ninety days had elapsed in which the court could modify the previously dismissed cause of action. The circuit court denied Hill-Rom’s motion to dismiss, and the company appealed to the court of appeals. The court of appeals concluded |7that the circuit court had not in any way attempted to modify its previous dismissal and pointed out that the amended complaint did not contain allegations against St. Bernard’s; rather, it set forth a new cause of action by the Swinks against Hill-Rom. The court of appeals stated as follows:
Arkansas Rule of Civil Procedure 8(f) provides that “All pleadings should be liberally construed so as to do substantial justice.” The only construction that can reasonably be given to the Swinks’ “Amended Complaint” pleading is to construe it as an original complaint, because it pled a cause of action that had not been pled before, i.e., a produets-liability claim by the Swinks against Hill-Rom. Because the pleading was captioned “Amended Complaint” and bore the same case number as did the complaint against St. Bernard’s, Craig-head County may not have received an appropriate filing fee; however, such filing did not prejudice any rights of Hill-Rom.
Id. at 74, 984 S.W.2d at 836.
While neither Technology Partners nor Hill-Rom are on point, we are more persuaded by the court of appeals’ opinion in Hillr-Rom. First, Technology Partners is clearly distinguishable from the situation at hand. In looking at the facts of that case, the circuit court determined that the statute of limitations began to run at the latest on February 26, 1999, and the court of appeals rejected TPI’s arguments to the contrary. Thus, when TPI tried to sue Regions via the amended complaint on June 16, 2003, the applicable three-year statute of limitations had already expired. As such, the savings statute was never triggered. In reaching its conclusion, the court of appeals relied on this court’s opinion in West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994). In the West case, the appellant’s original complaint |swas dismissed after the circuit court granted summary judgment in favor of appellee. At the time of the dismissal, the statute of limitations had run so that the appellant had twelve months to file a new cause of action in compliance with the savings statute. When the appellant filed an action fourteen months later, it was dismissed and this court affirmed because the appellant did not comply with the one-year requirement set forth in the savings statute.
We simply disagree with Appellee that the holding in Technology Partners supports a conclusion that the filing of an amended complaint is insufficient to commence a new action for purposes of the savings statute. That case, and the West case that it relies on, both involved situations where a party was attempting to avail itself of the savings statute but could not do so for failure to timely file their actions.
Conversely, while Hill-Rom is not directly on point, it is certainly more instructive to the issue in the present case. Granted, in Hillr-Rom, the amended complaint that was filed alleged a cause of action against a new party, but that case did not involve an issue of the savings statute. What is important to note in the Hillr-Rom case is that pleadings are to be liberally construed. See also Ark. R. Civ. P. 8(f) (2009) (stating that all pleadings shall be liberally construed so as to do substantial justice). Moreover, the fact that the same docket number was assigned to the new cause of action did not negate the fact that the amended complaint was a new cause of action. The conclusion in HilV-Rom is also in line with our cases recognizing the purpose of the savings statute. We recently stated the following:
bWe note that savings statutes are remedial in nature. The savings statute reflects the General Assembly’s “intent to protect those who, although having filed an action in good faith and in a timely manner, would suffer a complete loss of relief on the merits because of a procedural defect.” “The savings statute extends the time for a plaintiff to correct a dismissal without prejudice when the statute of limitations would otherwise bar the suit.” It applies where “the original statute of limitations period expires in the interim between the filing of the complaint and the time at which either a nonsuit is entered or the judgment is reversed or arrested.”
Rettig, 2009 Ark. 629, at 3-4, 362 S.W.3d at 262 (citations omitted).
Here, Appellants filed a complaint within the one-year period prescribed in the savings statute. Moreover, they timely completed service of that complaint as required by Ark. R. Civ. P. 4 (2009). This court has recognized that an action is commenced by filing a complaint with the clerk of the proper court. Lyons, 315 Ark. 173, 866 S.W.2d 372. However, effectiveness of the commencement date is dependent upon meeting the requirements of service as set forth in Rule 4(i). Appellants satisfied both those requirements. If we were to accept Appellee’s argument that the timely filing of Appellants’ “amended” complaint did not satisfy the commencement requirement of the savings statute, we would be exalting form over substance and violating the stated purpose of the savings statute. Neither the fact that the case was filed under the previous docket number, nor the fact that Appellants paid a reopening fee, as opposed to a new filing fee, prejudice Appellee. Accordingly, the filing of the amended complaint in this cause satisfied the requirement of the savings statute that a new action be commenced within one year. The order of the circuit court is hereby reversed and remanded.
HANNAH, C.J., and DANIELSON and WILLS, JJ., dissent.
. The court of appeals ultimately dismissed Hill-Rom’s appeal because it failed to appeal from a final judgment. The ultimate disposition is irrelevant, as we are concerned with the analysis set forth regarding the nature of the amended complaint. | [
114,
108,
-36,
60,
-56,
-32,
58,
-82,
83,
-93,
97,
-45,
-17,
-57,
20,
43,
99,
25,
65,
104,
70,
-79,
23,
96,
106,
-13,
89,
71,
-76,
79,
-11,
-42,
88,
32,
-22,
-43,
70,
-90,
-59,
28,
6,
3,
-101,
109,
121,
68,
48,
-29,
20,
15,
49,
-66,
-29,
41,
57,
75,
72,
44,
75,
-84,
81,
-15,
-118,
5,
127,
6,
33,
53,
-104,
3,
80,
107,
-120,
53,
-128,
-24,
115,
-90,
-110,
116,
107,
29,
13,
98,
98,
0,
37,
-25,
52,
8,
46,
-66,
13,
-89,
-16,
89,
9,
77,
-98,
-100,
-4,
6,
78,
-2,
-24,
-60,
84,
108,
6,
-50,
-42,
-95,
5,
-67,
-100,
3,
-21,
-49,
18,
113,
-116,
-30,
92,
-41,
56,
-101,
-106,
-80
] |
ROBERT J. GLADWIN, Judge.
liAppellant Corey J. Mosley was convicted on August 12, 2008, in Miller County Circuit Court of possession of cocaine and sentenced to sixty months’ probation. On appeal, he contends that the trial court erred in denying his motion to suppress, arguing that the police officer who made the traffic stop of appellant’s vehicle had no reasonable suspicion to do so. We affirm.
By criminal information filed October 10, 2007, in Miller County Circuit Court, appellant was charged with possession of cocaine. Appellant filed a motion to suppress the cocaine from being introduced at trial, arguing that it had been seized in violation of his constitutional right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution, article 2, section 15 of the 12Arkansas Constitution, and Arkansas Rules of Criminal Procedure 3.1 and 4.1 (2008).
At issue in the suppression hearing was the validity of the traffic stop. Officer Todd Harness of the Texarkana Police Department testified that he was patrolling at 2:00 a.m. on the morning of appellant’s arrest. He turned behind appellant’s vehicle on Eastside Drive. He noticed that appellant’s car began to slow, and when it approached the intersection of Preston and Baltimore Street, the car began to slow and then speed up and then slow down. Ultimately, the car merged to the right-hand side of the road after it passed the intersection. Officer Harness testified that this raised his suspicions because he was not sure what the driver’s intentions were. He thought the car was going to turn, but instead, it sped up again and then it again merged onto the side of the roadway. The second time it began to slow and merge to the right side of the roadway caught Officer Harness’s attention. He stated that the car again sped up and got back into the travel portion of the roadway, put its right blinker on, and turned onto Park Street, which is not a through street. He stated that the erratic driving led him to believe that the driver was unsure of exactly where he wanted to go. Also, he stated that oftentimes people that are driving under the influence of alcohol or drugs tend to exhibit those types of driving skills in the midst of negotiating a roadway or an intersection, and oftentimes the alcohol or drug impairs their ability to drive safely. Because of his suspicion, Officer Harness stopped appellant.
Officer Harness testified that appellant provided him with a wrong name. Appellant told Officer Harness that his name was Marshall, but spelled it M-a-r-s-h-1-1. Appellant did 13not have any identification with him, and was unable to recall his social security number. Officer Harness also noted that appellant provided him with a date of birth that was inconsistent with the date of birth that was in the in-house computer, which further heightened his suspicions. Appellant was extremely nervous and visibly shaking. All this led Officer Harness to believe that appellant was lying about his identity. Officer Harness explained that the tattoo on appellant’s shoulder, which read “Mosley,” coupled with the other information, led to appellant’s arrest for obstructing governmental operations and failure to identify and provide his identity to Officer Harness as an officer.
Appellant was placed in the back of Officer Harness’s unit on the left side. Once they arrived at the basement of the police department, appellant’s body was positioned awkwardly such that the right side of his torso was on the right side of the car, which is the opposite side from which he had been placed. After appellant was taken out of the car, Officer Harness checked the backseat for contraband, as is the policy of his police department. On the right side of the vehicle, Officer Harness found a plastic bag that contained crack cocaine.
Appellant argued at the suppression hearing that Officer Harness did not have a reasonable suspicion to make the traffic stop. The trial court denied the motion to suppress, stating that the erratic driving, the time of day, 2:00 a.m., the streets and high-crime area involved, appellant’s turning down a street with no exit, and appellant’s attempts to hide his identity gave the officer articulable facts upon which to make a probable-cause determination. After appellant was convicted, he filed a timely notice of appeal, and this appeal followed.
_]|In reviewing the denial of a motion to suppress evidence, our appellate courts conduct a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Stokes v. State, 375 Ark. 394, 291 S.W.3d 155 (2009). Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. Id. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. Id.
A law-enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. See Ark. R.Crim. P. 3.1 (2008). The justification for the investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). “Reasonable suspi cion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. See Ark. R.Crim. P. 2.1 (2008).
[In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Probable cause is defined as “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005). In assessing the existence of probable cause, our review is liberal rather than strict. Laime, supra. Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation that the officer believed occurred. Id.
Appellant contends that Officer Harness did not have reasonable suspicion to justify stopping the vehicle and that it was therefore error to deny his motion to suppress. Appellant cites Stokes, supra, where our supreme court held that there was no probable cause to believe that the defendant was committing a traffic violation. The police officer in Stokes observed the defendant driving under the speed limit on the interstate, make a hasty exit, and eventually back down a city street where no other vehicles were around. Id.
Appellant also cites Davis v. State, 77 Ark. App. 310, 74 S.W.3d 671 (2002), wherein the officers were held to have lacked reasonable suspicion to stop and detain the defendant where the only factors tending to lead to reasonable suspicion were the time of day and the incidence of crime in the neighborhood. However, this case was overturned by our supreme |ficourt in Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003), where the court stated:
Under a totality-of-the-circumstances test, the trial court concluded that this behavior gave rise to a reasonable suspicion. Appellant and another man were in a high crime area known for drug activity. They stood in a lot beside a vacant house when the officers saw a hand-to-hand exchange. As the officers approached, the men separated and walked quickly away. At that point, appellant gave Sergeant Ivy false information when asked his name and birth date. He also appeared nervous, fidgety, and sweated profusely. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Based upon our holding in [Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002) ], as well as our rules of criminal procedure, we cannot say that the trial court erred in finding that the totality of the circumstances gave rise to a reasonable suspicion sufficient to stop and briefly detain the appellant. See also [Potter v. State, 342 Ark. 621, 30 S.W.3d 701 (2000) ] (reversing the court of appeals and holding that the officer was justified in making an investigatory stop of a man believed to be stalking a woman). Therefore, we conclude that the trial court did not err in finding that the totality of the circumstances gave rise to a reasonable suspicion sufficient to justify making an investigatory stop.
Id. at 417, 94 S.W.3d at 898.
Appellant further cites several cases in support of his argument that Officer Har ness did not have reasonable suspicion to stop him based upon the testimony that he was on patrol at 2:00 a.m., the area was known for drug activity, and that he did not stop appellant for speeding or for any other traffic violation. See Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980); Barrientos v. State, 72 Ark. App. 376, 39 S.W.3d 17 (2001); and Jennings v. State, 69 Ark. App. 50, 10 S.W.3d 105 (2000).
Finally, appellant maintains that the motion to suppress should have been granted based upon the totality of the circumstances, but was improperly denied by the circuit court. He Largues that, because the evidence was obtained during an unlawful stop, the evidence should be deemed “fruit of the poisonous tree.” Summers v. State, 90 Ark. App. 25, 203 S.W.3d 638 (2005).
The State claims that the initial stop of appellant’s vehicle was supported by reasonable suspicion, and, thus, the trial court did not err by denying appellant’s motion to suppress. In determining whether an officer had reasonable suspicion, courts must recognize that, “when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion.” United States v. Cortez, 449 U.S. 411, 419, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Based on this reasoning, the State contends that the trial court did not err. We agree.
Officer Harness testified that it was 2:00 a.m., and he was patrolling “a particular area of town which is around Preston Street,” where, at that time of year, “we have quite a few problems with people walking up and down the street, a lot of drug activity, a lot of things going on over there that should not be going on, prostitution and such.” When he turned behind appellant’s vehicle, he noticed that appellant’s car began to slow as it approached the intersection at Preston and Baltimore Street, another area where police had had numerous problems with drug activity. He saw the car begin to slow and then speed up and then slow down, and ultimately merge to the right-hand side of the road. The car slowed again, then sped up and again merged to the right side. The car sped up a bit, pulled back into the travel | ^portion of the roadway, then turned right onto Park Street, which is not a through street. Officer Harness testified that the street is known for criminal activity. He further testified that it had been his experience that people driving under the influence of alcohol or another drug tend to exhibit those types of driving skills. He ultimately stopped appellant’s car. Appellant then falsely identified himself to Officer Harness. After the officer handcuffed appellant and put him in the back of his patrol car, he took him to the station. When appellant got out of the car, Officer Harness discovered the contraband underneath the backseat.
Therefore, Officer Harness had reasonable suspicion to stop and detain appellant to determine whether he was driving under the influence of alcohol or drugs. The Arkansas Supreme Court has determined that “weaving across road lines at a substantial distance,” Hoay v. State, 348 Ark. 80, 84, 71 S.W.3d 573, 575 (2002), and weaving from a highway’s centerline to the shoulder at a late hour, Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994), were circumstances that provided officers with reasonable suspicion to stop a vehicle to determine whether a suspect was driving under the influence. Here, the officer observed appellant, at 2:00 a.m., speeding up and slowing down repeatedly, pulling to the side of the road twice, and ultimately turning into a dead-end road in an area known for criminal activity. Therefore, the officer had reasonable suspicion.
Affirmed.
GLOVER and BROWN, JJ., agree. | [
-80,
-26,
96,
60,
58,
-63,
16,
54,
-48,
-73,
-28,
115,
-25,
96,
20,
49,
-21,
127,
-3,
105,
-41,
-90,
71,
17,
34,
-13,
-7,
-58,
-74,
-55,
-12,
-44,
92,
48,
-62,
-43,
100,
-56,
-89,
92,
-58,
2,
-95,
101,
16,
26,
60,
42,
14,
15,
49,
-97,
-31,
46,
16,
-55,
45,
44,
89,
-68,
72,
112,
-38,
29,
-18,
4,
-95,
36,
-101,
3,
-40,
126,
-104,
49,
49,
-8,
115,
-74,
-112,
116,
97,
-37,
-124,
32,
98,
0,
125,
-82,
-75,
-116,
30,
-69,
13,
-90,
-40,
81,
75,
12,
-106,
-97,
122,
30,
14,
-12,
122,
-44,
81,
108,
-94,
-50,
-74,
-109,
109,
52,
4,
51,
-53,
101,
48,
101,
-57,
-14,
86,
93,
-45,
-102,
-105,
-44
] |
COURTNEY HUDSON GOODSON, Associate Justice
|tA jury empaneled in the Jefferson County Circuit Court convicted appellant Adrian Patillo of two counts of capital murder. Patillo also pled guilty to one count of possessing a controlled substance. He received sentences of life imprisonment without parole for each of the capital-murder convictions and twenty-five years’ imprisonment on the conviction for possession of a controlled substance, with all sentences running concurrently. For reversal, Patillo argues that the circuit court abused its discretion in limiting the scope of Patillo’s recross-examination of a witness at trial. We disagree and affirm his convictions and sentences.
The charges against Patillo arose out of an incident that occurred on May 26, 2012, in Pine Bluff, Arkansas. The record of trial reflects that on the day of the murders, Patillo was at Marky Dee’s, a local car wash and barbeque catering business owned by Marcus Thorns, one of the victims. Marcus’s' brother, Odail, was also there, • 'along with Tim ■ Young; Edgar | ^Goshen, Jr., ánd the second victim, Jennifer Wainwright. Odail stated that when Patillo arrived at Marky Dee’s on the night of the murders, he was high on drugs and acting strange, and eventually Marcus told him he had to leave. Patillo became upset, and he left. Patillo then went to his uncle’s house and took a gun. While Patillo was gone, Jeremy Parker arrived at Marky Dee’s. ' A short time later, Patillo returned to Marky Dee’s, went into the bathroom, came out with the gun, and shot Wainwright in the face. After he shot Wainwright, Patillo went to the Marky Dee’s food-service truck where Young and Marcus were standing, and he shot Marcus in the chest. Odail, Young, Goshen, and Parker ran from the scene when Patillo began shooting. Odail and Goshen ran to a local deli, and a few minutes later, Patillo also arrived there, holding his leg and claiming he had been shot. The owners of the deli called the police, who arrived and transported Patillo to the hospital. Around the same time, the police also responded to reports of a shooting at Marky Dee’s, and upon arriving at the business, they found Wainwright and Marcus dead! As part of the investigation of the murders, the police took a recorded statement from Parker.
Parker also testified during the trial. He stated that he was at Marky Dee’s at the time of the shootings and witnessed Patillo exit the bathroom with a gun in his hand and shoot Wainwright. He further stated that, following the shootings, Odail ran in the direction of a'field that was beside the business. On cross-examination, counsel for Patillo highlighted several inconsistencies between Parker’s recorded statement and his testimony at trial. In his recorded statement, Parker indicated that following the shooting, Odail had run toward the lake, but in his trial testimony, he said that Odail had run toward the field.
|30n redirect examination, the State asked a series of questions in which Parker clarified that he believed that the field and the lake were “almost in the same direction.” In closing its redirect examination, the State asked, “In' your opinion, is your statement consistent with what you said, what you testified to today, and what you said before? Or is it inconsistent?” Parker responded, “Consistent.” Finally, the State asked, “In your mind, is there any difference in what you told the police and what you’re saying today?” Parked replied, “No, ma’am.”
On recross-examination, counsel for Par tillo began to again address the various inconsistencies between Parker’s recorded statement and his testimony at trial. The State objected, arguing that the questions on redirect had been confined to the issue of whether there was any inconsistency in Parker’s statements that Odail ran toward the lake or toward the field, and that this line of questioning did not open up Parker’s entire statement for réeross-ex'ami-nation. Counsel for Patillo pointed out that the State had asked the broad question of whether Parker believed that his statement' at trial was consistent with his recorded statement and had not qualified the question to refer only to the issue of the direction which Odail had run. The circuit court sustained the objection, noting that counsel could again address the inconsistencies during His closing statement. The-jury ultimately convicted Patil-lo of two counts of Capital- murder and sentenced him to life imprisonment without parole on each count, and Patillo filed this appeal.
On appeal, Patillo’s only argument is that the circuit court abused its' discretion in limiting his questions on recross-examination of Parker because the State’s questions on | ¿redirect examination regarding the consistency of Parker’s statement were broad enough to encompass Parker’s entire statement. The State responds that the circuit court did not abuse its discretion because the scope of the prosecutor’s questions on redirect were confined to the issue of which direction Odail had run in following the shootings, and because Patil-lo was able to fully inquire about inconsistencies in Parker’s statement on cross-examination.
The scope and extent of recross-examination are within the discretion of the trial court. Rodgers v. State, 360 Ark. 24, 199 S.W.3d 625 (2004). This court has stated that the use of cross-examination is an important tool in bringing the facts before the jury and ''that wide latitude should be afforded by the circuit court. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). That being said, this court has also held that a' circuit court must determine when the matter has been sufficiently developed and when the outer limits of cross-examination have been reached, and we will not reverse absent an abuse of discretion. Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 (1974). Additionally, the circuit court may impose reasonable limits on cross-examination based on concerns about harassment, prejudice, waste of time, unnecessary duplication of testimony, contusion of issues, or interrogation that is repetitive or only marginally relevant. Edison v. State, 2015 Ark. 376, 472 S.W.3d 474.
The crux of Patillo’s argument on appeal is that the circuit court erred in limiting his second inquiry into various inconsistencies between Parker’s recorded statement and his testimony at trial. Notably, Patillo addressed numerous inconsistencies during his cross-examination of Parker, and he does not argue that he sought to introduce any new inconsistency in recross-examination. In fact, in his reply brief he indicates that the excluded I [¡testimony was “a matter of record by way of direct and cross-examination.” In other words, Patillo recognizes that the testimony he sought, to elicit on ■ recross was merely a repetition of the testimony Parker had alréady given on cross-examination.-
The circuit court did not abuse its discretion in refusing to allow Patillo to rehash testimony from cross-examination on recross. As noted above, we have held that the circuit court may impose reasonable limits on cross-examination to avoid unnecessary duplication of testimony and where it appears that the matter has been sufficiently developed and clearly presented to the jury. Edison, supra. In this case, Patillo does not argue that he intended to seek new information on recross; rather, he admits that any testimony that the circuit court excluded was previously admitted in cross-examination. Under these circumstances, the circuit court did not abuse its. discretion .in limiting Patillo’s recross-examination.
In compliance with Arkansas Supreme Court Rule 4 — 3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to, appellant, and no prejudicial error has been found.
Affirmed. | [
112,
111,
-58,
-83,
56,
-96,
56,
-72,
82,
-30,
97,
-13,
-83,
-61,
88,
41,
-93,
127,
85,
105,
-124,
-77,
1,
33,
-93,
-5,
-69,
-47,
50,
-55,
126,
-35,
94,
96,
-54,
81,
102,
72,
-13,
90,
-122,
17,
-85,
97,
17,
22,
52,
58,
28,
46,
-91,
-99,
-93,
2,
86,
-49,
73,
44,
91,
-65,
0,
56,
88,
-113,
-98,
20,
-125,
38,
-81,
35,
-38,
30,
-103,
113,
0,
-24,
115,
-112,
-126,
68,
125,
25,
12,
98,
35,
44,
9,
-19,
104,
-119,
63,
-17,
-103,
-121,
24,
97,
73,
12,
-106,
-35,
106,
20,
26,
86,
125,
68,
121,
108,
-123,
86,
-112,
-109,
-83,
40,
84,
-13,
-63,
37,
112,
101,
-50,
-30,
116,
101,
-9,
-37,
15,
-13
] |
J. Fred Jones, Justice.
Daisy Pickens brought suit against Stanton A. Pepper in Mississippi County Circuit Court, Chiekasawba District, for personal injuries and property damage growing out of an automobile collision under a traffic light at the intersection of Tenth Street and Chiekasawba Avenue in Blytheville, Arkansas. Pepper filed a counter-claim for damage to his automobile. A jury trial resulted in a verdict and judgment thereon, in favor of Daisy Pickens for $5,000, and on appeal to this court Petter relies upon the following points for reversal or modification:
“1. The verdict of the jury, in the amount of $5,000.00, is entirely without basis in evidence, and is excessive to the point to shock the conscience of the court; and the court erred in failing to grant a new trial or to order a remittitur.
“2. The verdict was against the law.
“3. The verdict was against the evidence.
“4. The verdict was against both the law and the evidence.
“5. The verdict was not sustained by sufficient evidence.
“6. The verdict was clearly against the preponderance of the evidence.”
Point 1 includes the others and is the only point argued by the appellant. The facts, as to liability, must be gleaned from the conflicting evidence that usually attends an intersection collision. Both parties to the action contend that the other ran the red light.
Pickens testified that she had started home from work and that the light was green when she drove into the intersection on Tenth Street; that Pepper entered the intersection on Chickasawba Avenue at a high speed, and in violation of the traffic signal, ran the front of his automobile into the side of her automobile.
Pepper testified that he was driving slowly on Chickasawba Avenue waiting for the traffic light at Tenth Street to turn green; that when the light did change to green he drove into the intersection and seeing the Pickens automobile bearing down upon him in the middle of Tenth Street, he locked all the wheels on his automobile and was stopped when the side of the Pickens automobile struck the front of his automobile and damaged it.
The physical evidence is undisputed that the impact damage was to the side of the Pickens automobile and to the front of the Pepper automobile. It was stipulated between the parties at the trial, that the damage to the Pepper automobile amounted to $412.52, and the damage to the Pickens automobile amounted to $745.00.
Mary Ocheltree testified that she was driving a pickup truck behind the Pepper automobile and saw him run the red light and strike the Pickens automobile. She testified that Mr. Pepper left the scene of the accident and that she followed him, took his license number, and reported the accident to the police.
Mr. Pepper testified that he had started across Tenth Street enronte to a tractor agency to purchase some tractor parts, but the impact of the collision forced the radiator of his automobile into the fan and the screeching noise occasioned thereby, together with the fact that he couldn’t open the doors of his automobile, irritated and un-nerved him to the extent that he turned on Tenth Street, drove several blocks, turned again and drove his automobile home. He testified that he intended to report the accident to the police, but that before he got around to calling the police, the police called him.
Three sisters, who had a friend living on Pepper’s farm, testified that they were in an automobile on Tenth Street waiting for the light at the intersection to change from red to green; that Pickens was driving her automobile in the center of Tenth Street meeting them, and that before the lig'ht changed to green, Pickens drove her automobile into the intersection in violation of the traffic signal and collided with the Pepper automobile.
The jury chose to believe Pickens and her witness, and the jury verdict on liability is sustained by substantial evidence.
Appellant argues that he is 69 years of age and has a wide reputation in Mississippi County for driving fast and powerful racing automobiles, and that the jury was prejudiced by this reputation and by the fact that he left the scene of the accident. We find nothing in the record to indicate such prejudice. Appellant’s reputation was not alluded to during the trial, he admitted that he left the scene of the accident, and there is nothing in the record to indicate that the jury was not satisfied with his explanation.
Appellant points out that appellee had had twenty-three childbirths and was not in good health prior to the accident. The appellee’s testimony is not disputed that she was 58 years of age at the time of trial; that the last of her twenty-three childbirths occurred when she was 42 years of age, and that she had never suffered any disability prior to the accident except during the twenty-three childbirths by her first marriage. Appellee’s testimony is uncontradicted that high blood pressure was the only known physical impairment she suffered prior to the accident and that her high blood pressure did not prevent her from picking and chopping cotton in season and earning $5.00 per day at housework during most days of every week prior to the collision. She was regularly employed at general housework for nine months immediately prior to the collision. Appellee’s ability to work at gainful employment prior to the collision is not questioned.
Now, as to appellee’s injuries and her physical condition following the collision: Appellee testified that she was knocked down in her automobile and bleeding, she says she was numb, and following the advice of the police, she went to see Dr. Elliott, who was unable to see her that day but told her to return the next day. She then continues:
“Q. Daisy, what was your condition the day after the accident, as far as how you felt?
A. I began getting sore and coming back to life. Stayed kind’a numb, felt like I was froze all night. After he sent me to get x-rays, told me to go home, take the medicine. I went home, that night I had some kind of a spell. I thought I was dying. Looked like something snatching me, taking my breath. I got scared then. Up to then I wasn’t too worried, till I had the spell.
Q. What happened when you had the spell?
A. Looked like I was sick, going to die, breath leaving me. I sat up late, wondering what was going to happen. I said to myself, ‘This don’t stop, going to die.’ Looked like, cutting my breath off. I hurt underneath my shoulder blade and my neck ivas hurting.
Q. The night after the collision?
A. Yes, sir.
Q. Did you go back to see the doctor?
A. I took, went to Dr. Utley.
Q. Went to see Dr. Utley?
A. Yes, sir.
Q. Remember what day you went to see Dr. Utley?
A. I don’t know, exactly, what day it was. After I had the spell, still stayed there a day or so before I went to Dr. Utley.
* # *
Q. When did you go to the hospital?
A. Twenty-seventh.
Q. Twenty-seventh of August?
A. Yes.
Q. How long did you stay in the hospital?
A. Seventeen days.
Q. Dr. Utley was your doctor?
A. Yes, sir.
Q. Have you continued to see him, up to this time?
A. Yes, continued to see him. Off a little while, not long.
Q. Has he been treating you for this condition?
A. Tes, sir.
* * *
Q. Have you tried to do any work?
A. No. No more than around home. I couldn’t make it at home.
Q. Have you done work at home?
A. No. Did some. Take the clothes to the washer in the car. House, just let it went.
Q. Why can’t you work?
A. Bach harts, get spells. It was four weeks ago I had a sick spell. Told Dr. Utley, it knocked me out.
Q. What happened?
A. Get a burning, small place in my back. Go to getting sick. Spit up a lot of slick stuff. Goes on, started to get up and fell out.
Q. Did you pass out?
A. No, I didn’t pass out. Fell and laid down on the couch. Next day I went up and told them I had a spell, went the next day, I couldn’t go the day I had the spell.
Q. Are you still having pain in your neck?
A. Yes, and back too.
Q. Is there pain there all the time?
A. In my back, goes and comes. Have a place hurts right in the middle of my back, what knocks me out. Bight here. (Indicating) When he hit me, this side, hurt my back there. This place. Lay down at night, got a big hard place, when I hit the light pole, hurts when I lay down at night, pains around my neck when I lay doion at night.
Q. Ton had to work to live, didn’t yon, Daisy?
A. Yes, sir. I worked all the time before I was sick,.
# # #
Q. Do yon get any check from the welfare, anything?
A. No, sir. No, sir.
Q. Before this accident, had yon been sick?
A. I had a little high blood pressure, didn’t bother me much. Picked cotton every fall, chopped cotton in the hot sun. All the sickness I ever had was childbirth, get up and go back to work.
Q. Did yon have trouble with your back, neck, prior to the accident?
A. No, sir. Neck never did bother me. Bothers all the time now.
Q. You were able to scrub floors, wash, wax?
A. Yes.
Q. All of this?
A. Yes, I scrubbed the floor and waxed the floors over at Mrs. Baxley’s, everything.
Q. Did it bother yon?
A. No.” (Emphasis supplied).
Doctor Utley testified that he saw appellee on August 24, 1965:
“A ... she had muscle spasm in the back, across the low part of her back. We made x-rays of this particular region. X-rays were basically negative. We felt she had received some fair ly severe bach sprain from the accident. We started her on med-co synlator treatment, which is physical therapy. Gave muscle relaxant drugs. Started on a tablet for high blood pressure. We saw her the next two or three days. She hadn’t improved, so we had her admitted to Doctor’s Hospital on the 27th of August, 1965. Her admitting diagnosis was lumbar sacral sprain and final diagnosis. Discharged September 13, 1965.
Q. In the hospital, I believe, approximately 17 days?
A. Approximately, yes, sir.
Q. Did you continue to see her, treat her, while she was in the hospital?
A. Yes, sir.
Q. Doctor, how often would you say you have been seeing her since she came to you August 24th?
A. We saw her up until, there was a period we saw her fairly regularly. Then a period we did not see her. We saw her during September, 1965, saw her about three times. Saw her in October about three or four times. We saw her in November about four times, this was in 1965.
Q. Yes, sir.
A. Then I didn’t see the patient again until March, 1966.
Q. When she came back in March, 1966, toas she still suffering, having the same symptoms she complained of before?
A. Practically the same complaints, yes.
Q. Did you find on your examination any improvement in the conditions you found in her when you first saw her?
A. I would say, slight improvement, yes. But not completely recovered.
Q. You’ve been seeing her, more or less regularly, since that time up to this date?
A. That is right.
Q. Is she still under your care?
A. Yes, sir.
Q. Doctor, what are her complaints at this time?
A. Her complaints at this time vary quite a bit too. She says she has these pains in her neck and back. Sort of, at times, passing out spells, she gets numb.
Q. Prom your, information you have and your examination, has she been able to do any type work since this accident occurred?
A. I don’t — this is purely an opinion, but I assume, she hasn’t been able to do any work. This is an opinion, but I assume she has not been able to work from what she told me.
Q. Doctor, she is still complaining of soreness in the back, right shoulder, neck and down the lower part of her back, still says she becomes kind’a dizzy when she tries to walk, can’t get around any, would you say those conditions were caused from this accident?
A. Ah — I woidd say that a lot of her complaints ivere aggravated by the accident. I couldn’t say, positively, caused by the accident. But, aggravated by the accident.
Q. She had an arthritic condition prior to the accident?
A. That is what the x-rays show.
Q. And you, say that has been aggravated by this accident?
A. Yes.
Q. Do you have anyway to evaluate the percentage of her total disability at this time?
A. No, sir. I don’t.
Q. This has been two years and two months. I believe, today is the 19th, yesterday was the 18th, it happened the 18th of August. She has been suffering this way for two years and two months. Assuming she has continued to suffer up' to this time. Having the same hind of symptoms. Do you, think she will continue suffering, have a lot of discomfort for a considerable period of time?
A. I would think, she would have some trouble. How much would be impossible to say. Yes.”
(Emphasis supplied).
Doctor Field, a neurosurgeon, testified as follows:
“Q. From your examination today, is there some justification in feeling she does still have some pain and discomfort from the accident?
A. Well, I think the only thing I can say, from an anatomical point, is that she has some arthritis in the lumbar spine, and certainly it is not unreasonable to think she could have some pain and discomfort from it. I could go that far.
Q. That would be the result of the accident?
A. Yes.” (Emphasis supplied).
We are of the opinion that there was substantial evidence to sustain a jury verdict of $5,000 damage in this case, and that the judgment of the trial court should be affirmed.
Affirmed. | [
-80,
-18,
-32,
-20,
8,
-96,
16,
90,
96,
1,
-12,
-45,
-91,
71,
77,
125,
-85,
25,
85,
107,
-11,
-77,
19,
35,
-78,
-77,
-21,
-61,
-103,
65,
-11,
84,
76,
120,
-62,
-51,
103,
72,
-59,
90,
-58,
-106,
-22,
112,
25,
-112,
52,
58,
64,
15,
117,
-113,
-58,
47,
24,
67,
109,
108,
-5,
-68,
64,
48,
-128,
15,
111,
4,
-79,
100,
-98,
-125,
-40,
24,
-108,
-75,
0,
-8,
115,
-74,
-126,
-44,
97,
-103,
8,
-94,
103,
50,
5,
105,
-3,
-116,
7,
124,
-115,
-90,
12,
40,
75,
12,
-73,
-105,
111,
86,
15,
110,
126,
-107,
29,
56,
39,
-49,
-112,
-71,
-83,
32,
-106,
115,
-21,
-121,
52,
115,
-51,
-6,
93,
5,
19,
-37,
-57,
-106
] |
Lyle Brown, Justice.
This is a zoning case. Appellant Lora Marling was unsuccessful in her application to the Little Rook Planning Commission to change the zoning of her residence at 4700 West Markham Street from B-Family to E-l, Quiet Business. She filed this suit to enjoin the City of Little Rock from interfering with her planned use of the property for a quiet business enterprise. She alleged the city’s action to be un reasonable, arbitrary, and to constitute a denial of due process. That is tbe sole issue on appeal from tbe chancellor’s findings which denied relief to the property owner.
Appellant owns Lots 12 and 13, Block 6, Elmhurst Addition. The addition consists of forty acres which was platted into 200 lots in 1910. It appears to contain approximately 190 residences, most of which have been in existence for many years. The south boundary of the sub-division is West Markham Street. Appellant’s home faces south on Markham with Palm Street running along the east side of the house. The addition is exclusively residential. An effort was made in 1965 to rezone two lots located some 200 feet east of the Marling property and in Elmhurst Addition. That application was rejected. Downs v. City of Little Rock, 240 Ark. 623, 401 S.W. 2d 210 (1966).
The traffic count in this area on Markham is one of the heaviest in Little Rock. Across the street and diagonal to the subject property are the Medical Center and the State Hospital. Those structures are set back a considerable distance. Farther west on the south side of the street are War Memorial Park and St. Vincent Infirmary, then the tremendous commercial development in the area of West Markham and University Avenue. Those are only a few of the factors contributing to the heavy four-lane traffic. On the north (appellant’s) side of Markham, and west to University, it may fairly well be described as being zoned commercial and quiet business, excepting of course the frontage in Elmhurst Addition. Other than the Markham Street frontage, the remainder of the subdivisions north of the street generally retain their residence and apartment classifications. Appellant’s home is two blocks west of Glendale Addition which fronts Markham on the north. In Glendale, most of the Markham Street frontage lots have multifamily, commercial, and quiet business classifications. The next three and one-half blocks of Glendale, which are situated east of, and alongside Elmhurst, have either apartment or residence classifications, with the latter predominating. Summarizing, the Elmhurst frontage on Markham is the only frontage in the immediate vicinity used exclusively for residential purposes.
Appellant cites these factors which she contends distinguish her case from Downs v. City of Little Rock, supra: Since Downs, the State Health Department has erected a six-story office building on the State Hospital grounds across the street and slightly west of the subject property; the Mall Shopping Center has opened at Markham and University; St. Vincent has enlarged its facility; a group of ten residences immediately west of Elmhurst have been declared by the planning commission as favorable for quiet business (that area being one and one-half blocks west of appellant); the combined east-west traffic has substantially increased since Downs; and the residence in the Downs case does not actually face Markham — it faces east and the side of the house is adjacent to Markham. Certainly those considerations, which were presented to the trial court and thoroughly abstracted here, should he evaluated, but alongside other important elements both factual and legal.
On behalf of appellant, the traffic count, the additional commercial developments, and changes in frontal zoning classifications were stipulated. C. V. Barnes, a real estate counselor and appraiser, testified for appellant. He concluded that the Marling property was no longer desirable for residential use, citing the changed conditions heretofore enumerated. He asserted that the granting of the requested change in zoning classification would not adversely affect the remaining property in Elmhurst Addition. He also concluded that the denial of Mrs. Marling’s application was arbitrary.
It was also shown by appellant that the planning commission staff changed the address on appellant’s application from 4700 Markham to 100 North Palm, which latter address would be correct if the house faced Palm rather than Markham. It is appellant’s theory that the change was made so the zoning application would be evaluated from the standpoint that the house faced Palm and sided on Markham. The city’s witness testified that the plot plan submitted by the applicant showed no sidewalk leading from Markham to the front of the house; it showed a sidewalk leading from Palm to the house. That factor, along with the fact that the lots are platted east and west, assertedly caused the error. However, it was explained that in checking out the area it was noticed that the house appeared to face south on Markham. We assume any confusion in the minds of the planning commission about the location of the house was clarified in the public hearing.
Bussell McLean, a professional land appraiser and former member of the planning commission, testified for the city. As did Mr. Barnes, he showed a thorough familiarity with the general area. He concluded that the recited changes did not affect adversely the use of the Marling property as a residence. He described the Elmhurst neighborhood as stable, mostly homeowned, and well maintained. He saw no difference in whether the house faced Markham or Palm. He was of the opinion that the rezoning of this property would gradually cause an erosion in values of the adjacent residences. He was further of the opinion that the ten residents one and one-half blocks west of the subject property made a mistake in pressing for rezoning. He stated that their hopes for considerable profits from “quiet business” prospects had not matured and recounted that not one of them had sold.
Henry deNoble testified for the city. At that time he was director of community development for Little Bock and had been so employed for approximately nine years. It was stipulated that he was an expert. All of the factors in the general area, most of which we have recited, were considered by Mm in reaching a conclusion which favored rejection of the application. He stressed the undesirability of spot zoning. He compared it to a cancer, asserting that it would immediately affect adjacent residences and gradually call for rezoning to the north. He emphasized that there was no natural buffer between appellant’s property and the neighbors, which fact he said causes rezoning to spread. The only characteristic which he conceded to have an unfavorable impact on the Marling residence was the traffic; however, he predicted a reduction when the east-west expressway and other planned street improvements are completed. He contended that the changes in the area since the decision in Downs do not justify a distinction between the Downs property and the Marling property.
Four property owners residing in Elmhurst testified in opposition to the application. Collectively they described the addition as a quiet, well-kept, and home owner neighborhood; it is in walking distance of several churches; a Catholic school, a public junior high school, and a grade school are in walking distance; and the granting of this single permit would, in their opinion, be the opening wedge for other reclassifications to the detriment of the neighborhood. Mrs. Marling did not testify.
In the trial court the burden was on the landowner to prove preponderantly that the action of the city was arbitrary. Lindsey v. City of Camden, 239 Ark. 736, 393 S.W. 2d 864 (1965). On appeal it is our responsibility to determine whether the trial court’s finding was contrary to a preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W. 2d 116 (1962). The chancellor had a difficult decision. The trend in a wide area along Markham has been toward commercial and private business use; since the decision in Downs considerable changes have taken place; and one experienced witness testified that the Marling property was no longer sMtable for residential use. Then two men experienced in such matters insisted that the character of appellant’s property had not been affected by the changes. We perceive that the chancellor was impressed, as are we, with an abundance of evidence pertaining to the danger of spot zoning. That danger was emphasized where, as here, there is no existing barrier to prevent the spreading of rezoning into the exclusively residential area to the north. Those residents have a stake in this ease and are entitled to consideration. Appellant’s exercise of her rights of property must be recognized; however, we held in an early zoning case that her enjoyment of its use may be reasonably restrained so as not to cause injury to the property rights of her neighbors. See Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925). This is true even though, as was said in Downs, the best and most remunerative use of the two lots in question might be for quiet business.
We are unable to say that the chancellor’s findings were against the preponderance of the evidence.
Affirmed.
Byrd, J., dissents. | [
99,
-1,
-44,
108,
-102,
65,
56,
38,
64,
-127,
101,
119,
47,
-56,
28,
105,
-53,
125,
116,
105,
-63,
-78,
19,
98,
-32,
-13,
-13,
-43,
-70,
-19,
116,
23,
76,
97,
-54,
117,
-64,
78,
109,
24,
14,
-121,
11,
68,
-15,
66,
52,
43,
0,
15,
117,
-49,
-109,
44,
20,
-61,
40,
108,
89,
45,
80,
122,
-100,
-123,
-33,
19,
33,
-60,
-72,
-125,
120,
72,
-112,
49,
0,
-24,
55,
-90,
-106,
116,
71,
-101,
12,
32,
98,
0,
9,
-49,
-16,
13,
15,
-86,
-115,
-89,
-110,
56,
83,
75,
-105,
-107,
120,
70,
70,
124,
-57,
-59,
89,
108,
-115,
-25,
20,
-109,
-49,
-40,
-108,
3,
-5,
-107,
48,
101,
-53,
-122,
-34,
84,
18,
-37,
14,
-16
] |
Lyle Brown, Justice.
Leon Satterfield appeals from a conviction for arson involving the alleged setting fire to a barn. The issues raised which are determinative of the appeal concern (1) the refusal of the court to submit to the jury the question of whether three of the State’s witnesses were accomplices, and (2) the injection into the trial of evidence of other alleged acts of arson.
On an October night, 1967, a barn filled with baled, dry hay, and located on the outskirts of Salem, Fulton County, was destroyed by fire. The principal witnesses for the State were three teenagers, two boys and a girl, who testified in substance that they were in Satterfield’s car and accompanied him to the scene; that the defendant mentioned his intentions before arriving; that upon arrival, Satterfield stopped the car some twenty-five yards from the barn and proceeded to the nearest barn corner; that he returned to the car in a matter of minutes and drove away; that after driving a short distance they saw the fire develop, coming from the corner of the barn where Satterfield had stopped. Other pertinent facts will be related as appellant’s two principal points are discussed.
Point I: The Trial Court'Erred in Refusing to Give Reguested Instructions Which Would Permit the Jury to Determine Whether Satterfield’s Three Companions Were Accomplices. We hold this point to be meritorious. The three witnesses and appellant were well acquainted, of approximately the same age, and their social activities often brought them together. There was testimony that Satterfield and at least one of his companions had been drinking intoxicants that night. The girl had been with appellant continuously for more than two hours preceding the fire; the two boys joined the couple in Satterfield’s car at a dairy diner; the four rode around town and then headed out on the county road toward the barn; there was testimony that Satterfield pointed out the barn and that one of the companions remarked that it was filled with hay; the companions sat by while Satterfield purportedly went to set the fire; a return trip was then made to the dairy diner; after eating a sandwich and fixing a flat tire, Satterfield and the two boys returned to the scene of the fire and watched the burning for some ten or fifteen minutes.
There is another circumstance which might well have been significant to the jury. So far as the record discloses, none of the companions revealed their knowledge of the crime, at least until they were faced with evidence of that knowledge. The passive failure to disclose commission of a crime does not make one an accessory after the fact; however, the failure to so disclose could shed light on his relation with the wrongdoer at the time the crime was committed.
One who stands by and aids, abets, or assists in the perpetration of a crime is an accessory before the fact. Ark. Stat. Ann. § 41-119 (Repl. 1964). When the Legislature used the phrase “one who stands by and . . . abets” it is assumed it was not playing with words; to the contrary, an abettor is well recognized in the law. If one stands by and aids, he gives assistance and support to supplement the efforts of the principal; that action does not really describe an abettor, although “aid” and “abet” are often used as synonymous. If one stands by and encourages, baits, or incites the commission of a crime he is an abettor. State v. Western Union Tel. Co., 80 A. 2d 342 (1951); see Black’s Law Dictionary 4th Edition. Also, see Ark. Stat. Ann. § 41-504 (Repl. 1964), which is a strongly worded statute covering accomplices to arson.
In connection with Point I, we have given consideration to two well-established rules of this court:
First: “Whether a witness is an accomplice to an alleged crime is, generally speaking, a question of fact for the jury. At least, if the facts are in dispute, it is a mixed question of law and fact.” Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918); and,
Second: “The test, generally applied to determine whether or not one is an accomplice, is, could the person so charged be convicted as principal, or an accessory before the fact, or an aider and abetter upon the evidence?” Simon v. State, 149 Ark. 609, 233 S.W. 917 (1921).
We hold that the status of Satterfield’s companions was a question of fact for the jury, and that there were sufficient facts produced which meet the test in Simon, particularly in light of the inclusion of abettors as accomplices. See Boyd v. State, 215 Ark. 156, 219 S.W. 2d 623 (1949).
Point II. The Court Erred in Allowing the Prosecuting Attorney to Make Any Remarks in His Opening Statement to the Jury Concerning Alleged Prior Similar Offenses, and in Refusing to Instruct the Jury at the Close of all the Evidence to Disregard Those Remarks. In Ms opening statement the prosecutor toM the jury that he planned to show similar incidents of fires for the purpose of “showing intent, scheme, design, and so forth.” The testimony about another fire that night was very meager and the single witness who mentioned it never described it, never located it, and certainly did not connect the defendant with it.
At the close of all the testimony, counsel for defendant asked that the jury be instructed to disregard the prosecuting attorney’s opening reference to prior similar offenses. That was not an unreasonable request and we think, under the circumstances, it should have been granted. Another fire had been mentioned in the testimony and the trial court frankly conceded that it was of no value. So when the sketchy testimony and the prosecuting attorney’s statement are combined it is not improbable that some jurors may have developed the idea that the defendant was in fact connected with another fire. The accused had a right to have that possibility removed. Further, we have examined the instructions and we find that the standard instruction to the jury to disregard opening statements and closing arguments as evidence was not given.
To our holding on Point II should be added a comment for the guidance of the court in the event of retrial. Evidence of other incidents of arson would not be admissible unless that evidence can be shown to meet the test announced in many decisions. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954) and the numerous cases there cited. Ve adhere to the majority rule which is discussed in 22A C.J.S., Criminal Law § 682:
“The general rule, which is subject to exceptions stated infra §§ 683-690, is that, on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrevelant and inadmissible.”
Another point raised by appellant should be mentioned. It concerns the alleged right of a woman juror, who has been summoned and sworn in on the panel, to then assert her privilege of declining to serve. The answer to that question involves the constitutionality of Ark. Stat. Ann. §39-113 (Repl. 1962). Our Constitution and statutes provide that no woman can be compelled to do jury duty. However, the cited section requires her to decline service at the time she is notified “and not thereafter.” We do not pass on constitutional questions unless it is necessary to a disposition of the litigation. Searcy County v. Stephenson, 244 Ark. 54, 424 S.W. 2d 369 (1968).
Reversed and remanded.
Fogleman, J., dissents. | [
48,
-24,
-24,
-66,
24,
96,
42,
-24,
98,
-13,
-13,
-46,
-17,
-39,
17,
43,
-2,
125,
85,
105,
94,
-74,
23,
83,
-78,
-5,
123,
-43,
-76,
75,
-9,
94,
72,
112,
-114,
93,
-30,
-120,
-59,
84,
14,
13,
-70,
75,
17,
82,
52,
102,
86,
15,
49,
30,
-93,
46,
-100,
94,
73,
40,
75,
-67,
81,
-80,
9,
79,
-81,
2,
-93,
101,
-98,
33,
-8,
126,
-104,
49,
16,
-8,
115,
-122,
-124,
-4,
75,
-120,
-120,
-90,
99,
1,
125,
-17,
-23,
9,
62,
54,
-65,
-89,
88,
64,
3,
104,
-106,
-97,
112,
112,
50,
122,
-18,
84,
29,
100,
5,
-57,
-108,
-77,
-49,
44,
-102,
-126,
-21,
33,
65,
117,
-51,
-26,
84,
116,
81,
-37,
-114,
-43
] |
Conley Byrd, Justice.
Appellant Joseph Van Duyse, Jr., and Appellee Guy E. Fleming are adjoining landowners. Fleming maintains an earthen dam on his property. The water from the dam drains across appellant’s property. Van Duyse sought an injunction to abate the maintenance of the pond and for damages. Appellee asked for the enforcement of a prior decree between his predecessor in title and appellant. Both parties have appealed.
The record shows that in 1958 Van Duyse filed an action, #110,320, against H. F. Hall, et ux, appellee’s predecessor in title, involving the same subject matter. The trial court there found that the pond drained into a natural drainageway that existed at a point 457 feet West of the East corner of the common boundary; that Van Duyse had erected a levee on his property which obstructed the drainageway; and directed the removal of Van Duyse’s levee.
The water from appellee’s dam drained in a southerly direction across appellee’s property, to the common boundary and then southerly across appellant’s property into Ink Bayou. This was the natural drainageway which the trial court found had been obstructed by the levee appellant had built hill to hill across his north boundary. At a subsequent hearing, it appears that appellant had filled in the low area (where the drainageway had been) and was using it for pasture. East of the original drainageway on appellant’s land is a swale which runs south across Van Duyse’s land into Ink Bayou. At the subsequent hearing, the trial court modified the order in #110,320, directing Van Duyse to excavate a ditch along his north boundary line from the point where his levee dammed the natural drainage-way eastward to a point just north of the swale where appellant had installed drain tile. Appellant was also ordered to install larger drain tile through the levee, sufficient to carry the normal flow of water through the swale into Ink Bayou.
The testimony shows that Van Duyse did construct the larger drain through the levee, but did not excavate the ditch. After Fleming purchased the property from Hall, Van Duyse got Fleming to construct a ditch from the pond drain southeast to the point of the drain through Van Duyse’s levee. Subsequently, because of complaints from Van Duyse, the parties by agreement closed the new ditch. Later Van Duyse went upon Fleming’s property and opened the new ditch with notice to Fleming.
The Chancellor in the present litigation denied Van Duyse’s request for an injunction; denied any damage? because of silting; directed Van Duyse to comply with the decree in #110,320 and to maintain the swale across his property in snch manner as to remove the flow of water from Fleming’s property; and ordered Fleming to maintain the new ditch dug hy him.
Yan Duyse here claims that he has a right to fend off surface water, that the decree in cause #110,320 is not conclusive of the issues, the trial court erred in ordering him to maintain the swale to Ink Bayou to remove the flow of water from Fleming’s land, and in denying him damage caused by the silt.
We hold that all of the issues, except the claimed damages are concluded by the decree in cause #110,320. An existing final judgment or decree is conclusive of rights, questions and facts in issue as to the parties and their privies, Baumgartner v. Rogers, 233 Ark. 387, 345 S.W. 2d 476 (1961). As to the silt damages, we cannot say that Chancellor’s denial thereof upon the ground that the damage was invited is contrary to the weight of the evidence.
The proof is that the new ditch constructed by Fleming will not be necessary when Yan Duyse constructs the drainage ditch along his levee. Furthermore, Yan Duyse complains of the silting from the ditch. Under the record we find that the Chancellor erred in requiring Fleming to maintain the new ditch.
Affirmed on appeal and reversed on cross-appeal. | [
-15,
108,
-104,
76,
-102,
-95,
-8,
-70,
72,
51,
-28,
83,
-3,
-37,
8,
117,
-25,
125,
116,
-5,
-59,
-74,
106,
-60,
-109,
-13,
-5,
-35,
-5,
109,
-4,
-41,
8,
32,
-54,
-35,
70,
0,
-49,
92,
-122,
2,
-117,
97,
-63,
66,
48,
79,
70,
79,
81,
-113,
-13,
44,
57,
99,
40,
44,
-53,
45,
65,
-80,
-67,
28,
95,
5,
-96,
7,
-104,
67,
90,
42,
-112,
56,
-128,
-24,
119,
-96,
-106,
117,
3,
-97,
8,
-30,
102,
3,
97,
-49,
-4,
-104,
6,
-33,
-115,
7,
-109,
88,
74,
102,
-68,
-99,
124,
20,
-26,
118,
-20,
-123,
94,
108,
3,
-114,
-108,
-95,
47,
-112,
-99,
3,
-21,
1,
32,
117,
-51,
-22,
76,
71,
113,
-101,
-122,
-47
] |
Paul Ward, Justice.
This litigation involves the ownership of a parcel of land 43 feet wide and 147 feet long. We may hereafter, for brevity, refer to this land as the “lot”. First, we set out below a brief summary of the parties and pleadings involved.
Complaint. On April 3, 1967 W. H. Guthrey and wife (appellants), filed a complaint in circuit court to eject Deva Gar is (appellee) from the “lot” and to recover damages. In the complaint appellants claimed to be the owners of a parcel of land (including the “lot”) described (in general) as:
A part of the northeast quarter of the northwest quarter of section 30, township 3 south, range 25 west — being approximately 380 feet north and south and 280 feet east and west consisting of 1.72 acres.
Title to said land was. deraigned through numerous conveyances since 1876. It was alleged that appellee was occupying a house built on said “lot”, and claimed same as her own property, and; that appellee had no valid title to said “lot”.
Answer. Appellee, after entering a general denial, deraigned her title to said “lot” as follows:
(1) . Deed, dated June 18, 1942, from O. G. Cowart to I. J. Cowart, conveying all of the NWV^ of the NEVé, (emphasis explained later) north of Main Street in Black Springs (excepting certain named lots and blocks not involved here).
(2) Deed, dated October 29, 1945 from J. I. Cowart to Dave Brunt, conveying a part of the lands described in (1) above.
(3) Deed, dated March 8, 1961, from Dave Brunt and wife to appellee conveying a part of Block 10 in Black Springs — describing by metes and bounds the “lot” in litigation — being 43’ east and west and 147’ north and south, being “all of lot 15 and parts of Lots 13 and 14 of said Block 10 according to plat of said town . . .”
Decree. Following the above pleadings the cause of action was transferred to chancery court and after the issues were presented on the pleadings and interrogatories, the trial court found and held:
1. The complaint in Ejectment is not supported by the evidence and the same is dismissed.
2. The title to “lot” in dispute is quieted in appellee.
3. The deeds in appellee’s chain of title wherein the descriptions read “NW% of NE%” are reformed to read “NE% of E W14”.
On appeal, appellants rely on four separate points for a reversal which we now discuss in the order presented.
One. It is here contended by appellants that the trial court erred in dismissing their complaint in Ejectment.
We find it unnecessary to discuss this point in detail. If the trial court was correct in holding that title to the parcel of land in dispute was in appellee, then appellants cannot prevail in Ejectment.
Two. Next, appellants are relying on a chain of title in them and their ancestors dating from 1876 until appellee began constructing a house on the “lot”.
Again, and for reasons stated under point One, it is deemed unnecessary to discuss this point.
Three. It is our conclusion that the trial court was correct in confirming title to the “lot” in appellee. This conclusion is based on the two grounds presently discussed.
(a) As previously indicated, we, like the tidal court, are unable to say the conveyances in appellants’ chain of title contain a definite description to the “lot”. Also, the descriptions in appellants’ tax receipts are likewise indefinite. The record shows that for the years 1954 to 1966 the description was “Part of NE14 ÑW14 Sec. 30, Twp. 3 South, Range 25 "West”, being one-half acre.
While the description in appellee’s deed is not perfectly clear, we think it is much more definite than that of appellant. It reads (transcript page 39), in essence:
Part of Block 10, Black Springs, being 43 feet by 147 feet, and includes all of lot 15; part of lots 13 and 14, and; the west 43 feet of the alley between Lot 15 on the South and Lots 13 and 14 on the North.
The above description appears to describe the parcel of land on which appellee built her home and now lives. The plat of the town of Black Springs (as attached to appellants’ brief at page 103) shows: the lots in Block 10 are twenty-five feet wide east and west; there is an alley running east and west through the middle of Block 10; Lot 15 lies south of the alley and on the west side of the Block; Lot 14 lies north of Lot 15 — abutting the alley; Lot 13 lies east of Lot 14, and; Block 10 (and the adjoining Blocks) are located in the NE% NW]4 of said Sec. 30.
It is not disputed that appellee’s house is located (at least partly) on said Lot 15.
In view of the above we can not say the court erred in finding appellee received a deed to the “lot”.
(b) In addition to the above, there is another ground on which the trial court must be affirmed.
The preponderance of the evidence, in our opinion, shows: When appellee bought the “lot” appellants knew about it, and they also knew appellee was going to build a residence thereon; appellants were aware of the fact, at all times, that appellee was actually building the house, yet they did not raise any objection.
Under the above state of facts the trial court was justified in holding appellants were estopped from questioning appellee’s title to the “lot”. See: PettitGalloway Co. v. Womack, 167 Ark. 356, 268 S.W. 353; Steele v. Jackson, 194 Ark. 1060, 110 S.W. 2d 1, and R. T. Ueltzen, et al v. Billy Roe and Neva Roe Sowl, 242 Ark. 17, 411 S.W. 2d 894.
Four. Finally, we see no merit in appellants’ contention that the trial court erred in reforming the description in appellee’s chain of title.
As previously pointed out the “lot” is a part of the NE% NW% of said section 30, while the reformed deeds purported to convey land in the NWI4 NE% of said section. The trial court held this was a mutual mistake and accordingly made the reformation. There is ample evidence in the record to sustain this holding. It reveals, among other things, that said Block 10 is not even located in the NW% of NE14, but is in the NEü hi W1/^.
It is pointed out that Dave Brunt and others filed an intervention, raising this question of reformation, and the trial court decided in their favor. The only objection raised by appellants to the court’s action is that the proof was insufficient to sustain the same. We cannot agree.
Affirmed.
Fogleman & Byre, JJ., concur. | [
114,
111,
-56,
60,
-72,
32,
40,
-118,
99,
-93,
53,
83,
-17,
-62,
1,
49,
-30,
105,
117,
107,
85,
-77,
87,
98,
80,
-109,
122,
69,
-67,
79,
-12,
-41,
76,
33,
-54,
21,
-62,
64,
-51,
92,
78,
-125,
11,
68,
73,
64,
56,
59,
92,
79,
81,
15,
-14,
44,
57,
67,
105,
44,
77,
-67,
89,
-6,
-82,
5,
27,
2,
49,
39,
-38,
-125,
74,
74,
-112,
49,
-128,
-24,
115,
38,
-122,
116,
9,
-101,
8,
-94,
99,
2,
109,
-25,
-8,
24,
6,
-8,
29,
-90,
-78,
72,
67,
8,
-74,
-103,
125,
0,
77,
-2,
109,
-123,
93,
108,
7,
-50,
-106,
-79,
-113,
-96,
-118,
1,
-29,
9,
48,
113,
-49,
-58,
93,
71,
17,
27,
31,
-45
] |
J. Fred Jones, Justice.
The appellee, Mary Beth Ahrend, is an individual resident of Benton County, Arkansas, and the appellant, Insured Lloyds, is an insurance company doing business in Arkansas. Mrs. Ahrend sued Lloyds in the Benton County Circuit Court to recover the value of a jeep station wagon insured by Lloyds against accidental loss by fire under the terms of a policy issued to Mrs. Ahrend by Lloyds. Lloyds defended on the theory that the loss was not an accidental loss by fire, as defined in the policy, and that the loss was not covered by the insurance contract. A jury trial resulted in a judgment in favor of Mrs. Ahrend for $1,650.00, and Lloyds has appealed designating the following points for reversal:
“1. Appellee’s testimony as to Blue Book values is incompetent, hearsay, without proper foundation and completely untrustworthy, and the Trial Court committed reversible error in admitting such testimony as evidence.
“2. Appellee’s testimony as to why she is suing for less than Blue Book value is incompetent, ■ ■ immaterial, irrelevant, without relationship to the issues in this case, and the admission of such testimony by the Trial Court is prejudicial error and grounds for reversal.
“3. The Trial Judge’s comments in the presence and hearing of the Jury amounted to comments upon the weight and sufficiency of the evidence preventing Appellant from receiving a fair trial and the Court’s refusal to grant Appellant’s Motion for Mistrial constitutes reversible error.
“4. Appellee’s trip to Oklahoma and the mechanical difficulties experienced at Prairie Grove, Arkansas, were material for the purpose of impeaching Appellee’s testimony, and for the further purpose of establishing a true, actual cash value of appellee’s vehicle prior to any fire loss, and the Court’s exclusion of such testimony as well as the Court’s remarks as to the weight and sufficiency thereof, amounted to prejudicial error and grounds for reversal.
“5. The testimony of the witness, Bill Frost, as to the value of Appellee’s vehicle prior to any loss by fire was admittedly speculative and a wild guess, was immaterial and without any foundation in fact, and the Trial Court committed reversible error in allowing same to be admitted as evidence.
“6. The Trial Court committed reversible error in refusing to give the Jury Defendant’s Instruction No. 1 as to circumstantial evidence.”
The appellant has désignated the entire record on appeal, and the transcript contains 114 pages of testi mony. All of the points relied on by the appellant have to do with the admissibility of testimony, bnt the appellant has failed to abstract the testimony in its brief, as required by Rule 9 (d) of this court.
Rule 9 (d) is as follows:
“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, 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. The abstract shall contain full references to pages of the record. When testimony is abstracted the first person rather than the third person shall be used. The Clerk will refuse to accept a brief that is not abstracted in the first person. Whenever a map, plat, photograph, or other exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce such exhibit by photography or other process and attach such reproduction to the copies of the abstract filed in this court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the court upon motion.”
Appellant argues its points separately under the heading “Brief, Abstract of Testimony and Argument,” and the only testimony abstracted at all, is that portion which appellant quotes in support of its argument and consists only of isolated portions of the testimony lifted verbatim, in question and answer form, from the trans-script. Had the testimony been abstracted, these excerpts from the testimony might serve the purpose of emphasizing the arguments advanced on the points involved, but such excerpts from the testimony serve no purpose at all in acquainting the members of this court with exactly what this case is all about.
We appreciate the expense involved in preparing records for appeal to this court and we do not like to dismiss appeals without reaching the merits. We are forced to take such action, however, when the appellant fails to abstract such portions of the record that will enable us to understand the questions presented for decision. There are seven individual members of this court who must form separate individual opinions on the merits of each case before us on appeal. The litigants, as well as the trial court and practicing attorneys, are entitled to the separate and independent consideration by each member of this court of the questions presented on appeal, and this can only be accomplished by separate and independent inquiry into the facts submitted and by separate inquiry into the law applicable to the facts in each case. The work load of this court does not permit each of the seven members the time that would be necessary to glean the facts and issues in a case on appeal from a single, and usually disorganized, transcript of the record from a trial court. That is the reason for multiple copies of briefs on appeal and is the reason for appellate procedure Rule 9 (d).
The principal errors alleged here are the admission in evidence of testimony that should have been excluded and the exclusion of testimony that should have been admitted. Without examination of the original transcript, it is impossible for us to determine whether the appellant is right or wrong in its contentions.
As we have said many times before, we are unab]e to consider this appeal on its merits since appellant has failed to comply with Rule 9 (d). (Vire v. Vire, 236 Ark. 740, 368 S.W. 2d 265; Love v. State Farm Mutual Auto Ins. Co., 241 Ark. 161, 407 S.W. 2d 118; Allen v. Overturf, 236 Ark. 387, 366 S.W. 2d 189; Routen v. Van Duyse, 240 Ark. 825, 402 S.W. 2d 411; Walden v. Mendleson, 240 Ark. 1019, 403 S.W. 2d 745; Holt v. Moody, 234 Ark. 245, 352 S.W. 2d 87; Anderson v. Stallings, 234 Ark. 680, 354 S.W. 2d 21; Tucker v. Haskins, 243 Ark. 826, 422 S.W. 2d 696).
The judgment of the trial court is affirmed. | [
112,
-20,
-32,
-84,
8,
96,
122,
-38,
87,
-123,
37,
-45,
-89,
-58,
21,
123,
-90,
93,
-48,
43,
-45,
-93,
23,
-94,
-46,
-98,
49,
71,
-72,
75,
-11,
-18,
92,
48,
-54,
69,
70,
-54,
-59,
28,
-50,
-128,
-87,
96,
-39,
67,
36,
104,
80,
3,
65,
-122,
-94,
46,
19,
-57,
105,
40,
-5,
-71,
-47,
-77,
-56,
15,
127,
17,
17,
36,
-102,
47,
90,
10,
-44,
-79,
24,
-8,
115,
-90,
-122,
-12,
111,
-101,
8,
100,
103,
48,
1,
-17,
-20,
-88,
38,
-18,
15,
-81,
-110,
105,
11,
11,
-73,
-99,
125,
27,
15,
126,
-6,
20,
92,
44,
1,
-49,
-108,
-79,
-51,
101,
-108,
11,
-18,
-127,
52,
112,
-55,
-14,
93,
7,
119,
-69,
-42,
-70
] |
Conley Byrd, Justice.
This appeal by Appellant F. H. Jackson is dismissed for failure to comply with our rule 9 (d). The only portion of the record here abstracted is the testimony of Dave Davenport and from this alone we are unable to know how the trial court-committed error in refusing a continuance or why the evidence is not sufficient to sustain the verdict.
Affirmed. | [
-12,
-8,
124,
-97,
10,
-32,
0,
-98,
-61,
-109,
-9,
83,
-27,
82,
4,
123,
-6,
61,
113,
107,
-42,
-77,
22,
65,
-110,
-13,
-55,
-44,
53,
90,
-19,
-3,
76,
32,
-118,
-59,
102,
-54,
-51,
88,
-114,
-125,
-71,
-19,
19,
66,
60,
47,
100,
79,
97,
31,
-29,
46,
28,
-61,
-84,
40,
75,
43,
72,
48,
42,
15,
77,
20,
-77,
-79,
-38,
1,
120,
46,
16,
49,
0,
-8,
115,
38,
-126,
-12,
9,
-21,
8,
100,
98,
0,
-39,
-17,
-8,
-120,
14,
62,
-99,
-90,
-103,
9,
73,
77,
-65,
-99,
100,
20,
15,
124,
-32,
-43,
29,
108,
10,
-49,
-48,
-95,
-116,
60,
-110,
11,
-53,
3,
-112,
113,
-59,
-6,
76,
85,
49,
31,
-42,
-76
] |
Carleton Harris, Chief Justice.
On March 7, 1967, the Arkansas State Board of Chiropractic Exam iners, appellee herein, conducted a hearing wherein Dr. Kern E. Chester, appellant herein, was charged with unethical advertising. Exhibits were offered which consisted of various communications written by Dr. Chester, in which, inter alia, he stated that X-rays and examinations were free of charge. Chester was afforded the right to rebut or explain the charges presented against him, but appellant stated that he would continue the advertising. On April 24, 1967, the board advised Chester that it was reopening the case, and that there was sufficient evidence, if not rebutted or explained, to justify appellee in suspending or revoking his license. The letter explained that the evidence was in the nature of written communications and advertising, including free X-rays and examinations. Appellant was told that he could obtain a hearing by request, and such request was made, the hearing being conducted on Sunday, May 28, 1967. Chester was present with his attorney but did not testify. The president of the Arkansas Chiropractic Association, and the chairman of the Ethics Committee of the Arkansas Chiropractic Association, were the only witnesses at the hearing, though numerous communications from Dr. Chester to other doctors and to his patients, the last advertising free X-rays and examinations, were offered in evidence. The board entered its order on June 15, 1967, finding:
“That Dr. Kern E. Chester has published advertising that contains misleading, distorted and biased statements and announces free X-rays and examinations which is unethical advertising and unprofessional conduct.”
Thereupon, the board suspended Chester’s license to practice for a period of 60 days, and further ordered that he be placed on probation for a period of 2 years. The order concluded with a notice to appellant that he had the right of appeal from this final decision of the board, and the statutory requirements for appeal were set forth.
Early in September, the board filed a complaint in the Pulaski County Circuit Court, setting out the facts previously stated, and the further fact that no appeal had been taken by Chester from the order. The court was asked to order Dr. Chester to comply with the board directive. Thereafter, appellant filed his motion to dismiss the complaint, asserting that the board’s order was not a lawful one, because it had exceeded its authority in suspending his license, and that it had no power to determine that free X-rays and examinations constituted unethical conduct. The motion was denied, and appellant then filed his answer wherein he asserted that there was no legal basis for the board to hold the hearing; that Chester was not charged with any offense which violated the provisions of the act relating to the practice of chiropractics; that the hearings were not held in accordance with the law, and that the purported hearing on May 28 was absoluately void.
On November 30, 1967, the board moved for summary judgment, including with the motion a transcript of the proceedings at the May hearing. No response was filed, and on March 20, 1968, the court granted the motion, and entered the judgment sought, directing Chester to comply with the order of the board. From the judgment so entered, appellant brings this appeal.
Several points are urged for reversal, but appellee takes the position that none of the points which relate to the board hearing can be relied upon by appellant, since he did not appeal from the board’s order. Appellee contends that the matter is res judicata and calls attention to the provisions of Act 103 of 1963, which is the controlling act in this litigation. Section 16 of that act provides:
“Failure to file such notice of appeal in the manner and within the time stated shall operate as a waiver of the right to appeal and shall result in the decision of the board becoming final; except that for good cause shown, the judge of the circuit Court may issue an order permitting a review of the board decision notwithstanding such waiver.”
Appellee says that the doctrine of res judicata has been held to apply to decisions of state boards, and cites Bockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S.W. 2d 826 (1958). This case, because of the factual situation there shown, is not clear authority for appellee’s position, but if we assume, without deciding, that the case is in point, the litigation is not decided, for a collateral attack can be made upon a void judgment. McClellan, Mayor v. Stuckey, 196 Ark. 816, 120 SW. 2d 155. The question then is whether the order rendered by the State Board of Chiropractic Examiners was void. Since we consider the answer to that question to be definitely in the affirmative on one point raised, there is no necessity to discuss other arguments advanced by appellant in support of his position. We hold that the judgment was void because the hearing was held on Sunday.
First, let it be pointed out that the very first section which appears in our statutes, vis., Ark. Stat. Ann. § 1-101 (Repl. 1956), provides that the common law of England, insofar as the same is applicable and of a general nature, and not inconsistent with the constitution and laws of the United States or the constitution and laws of this state, shall be the rule of decision in this state, unless altered or repealed by the General Assembly. This statute, in substance, was a part of our law while we were still a territory, and it was after-wards reenacted as a part of the law of this state. Under the common law, Sunday was dies non juridicus. In 50 Am. Jur. Sundays and Holidays, § 73 at Page 858 (1944), we find:
“*** In jurisdictions where the common law prevails, the right or authority to perform any judicial act on Sunday must be derived from a statute conferring that right or authority, and a statute conferring such right should, like any other statute in derogation of the common law, be strictly construed.”
As early as 1838, approximately two years after the admission of this state into the Union, a statute relative to judicial acts on Sunday was enacted. Prom that date until 1955, the statute remained unchanged, and read as follows:
“No court shall be opened, or transact business on Sunday, unless it be for the purpose or receiving a verdict or discharging a jury ; and every adjournment of a court on Saturday shall always be to some other day than Sunday, except such adjournment as may be made after a cause has been committed to a jury; but this section shall not prevent the exercise of the jurisdiction of any magistrate when it may be necessary, in criminal cases, to preserve the peace or arrest the offenders.”
In 1955, Act 30, amending this statute, was passed, making no change in the above language, but adding the following:
“nor shall this section inhibit the exercise of the jurisdiction of any magistrate on Sunday in disposing of misdemeanor cases where the defendant desires to and does enter a plea of guilty or a plea of nolo contender [contendere].”
The original section and the amended section now comprise the whole of Ark. Stat. Ann. § 22-120 (Repl. 1962). It is thus apparent, under Sections 1-101 and 22-120, that no judicial acts can be performed in this state on Sunday, except as specifically authorized by the last section. 'This court, in Eyer v. State, 112 Ark. 37, 164 S.W. 756, commented:
“At common law Sunday was not a judicial day, and all proceedings had on that day were void.
That is so under our statutes except as to proceedings which the statutes authorize on that day.”
While appellee, as to this contention by appellant, simply relies entirely upon the fact that no appeal was taken from the board order, one might, at first blush, argue that the order by the State Board of Chiropractic Examiners is not affected, since the board is not a court, nor is it generally thought of as a judicial body, but such argument, if made, would be erroneous. In 26 A.L.R. (2d Series), at Page 996, there appears an annotation on the subject of the validity of administrative proceedings conducted on Sunday. On Page 997, it is stated:
“Although there is some authority which indicates the contrary, the judicial or quasi-judicial proceedings of administrative authorities have been definitely held to come within the common-law rule rendering void judicial proceedings conducted on Sunday.
“At common law Sunday is dies non juridicus except for the performance of purely ministerial acts and a judgment rendered on Sunday in a judicial or quasi-judicial proceeding is void. The distinction between a judicial and a ministerial act is whether the act involves, or does not involve, discretion. The judicial function consists of (a) ascertainment of facts, (b) application of law to the facts and (c) the rendition of a judgment or order based on the legal effect of such facts. An act is a ministerial act only when the record is in snch condition that there is no discretion to be exercised on the part of the board except to perform a particular act or duty in but one way, as a legal and obligatory duty of the office.”
One of the leading cases in this field is the case of Texas State Board of Dental Examiners v. Fieldsmith, 242 S.W. 2d 213. There, the State Board of Dental Examiners heard the evidence against Fieldsmith, a dentist, on a Sunday, the evidence presenting a question of fact to be determined, and the board took the case under consideration. Over a month later, they entered an order (not on a Sunday) finding Dr. Fieldsmith guilty of the charge of unprofessional conduct in the practice of dentistry, and suspended his license to practice for a period of 60 days. Fieldsmith appealed this order to the District Court of Dallas County, and that court entered a summary judgment, setting aside the board’s order. The board then appealed to the Court of Civil Appeals of Texas (Dallas Division), and that court affirmed the District Court, stating:
“A judgment rendered on Sunday in a judicial or quasi-judicial proceeding is void. [Citing cases.] But appellant asserts that a setting of a hearing on, and reception of evidence on, Sunday is a ministerial act and not a judicial or quasi-judicial act.
“Under the common law as adopted in Texas, Sunday was dies non juridicus. The exception was the performance of purely ministerial acts. The distinction between a judicial and a ministerial act is whether the act involves, or does not involve, discretion. [Citing cases.]
“The judicial function consists of (a) ascertainment of facts, (b) application of law to the facts, and (c) the rendition of a judgment or order based on the legal effect of such facts.
‘ ‘ An act is a ministerial act only when the record is in such condition that there is no discretion to be exercised on the part of the Board except to perform a particular act or duty in but one way, as a legal and obligatory duty of his [sic] office.
“Under the record here we are of the opinion that the reception of evidence and the investigation of facts by the Board involved discretion and was a quasi-judicial act. [Citing case.]
“The setting and hearing on Sunday were, therefore, void acts.”
Certainly, in the case before us, no ministerial act was being performed; rather, the hearing conducted by the board dealt entirely with ascertaining facts, and an order was subsequently rendered on the legal effect of such facts.
Under our statute, as interpreted by this court, the order entered as a result of the hearing on Sunday, May 28, 1967, was void.
Reversed.
This is also disputed by appellant who asserts that the controlling statute is Act 434 of 1967, which repealed Act 103. Under the view that we take, there is no need to discuss this question, though it might be pointed out that Act 434 contained a savings clause which provided that the repeal should not affect proceedings pending under 103 on the effective date of 434.
A non-judicial day.
Emphasis supplied. | [
48,
-22,
-35,
28,
26,
-63,
56,
-100,
88,
75,
-9,
115,
-19,
106,
5,
57,
-31,
109,
84,
89,
84,
-78,
83,
42,
-14,
-45,
-37,
-41,
-15,
95,
-27,
-67,
77,
56,
-118,
-123,
-58,
74,
-57,
28,
-122,
-128,
41,
69,
89,
69,
48,
34,
-34,
15,
-47,
31,
-61,
42,
23,
67,
13,
44,
-37,
44,
80,
-80,
-102,
13,
-3,
6,
32,
36,
-118,
-89,
90,
60,
-120,
49,
25,
-24,
115,
-78,
-126,
116,
73,
-103,
8,
50,
98,
32,
25,
-25,
-88,
-88,
95,
124,
29,
-122,
-118,
113,
75,
7,
-106,
-72,
118,
80,
30,
124,
-29,
-43,
86,
108,
8,
-98,
-124,
-79,
-41,
49,
-100,
34,
-21,
-25,
16,
85,
-115,
-10,
125,
70,
26,
91,
-114,
-76
] |
Carleton Harris, Chief Justice.
This case involves a condemnation by tbe Arkansas State Highway Commission of 3.37 acres out of two tracts comprising 97 acres of land owned by appellees, W. D. Davis and wife, Yera Davis. A Hempstead County jury found that appellees were entitled to compensation in the amount of $18,000, and from a judgment entered in that amount, appellant brings this appeal. For reversal, two points are relied upon, which we proceed to discuss.
The principal item of damage contended for by appellees relates to the value of six commercial egg layer houses, located on land not taken, which appellees contend are now without value (except for salvage), because of the proximity of the new Interstate Highway No. 30. Evidence was offered on behalf of appellees that their contract with Corn Belt Hatcheries, under whiph contract they were furnished layers by the company, had been cancelled because of the construction. It is asserted by appellant that the evidence offered by appellee was speculative, and that no facts were shown which justified the award made. It is also contended that the Circuit Court erred in refusing to admit testimony about the sale of dirt by appellees to appellants’ contractor, such dirt being taken from a strip of the condemned land, which was land-locked.
The evidence reflects that in 1958, appellees entered into a contract with Delight Egg Farms, owned by Corn Belt Hatcheries, to produce eggs for Delight. The layers were placed with the Davises, and the contract remained in force until May of 1967. To house the flock, six chicken houses were built, and these were valued by appraisers at the time of the taking as worth approximately $20,000.00. Wayne Russell, manager of Delight Egg Farms since April, 1957, testified that the company felt that it could not renew the contract after learning that the new highway would be constructed, and after making an investigation of how this would affect the Davis operation. He stated that he met with one of the highway officials who had a plat giving the approximate location of the highway, this plat showing the proximity of the laying houses to the interchange during construction and after. He said that the interstate highway was too close to these houses for the program (commercial layers) to be successful:
“We made our decision based on the past knowledge that we have concerning what constitutes a good situation as far as our placing birds in an environment that would at least give us an even break, or an even chance to come out. Our business, like Mr. Davis’, is production, and our income off of our birds is eggs, and it’s a mighty fine line between making profit and realize loss. And it’s our considered opinion, and we exercised that opinion, by advising Mr. Davis that we would not place birds with him beyond the termination of the existing flock, and we have followed through on that decision by withdrawing our contract agreement with Mr. Davis.”
lie testified that the layers were affected by noise and light, and that the lights of vehicles, as they left the Hope highway and turned onto the ramp leading to the interstate highway, would shine directly toward the poultry house. In explaining the effect upon the birds, Mr. Bussell said:
‘ ‘ These birds are bred for high production, and when I say high production, I am talking in terms of a national average from the commercial egg industry, and is probably in the realm of 220 eggs per hen house. And our program is at least as good as the national average, I suspect. Being bred for such high production carries with it some characteristics, or traits, of the general breed of bird, not ours only but other birds — other breeds, as well, that makes them highly susceptible to conditions that we might consider to be normal, but yet to birds are highly abnormal. Sudden light, sudden noise, commotion, the activity around a poultry house is best held to a minimum. I believe I heard Mr. Davis testify that even a stranger coming into the poultry house could produce an adverse effect. This is true. I find it my responsibility to visit poultry farms that we are involved in, and from personal experience I know that even myself walking down through the poultry house, regardless of the style or type, produces the same reaction from the birds.
“They are extremely fractions type livestock, and they will seemingly try to take the roof off the building, and this activity, or excess activity, around the birds, or in the chicken house itself, is detrimental to production. It will almost always produce a drop in production, and if it were allowed to run rampant, it could certainly produce a disastrous experience as far as production is concerned. ’ ’
He compared the difference between this highly bred strain of layers and the barnyard hen to the difference between a race horse and a plow horse. Davis indicated that cannibalism (whereby these birds use their beaks to pull feathers and eat themselves and other birds) is related to, or at least aggravated by, sudden noises and sudden lights. In his opinion the chicken houses were of no further value. The witness stated that the facility could not be used for heavy breeders, because there were not enough houses, and the houses were not large enough.
Russell said that Davis’ operation had been satisfactory, though he indicated that, had the contract been continued, the company would have required some improvements in the layer houses. This was the only witness offered by Davis relative to the commercial layer project being destroyed by the building of the highway (thus making his houses worthless), and we think the evidence falls short of establishing this contention.
For instance, though stating that the lights would point directly at the houses, Mr. Russell did not go to the point where, in turning, vehicles would allegedly shine their lights toward the houses; he did not know the distance from the houses to this point,' nor did he make any experiments with actual noise and light. He only reached his conclusions from a sketch which was not drawn to scale; in other words, he did not actually know for' a fact that the lights would shine into the chicken houses. There was also testimony by one of appellant’s witnesses that there were obstructions between the ramp and the chicken houses that would prevent the lights hitting them; the main lanes and the referred to ramp of the interchange will be constructed at distances of 250 to 450 feet from the chicken houses. Mr. Bussell’s testimony loses much of its value when it is shown that he has no personal knowledge of the matters mentioned in this paragraph. Of course, there is no direct evidence that the hens stopped laying*, since the last birds were moved from the farm in May, 1967, but neither is there specific evidence of losses suffered in other similar operations where layers were subjected to unusual noise and flashing lights.
It might also be mentioned, as far as noise is concerned, that the ITope-Nashville highway has run parallel to a part of this property for a long period of years, in some places as close as the ramp which leads to the interstate highway (and much closer than the interstate highway itself), and apparently the noise had no effect. We recognize that there is more travel on an interstate highway, but we think the fact that some of the houses have always been near to a well traveled highway has some pertinence.
There is no testimony that appellees tried to obtain a flock from some other company, or that the possibility of erecting artificial barriers to prevent light from shining into the houses was considered .
We think that, as the matter now stands, the evidence was too much based on conjecture and speculation ; on the other hand, the evidence offered by appellant was not satisfactory on this point. 'Two appraisers testified for the Highway Department, one stating that he had farmed most of his life, and was familiar with the chicken industry from observation and talking to people in other areas. However, the witness had never raised chickens, except when he was in 4-H Club work. It would not appear that either of these witnesses could be classed as experts with regard to commercial layers, though the record does indicate that there were experts in the general area (so regarded by both sides) who were not called upon to testify.
For the reasons herein set out, the judgment will be reversed, and the cause remanded, which will 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.
We think it well to pass upon appellant’s second point, since this question might also arise in a retrial of the case.
The condemnation of a part of the land desired left 18 acres belonging to appellees south of the interstate completely severed from the main portion of appellees’ lands, which are located north of the interstate. This 18 acres is “landlocked.” Davis testified that this acreage was “pasture land,” but it was of no use to him, because “there is no way I can get to it.” Counsel for appellants closely examined Mr. Davis relative to any other use being made of this landlocked area, and the witness replied, “I don’t know of any use. I don’t know of anything I could use it for.” After several questions were overruled, the court went into chambers for the purpose of making a record. At that time, Davis was asked if he had a contract with the Freeto Construction Company for the sale of dirt. He answered in the affirmative, and was then asked if the contract provided that Freeto would buy no less than 300,-000 cubic yards of dirt at a royalty of $.04 per cubic yard. Again, the reply was in the affirmative. An offer of proof was made that a miminum of $12,000.00 income from this landlocked area would be received by this appellee, and further, that the contract was entered into approximately six months after the declaration of taking. The court held the evidence inadmissible, and it is argued that this ruling constituted error.
It is the contention of the department that the value of Davis’ property was actually enhanced by the taking, for the reason that Freeto entered into this contract solely because of the close proximity of this 18 acres to the site where the highway was being constructed. “We have held that where a public use for which a portion of a landowner’s land is taken so enhances the value of the remainder as to make it of greater value than the whole before the taking, the owner has received just compensation for his property in benefits; also, we have held that the benefits which will be considered must be those which are local, peculiar, and special to the owner, i.e., benefits not enjoyed by the general public. McMahan v. Carroll County, 238 Ark. 812, 384 S.W. 2d 488. Though the amount received in the contract is not as great as the value of the entire acreage before the taking, it is argued that a special benefit to appellees was created by the condemnation which should have been considered by the jury. "We disagree, for the special benefit referred to in our cases is the benefit accruing to the property owner from the completed highway, i.e., a benefit from the Improvement. Ark. Stat. Ann. § 76-521 (Rep-1. 1957); Herndon v. Pulaski County, 196 Ark. 284, 117 S.W. 2d 1051. Also, the value of the dirt on this 18 acres was not occasioned by the fact that a part of Davis’ lands was condemned; if the condemned land had belonged to a third party (and Davis had only owned this 18 acres) the dirt would have been just as close to the site, and would have had just as much value for contract pur poses. The construction of the interstate highway is the circumstance that created the value. There may well be other landowners in the vicinity whose lands have not been condemned, but who also can sell dirt to the contractor because of the location of their properties.
In the court below, in seeking a new trial, appellant argued that this testimony was admissible as going to the credibility of Davis after the latter stated that he did not know of any use for the land. This particular point was not argued here for reversal, since it did not occur during the trial itself, though appellant’s brief submitted to the trial court, at the time of filing his motion, is included in the abstract filed in this court. Had this reason for admitting the testimony been advanced to the court during the trial, it would have been admissible for that purpose, and should the same, or a similar situation, arise in a new trial, the sale of the dirt to the contractor is entirely pertinent as affecting the credibility of Davis.
Because, as set out under the first point, the evidence was conjectural and speculative, the judgment is reversed, and the cause remanded.
It is so ordered.
Fogleman, J., concurs in part and dissents in part.
The houses could not be moved because of their length: One measured 24 by 132 feet; one, 24 by 612 feet; two, 17 by 123 feet, and two houses (actually, one L-shaped) had a combined footage of 24 by 264. | [
113,
76,
-12,
108,
14,
-63,
90,
-118,
80,
-94,
-25,
83,
-17,
-50,
20,
113,
-25,
29,
-44,
105,
-43,
-77,
99,
96,
-109,
-13,
-37,
-57,
-71,
77,
100,
-41,
76,
68,
-54,
-99,
-26,
-62,
-51,
28,
-50,
7,
-101,
109,
89,
-110,
60,
43,
20,
79,
5,
-114,
-14,
44,
57,
67,
109,
46,
91,
45,
65,
-8,
42,
7,
127,
23,
48,
38,
-102,
-123,
-56,
110,
-112,
48,
8,
-40,
115,
-74,
-122,
84,
75,
-103,
12,
34,
102,
0,
13,
-59,
-24,
-116,
7,
-1,
9,
-90,
-120,
16,
27,
71,
-97,
-107,
88,
86,
-122,
126,
-4,
69,
93,
104,
-123,
-114,
-104,
-95,
-121,
-84,
-100,
1,
-21,
-121,
18,
117,
-49,
-30,
93,
-57,
114,
-101,
-126,
-78
] |
Carleton Harris, Chief Justice.
This is a Workmen’s Compensation case. Daisy Young, appellant herein, was employed by Flanders Manufacturing Company, a manufacturer of furniture, from 1956 until June 2, 1964. She was injured in 1962, contending that her shoulder and neck had been injured, was treated by Dr. Frank Lockwood, and returned to work without any loss of time. She again received an injury in 1963, this time to the lower back, but returned to work after approximately a week in the hospital. On June 2, 1964, Mrs. Young testified that she was working on the assembly 'line, lifting pieces of furniture, and moving them about on the conveyor belt, in order that the pieces could be sanded inside and out. By quitting time, pain was moving up and down her back, and she was hurting in her neck and shoulders, arms and legs. Mrs. Young never returned to work after the June 2, 1964, occur rence, and subsequently a claim for benefits was filed with tbe Workmen’s Compensation Commission. There was no dispute but that she had suffered a low back injury, but appellees denied that any cervical spine disability was occasioned by her work. The referee found to the contrary, and held that this was also the result of an injury arising out of and in the course of her employment; that she had suffered a 40% permanent partial disability to the body as a whole considering both the low back condition and cervical spine condition. The referee’s findings were appealed to the full commission, and that tribunal held that under the preponderance of the evidence, the condition experienced by claimant in the cervical area was not the result of the injury on June 2, 1984. This finding was affirmed by the Sebastian County Circuit Court, and from the judgment so entered, appellant brings this appeal. For reversal, it is simply contended that the commission erred in holding that Mrs. Young had failed to prove by a preponderance of the evidence that there was a causal relationship between the employment and the injury, i.e., the disability to the cervical spine.
Of course, we are only here interested in whether there was substantial evidence to support the finding of the commission. Mrs. Young; testified that after the injury in 1962, she was treated by Dr. Lockwood who advised that she had sprained a muscle; medicine was prescribed, and she returned to work. According to the deposition of Dr. Karl Lindquist, a chiropractor, who first examined appellant on March 26, 1962, and at various intervals thereafter until June 4, 1962, she had suffered a strain of the cervical spine area, and he treated her with chiropractic adjustments. Dr. Lindquist did not find a herniated disc in the cervical spine of Mrs. Young, but he stated that her complaints on consulting him were pain in the shoulders and neck.
In 1963, claimant received an injury to the low back, was placed in traction by Dr. William F. Knight of Fort Smith, but returned to work after approximately a week’s stay in the hospital. Following the June, 1964, injury, Mrs. Young was treated by Dr. Knight and Dr. Hoyt Kirkpatrick until about the middle of August, 1964, at which time, according to claimant, she was released by these doctors, and advised to return to work. However, the witness stated that, because of continuing pain, she went to Dr. Horace Murphy in Little Rock on October 1 of the same year. Dr. Murphy made the diagnosis of a herniated disk of the lumbar spine, and performed an operation during the month to correct this condition. Appellant made several return visits to Dr. Murphy, complaining that, following the operation, the pain was more apparent in the cervical region of her back. Murphy (or his partner, Dr. Kenneth Jones) referred her to Dr. Robert Watson, a neuro-surgeon of Little Rock, who saw her for the first time on March 15, 1965. Watson’s preliminary finding was to the effect that she was suffering from neuritis, but in June, this doctor diagnosed a herniated disk of the cervical spine, and operated to remove the ruptured disk. Mrs. Young was examined (March 7, 1966) by Dr. William &. Lock-hart of Fort Smith, Dr. Lockhart having been selected for the purpose of testifying in the compensation proceeding relative to her condition.
It should be made clear that claimant has undergone surgery for two ruptured disks, one in the low back, or lumbar area, and the other in the neck, or cervical area. Appellees have accepted liability for the lumbar condition, and this appeal places in issue only the cause of the cervical condition. While the husband, daughter, mother, son, and one neighbor, testified that Mrs. Young complained of her shoulders and neck hurting after the injury in June, 1964, the record does not disclose that this complaint was made to any of the physicians at that time. The only record of any complaint to a doctor about neck pains (prior to March, 1965) is found in the deposition of Dr. Lindquist who testified that she said she had, at the time of the 1962 injury, gotten “a catch in both shoulders and her neck.”
Dr. Murphy testified that his records did not reflect that Mrs. Young made any complaint concerning pain in the neck area in 1964, and he first saw Mrs. Young on the basis of that complaint in March, 1965. He said that the 1964 statement made to him by claimant reflected that the pain was in her low back and leg.
Dr. Watson, as previously set out, first saw Mrs. Young on March 15, 1965, and he stated that her primary complaint was with reference to her neck and upper extremities. Physiotherapy was first prescribed, but she was later placed in the hospital, Dr. Watson having concluded from myelographic studies that she had a ruptured disk. An operation was performed on June 10, 1965, and a ruptued cervical disk was found and removed. According to the doctor:
“This disk had the appearance of both a longstanding situation, such as we would see on the plain x-rays, then in addition to that there was a fresher, more recent protrusion of disk material so that I thought that we were dealing with a disk that possessed two phases, one phase being a longstanding change and the other a more recent development that had likely accounted for the more recent symptomatology this lady had.
# * *
“ * * * I can simply say that one part of it was maybe many months’, even a few years’, duration, whereas, the other part was of probably weeks’ duration. * * *
# * *
“I think that the more recent protrusion was definitely associated with the existence of the form er trouble, and I think that the more recent change was simply a continuation or extension of earlier pathology in the neck.”
The most that Dr. Watson would say in support of claimant’s present contention was that it was possible that Mrs. Young could have sustained an aggravation of a pre-existing condition earlier than just a few weeks prior to his first interview, but he insisted that a 1964 injury would not have caused the complete picture that he observed in June, 1965. He would only say that the degenerative condition found could have been aggravated by trauma, though a study of his entire testimony clearly indicates that he did not consider this to have been the case.
Dr. Lockhart, who examined appellant at the request of her counsel, testified that he had an opinion, based upon the examination, the history taken from Mrs. Young, and a review of all medical records of Doctors Knight, Kirkpatrick, Murphy and Watson. He said:
“By history the trauma to the lumbar area seemed to be related to the incident that the patient relates of pulling the dressers and so back. I think the 2nd of June 1964. I cannot relate the neck aspects.”
The doctor said that he could find no causative connection between the existence of the lumbar condition and the cervical condition. He stated:
“* * * I cannot, at the present time, relate to the cervical problem, or cervical condition, to the injury of June 2, 1964. Certainly the lumbar injury would seem to be documentary to this time. * * *
* # #
“ * * * In summary, it seemed the acuteness of her symptomatology in the neck was related to a period of three to four weeks after first being seen by Dr. Watson, and no where, by questioning her, or going over this aspect of her neck complaints, was I able to find anything with the same magnitude in her past history.”
Dr. Lockhart continued that lifting, bending over, or moving a heavy object, does not usually cause neck injury. On cross-examination, he said that it was possible that if the degenerative condition existed prior to June 2, 1964 (and this is somewhat speculative), the injury could have aggravated this pre-existing condition. However, he concluded that the history of the case indicated that this was unlikely.
Summarizing, although several doctors treated or examined Mrs. Young after the 1964 injury (two of them, Murphy and Lockhart, being physicians of her own choice), not a single one expressed the opinion that the injury described by claimant on June 2, 1964, was the cause of the condition of the cervical spine. The strongest statement in support of appellant’s contention was that this injury could have aggravated the degeneration condition, provided such condition already existed at the time of the injury. Dr. Murphy was rather positive that no complaint about the neck was made by Mrs. Young in October, 1964, when he first examined her. Dr. Lockhart testified that in his opinion the condition complained of was not caused by the lifting of the furniture in June, 1964. There was substantial evidence to support the finding of the commission.
Affirmed.
Dr. Lockhart testified that Dr. Knight’s records reflected that he (Knight) had treated Mrs. Young in June, 1964, with neck manipulation, but the chart reflected that this treatment was for headaches. | [
-80,
-2,
-39,
-116,
10,
-31,
34,
122,
32,
-123,
-91,
119,
-81,
-65,
93,
127,
-29,
79,
81,
111,
-9,
-77,
19,
97,
-61,
-45,
-23,
-35,
-71,
111,
-12,
117,
77,
48,
-118,
-59,
-26,
-64,
-59,
22,
-54,
-124,
107,
-17,
25,
0,
56,
110,
-128,
15,
117,
-114,
11,
40,
22,
79,
40,
40,
107,
40,
64,
-15,
-126,
13,
-17,
0,
37,
4,
-100,
-89,
-8,
60,
-104,
-79,
0,
-8,
50,
-74,
-126,
84,
35,
-103,
68,
98,
102,
51,
29,
-19,
-56,
-104,
6,
86,
-67,
-90,
-117,
25,
27,
65,
-108,
-67,
94,
20,
28,
124,
-2,
93,
7,
44,
-49,
-121,
22,
-127,
111,
32,
-100,
-93,
-17,
37,
18,
113,
-50,
-70,
93,
5,
51,
-101,
-49,
-78
] |
Conley Byrd, Justice.
The issue on this appeal is whether an action at law, as distinguished from an action in equity, may be brought against an unincorporated association or club pursuant to Ark. Stat. Ann. § 27-809 (1962 Repl.). That statute provides:
“Where the question is one of a common c general interest of many persons, or where the parties are numerous, and it is impracticable lo bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.”
Appellant Juanita Thomas brought this action for tort damages against Raymond Dean, Wilma Hill, Patsy Bowles, Pearl Taylor, Tressie Cook, Harlena Legg, Champ King, Ruth Perkins and Herbert Bingaman, individually, and as representatives of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW-AFL-CIO) and Local 716. With respect to the union, she alleged that the members were too numerous to be sued individually and that the union should be brought in on a class action. She alleged that Herbert Bingaman, International Representative; Raymond Dean, President of Local 706; Wilma Hill, Secretary of Local 706; and Patsy Bowles, Pearl Taylor, Tressie Cook, Harlena Legg, Champ King and Ruth Perkins were members of the union and as such afforded adequate representation of the union as a class.
The defendants demurred upon the ground that there was a defect of parties defendant. After a non-suit was taken to the individual liability of the named defendants, the trial court sustained the demurrer as to the union and dismissed the complaint.
The right of an unincorporated association to sue or be sued in a class action has been before this court in Baskins v. United Mine Workers, 150 Ark. 398, 234 S.W. 464 (1921); District 21, United Mine Workers v. Bourland, 169 Ark. 796, 277 S.W. 546 (1925); Smith v. Arkansas Motor Freight Lines, 214 Ark. 553, 217 S.W. 2d 249 (1949); and in Massey v. Rogers, 232 Ark. 110 334 S.W. 2d 664 (1960).
In Baskins, suit was brought against a union in its society or organizational name for the alleged negligent killing of John Baskins. We there held only that such an action could not be maintained against a union in its societjr or organizational name. In so doing, we pointed out that Ark. Stat. § 27-809, supra, being ^ 33 of the Civil Code, was not applicable since no attempt had been made to comply with it.
In Bourland, we construed the action as one in tort for unliquidated damage over which chancery had no jurisdiction and held that the doctrine of virtual representation was unavailable as a method of obtaining service in a case in equity where there was no jurisdiction of the subject matter.
In Smith, the union, by its president and secretary on behalf of themselves and its other members, filed an action to compel specific performance of an agreement in which Arkansas Motor Freight Lines, Inc., had agreed not to retain non-union employees for more than 30 days. The trial court dismissed the union’s complaint on the basis that the president and secretary as representatives of a class lacked the capacity to sue. In reversing we said:
“We think the union officials could properly bring a representative action, without joining all members of the organization. Such a suit is auth orized when the parties are numerous and it is impractical to bring all before the court. Ark. Stats. (1947) § 27-809. While we have not passed upon this particular question, it is generally held that suits by or against unincorporated labor unions may be cast in representative form.”
The Rogers case was a suit by the trustee in bankruptcy for Leach-Bogers Funeral Home, Inc., against the Frank Leach Burial Association, an unincorporated association, for $3,225.00 alleged to be due to the funeral home. We reversed the trial court in dismissing the complaint and held that snch a cause of action could be maintained as a class action.
Appellant points to § 780 of- the Civil Code (Ark. Stat. Ann. § 27-102 [Eepl. 1962]), which provides that the Civil Code “shall regulate the procedure in all civil actions and proceedings in the courts of this state”, and argues that by the very terms of the code, the provision for class action is applicable to an unincorporated association both at law and in equity. Appellee argues that the doctrine of virtual representation is an equitable doctrine restricted to actions in chancery. We hold that the statutory provision for class action applies to both actions in equity and actions at law.
We are led to this conclusion by several reasons. In the first place, § 3 of the Civil Code, Ark. Stat. 27-204, provides that the proceedings in a civil action are of two kinds, i.e., at law and in equity. In addition, §§ 780 and 796 of the Civil Code, Ark. Stat. Ann. §§ 27-102 and 27-103 (Repl. 1962), provide that the Civil Code regulates the proceedings of “All civil actions” and proceedings in “all the courts in the State”. Therefore, as we read the Civil Code the same procedure for the bringing of parties before the court is applicable to both actions at law and in equity. In the next place, were the rule otherwise, an unincorporated association itself would be unable to sue to collect funds belonging to it or for the conversion of its property.
Other jurisdictions have readily applied the doctrine of virtual representation in suits for the collection of assets belonging to an unincorporated association. See Executive Committee v. Tarrant, 164 La. 83, 113 So. 774, 53 ALR 1233 (1927), and 6 Am. Jur. 2d, Associations and Clubs, § 55,
Appellees in contending that Ark. Stat. Ann. § 27-809 applies only in equity, have placed great stress upon the alleged non-entity status of a labor organization. In view of decisions of the United Supreme Court such as United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 66 L. Ed. 975, 42 Sup. Ct. 570, 27 ALR 762 (1922) and recent legislation (Public Law 86-257, 29 USCA 401 through 531), requiring all labor organizations to file their constitutions and bylaws with the Secretary of Labor, we seriously doubt that a la,bor union can any longer be considered a non-entity. However, in construing our class action statute we have considered a labor organization as any other unincorporated association such as a congregational church or a historical society.
Of course, a class action as such does not impose personal liability on any individual member of the unincorporated association, but only reaches common assets, Massey v. Rogers, supra.
Reversed.
Harris, C.J. and Jones, J., dissent. | [
20,
123,
-16,
44,
8,
-30,
42,
-102,
83,
-21,
-91,
83,
-81,
-35,
13,
101,
115,
45,
81,
107,
-57,
-74,
17,
34,
-46,
83,
121,
69,
-71,
95,
-12,
-1,
76,
49,
-54,
-43,
-122,
-126,
-55,
28,
-114,
10,
74,
64,
121,
70,
48,
114,
80,
95,
33,
-106,
-13,
45,
28,
67,
108,
46,
109,
33,
64,
57,
14,
77,
125,
6,
49,
-60,
-98,
-91,
-8,
28,
-40,
16,
0,
-24,
18,
-90,
-110,
116,
115,
-104,
12,
102,
98,
-125,
-75,
-93,
-104,
-104,
15,
54,
-99,
-123,
-112,
48,
35,
9,
-73,
-99,
122,
4,
-125,
124,
-2,
93,
88,
44,
-117,
-49,
-44,
-79,
-81,
-10,
-106,
-125,
-21,
23,
48,
117,
-56,
-96,
93,
7,
115,
-37,
71,
-108
] |
Conley Byrd, Justice.
Petitioners Pepsi-Cola Bottling Company and Ernest Bowden seek a writ to prohibit respondent, Bobby Steel, Circuit Judge of Scott County, from proceeding in a cause which had been dismissed at a prior term of court.
The record shows that a complaint was filed by Mrs. Scott Jones, Administratrix of the Estate of David Barrow, deceased on September 12, 1967, for damages arising out of an automobile collision in Scott County. October 2, 1967, Pepsi-Cola filed a motion to quash service and Bowden filed a motion to make more definite and certain. After a hearing on the motions on October 13, 1967, Bowden filed on October 16, 1967, a motion to dismiss on the alleged ground that Mrs. Jones l\ad not been properly appointed as Administratrix. Mrs. Jones amended her complaint on the 18th day of October, caused summons to be issued and obtained service on the same date.
Under date of October 23, 1967, there was filed an order which states:
“On this 20th day of October, 1967, is presented to the Court the motion of the defendant to dismiss the complaint filed by the plaintiff herein, and from said motion and other matters and proof before Court, the Court finds:
That the defendants’ motion should be, and the same is hereby, sustained, and this cause is dismissed without prejudice, at the cost of the plaintiff.”
The May term of the Scott County Circuit Court, at which the October 20th order was entered, expired with the beginning of the November term on Monday, November 6, 1967. On November 9th, petitioners filed their complaint for damages arising out of the same collision in the Circuit Court of Sebastian County.
In setting aside the order of October 20th after the expiration of the term, the court, April 20, 1968, found that the order dated the 20th day of October, 1967, and filed October 23, 1967, dismissing without prejudice the plaintiff’s complaint was signed at the instance of the petitioners at Nashville, Arkansas, without the court being informed that on the 18th day of October an amendment to the Scott County complaint had been filed.
Petitioner for the issuance of the writ contends that the April 20th order was after term time, Mrs. Jones did not file a verified complaint to set aside the October 20th order as required by Ark. Stat. Ann. § 29-508 (Repl. 1962), and that the Scott Circuit Court had no jurisdic tion in the matter after expiration of term. We hold petitioners ’ contentions to be without merit. Ark. Stat. Ann. § 29-107 (Repl. 1962). We held in Howell v. Van Houton, 227 Ark. 84, 296, S.W. 2d 428 (1956), that an order entered without notice and at a time when the court was not in session was void and that the party seeking to set aside the same was not required to follow the statutory procedure for vacating or modifying a judgment.
Petition denied.
George Rose Smith & Fogleman, JJ., concur. | [
-12,
-20,
108,
92,
40,
-31,
88,
-74,
-61,
-93,
-25,
83,
-19,
118,
8,
115,
-21,
95,
85,
107,
-63,
-74,
23,
96,
82,
-109,
-39,
-57,
55,
77,
-27,
-4,
92,
96,
-54,
-51,
68,
-52,
-57,
92,
-50,
0,
25,
-28,
89,
-62,
48,
122,
22,
15,
85,
14,
-30,
47,
24,
-61,
105,
44,
-39,
47,
64,
48,
-54,
21,
-2,
18,
33,
-124,
-102,
-121,
88,
10,
-104,
49,
48,
-24,
51,
-74,
2,
-12,
41,
-119,
8,
100,
98,
34,
-127,
-17,
-88,
-120,
14,
-66,
-99,
-122,
-102,
49,
75,
46,
-65,
-99,
124,
16,
-121,
126,
-22,
69,
17,
44,
-122,
-54,
-78,
-77,
-113,
-92,
-124,
19,
-23,
-128,
48,
113,
-51,
-17,
93,
71,
51,
-101,
-58,
-44
] |
Paul Ward, Justice.
On the night of September 8, 1967 Edward Lee Jackson, appellant, allegedly shot and killed Charles Newman Edwards, at Perciful’s Drive-In at 515 West Eighth Street in Little Rock. He was charged with murder in the first degree. Upon trial he was convicted of murder in the second degree and was sentenced to fifteen years in the penitentiary— hence this appeal.
Background Facts. On the night in question, at about eight p.m., while five or six white persons were drinking beer at the Drive-In, they heard a scream on the outside of the building. Upon investigation they saw a Negro man beating a Negro woman. The manager of the Drive-In came out and told them he was going to call the police. At about this time four Negro youths (one being appellant) offered to take the Negro man and woman away and take care of them — to which the manager agreed — but the Negro woman started to scream, and said they would kill her. Thereupon, the white people allowed the Negro youths to take the Negro man away, but told them to let the Negro woman stay. Then the Negro youths got into their car, with appellant and Raymond Henderson in the back seat. Presently several witnesses saw gun fire coming from the back seat, and one of the bullets hit Edwards and killed him. Later it was determined that appellant was the owner of a .25 caliber pistol which was found in his possession, and that Henderson was the owner of a .22 caliber pistol. It was determined that Edwards was hit (and killed) by a .25 caliber bullet, and an FBI ballistic expert testified that the bullet taken from the body of Edwards was fired from the pistol found in the possession of appellant.
Seeking a reversal of the trial court, appellants argue five separate points which will be discussed in order. First, however, we point out that appellants do not specifically question the sufficiency of the evidence.
One. It is first contended that the court erred in refusing to grant a mistrial. This is based on the fact the mother of the deceased was allowed to sit at the counsel table, during a recess period of the court, while six of the jurors were iu the jury box. It is also pointed out by appellant that these jurors observed her crying.
We are unable to find that any reversible error has been shown. The granting or denial of a motion for a mistrial is within the sound discretion of the trial court, and such discretion, when exercised, will not be disturbed on appeal unless shown to have been abused. See: Briley v. White, 209 Ark. 941, 193 S.W. 2d 326. No such abuse is shown here. On the contrary the allegation of facts relied on by appellant are in dispute. It is not error, per se, for near relatives of an accused person to be present (and cry) during the trial. Tiner v. State, 109 Ark. 138 (p.149), 158 S.W. 1087. To the same effect see Freels v. State, 130 Ark. 189, 196 S.W. 913.
Two. We find no reversible error in the court’s refusal to grant a mistrial because of its alleged reprimand of appellant’s counsel in the presence of the jury.
In the first place, appellant, in his argument, set out no specific objectionable conduct on the part of the court. However, we have read that portion of the transcript which deals with this incident, and find nothing to show reversible error. As previously pointed out, the matter of granting a mis-trial lies largely within the sound discretion of the trial court.
Three. It is here contended by appellant that the court committed reversible error in refusing to give his requested instruction no. 3 on self-defense.
This contention must be denied because appellant fails to point out any testimony (and we find none in the record) to justify the giving of such an instruction. In fact, appellant’s testimony was to the effect that he was shooting at the ground and did not intend to shoot Edwards, and he was not in fear of his own life. Ark. Stat. Ann. § 41-2236 (Repl. 1964), in material part reads:
“In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant ...”
There is no semblance of a showing here that appellant was in fear of being killed or injured by the deceased.
Four. Here, it is appellant’s contention the court erred in refusing him a continuance.
Ark. Stat. Ann. § 43-1705 (Kepi. 1964) provides that the court, upon sufficient cause shown, may direct the trial to be postponed to another day. This statute has been construed many times by this Court — dating from Thompson v. State, 26 Ark. 323 to Perez v. State, 236 Ark. 921, 370 S.W. 2d 613. In the first cited case the Court said that the granting of continuances in criminal cases is within sound discretion of the court, and the trial court’s decision will not be disturbed on appeal “unless it clearly appears to have been an abuse of discretion”. In the other cited case we said:
“There is no doubt that the granting or refusing of a motion for continuance is addressed to the sound discretion of the trial court”, citing cases.
Under the record in this case we are unwilling to hold the trial court abused its discretion in refusing to grant appellant’s motion for a continuance. It appears that appellant did not use due diligence in an effort to secure the fatal bullet and gun, and a ballistic report thereon. It appears appellant had three weeks time in which to do so but waited until one week before the trial before starting an investigation. The same lack of diligence appears in an effort to secure certain other evidence. Also, there was no convincing testimony that snch evidence was admissible or could be obtained.
Five. Finally, it is contended the court erred in refusing to quash the Petit Jury Panel. This contention is based mainly on the general assertions that: (a) there were no Negroes on the Jury Commission; (b) all Negroes on the petit jury were challenged peremptorily by the state; and, (c) the proportion of Negroes on the jury did not equal their proportion to the total population. Again, we find no reversible error.
(a) The mere showing that in this case no Negro was serving on- the Jury Commission does not constitute a violation of appellant’s constitutional rights. See: Moore v. Henslee, 276 Fed. 2d 876 (p. 878), 244 F. Supp. 982 (p. 986).
(b) The mere fact that the state peremptorily challenged all the Negroes on the petit jury does not constitute a showing that any of appellant’s constitutional rights were violated. See Swain v. Alabama, 380 U.S. 202 (p. 221).
(c) The fact (though not proven here) that the proportion of Negroes on the petit jury which tried appellant is less than their proportion to the total population does not, alone, amount to a violation of Ms constitutional rights. Particularly is this true in the absence of a showing that Negroes are being spstematically excluded from the juries in Pulaski County. No such showing has been made in this case. This same contention was made in People v. Cohen, 283 N.Y.S. 2d 817 (p. 823) where we find this statement: “To sustain this contention, appellants were compelled to show that there had been a systematic and intentional exclusion . . . ” In U.S. v. Cohen, 275 F. Supp. 724 (p. 743) it was stated that “. . . the inclusion of the exact proportionate representation of every group is not required”. See, to the same effect, the case of People v. Henny 284 N.Y.S. 2d 726 (p. 730).
Finding no reversible error, the judgment of the trial court is affirmed.
Fogleman, J., concurs. | [
112,
-21,
-24,
62,
9,
-32,
74,
-102,
-45,
-30,
-26,
-45,
45,
-37,
93,
105,
-5,
29,
85,
105,
-104,
-105,
6,
97,
-14,
-77,
91,
-43,
-75,
-56,
-28,
-3,
72,
96,
-54,
-47,
98,
72,
-31,
62,
-114,
-87,
-71,
96,
83,
18,
49,
110,
68,
15,
37,
-97,
-93,
42,
16,
-53,
73,
44,
-45,
47,
80,
48,
-118,
-115,
-49,
18,
-77,
-89,
-97,
5,
-8,
62,
89,
49,
8,
120,
50,
-124,
-128,
92,
109,
-115,
12,
98,
114,
4,
-119,
-49,
-88,
-119,
62,
110,
-123,
-121,
-104,
97,
73,
45,
-106,
-97,
122,
20,
14,
-12,
127,
-43,
88,
44,
-124,
-38,
-68,
-79,
-23,
56,
22,
10,
-21,
-91,
48,
117,
-50,
-30,
84,
85,
95,
123,
-122,
-80
] |
John A. Fogleman, Justice.
This is a sequel to Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908. There we remanded appellant’s petition for post-conviction relief. We found that there was a question of fact as to whether appellant voluntarily changed his pleas from not guilty to guilty on five counts of robbery. Since the trial judge had not made specific findings on this point, as required by Criminal Procedure Rule I, and his testimony on this critical point was important, we directed a hearing by another judge on remand. After a hearing by a circuit judge assigned to the Pulaski Circuit Court for this purpose, appellant was again denied relief. He brings this appeal, relying upon the following points:
“I. That petitioner’s constitutional rights were violated by prolonged detention before being charged.
II. Petitioner’s constitutional rights were violated by the hearing on his plea without the presence of his attorney.
III. Petitioner’s plea of guilty was entered as a result of duress and at a time when he did not fully understand the results of the plea.”
At the second hearing the matter was submitted to the judge on assignment upon the record made in the previous hearing, together with the testimony of the petitioner and five other witnesses, some of whom also testified at the previous hearing. One of the witnesses was Judge William Kirby, the judge presiding when appellant’s pleas of guilty were accepted. The testimony taken at the second hearing is substantially the same as that given at the first hearing. The testimony of the trial judge is virtually identical with the statement he made at the first hearing. Consequently, we will not set out the testimony at length, but will only refer to such of it as may be necessary in considering the points urged by appellant.
POINT I
This point has not been raised at any stage of the proceeding prior to the filing of appellant’s brief on appeal. Even though it involves an assertion that constitutional rights of an appellant were violated, it cannot be raised for the first time on appeal. Silas v. State, 232 Ark. 248, 337 S.W. 2d 644, cert. denied 365 U.S. 821, 81 8. Ct. 705, 5 L. Ed. 2d 698; Clayton v. State, 191 Ark. 1070, 89 S.W. 2d 732. Even if the question had been properly raised, we find no merit in the argument. It is based upon the fact that appellant was subjected to in-custody interrogation while held in the North Little Bock jail from 8 p.m. on Tuesday until 9 p.m. on Saturday without being charged. This was in November and December of 1963, so the Escobedo and Miranda decisions have no bearing in this case. Swagger v. State, 227 Ark. 45, 296 S.W. 2d 204, cited by appellant, has no proper application to the facts here. That case involved an indigent, illiterate minor whose conviction on a plea of guilty was set aside because he was deprived of due process because of the failure of the court to appoint counsel before the plea was accepted. The few days of detention of Swagger was only a minor incidental fact considered by the court in arriving at its holding. The trial judge made specific findings here that petitioner was not denied the right to remain silent and was advised of the probability that anything he might say would be used against him. He made the further finding that appellant voluntarily, expressly, knowingly and under standingly waived the right to counsel and gave a voluntary statement that was not used against him. There is substantial evidence to support these findings. We have previously found that the evidence preponderates against appellant as to mistreatment by officers while in the North Little Bock jáil. Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908. We find no reversible error on this point.
POINT H
Orman was brought before the court as the result of a message from him to the judge indicating that he wanted to change his pleas.
On this point, Judge Kirby testified, in substance: After being advised of Orman’s desire, the judge interrogated him about the identity of an assailant. This questioning was provoked by appellant’s appearance which obviously indicated that he had been beaten. Or-man refused to disclose this information, in spite of the judge’s promise that the person named would be charged with assault with intent to kill. Orman wanted to enter pleas of guilty, go to the penitentiary and get it ovei with. The judge was reasonably certain that he asked Orman where his lawyer was.
In spite of the fact that Orman had advised the judge that Charles Scales was his lawyer and Scales had consulted with Orman several times, there is no indication that Orman ever asked for, or had, any consultation with Scales about the change of his plea at any time. Although Scales denied that he ever advised Or-man to plead guilty, on the first hearing Orman testified to the contrary. On the second hearing, Orman stated only that he does not remember telling Judge Kirby that he wanted a lawyer when brought before the judge for this purpose. The trial court found that appellant’s appearance before the court when his pleas were changed did not violate his Fifth Amendment right to counsel, having been brought before the court at his own request. The court also found that he had voluntarily, knowingly and understanding^ decided to change his pleas, and waived his right to counsel. We find substantial evidence to support the findings of the trial judge. Or-man was not uninitiated in criminal procedures. He admits previous convictions in four felony cases, each after trial in a different jurisdiction.
We are unable to say that tbe findings of the trial judge, who saw and beard tbe witnesses, are not fairly supported by tbe evidence.
POINT III
Tbe trial judge found: 'That appellant was not harassed or mistreated by any law enforcement officer while in the Pulaski County jail, and that his beating by a fellow inmate was not directed, procured or suffered to happen by any law enforcement officer; that appellant did not receive a threatening note as testified by him; that he was not denied the right to contact anyone; that tbe beating of appellant, alone or in conjunction with the alleged note, did not render the decision to plead guilty involuntary, although it may have accentuated the timing of the decision; that Judge Kirby advised appellant not to plead guilty if he was not guilty, that he thought Orman was a “21-year man” and that if a jury trial on .each charge was requested, the sentences would be “stacked” (ie., the judge would make the sentences run consecutively).
There were also findings that the judge’s statements did not coerce or induce the change of pleas. These findings were based, in part, on testimony tending to show that: The statements of the judge about his practice in making sentences imposed by juries run consecutively was made after Orman had clearly indicated his desire to change his pleas and had inquired about what the judge had in mind for his sentence. When the judge indicated that he thought a 21-year sentence-appropriate, Orman expressed the thought that the sentence was too heavy. The judge advised him of his practice in case of multiple convictions after advising him that he had a perfect right to reconsider, change his plea to not guilty and stand trial on the five counts with which he was charged. After this explanation, Orman decided to stand on his pleas of guilty.
If Orman, feared a 105-year sentence, his fear was induced by his own knowledge of the hazards involved and not by any coercion by the trial judge. A failure of the judge to advise a defendant of such a practice under the circumstances as they arose might have been the basis of appropriate criticism. His advice here is not.
There is no evidence showing that any officer had any connection with the beating administered to Orman by Scrappy Moore. The only evidence remotely suggesting the connection of any officer is the testimony of appellant that his beating followed closely upon a suggestion by Lt. Munn that he had better plead guilty if he wanted to do well. Moore was immediately removed from the cell or “bull pen” and Orman given hospital treatment. When he was returned to the jail, he was placed in a cell in another section of the jail with another prisoner.
There are discrepancies in the testimony of Orman at the two different hearings. For example, at the first hearing he told of a note received by him after the beating telling him he had better plead guilty if he wanted to get out of the jail alive. He said that the note was signed by an inmate named Bill and gave other identifying information about him. At the second hearing, Orman stated that he didn’t know who wrote the note. Orman’s admission of four felony convictions also bears materially on his credibility. Under the circumstances, he could not have been entirely ignorant about the effect of a plea of guilty.
The judgment is affirmed.
378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977.
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. | [
48,
-22,
-27,
-65,
11,
97,
58,
60,
64,
-93,
102,
115,
-17,
-33,
4,
61,
-5,
123,
117,
121,
-44,
-105,
86,
97,
50,
-13,
81,
85,
-79,
111,
-28,
-11,
76,
48,
-86,
-47,
70,
-56,
-25,
92,
-114,
1,
-104,
-59,
80,
16,
48,
36,
82,
31,
49,
-98,
-29,
42,
16,
74,
73,
108,
75,
-67,
80,
57,
-102,
15,
-17,
36,
-93,
36,
-102,
5,
112,
61,
-104,
57,
17,
-72,
115,
-106,
-126,
84,
107,
-101,
44,
98,
98,
2,
77,
111,
-96,
-119,
62,
62,
-67,
-90,
-48,
96,
75,
109,
-74,
-99,
117,
52,
44,
-4,
102,
28,
93,
108,
2,
-114,
-76,
-75,
13,
124,
-126,
83,
-29,
17,
16,
117,
-52,
-29,
92,
71,
49,
-45,
-114,
-107
] |
Paul Ward, Justice.
This litigation is over the ownership of a strip of land eighty feet wide and approximately 1300 feet long. Since this parcel will be mentioned frequently it will, for brevity and clarity, be referred to as parcel (X). It lies between Lot B and Lot 2 in the old town (now abandoned) of Georgetown, in White County.
IHeadings. On March 15, 1965 Donald L. Akers and George Leroy Akers and their wives (appellees) filed a complaint in chancery court against J. W. Shafer and Robert O. Shafer (appellants), alleging: (a) They are the owners of forty acres of land described by metes and bounds, and including parcel (X); (b) Appellants are trespassing upon their land and are threatening to erect a fence thereon; (c) Plaintiffs have. already planted crops on the land being fenced by defendants. The prayer was that appellants be enjoined from such actions. A temporary injunction was issued on Mav 3, 1965.
On May 21, 1965 appellants filed an Answer to the above complaint, denying “each and every material allegation”, and asking that the complaint be dismissed. Following a Motion by appellants to strike the description of land from the complaint, appellees filed an “Amended Complaint” and attached a copy of the deed under which they claimed title. (The deed, dated June 10, 1964 and filed for record July 28, 1964, shows a conveyance by the Arkansas Game and Fish Commission to appellees of forty acres — described by raetes and bounds).
On September 26, 1966 appellants filed an “Answer and Cross-Complaint”, consisting of thirteen pages. The Answer, in substance, states: (a) general denial; (b) there is a defect in appellees’ chain of title; (c) the subject of this action is parcel (X) which lies within the corporate limits of Georgetown and has grown up in weeds and is unimproved, and appellants and their father have paid taxes on said parcel since 1950. In the Cross-Complaint appellants detail the conveyances through which they acquired title to parcel (X). On November 1,1966 appellants also, by amendment, alleged that they had a constitutional right to parcel (X) under the “doctrine of Stare Decisis”. To the above pleadings appellees entered a general denial.
The issues raised by the above pleadings were presented upon a full hearing, and on January 23, 1967 the Court held: (a) That the parcel of land involved in this cause lies between Block 2 and B on the recorded plot of the townsite of Georgetown (Unincorporated), filed December 11, 1908 and designated as a railroad right-of-way; (b) appellees acquired color of title to said strip under a deed from the Arkansas Game and Fish Commission which acquired title to said Blocks 2 and B in March 14, 1958; (c) that thereafter the Commission (by its agents and employees) exercised open, adverse, and uninterrupted possession of all the land, including said Blocks; that such possession, together with the possession of appellees, was for more than seven years; (d) that no part of parcel (X) was at any time used as a railroad right-of-way, but at all times for fifty years said parcel has been used by the owners of the adjoining land, ‘‘to-wit, Blocks 2 and B”, and; (e) appellees are the owners of parcel (X) by adverse possession, and appellants are enjoined as prayed.
On appeal appellants argue ten points for a reversal. It is unnecessary to discuss all these points because we have concluded that the trial court’s decree must be affirmed for the reasons hereafter mentioned.
Appellants attempt to establish their title to parcel (X) in three different ways. (1) By a series of conveyances beginning as far back as December 12, 1908 Stoneman-Zearing Lumber Co. of Arkansas executed a deed to the Missouri & North Arkansas Railroad Company conveying several pieces of land. By succeeding conveyances title is traced to R. E. Shafer by a deed dated January 7, 1950. It is here pointed out that appellants are concededly the heirs of R. E. Shafer. (2) R. E. Shafer died, testate, in March, 1960, and his will was probated. Later, in 1961, the Chancery Court quieted title to said lands in appellants. (3) Appellants claim .they (together with their father) have paid taxes on parcel (X) since 1960 and up to 1965.
A careful examination of the many conveyances and orders in appellants’ chain of title fails to show, to our satisfaction, a definite description of parcel (X). For instance, the collector’s certificate shows Joseph W. Shafer paid taxes on: “All former M. & A. Ry. Co. r/o/w/ in Georgetown, Ark., Section 20, Township 6 North, Range 4 West, 22.70 acres”.
It is not disputed that the record shows an unbroken chain of title to certain lands (including parcel (X) in the Arkansas Game and Fish Commission. The deed to the Commission was executed March 14, 1958 and conveyed, among other lands, said Block 2 and Block B. It is not disputed that parcel (X) lies between the above blocks. Later the Commission exe anted a deed to appellees conveying forty acres of land, described by metes and bounds, in which parcel (X) is situated.
In view of what we have pointed out heretofore, we are unable to say the trial court erred in holding appellees acquired title to parcel (X) by adverse possession. The weight of the testimony shows that appellees and their predecessors in title have been in open, actual, and adverse possession for more than seven years under color of title.
Affirmed.
George Rose Smith, Brown and Fogleman, JJ., concur.
John A. Fogleman, Justice.
I would affirm the decree of the trial court. I do not think that either party sustained his burden of proof of adverse possession by a preponderance of the evidence. I would affirm because of appellants’ noneompliance with Buie 0(d). That section of our rules requires that an appellant reproduce and attach to his abstract all exhibits which must be examined for a clear understanding of the testimony, unless this requirement is waived by this court on motion. There are numerous deeds in both chains of title that refer to maps for identification of key points in land descriptions. Beferences are also made to survey stations on certain maps. In addition, the Bill of Assurance refers to a plat. None of these are reproduced. The abstract of the land descriptions in certain of the deeds exhibited cannot be followed or compared with descriptions in other deeds in the manner they are set out in the abstract.
While appellees have supplied certain deficienees in land descriptions in some of the conveyances to the extent necessary to show that part of the lands conveyed to the railroad company were conveyed as a right-of-way only and not in fee simple, even these descriptions cannot be properly identified without reference to a map or plat. I have been unable to understand the issues as to record title on the abstracts before us. The exhibits in question are not such as could not be reproduced practically.
The burden of proving the strength of their own title was on appellants. Consequently, I would affirm the trial court’s decree.
I am authorized to state that George Rose Smith and Brown, JJ., join in this concurrence. | [
-12,
108,
-111,
44,
40,
-31,
56,
-118,
107,
-85,
103,
83,
-19,
-54,
21,
57,
-29,
41,
-11,
-21,
-57,
-78,
91,
64,
114,
-13,
88,
-35,
-15,
77,
-28,
-42,
76,
-92,
-62,
21,
66,
-32,
-17,
-98,
-50,
3,
-101,
92,
-7,
64,
56,
59,
82,
71,
117,
-113,
-14,
44,
29,
-29,
72,
44,
75,
44,
17,
122,
-70,
68,
-33,
6,
17,
103,
-72,
35,
74,
42,
-112,
48,
-116,
-88,
115,
38,
-110,
116,
11,
-103,
8,
38,
98,
24,
-24,
-27,
8,
-119,
78,
127,
9,
-90,
-94,
64,
74,
0,
-74,
-99,
124,
80,
7,
-10,
-19,
-115,
30,
104,
7,
-54,
-106,
-95,
101,
-96,
-120,
3,
-13,
-121,
48,
113,
-55,
-58,
125,
71,
113,
-117,
-114,
-48
] |
J. Fred Jones, Justice.
This is a workmen’s compensation case questioning the constitutionality of Act 501 of the Arkansas Legislature, approved April 4, 1967.
Wade C. Sands sustained an injury to his right hand and arm, on or about March 6, 1966, while in the course of his employment by the Albert Pike Motel. He was seen by Dr. John E. Stotts on March 7, and again on March 10, at which time he was admitted to the Veterans Administration Hospital. He remained a patient in the hospital, with the exception of one 3 day pass home, until his death on May 10, 1966.
On January 6, 1967, Mrs. Lily Mae Sands, widow of the decedent, filed claim for workmen’s compensation death benefits, contending that her husband’s death was caused by a pulmonary embolism resulting from the injury to his hand and arm. The referee, and the commission on review, found that Mr. Sands’ death was a result of complications arising from urinary tract infection unrelated to his injury, and the claim was denied by the referee and by the commission on review.
On August 9, 1967, an appeal was filed in the Pulaski County Circuit Court. On September 1, 1967, the circuit clerk assigned the case to the third division of the circuit court and on December 5, 1967, the case was docketed for nonjury trial on March 3, 1968. On March 28, 1968, judgment was entered by the Pulaski County Circuit Court as follows:
“It appearing that sixty days or more has elapsed since tbe record of this case from the "Workmen’s Compensation Commission was filed in this Court, it is hereby ordered and adjudged that the Order of the Workmen’s Compensation Commission is affirmed, in accordance with the provisions of Arkansas Statutes 81-1325.”
Act -501 of the Acts of Arkansas for 1967, Ark. Stat. Ann. § 81-1325 (Supp. 1967), amended paragraph (b) of section 25 of Initiated Measure No. 4 of 1948 (Ark. Stat. Ann. § 81-1325 [Repl. I960]) by re-enacting subsection (b) with the amendment included. Except for the enacting clause, the entire act, with the amendment in parenthesis, is as follows:
“AN ACT to Amend Paragraph (b) of Section 25 of Initiated Measure No. 4 of 1948 [Ark. Stats. 81-1325 (b)] to Provide That Appeals From the Workmen’s Compensation Commission Shall be Affirmed by Law at the End of Sixty (60) Days Unless Decided by the Circuit Court Before That Time.
* * *
SECTION 1. Paragraph (b) of Section 25 of Initiated Measure No. 4 of 1948 Arkansas Statutes 81-1325 (b) be and the same is hereby amended to read as follows:
([b] Effective date — Award of full Commission — Appeal. A compensation order or award of the full Commission shall become final unless either party to the dispute shall, within thirty (30) days from the receipt by him of the order or award, petition in writing for an appeal to the circuit court of the county in which the accident occurred or, if the accident occurred outside the State, in the coun ty where the original hearing was had. Such appeal to the circuit court may he taken by filing in the office of the Commission, within thirty (30) days from the date of the receipt of the order or award of the full Commission, a notice of appeal, whereupon the Commission under its certificate shall send to the court all pertinent documents and papers, together with a transcript of evidence, the findings and orders, which shall become the record of the cause. Upon the appeal to the circuit court no additional evidence shall he heard and, in the absence of fraud, the findings of fact made by the Commission, within its powers, shall be conclusive and binding upon said court. The court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
1. That the Commission acted without or in excess of its powers.
2. That the order or award was procured by fraud.
3. That the facts found by the Commission do not support the order or award.
4. That there was not sufficient competent evidence in the record to warrant the making of the order or award.
Appeals from the circuit court shall be allowed as in other civil actions. Appeals to the Circuit or Supreme Court shall have precedence over all other civil cases except election contests and if at the end of 60 days from the date the record of the Commission is filed in the Circuit Court as herein-above provided, said Circuit Court has not modified, reversed, remanded for rehearing, or set aside the order or award as hereinabove provided, the order or award of the Commission shall be deemed to be affirmed by lam and the Court shall enter its order to that effect. In all appeals the costs thereof shall be assessed as provided by law in civil cases. The Commission may require a bond from either party, if it deems necessary, in cases appealed to the Court.) APPROVED: April 4, 1967.” (Emphasis supplied to designate change.)
It is obvious that Act 501 was intended to eliminate long delays in final disposition of compensation cases in the circuit courts on appeal. Notwithstanding the provision in the act that “appeals to the circuit or Supreme Court shall have precedence over all other civil cases except election contests,” it is a matter of corn-man knowledge and judicial record, as well as obvious legislative concern, that many workmen’s compensation cases rest in litigation an unconscionable length of time before final decision. (See concurring opinion of Mr. Justice Cobb in Bottoms Baptist Orphanage v. Johnson, 240 Ark. 175, 398 S.W. 2d 544.) It is also a matter of common knowledge that compensation claimants are least able financially to endure such delays.
The circuit courts are not merely charged with the duty of affirming or reversing workman’s compensation cases on appeal. While circuit courts review only questions of law in compensation cases on appeal, they may modify, reverse, remand for rehearing, or set aside the order or award upon the grounds that the commission acted without or in excess of its powers; that the order or award was procured by fraud; that the facts found by the commission do not support the order or award, or that there was not sufficient competent evidence in the record to warrant the making of the order or award. The duties and authority of the circuit courts in compensation cases on appeal go further than merely affirming or reversing the orders and awards of the commission. St. Paul Fire So Marine Ins. Co. v. Central Surety & Ins. Corp., 234 Ark. 160, 350 S.W. 2d 685, is a good example. Appeals from the circuit court to this court shall be allowed in compensation eases as in other civil actions.
We deem it unnecessary to point out that Arkansas, as well as the other states, has three separate and distinct departments of government with separate and distinct functions, and that the legislative, executive and judicial departments are entirely separate and independent of each other.
There is no question that the legislature may limit or withdraw judicial jurisdiction conferred by legislative act, and there is no question that the legislature may amend the compensation law in any manner it deems proper. But once an appeal from the Workmen’s Compensation Commission has been lodged in the circuit court, it becomes subject to the constitutional jurisdiction of the judiciary the same as any other case properly filed in a judicial tribunal, and its judicial course or final disposition is not subject to legislative determination. So the question here is whether the legislature, by the terms of Act 501 of 1967, has encroached upon the separate constitutional powers, functions and duties of the judiciary, and we conclude that it has.
We readily recognize, and thoroughly appreciate, the problem the legislature was attempting to solve by the enactment of Act 501 of 1967. The problem of delay in workmen’s compensation cases on appeal, or at any other point along the line of final determination, is a serious matter and may be, in some instances, absolutely inexcusable. Justice delayed in a workmen’s compensation ease is indeed justice denied. If an injured and disabled workman is entitled to workmen’s compensation benefits, he needs the benefits, and if he xd not entitled to benefits, he needs to know it so that he can make other arrangements for the payment of his grocery and medical bills. A claimant’s attorney is not entirely exempt from responsibility in a compensation case. He is never exonerated from dne diligence in prosecuting an appeal of a workmen’s compensation case in the circuit court. He has no right or reason to fear an adverse decision by reminding the trial court that the case is pending and requesting early disposition.
Now returning to the specific question before us, the problem of court delay is not peculiar to Arkansas alone. The problem has arisen in other states with the same or similar legislative effort at solution and with the same or similar results that we reach here.
The Georgia legislature enacted a statute providing for the issuance of certiorari unless application therefor was refused in 90 days. Held: Unconstitutional as invasion of judicial power. Holliman v. State, 175 Ga. 232, 165 S.E. 11.
In Oklahoma an initiated act provided for the trial of certain cases relating to tax assessments within ten days after issues joined, and for appeals within ten days from judgment. Held: Unconstitutional as usurpation of judicial powers. Atchison, T. & S. F. Ry. Co. v. Long, 122 Okla. 86, 251 P. 486.
An Indiana statute provided that any issue of law or fact submitted to a court for trial and taken under advisement should be decided within 60 days and if not decided within 90 days, the judge should b.e disqualified and a special judge appointed. Held: Unconstitutional. State Ex. Rel. Kostas v. Johnson, 224 Ind. 540, 160 ALR 1118, 69 N.E. 2d 592.
The Ohio legislature enacted a penal statute with a provision that a writ of error to reverse a conviction for violation of the act, or to reverse a judgment affirming such conviction, could only be filed after leave granted by the reviewing court. The act then provided that such petition “shall be heard by such reviewing court within not more than thirty court days after filing such petition in error.” In holding the act unconstitutional the Supreme Court of Ohio, in Schario v. State, 105 Ohio 535, 138 N.E. 63, said:
“True, the general subject-matter of procedure by the parties to the cause, prescribing the manner of invoking the jurisdiction, the pleadings, and the time within which the jurisdiction shall be invoked, in short, the adjective law of a case, has always been regarded within the proper province of legislative action, yet the legislative branch of the government is without constitutional authority to limit the judicial branch of the government in respect to when it shall hear or determine any cause of action within its lawful jurisdiction.
Whether or not justice is administered without ‘ denial or delay’ is a matter for which the judges are answerable to the people, and not to the General Assembly of Ohio.”
The amendment contained in Act 501 simply affirms a compensation case in the circuit court after it has been on file for 60 days and makes it mandatory on the court to enter an order to that effect. This we hold to be an unconstitutional esercise of a judicial function by the legislative branch of the state government and as laudable as the purpose intended may be, we hold that the act is unconstitutional and void.
This cause is remanded to the circuit court for disposition on its merits.
Reversed and remanded.
Byrd, J., concurs.
George Rose Smith and Fogleman, JJ., dissent. | [
86,
106,
-43,
92,
8,
-61,
10,
-110,
91,
-124,
101,
83,
-27,
-49,
85,
97,
-29,
53,
113,
105,
-11,
-89,
85,
106,
-94,
-77,
-23,
-57,
-80,
91,
-76,
-68,
77,
40,
-54,
-47,
-26,
104,
-49,
94,
-114,
0,
-117,
-20,
89,
16,
56,
38,
-40,
23,
49,
-98,
-86,
46,
24,
-62,
45,
102,
91,
46,
90,
-85,
-118,
-115,
-5,
0,
-96,
-122,
-100,
33,
80,
30,
-100,
49,
72,
-24,
82,
-74,
-122,
116,
103,
-103,
28,
98,
98,
35,
-107,
-27,
120,
-70,
6,
-106,
-115,
-124,
-110,
121,
83,
11,
-97,
21,
122,
-108,
14,
120,
-4,
-43,
93,
44,
-126,
-114,
-74,
-79,
77,
105,
-100,
51,
-29,
-121,
-76,
117,
-50,
-94,
121,
71,
115,
27,
7,
-112
] |
John A. Fogleman, Justice.
Little Rock Land Company appeals from a judgment for $2,500 in personal injury damages in favor of appellee Ruth Raper and from the denial of a recovery of the amount of this judgment by it from Westinghouse Electric Corporation. Ruth Raper claimed injuries to her left hand and arm when the doors to an elevator in the Doctors Building, an office building owned by appellant, closed on her. On the occasion of her injury, she was in the building en route with her husband to the office of a doctor by whom he was being treated. Her injury occurred when she attempted to board an empty elevator which was one of three elevators furnished by appellant for the use of those having business in the building. The elevators were designed, manufactured, and installed by Westinghouse. They were of a type known as automatic self-service elevators, but they can be changed over to manual operation.
Mrs. Raper testified that she got one foot and her arm into the elevator when the door closed rapidly, in spite of her putting her hand against it. She said she kept “bouncing” the doors by throwing her hands against them but they didn’t open. She said that the elevator caught her, and drug her up a piece, but the door pushed her loose and she fell at her husband’s feet. She felt bare metal closing against her arm. While she said both hands were caught in the door, only one was injured. There was no attendant on duty nor were there any instructions on the use of the elevator posted outside it. There was no safety button for opening the door from the outside. She had been on these elevators several times before without having had any trouble. She stated that she had never noticed any kind of rubber edging on the doors. Her testimony was substantially corroborated by her husband. Both Mr. and Mrs. Baper denied seeing any rubber strip on these elevator doors. Mr. Baper said that the doors were almost closed when Mrs. Baper put up her arm in trying to keep them from shutting. He said that she jumped back, jerked her arm out of the door, and fell at his feet.
The elevators are checked daily by an employee of appellant to be sure that they are operating properly and a trial run is made daily. An officer of appellant has offices in the building and uses the elevators constantly, as do maintenance employees. Malfunctions do occur and adjustments are necessary from time to time. All adjustments are made and maintenance work done by Westinghouse under a service contract. This contract requires the employees of Westinghouse to use all reasonable care to maintain the elevators in proper and safe operating condition and to periodically examine all safety devices and governors. One clause of this contract reads as follows:
“The Corporation shall not be required to make safety tests, nor to install new attachments on the elevator which may be recommended or directed by Insurance Companies, or (Government, State, Municipal, or other authorities.”
There were two sets of doors at the entrance to the elevator. Both sets consisted of two doors that met in the middle of the entrance opening when closed. The outer doors were called “hatch doors” and constituted the entrance to the elevator shaft. The inner doors were “car doors” and attached to the elevator car itself. There is a safety strip edged with rubber from floor to ceiling on each of the elevator car doors. When the doors are open, these edges protrude beyond the outer edges of the two doors on the elevator car. They are designed to prevent the doors from closing when touched. When the doors close, these safety strips retract but one of them always overlaps the space between the two car doors. There are also two safety light beams across the elevator opening. These are “electric eye” beams. "When either of the beams is broken, the doors will not close. One beam is 10 to 12 inches and the other 42 inches above floor level. The width of the hatch door is approximately one and one-half inches and the width of the hatch and car doors combined is approximately nine inches. There is a clearance of one and one-fourth inches between the car to the wall line of the elevator shaft. The safety edge is about six inches from the outer edge of the hatch door. There was evidence that the safety devices were in identically the same condition as when installed and there had been no change in the safety devices. Appellant’s witnesses testified that the elevator conformed to all requirements of the American Standard Code. The owners of the building did not attempt to adjust or regulate the controls or safety equipment. All adjustments were made by Westinghouse employees.
Immediately after the incident was reported to appellant’s officer in charge of the building, he checked the elevator and found that the light beams and safety strips were operating properly. A Westinghouse elevator mechanic made weekly inspections. Otherwise, he only came to the building when called by a representative of appellant to make a needed adjustment. This incident was not reported to Westinghouse until the next weekly inspection. The Westinghouse representative then found the safety devices functioning normally.
Appellant’s officer admitted that it was possible for one to get his hand in the door without breaking the light beams. The representative of Westinghouse stated that if Mrs. Raper failed to hit the safety edge and failed to break either of the light beams across the opening, the door could conceivably have closed on her hand if at the last moment she stuck it into the opening. According to him, the opening would be restored only if the safety edge was hit or one of the light beams broken. He stated that appellee’s injury could have occurred if her hand was in an upright position or at an angle.
This case was tried by the circuit court without a jury. The pertinent findings of fact of the circuit judge were :
“ # * * because the instrumentality, in this instance an elevator, was under the exclusive control of the defendant, the doctrine of res ipsa loquitur applies.
* * * there was roughly a six inch space between the inner door and outer door and the safety device being on the inner door, would permit a person to insert a hand or arm inside the outer door at such an angle that would permit the closing of the door without obtaining the benefit of any safety device. This, in the Court’s opinion, is what occurred. It might have not been foreseen by the engineer who designed the elevator, yet it is the only reasonable explanation of the occurrence which can be arrived at.
* * * the Court must find against the cross complaint because Westinghouse’s contract with tbe counterclaimant was to service the elevator and when the elevator was purchased the counter-claimant took the equipment as it was at the time of the purchase. ’ ’
Appellant made timely motions for a “directed verdict” on the complaint of appellee Raper, and now urges that the trial court erred in failing to grant these motions. The thrust of its argument on this point is that the court erroneously applied the doctrine of res ipsa loquitur.
There is no question that Mrs. Raper was an invitee of Little Rock Land Company in its building. One who invites the general public into his place of business is required to exercise ordinary care to keep it reasonably safe for all invitees. Davis v. Safeway Stores, Inc., 195 Ark. 23, 110 S.W. 2d 695. The owner is not an insurer of the safety of invitees on his premises, but his liability to an invitee must be based upon negligence. Kroger Grocery & Baking Co. v Dempsey, 201 Ark. 71, 143 S.W. 2d 564; Dr. Pepper Co. v. DcFreece, 234 Ark. 450, 352 S.W. 2d 579. He does assume the duty to exercise reasonable care to the end that such premises shall not contain dangerous obstructions, pitfalls or the like which result in injury to an invitee. An invitee may recover his damages from the owner for injuries sustained without fault or carelessness on his own part, by reason of the unsafe condition of the premises if such condition is the result of the owner’s failure to use ordinary care to prevent such injuries and to give timely notice to invitees or the public. St. Louis I. M. & S. Ry. Co. v. Wirbel, 104 Ark. 236, 149 S.W. 92, Ann. Cas. 1914C 277. An owner has been held liable when injury could have been avoided by timely notice of a defective condition on its premises to invitees and the general public. St. Louis I. M. & S. Ry. Co. v. Dooley, 77 Ark. 561, 92 SW. 789. The owner is liable regardless of his lack of knowledge of the defective condition if it was also unknown to an injured invitee, where the surrounding circumstances are such that the former could and would have known of the dangerous condition had he exercised reasonable care and foresight for the safety of those who might come upon his premises by invitation, express or implied. Faulkinbury v. Shaw, 183 Ark. 1019, 39 S.W. 2d 708. An invitee is entitled to be warned of a latent danger known, or which by the exercise of ordinary care should be known, to an owner or his employees. Dixon v. United States, 296 F. 2d 556 (1961).
Where elevators are concerned, the duty of the owner or occupier of premises is even greater. He has the same duty to protect passengers using his elevators from injury as do common carriers of passengers, i.e., to exercise the highest degree of skill, care and foresight consistent with the practical operation of the elevators to guard against accidents and injuries to passengers. Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S.W. 439, 27 L.R.A. (n.s.) 124. See Wade v. Brocato, 192 Ark. 826, 95 S.W. 2d 94. When a carrier provides equipment or devices to add to the comfort, convenience and safety of its passengers, they have the right to assume that the equipment is convenient and safe for the purposes intended and that it will be providently managed. Chicago, R. I. & P. Ry. Co. v. Simpson, 87 Ark. 335, 112 S. W. 875. One boarding or alighting from a train has been held to be a passenger. Hot Springs St. Ry. Co. v. Jones, 234 Ark. 693, 354 SW. 2d 278; Huckaby v. St. Louis I. M. & S. Ry. Co., 119 Ark. 179,177 S.W. 923; Dillahunty v. Chicago R. I. & P. Ry. Co., 119 Ark. 392, 178 S.W. 420. Mrs. Raper was a “passenger.”
The doctrine of res ipsa loquitur applies when the instrumentality causing injury is under the exclusive control or management of the defendant. Bullington v. Farmers’ Tractor & Implement Co., Inc., 230 Ark. 783, 324 S.W. 2d 517. It has been applied in personal injury actions by passengers against carriers based on defective equipment. See, e.g., St. Louis & S. F. Ry. Co. v. Mitchell, 57 Ark. 418, 21 S.W. 883.
Insofar as those expressly or impliedly invited into the Doctors Building are concerned, the owner certainly has the exclusive control or management of the elevators they use. Appellant argues that Westinghouse had this management and control by reason of a service contract with appellant. An owner or occupier cannot escape liability for his failure to use proper care for the safety of an invitee on his premises by a claim that the work which caused the injury was done by an independent contractor. Restatement of the Law 2d, Torts, 405, § 422; Prosser, Law of Torts 2d 359. See, also, Great American Indemnity Co. v. Deatherage, 175 Okla. 28, 52 P. 2d 827 (1936); Brown v. George Pepperdine Foundation, 23 Cal. 2d 256, 143 P. 2d 929 (1933); Northcross v. Theatre Co. & Const. Co., 3 Tenn. App. 51 (1925); Sheridan v. Aetna Cas. & Surety Co., 3 Wash. 2d 423, 100 P. 2d 1024 (1940); Besner v. Central Trust Co., 230 N.Y. 357, 130 N.E. 577, 23 A.L.R. 1081.
Under the evidence here, it is not unreasonable to say that this injury would not have occurred in the absence of negligence on the part of someone. While the court might have drawn an inference from the testimony that Mrs. Raper was guilty of negligence, reasonable minds could properly come to different conclusions on this point. The court’s finding was inferentially contrary to any finding of negligence on her part. In determining the propriety of a directed verdict in this case, we must draw all reasonable inferences in favor of the party against whom the verdict would have been directed. Beggs v. Stalnaker, 237 Ark. 281, 372 S.W. 2d 600. As between Mrs. Raper and Little Rock Land Company, the latter had exclusive control and management of the elevator. The application of the doctrine of res ipsa loquitur was not erroneous under the facts in this case.
Appellant contends the evidence that the elevator met all the requirements of the American Standard Code completely negated any inference or negligence under the doctrine of res ipsa loquitur, leaving no fact question on this point even if the doctrine is applicable.
Although appellant’s compliance with industry or statutory safety standards was proper evidence on the question of negligence, it is not conclusive because it is not necessarily a complete discharge of its duties toward the public. St. Louis Southwestern Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W. 2d 334. Since Mrs. Raper had established the elements of a res ipsa loquitur case, the burden of proving that the injury to her was not caused through any lack of care on its part was on appellant. In order to prevent a recovery by Mrs. Raper, it was incumbent on appellant, as a carrier of passengers, to show that her injury occurred without any negligence on its part. Johnson v. Greenfield, 210 Ark. 985, 198 S.W. 2d 403.
Appellant also argues that undisputed proof that the elevator was free from discoverable defects in construction overcomes any inference or presumption arising from the occurrence. In spite of the testimony of the officer in charge of the building that it was possible for one to get his hand in the door without breaking a beam, and the obvious fact that it was possible for Mrs. Raper to get her arm between the hatch doors without touching the safety strip, appellant further contends that it had no knowledge of any defect in construction. In the first place, we do not agree that the undisputed proof shows that the defect in construction was not discoverable. In the nest place, the burden of proving latent defects and appellant’s knowledge thereof was not upon Mrs. Raper. Johnson v. Greenfield, supra. We think that a question for the trier of facts was presented on the issue and resolved adversely to appellant. Whether injury to Mrs. Raper occurred when she was attempting to hoard the elevator in the manner described by her was for the trier of the facts, and even if improbable, we cannot say that it was physically impossible for it to have been sustained in that manner. Missouri Pac. Transp. Co. v. Sharp, 194 Ark. 405, 108 S.W. 2d 579.
It is also urged by appellant that the doctrine of res ipsa loquitur should not be applied in the absence of evidence of malfunction of the elevator. We do not agree. Besides the absence of any warning of the possibility of injury to a passenger in the manner Mrs. Raper was injured, the manner of construction making the injury possible is also evidence of negligence. Appellant owed Mrs. Raper the duty to exercise the most exact care and diligence with respect to the structure and care of the elevator and in all subsidiary arrangements necessary to the safety of passengers. Fourche River Valley & I. T. Ry. Co. v. Camp, 139 Ark. 406, 214 S.W. 35; St. Louis, I.M. & S. Ry. Co. v. Richardson, 87 Ark. 602, 113 S.W. 794. The construction of an elevator in such a manner that protection from injury was not afforded to one who was injured when he inadvertently overstepped the edge of the elevator floor so that his heel partly extended into a three and one-half-inch clearance between the elevator floor and the back wall of the elevator shaft so that it was caught by a beam extending over the clearance has been held to justify a finding of negligence. Williams-Echols Dry Goods Co. v. Wallace, 142 Ark. 363, 219 S.W. 732.
We affirm the judgment in favor of appellee Raper.
On its appeal from the judgment in favor of Westinghouse, appellant contends that: (1) If the doctrine of res ipsa loquitur is applied in favor of Mrs. Raper, it should also be applied on its third party complaint against Westinghouse because Westinghouse was actually in exclusive control of the elevator; (2) the trial court’s finding on this phase of the case is, in effect, a finding that there was a disclaimer of warranties by Westinghouse in the sale of the elevators; and (3) Westinghouse is also liable on the theory of indemnity. On the other hand, Westinghouse contends that the doctrine of res ipsa loquitur has no application to the third party complaint; that under the maintenance contract, appellant assumed all liability to persons injured; and that there was no evidence of any breach of the contract constituting a proximate cause of Mrs. Raper’s injuries. It also contends that there can be no recovery for indemnity because that theory is inconsistent with recovery for contribution from a joint tort-feasor, and that the issue of breach of warranty was not raised by th^ pleadings.
The “third party complaint” contains allegations that the elevator was designed, manufactured and installed by Westinghouse and that Westinghouse assumed the duty of using all reasonable care to maintain the elevator in safe and proper working condition, and that if there was any liability to Mrs. Baper, it was that of Westinghouse, not appellant. No warranty is mentioned in this complaint, nor is any disclaimer of warranties alleged in the answer thereto. No effort was made by Westinghouse to require appellant to make its third party complaint more definite and certain and no action was taken to require appellant to elect as to its cause of action against Westinghouse.
Although “third party complaints” are appropriate only in actions for contribution under our statutes [Ark. Stat. Ann. § 34-1007 (Bepl. 1962)], we consider the substance of a pleading rather than the title in determining its character. When we do this, we find that the pleading is actually a cross complaint. There is no prayer for contribution by Westinghouse as a joint tort-feasor, nor any allegation to support such a prayer. While the doctrine of res ipsa loquitur might have been applicable to an action by Mrs. Baper against Westinghouse, or in a case where contribution as a joint tortfeasor was sought, we have not been cited any authority for its application in an action for breach of warranty or indemnity. The complaint of appellant against Westinghouse, in the absence of any motion to make more definite and certain or to require appellant to elect upon which cause of action it would proceed (if, in fact, the two are inconsistent), was sufficient to support the action upon either theory. The trial court obviously treated the action as one for breach of warranty and found that when appellant purchased the elevator, it took it as it was at the time of the purchase. The contract of purchase of the elevator is not in evidence, but there is some evidence that appellant did purchase the elevator from Westinghouse. The'admission that Westinghouse designed, manufactured and installed it, and the fact that appellant is designated as “Purchaser” in the maintenance contract, are sufficient support for a finding’ that Westinghonse sold the elevator to appellant. Under Ark. Stat. Ann. § 85-2-315 (Add. 1961), there was an implied warranty of the fitness of the elevator for its use for that purpose, unless excluded under the provisions of § 85-2-316. There was no evidence tending to show any such exclusion. Thus, we find no support for the court’s finding in that regard. Since the judgment in favor of Westinghonse was specifically based on this finding, we reverse the judgment and remand the case on the cross complaint of appellant against Westinghonse for a new trial.
Jones, J., dissents. | [
81,
-22,
-56,
-84,
56,
-31,
58,
26,
99,
-123,
53,
-109,
-25,
-23,
93,
51,
-11,
127,
85,
113,
-45,
-77,
83,
-96,
-42,
-69,
112,
-59,
-95,
107,
-28,
-75,
76,
49,
-54,
21,
-90,
-62,
-63,
20,
-114,
4,
11,
-56,
25,
-64,
52,
122,
64,
7,
49,
-100,
-13,
40,
29,
-53,
43,
40,
107,
61,
-15,
-7,
-126,
5,
95,
19,
33,
38,
-97,
-59,
88,
24,
-100,
-75,
32,
-24,
50,
-90,
-126,
116,
75,
-69,
-124,
97,
98,
34,
-115,
-121,
96,
-88,
7,
-50,
-115,
-90,
-110,
8,
17,
3,
-65,
-107,
88,
12,
4,
-4,
-10,
72,
95,
108,
-117,
-117,
-12,
-79,
-81,
112,
20,
-93,
-21,
15,
54,
113,
-55,
-93,
92,
68,
115,
-101,
78,
-78
] |
J. Fred Jones, Justice.
This is an appeal from the Lawrence County Circuit Court wherein a motion for summary judgment for statutory penalty and attorneys’ fees was denied by the court in a suit on a life insurance policy.
The appellants are the widow and children beneficiaries under a double indemnity benefit life insurance policy issued by the appellee on the life of the insured, Millard M. Clark. The insured died on March 19, 1967, from a pistol wound in the side of his head. Proof of loss form was filed on April 18, 1967, a homicide charge was filed against the widow on April 25, 1967, and on June 20, 1967, suit was filed for $10,000, the proceeds of the policy under its double indemnity provision for accidental death. Answer was filed on July 11, 1967, admitting the accidental death of the insured and on August 23, 1967, checks were issued and delivered to all the beneficiaries except the widow. On October 6, 1967, the widow’s share was paid into the registry of the court.
The double indemnity provision of the policy for death by accidental means contains language as follows:
“Provided, however, that such Accidental Means Death Benefit shall not be payable if the insured’s death resulted from . . . suicide, whether sane or insane; ...”
Motion for summary judgment for statutory penalties, attorney’s fees, interest and cost, was filed on October 11, 1967, and appellee resisted the motion on grounds that there had been no undue delay in the payment of the claims under the peculiar facts and circumstances of the case.
The motion was submitted to the trial court upon stipulations and affidavits tending to prove on behalf of appellants that such evidence as the investigating officers had obtained had been made public and was available to the appellee, and that there was no evidence of suicide that would have voided the double indemnity provision of the policy. On behalf of the appellee the stipulations and affidavits tended to prove that appellee was handicapped in its investigation of the claims in that the prosecuting attorney, as well as the beneficiaries, especially the widow, refused to give it any information concerning the circumstances of the insured’s death.
On April 12, 1968, appellants’ motion for summary judgment was denied and the trial court entered judgment as follows:
“On this day this cause came on to be heard, the plaintiffs appearing by their attorneys Dickey & Dickey and the defendant appearing by its attorneys Coleman, Gantt, Ramsay & Cox. By eon- sent of the parties this cause was submitted to the court for its consideration on a stipulation filed herein, the matters appearing in the motion for summary judgment and response to motion for summary judgment with affidavits in connection therewith, the pleadings and other matters of record. After reviewing the stipulation, having heard argument of counsel and considering all other facts, evidence and matters before the court, the court, being well and sufficiently advised, finds that the plaintiffs declined to give to the defendant’s representative information regarding the circumstances surrounding the death of Millard M. Clark; that said information was necessary for the defendant to make a proper determination regarding the claims filed by the plaintiffs; that the defendant did not deny liability; and that the time which it took in making the necessary investigation was not unreasonable under the circumstances that existed.
It is, therefore, considered, ordered, adjudged and decreed by the court that the prayer of the plaintiffs’ complaint for statutory penalties, attorneys’ fees and interest be and it is hereby denied and that the complaint, insofar as it related to the statutory penalties, attorneys’ fees and interest, is hereby dismissed.”
Appellants set out their points relied on as follows:
‘ ‘ Court erred in not finding that the appellants were entitled to statutory penalties and attorney’s fee, because:
Filing suit is sufficient for the attachment of statutory penalties, etc.
Denial was made by the appellee in its original answer.
That the alleged withholding of information had no hearing on the determinations of appellee.
Date of payment was in excess of sixty-day period.
Appellee’s failure to act constitutes grounds for imposition of statutory penalties, etc.
Court erred in not awarding appellants interest and court costs.”
Arkansas Statute Annotated § 66-3238 (Repl. 1966) under which appellants claim penalty, attorneys’ fees and cost is highly penal in nature and should be strictly construed. Clarke Center v. Nat. Life & Acc. Ins., 245 Ark. 563, 433 S.W. 2d 151. This section of the statute, insofar as it applies here, is as follows:
“In all cases where loss occurs and the . . . life, . . . insurance company . . . liable therefor shall fail to pay the same within the time specified within the policy, after demand made therefor, such . . . corporation . . . shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve per cent (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; said attorney’s fee to be taxed by the court where the same is heard on original action, by appeal or otherwise, and to be taxed up as a part of the costs therein and collected as other costs are, or may be by law collected; and writs of attachment or garnishment filed or issued after proof of loss or death has been received by the company shall not defeat the provisions of this section, provided the company or association, desiring to pay the amount of the claim as shown in the proof of loss or death may pay said amount into the registry of the court, after issuance of writs of attachments and garnishment in which event there shall be no further liability on the part of said company.”
The language in § 66-3238, supra, to the effect “shall fail to pay the same within the time specified in the policy after demand made therefor” contemplates that the insurer shall have a reasonable time to make necessary investigation in reference to the loss and the circumstances thereof after demand. Taylor v. The Mutual Life Ins. Co. of N.Y., 193 Ark. 251, 98 S.W. 2d 944.
The insured was found in his apartment dead from a pistol bullet wound in the side of his head. If the death was a suicide, appellee would not have been liable for double indemnity under the provisions of the policy. If the death was the result of homicide committed by the wife and for which she stood indicted, she would not have been entitled to share in policy benefits. Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S.W. 836; Horn v. Cole, 203 Ark. 361, 156 S.W. 2d 787.
Even though the accused widow agreed to forfeit her rights as beneficiary in this case, the appellee insurer was still entitled to a reasonable time after receipt of proof of loss in which to make its investigation before the statutory penalties for delay would attach. Clark Center v. Nat. Life & Acc. Ins., supra.
We conclude, therefore, from the record before us in this case, that there was substantial evidence upon which the trial court based its decision that the appellee was not guilty of such unreasonable delay that would subject it to the statutory penalties under the facts and circumstances of this case, and we conclude that the judgment of the trial court should be affirmed.
Affirmed. | [
-112,
109,
-4,
29,
8,
-94,
34,
34,
91,
80,
37,
83,
-33,
-13,
5,
47,
114,
41,
101,
107,
-15,
-73,
55,
32,
-38,
-69,
-23,
-59,
-112,
127,
124,
-73,
68,
96,
-86,
69,
-58,
10,
-123,
82,
78,
10,
-103,
-12,
-103,
66,
48,
107,
92,
7,
53,
-98,
-85,
43,
21,
74,
109,
108,
91,
-71,
-16,
56,
-118,
-121,
63,
16,
-111,
6,
-104,
1,
80,
26,
28,
-111,
0,
-24,
50,
-90,
-106,
84,
97,
-103,
13,
102,
99,
33,
17,
-51,
-16,
-104,
6,
-12,
15,
-121,
-102,
113,
51,
14,
-106,
-99,
116,
52,
15,
116,
-4,
84,
13,
40,
68,
-113,
-76,
-78,
-51,
108,
-100,
-85,
-10,
-125,
54,
117,
-53,
-30,
94,
102,
115,
27,
-113,
-112
] |
John A. Fogleman, Justice.
Dr. Joe F. Rushton has appealed from a judgment in favor of U. M. & M. Credit Corporation for the balance due upon an installment note, representing the balance of the purchase price of a piece of equipment called a Loggers Yardster. The purchase was made on August 21, 1964 from Taylor Machine Works. The sale and purchase were on a conditional sale contract, dated on the date of sale, and reciting a purchase by “the undersigned.” Throughout the contract, the purchaser is referred to by that designation only. The name of Numark Manufacturing Company was signed by John J. Drew, Vice President and General Manager, on lines designated for “Signature of Purchaser.” Immediately above the name of Nu-mark Manufacturing Company appeared the signature “Joe P. Rushton, M.D., Trustee.”
Attached to this contract was a promissory note of the same date for the sum of $12,471.58, the balance of the purchase price for the equipment after credit was given for a trade-in allowance. The note was signed in the lower right-hand corner by Joe P. Rushton, Trustee, and by Numark Mfg. Co., Inc. by Mr. Drew as Vice President and General Manager. Taylor Machine Works assigned the contract to U. M. & M. Credit Corporation by assignment printed on the reverse side of the contract and dated August 21, 1964. The note was also endorsed for Numark by its controller. A letter transmitting the conditional sales contract and note to the credit corporation bore the same date. It was signed for the Taylor Machine Works by its controller. A copy of a letter from Taylor Machine Works to the Secretary of the State of Arkansas forwarding a financing statement on the contract was enclosed with the letter to appellee. In its letter Taylor advised appellee that the evidence of filing a financing statement would be furnished when received. On August 24, 1964, U. M. & M. mailed its check for $10,850.27 to Taylor Machine Works for the purchase of the contract and note.
Numark filed bankruptcy proceedings after having made some payments on the note. After default, appellee accelerated the unpaid balance of the note and filed a claim as a secured creditor in the bankruptcy proceedings. The claim was denied because a copy of the financing statement had not been filed in Columbia County where Numark did business [See Ark. Stat. Ann. § 85-9-301 (3) (Add. 1961).] Appellee then filed this suit against Dr. Rushton who defended upon the ground that he was released by reason of the fact that appellee had impaired the collateral for the instrument through failure to properly effect a security interest by filing the financing statement in Columbia County.
The parties entered into stipulations to the following effect:
1. On August 21, 1964, Rushton and Numark purchased the equipment from Taylor Machine Works.
2. Rushton and Numark executed their promissory note in evidence of their agreement to pay the unpaid balance of the purchase price in monthly installments.
3. Rushton signed the contract.and note as “Joe F. Rushton, Trustee,” but did not indicate the trust for which he was signing or undertake to limit his personal liability.
4. For value received, Taylor Machine Works sold the note to U. M. & M. Credit Corporation and the latter acquired the same for value in good faith without notice that it was overdue or had been dishonored, or of any defense against or claim to it on the part of any person.
5. A financing statement pursuant to the Uniform Commercial Code was prepared by Taylor Machine Works and executed by it, Numark and Rushton. A copy of this statement was filed in the office of the Secretary of the State of Arkansas on August 25,. 1964. Taylor Machine Works failed to file a copy in the office of the Circuit Clerk of Columbia County — the only county in which either Rushton or Numark had a place of business.
6. That Henry Bassi, if present, would testify under oath that:
a. He is Assistant Manager of the Memphis Office of appellee;
b. appellee in no way participated in the filing of the “Financial Statement”;
c. on August 24, 1964. appellee purchased the note and contract and mailed its check to Taylor Machine Works, 'and at that time appellee assumed the financing statement had been properly filed.
Bassi testified, on interrogatories, that the note and contract were received by appellee on August 24, 1964, the date of the purchase by it. He admitted that no one in U. M. & M. Credit Corporation, either before or after purchase of the note and contract, made any investigation to determine if the conditional sale contract had been filed so as to perfect a security interest under the Commercial Code.
In rendering judgment, the circuit judge made the following findings:
“The plaintiff is an innocent holder in due course of the instrument sued upon;
The plaintiff has not unjustifiably impaired any collateral for the instruments which were given by or on behalf of the defendant or any person against whom either plaintiff or defendant had a right of recourse, and
That the plaintiff is entitled to recover against the defendant in the sum of $9,700.06 plus costs and an attorney’s fee in the sum- of $500.00.
IT IS THEREFORE, by the Court, Considered, Ordered and Adjudged that the plaintiff U. M. & M. Credit Corporation have judgment against the defendant Dr. Joe F. Enshton in the sum of $10,-200.06, plus all its costs herein expended.”
While appellant urges three points for reversal, the view we take renders consideration of appellant’s contention that he was an accommodation endorser unnecessary. It does not matter whether appellant was an accommodation endorser. If he had been, appellee’s knowledge that he was would not relieve him of liability. Section 85-3-415 (2). Furthermore, he would not have to be an accommodation endorser to seek relief under § 85-3-606 because “any party to an instrument” as used therein is broad enough to include all makers and endorsers. Neither would appellant’s liability be affected by reason of the fact that he signed as Trustee, because he did not state for what trust he was acting. Section 85-3-403.
Appellant’s second point is the contention that appellee was not a holder of the note in due course and could not recover because of § 85-9-207 which requires a secured party to use reasonable care in the custody and preservation of collateral and not fail to meet any obligation to preserve his security interest in the collateral. In view of the stipulation that appellee acquired the note for value in good faith without notice of any defense against it by any party, we find it difficult to understand this argument. (See § 85-3-302 defining a holder in due course.) It is based upon these facts:
1. The forms on which the sales contract and note were drawn were furnished to Taylor Machine Works by appellee, whose name was printed in assignment as assignee. At the foot of the contract appeared the printed words “Original for U. M. & M. Credit Corporation” and at the foot of the note, the words “.Negotiable and payable at the office of U. M. & M.”.
2. The assignment was signed and mailed on the same date the sale was made.
3. Taylor advised appellee that it would forward evidence of filing when received.
4. Appellee had purchased 80 such contracts from Taylor in the two years just preceding this transaction.
Assuming, without deciding that § 85-9-207 applies in this case, we cannot say that the trial court’s finding is not based on substantial evidence. The stipulation itself certainly is adequate support for this finding.
Appellant’s third point is that Dr. Bushton was released by appellee by unjustifiable impairment of the collateral through failure to complete the proper filing of the financing statement, relying upon § 85-3-606. Although appellant’s argument that this section applies to such an omission may have merit, we find adequate support for the trial judge’s finding on this point without deciding whether this section has such application. Appellant argues that Taylor was acting as the agent of appellee in the transaction and that its failure to complete the filing was chargeable to appellee, and that appellee itself had ample opportunity to meet the filing requirements. In addition to the stipulation that appellee in no way participated in the filing procedures, and that it assumed, at the time of purchase, that the financing statement had been properly filed, if his real role in the transaction.as between him and Numarlc had been exactly as he contended, it also appears that appellant could have seen to the filing under the Code as well as appellee. See Nation Wide, Inc. v. Scullin, 256 F. Supp. 929 (D.C., N.J. 1966) aff’d 377 F. 2d 554.
Since the finding that appellee had not unjustifiably impaired the collateral is sufficiently supported, there was no release of appellant. We find no error, so the judgment is affirmed. | [
-106,
-19,
-8,
12,
26,
96,
40,
-118,
89,
40,
119,
115,
-25,
-58,
5,
103,
-25,
125,
-15,
120,
-59,
-109,
99,
106,
-62,
-77,
-7,
-43,
48,
123,
-92,
-43,
76,
112,
-126,
21,
-30,
-128,
-123,
28,
-34,
-128,
59,
-28,
-39,
66,
48,
42,
80,
9,
85,
-122,
81,
47,
93,
75,
105,
42,
-23,
40,
112,
-15,
-69,
-121,
125,
22,
-80,
5,
-112,
5,
72,
62,
-110,
48,
0,
-24,
50,
-90,
-58,
-12,
41,
77,
9,
102,
38,
19,
-103,
-17,
88,
-72,
6,
91,
29,
-58,
51,
40,
43,
41,
-73,
-99,
121,
17,
-59,
-10,
-2,
-107,
29,
108,
3,
-90,
112,
-93,
15,
119,
30,
11,
-18,
18,
-76,
113,
-60,
-94,
92,
70,
58,
19,
-50,
-79
] |
George Rose Smith, Justice.
On the night of March 29, 1967, thieves broke into the post office at Emerson and carried away a heavy safe. When the safe was found the next day, more than a mile from the post office, it had been opened with an acetylene torch, and $305.34 had been taken.
Informations were filed against Willie Lee Paschal, Jimmie Dale Paschal, and Henry Lee Cooper, charging burglary and grand larceny. Jimmie Dale Paschal pleaded guilty and testified for the State at the trial of the appellant, Willie Lee Paschal. This appeal is from a verdict and judgment finding Willie Lee Paschal guilty and fixing his punishment at 12 years imprisonment upon each charge.
Jimmie Dale Paschal, according to the undisputed proof, was an accomplice; the court so instructed the jury. Under the statute applicable to felonies, the testimony of an accomplice must be corroborated by other evidence tending to connect the accused with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1964). There is no such corroboration here. Laying aside Jimmy Dale’s testimony, we find no proof whatever that connects the appellant with the commission of the crimes. At most the State proved that the safe was carried away in a station wagon owned by the appellant’s sister (and even that testimony was later stricken from the record as hearsay); but there is no proof, other than the accomplice’s testimony, that tends to connect the appellant with the commission of the offenses.
The judgment must be reversed, but in our conference a question was raised about whether the case should be remanded for a new trial or he dismissed. It was suggested that when the trial court is found to have erroneously refused to direct a verdict for the accused on the ground that the evidence is insufficient to support a conviction, a remand of the case for a new trial would violate the constitutional provision against double jeopardy.
We do not consider that suggestion to be sound. The decision of the accused to appeal is a waiver of the plea of former jeopardy. As Dean Miller puts it:
At the common law neither the defendant nor the King could appeal from a judgment upon a verdict of guilty or acquittal. However, both in England and in the United States, the privilege has been granted to the defendant to appeal from a judgment on a verdict of conviction. Consequently the reason for the old rule making former conviction a proper plea in bar of a second prosecution under such circumstances, has ceased to exist and it is now generally recognized as no infringement on defendant’s rights, to require that if a conviction be set aside on appeal, he should be returned to the trial court for a new trial. [Miller, Criminal Law, § 186 (c) (1934).]
We expressed much the same point of view in Johnson v. State, 29 Ark. 31 (1874), saying:
It is true that, by a constitutional provision as well as by the common law, no man can be twice put in jeopardy of life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford him the opportunity of another trial.
The precise point was decided in Bryan v. United States, 338 U.S. 552 (1950), where the appellant argued that, upon a reversal of the trial court for its refusal to direct a verdict of not guilty for insufficiency of the evidence, a remand for a new trial would subject him to double jeopardy. In rejecting that argument the court said:
Petitioner’s contention that to' require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number .of alleged errors on appeal, including' denial of his motion for judgment of acquittal. “ . . . where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial. Francis v. Resweber, 329 U.S. 459, 462.”
In reversing criminal convictions for insufficiency of the evidence we have customarily remanded the cause for a new trial [State v. State, 221 Ark. 527, 254 S.W. 2d 314 (1953); Taylor v. State, 211 Ark. 1014, 204 S.W. 2d 379 (1947)] unless it appears that the case has been fully developed. Edens v. State, 235 Ark. 284, 357 S.W. 2d 641 (1962). In the case at bar there are indications in the record that additional testimony is available to the State.
Reversed and remanded for a new trial.
Byrd, J., dissents. | [
48,
-32,
-19,
63,
10,
-31,
42,
56,
66,
-61,
50,
86,
-87,
-60,
1,
57,
-15,
47,
85,
-23,
-60,
-105,
23,
115,
-62,
-13,
-5,
-43,
-9,
-56,
-83,
-34,
77,
112,
66,
-99,
102,
0,
-25,
88,
-114,
17,
-88,
-13,
113,
-64,
52,
123,
20,
11,
-15,
-98,
-77,
42,
28,
-54,
73,
44,
75,
-69,
88,
-69,
-118,
71,
-19,
4,
-93,
21,
-110,
7,
120,
44,
-36,
53,
0,
120,
115,
-76,
-126,
116,
111,
-119,
12,
98,
98,
0,
85,
105,
40,
-120,
55,
119,
-107,
-89,
-104,
64,
91,
37,
-66,
-99,
97,
86,
34,
-20,
-17,
85,
89,
104,
-121,
-49,
-78,
-109,
-119,
40,
14,
122,
-30,
33,
32,
113,
-50,
-94,
92,
85,
81,
-69,
-114,
-47
] |
Paul Ward, Justice.
This is an appeal from a judgment denying the statutory penalty and attorney’s fee to the beneficiaries in an insurance policy. Set out below is a summary of the pertinent facts which are not in dispute.
Facts. Clark Center, Inc. (appellant) is a corporation whose stockholders, prior to March 19, 1967, were Millard M. Clark and his wife and their children. On the date above mentioned Millard M. Clark died. He was insured by National Life and Accident Insurance Company (appellee) under a policy which obligated it to pay appellant $47,664 if the insured died through accidental means. Six days after the death of said Clark demand was made on appellee for payment. Appellee did not deny liability but promptly started an investigation to determine (a) the names of the stockholders of the corporation and (b) the cause of the death of Clark. Before the investigation was completed to appellee’s satisfaction appellant filed suit (on June 21, 1967), asking appellee to pay the face value of the policy and also “12% penalty and attorney’s fee”. Appellee answered, denying it had refused to pay the proceeds of the policy, and stating: it had done everything possible under the circumstances to expedite payment, but appellant had refused to furnish proper and necessary information; it confesses liability on the policy and tendered in court a check for $47,665 payable to the clerk for disbursement pursuant to order of the court. [Later the money was paid to the beneficiaries at their request.] It was agreed by both parties that the issues of penalty and attorney’s fee would be decided later. That is the only issue before us now.
Both sides filed a Motion for Summary Judgment. Thus the issue was submitted to the trial court on interrogatories and affidavits.
On March 9, 1968 the trial court entered judgment, denying appellant’s Motion and granting appellee’s Motion on the ground there was “no material issue of fact remaining to be decided”. It is our conclusion, for reasons hereafter set out, that the trial court was correct.
Affidavits submitted on behalf of appellee reveal, in substance, the following:
(a) One employee of appellee who made an investigation said he learned Mrs. Clark had been charged with murdering her husband, Millard M. Clark, and was unable to obtain the names of the stockholders in appellant’s company.
(b) Another employee of appellee said he tried and failed to obtain any information from Mrs. Clark or the prosecuting attorney.
(c) Mrs. Clark herself admitted that when she was called on by appellee’s investigator her son wouldn’t talk with him.
(d) Appellee’s exhibit “I” reveals an information, dated April 25, 1967, charging Mrs. Clark with homicide.
(e) An article published in the Times Dispatch of Walnut Ridge on March 23, 1967 was to the effect that the prosecuting attorney said there was no evidence of suicide in the death of Millard M. Clark.
Appellant seeks to recover the penalty and attorney’s fee under the provisions of Ark. Stat. Ann. § 66-3238 (Repl. 1966) which, in parts material here, reads:
“In all cases where loss occurs and the ... insurance company . . . shall fail to pay the same within the time specified in the policy, after demand made therefor, such person . . . shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve percent (12%) damages . . . with all reasonable attorneys’ fees . . . .”
The above section has been construed many times by this Court. Our holdings in many cases are, we think, pertinent and decisive in the case before us at this time.
In Sun Life Assurance Company of Canada v. Coker, 187 Ark. 602, 61 S.W. 2d 447, in construing § 615 of Crawford & Moses Digest [same as § 66-3238] we said:
“We have frequently held that the statute is highly penal and should be strictly construed.”
To the same effect National Fire Ins. Co. v. Right, 185 Ark. 386, 47 S.W. 2d 576, and Taylor v. The Mutual Life Ins. Co. of N.Y., 193 Ark. 251, 98 S.W. 2d 944.
In Dennis v. Equitable Life Assurance Society, 191 Ark. 825 (p. 833), 88 S.W. 2d 76, there appears this statement:
“Since the insurance company, however, made no dispute as to its liability for the fund, and was not attempting in any respect to defeat a recovery thereof, it was not error to refuse to impose the penalty or to charge attorney’s fee against it.”
In the Taylor case, supra, (p.252) we also said, in referring to this penal statute, “. . . that' the insurer shall have a reasonable time to make necessary investigation in reference to the loss and the circumstances after demand.” We also said:
“In other words appellee’s duty to appellant in the instant case was to pass upon the proof of loss expeditiously, in good faith, and within a reasonable time after demand.”
We also point out the record reveals: Clark was found dead in his room with a pistol on the floor; no explanation of his death was given to appellee, and; Mrs. Clark was under a charge of having killed her husband. She was a beneficiary in the policy, and, as such, was attempting to force appellee to pay over her share. Yet, if guilty as charged, she had no right to collect. In Metropolitan Life Insurance Company v. Shane, 98 Ark. 132, 135 S.W. 836, this Court said:
“The wilful, unlawful and felonious killing of the assured by the person named as beneficiary in a life policy forfeits all rights of such person therein.”
In view of the above interpretations of the applicable statute and the facts previously set out, we think the trial court was correct in refusing to require appellee to pay a 12% penalty and attorney’s fee. It is undisputed that; appellee, at no time, denied all liability; appellee stood ready to pay, and did pay, the face value of the policy as soon as it completed a reasonable investigation, and; appellee, acting in good faith, believed such an investigation was necessary before making payment.
Affirmed.
Harris, C.J., not participating. | [
112,
-4,
-16,
-68,
24,
-96,
50,
26,
79,
96,
37,
83,
-19,
-25,
21,
39,
-10,
-71,
85,
106,
-47,
-93,
6,
65,
-42,
-77,
-5,
-123,
-79,
-1,
101,
-1,
77,
48,
-118,
-43,
-30,
10,
-43,
-46,
78,
10,
-101,
-3,
-40,
64,
48,
123,
86,
71,
33,
-98,
-93,
42,
23,
74,
41,
44,
123,
-75,
-47,
56,
-117,
5,
127,
16,
49,
5,
-72,
105,
88,
26,
24,
-111,
8,
-24,
51,
-90,
-122,
84,
123,
-104,
4,
98,
103,
0,
9,
-19,
-72,
-104,
46,
-20,
13,
-121,
86,
89,
41,
5,
-106,
-99,
100,
0,
7,
-4,
-4,
85,
28,
44,
1,
-113,
-12,
-79,
-7,
100,
-99,
-118,
-17,
-125,
50,
113,
-53,
-94,
94,
103,
122,
-69,
14,
-112
] |
John A. Fogleman, Justice.
Appellant Meyer contends that the trial court abused its discretion in granting appellee’s motion for a nmv trial on the ground that the jury verdict in this case was against the preponderance of the evidence. The circuit judge relied on Ark. Stat. Ann. § 27-1901 (Repl. 1962), which states that a new trial may be granted for the cause, among others, that the verdict or decision is not sustained by sufficient evidence. Appellant contends that the trial court abused its discretion because the evidence in this case is virtually undisputed and the preponderance so clearly in support of a jury verdict denying recovery to either party. "We find no abuse of discretion.
The litigation arose because of an automobile collision at the intersection of Frank and Sixteenth Streets in North Little Rock. Appellant Meyer was driving south on Frank in his pickup truck and appellee Bradley was driving his car east on Sixteenth Street. There were no traffic controls at the intersection of these streets. The corner to Meyer’s right and Bradley’s left was slightly terraced, and there was shrubbery on the lawn at that corner, obstructing the view of both drivers to some extent. Meyer approached the intersection not only without slackening his speed, but he actually accelerated his vehicle as he went through the intersection. He stated that he was not familiar with the neighborhood and had not previously crossed the intersection. He testified that he never saw the Bradley vehicle until after the impact of the collision as he was about to leave the intersection, but admitted that there was a point a car length from the intersection at which he could see 75 to 100 feet up the street to his right. He said that he looked and there was nothing there. He also testified that he could see 75 feet down Sixteenth Street to his right when he was 30 feet from the intersection. According to him, he looked first to his right, then to his left, and proceeded, looking straight ahead and without looking again to the right. He never applied his brakes. After the left front of Bradley’s vehicle struck the right front wheel and fender of Meyer’s pickup truck, the latter traveled 80 to 85 feet east over the curb at the southeast corner of the intersection, through a hedge and across a lawn, and stopped on the porch of a house at the corner. Meyer said that he was traveling at a speed of 30 to 35 miles per hour as he approached the intersection and at about the same speed when struck. Bradley estimated the speed of the Meyer pickup truck, when he first saw it, at 35 to 40 miles per hour.
Bradley testified that although he was sure he had been by the intersection before, he did not travel there ■every day. Bradley also testified that he approached the intersection at a speed of 20 to 25 miles per hour and saw the Meyer vehicle approaching at a distance of three or four car lengths from the intersection. He stated that although he had not previously taken his foot off his accelerator, he immediately applied his brakes and skidded into the intersection. After the impact, the Bradley vehicle spun to the right and back up against the curb. Bradley estimated that he was 45 feet from the intersection when he saw the Meyer pickup. He skidded 40 feet to the point of impact.
It may well be that the trial judge came to the conclusion that the acts of Meyer in approaching a partially “blind” intersection without decreasing his speed until he had a clear view to his right from which direc tion there might be an approaching vehicle to which he owed the duty of yielding the right-of-way and in actually accelerating his speed as he entered the intersection constituted greater negligence than any negligence on the part of Bradley in not decreasing his speed upon approaching' the intersection. The judge might well have felt that Meyer’s testimony that he looked to his right, where he had a clear view for 75 to 100 feet upon approaching the intersection, was not worthy of belief in view of his failure to see the Bradley vehicle at any time before the impact, his accelerating his speed upon approaching the intersection, and failing to apply his brakes.
While appellant makes much of the fact that the Meyer vehicle traveled more than 80 feet into the porch of a house on the corner, he does not take into consideration the fact that Meyer never applied his brakes, but attributes this movement entirely to the speed of Bradley’s vehicle which had skidded 40 feet before the impact.
We have long adhered to the rule that the trial judge has control of the verdict of the jury after it has been rendered, and that he is vested with the power to set a verdict aside on account of errors committed by the jury. Because his opportunity for passing on the weight of the evidence is far superior to ours, we will not interfere with his judgment unless his discretion has been manifestly abused. Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898. We cannot say that there was a manifest abuse of discretion here.
Appellant argues that we should reverse the trial court because:' (1) There is not the sharp conflict in the testimony characteristic of our previous decisions and the fact questions involved only the inferences to be drawn from the testimony, (2) the case is governed by Missouri Pac. R.R. Co. v. Brewer, 193 Ark. 754, 102 S.W. 2d 538, where the granting of a new trial was held to constitute an abuse of discretion, and (3) our rule is wrong and should be abandoned.
The same reasoning applies to the drawing of inferences from the testimony as applies to resolution of conflicts therein. It is difficult to understand how it could be determined whether a verdict was sustained by sufficient evidence without considering the inferences which might be drawn from the testimony. Furthermore, there was no testimony on the issue of liability other than that of the parties. 'The testimony of neither could be taken to be undisputed or uncontradicted. Metcalf v. Jelks, 177 Ark. 1023, 8 S.W. 2d 462; French v. Browning, 187 Ark. 996, 63 S.W. 2d 647; Ball v. Hall, 196 Ark. 491, 118 S.W. 2d 668.
We think there is a clear distinction between this case and Missouri Pacific v. Brewer, supra. There the trial judge made an extensive statement as to his findings as a basis for granting a new trial, in which he totally ignored evidence tending to support allegations of negligence on the part of the plaintiff and a jury finding that the plaintiff’s negligence was equal to that of the defendant. Specifically, the trial judge made no finding to the effect that on the whole case the verdict of the jury was against the preponderance of the evidence or that the weight of the evidence sustained the allegation of negligence on the part of the defendant. Under these circumstances the majority, in spite of a vigorous dissent by three members of the court, held that there was an abuse of discretion in that the court’s action was “improvident” or “thoughtlessly exercised” and without due consideration. We find nothing comparable here.
For the reasons stated in such cases as Blackwood v. Eads, 98 Ark. 304, 135 S.W. 2d 922; Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851; Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898; Yarnell Ice Cream Co., Inc. of Williamson, 244 Ark. 893, 428 S.W. 2d 86, and many others, we adhere to the rule heretofore followed.
The judgment is affirmed. | [
112,
-19,
-64,
46,
11,
64,
58,
14,
100,
-57,
117,
-109,
-83,
-61,
68,
57,
-6,
93,
84,
99,
-44,
-78,
7,
50,
50,
-105,
-7,
-122,
-76,
-53,
117,
-35,
76,
32,
-54,
29,
70,
74,
-123,
90,
-50,
46,
-86,
105,
-104,
-62,
48,
61,
64,
15,
49,
-81,
-29,
47,
27,
-49,
109,
44,
91,
37,
-15,
-16,
-104,
13,
79,
4,
-79,
36,
-102,
6,
-40,
24,
-112,
49,
17,
-8,
114,
-94,
-112,
-12,
103,
-101,
-120,
96,
102,
33,
21,
-19,
-68,
-115,
6,
110,
13,
-90,
26,
72,
73,
13,
-74,
-107,
112,
18,
14,
-22,
125,
21,
88,
108,
11,
-50,
48,
-79,
-83,
112,
-98,
0,
-21,
-123,
54,
113,
-52,
-26,
84,
68,
94,
-101,
-45,
-75
] |
DAVID M. GLOVER, Judge.
11 This is the second appeal from the Alcoholic Beverage Control Division (ABC) Board’s approval of a private-club permit for Lamar’s Bistro in Magnolia, Arkansas. The first appeal challenged the Board’s decision because of its lack of findings of fact and conclusions of law, and we reversed and remanded on that basis. Barnes v. Ark. Dep’t of Fin. & Admin., 2010 Ark. App. 436, 2010 WL 1997776. On remand, we permitted another hearing, during which the parties were able only to argue their positions to the ABC Board, absent presentation of any new evidence. ABC, again, decided to issue the permit. A second appeal was taken to the Columbia County Circuit Court, which again affirmed the ABC decision. The present appeal to our court challenges the ABC’s approval of the permit on three bases: 1) Lamar’s Bistro did not establish a nonprofit object or purpose other than the consumption of alcohol; 2) ABC’s decision is based upon an erroneous statutory ^interpretation; and 3) Lamar’s Bistro did not establish that it was a valid nonprofit corporation in existence for one year before it applied for a private-club permit. In both appeals, oral arguments were requested and granted. On the record presented, we affirm ABC’s decision to grant the permit.
I. Background/Testimony
Lamar’s Bistro is a nonprofit corporation that operates within the Bayou Bistro Restaurant in Magnolia, Arkansas. Magnolia is located in Columbia County, a dry county. Todd Gilreath, in essence, owns both facilities. In June 2007, Gilreath applied for a private-club permit for “Lamar’s Bistro, Inc. d/b/a Bayou Bistro of Magnolia.” Obtaining the permit would allow his business to serve alcohol in the dry county.
ABC’s form application specifically states that a private club must exist for some reason other than the consumption of alcoholic beverages, explaining:
Arkansas law requires that a private club must exist for some reason other than the consumption of alcoholic beverages. On this sheet of paper, which is a part of your verified application, you are to describe, in complete detail, what entertainment (live bands, dancers, food service, etc.), social functions, or other recreational events will be available at the club for the members. If you are in doubt about whether to list an item, you are urged to include it.
(Emphasis added.) Gilreath submitted the following description:
Bayou Bistro of Magnolia is a food service establishment in which I would like to serve alcoholic beverages. The primary purpose of the club is to operate as a restaurant. The sale of alcohol is to supplement the dining experience. The majority of sales from this operation will be food related.
(Emphasis added.)
|.-¡Appellants, Jack Barnes, Kyle Barnes, Mary Barnes, Bobby J. Frizzell, Harold Harris, Marie Harris, Max Story, Charles F. Tripp, and James W. Yates, Jr., opposed the permit. On August 16, 2007, the director of the Alcoholic Beverage Control Division granted 'the permit and notified those who had opposed it of their right to appeal the decision to the ABC Board, which they did on August 30, 2007.
The original hearing before the ABC Board was held on November 14, 2007, and it was the only hearing at which evidence was actually submitted in this case. The witnesses who testified at that hearing were Todd Gilreath, who sought the permit, and Harold Harris, Charles Tripp, and Bobby Frizzell, who opposed the permit.
Todd Gilreath testified that his restaurant is a Creole and Italian restaurant; that it had operated in Magnolia from February 2005 until August 2007 without a private-club permit; that he pursued the permit at the prodding of his customers; that in comparing his business before and after receiving the permit to dispense alcoholic beverages, he had seen over a sixty-percent increase in business; that of total sales, 11.2% was alcohol related, meaning that he had picked up a lot of food business; and that he put several restrictions on his operation: no customer can come in the restaurant and consume only alcohol, there is a three-drink maximum, and nobody is served if they arrive already showing signs of alcohol consumption. He also testified that he does not reference the sale of alcoholic beverages by the private club on his restaurant menu.
Gilreath explained that he has been a resident of south Arkansas for ten years; that he could think of six or seven restaurants that had come and gone in that time period; that|4he has seen a big increase in his business since receiving the permit; and that it has definitely had an economic impact. He said that he believed serving alcohol definitely enhanced the dining experience at his restaurant. He explained that he started with 130 members in the private club and that he currently has 1200 members.
Ron Fuller, one of the Board members, clarified for the record that there had been no objection to the private club’s application from local officials or law enforcement at the time the permit was granted and that only nine people had objected. Bistro’s counsel introduced letters from the manager of the Holiday Inn Express, stating that since the permit had been granted to the bistro, her business was “starting to come back,” and a Southern Arkansas University faculty member, stating that the college hosts conferences and prospective employees who at times seek other locations because Columbia is a dry county. Bistro’s counsel also introduced a “resolution” from a group of Magnolia businessmen (Magnolia Unlimited), which expressed support for the permit, citing studies from “economic development consultants who have made it clear that business development in communities such as ours is enhanced by availability of some choices of beverages accompaniment to meals in restaurants, including wine and spirits.”
Gilreath testified that the bistro was located in a primarily commercial area; that no churches were close by; that the courthouse was located to the south of the bistro; and that the other existing permits belonged to a country club, the American Legion, and a bed and breakfast. He explained that the bistro’s location did not pose a traffic hazard; it was in a “pretty low traffic area”; that to his knowledge, there was no opposition from any [.^neighbors; that there was no problem with the building being unsuitable as a restaurant; that the closest school was “at least a mile and a half, probably two,” from the bistro; and that the nearest church was at least as far away as the police station, and he was not aware of any opposition from the church.
On cross-examination, Gilreath testified that the bistro was on the thoroughfare between Southern Arkansas University and downtown Magnolia; that the club that was in existence in 1997 was actually Southwest Arkansas Roadrunners, Inc., a motorcycle club; and that neither he nor his father was an officer or member of that predecessor club. Gilreath testified that his “nonprofit is in existence for the purpose of operating inside my restaurant as a nonprofit granted to the larger business which is Gilreath Enterprises, LLC, for the sole purpose of enhancing the dining experience of our customers.” He explained that the restaurant is leased to Gilreath Enterprises, LLC, of which his father is the president.
The testimony of the three witnesses who opposed the permit at the hearing was essentially the same. All three basically testified that they oppose the consumption of alcohol, that the voters of Columbia County had made clear their desire for the county to be dry, and that granting the permit would erode the dry nature of the county.
II. Standard of Review
In these types of cases, appellate review is directed, not toward the circuit court’s decision, but rather toward the agency’s decision. Chandler v. Ark. Appraiser Licensing & Certification Bd., 2011 Ark. 519, 2011 WL 6091354. Arkansas Code Annotated section 25-15-212 (Replj2002)(i pertains to the judicial review of administrative adjudications by a circuit court, and provides in pertinent part:
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
The rules governing judicial review of administrative decisions are identical for both the circuit and appellate courts. City of Hector v. Ark. Soil & Water Conservation Comm’n, 47 Ark.App. 177, 888 S.W.2d 312 (1994). We reverse only if substantial evidence is lacking, an abuse of discretion has occurred, or if the agency has acted in an arbitrary or capricious manner. Id. We have explained that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Gilmore v. Ark. Bd. of Registration for Prof'l Eng’rs & Land Surveyors, 2011 Ark. App. 139, 381 S.W.3d 860. We review issues of statutory interpretation de novo; however, the interpretation placed on a statute or regulation by an agency or department charged with its administration is entitled to great deference and should not be overturned unless clearly wrong. Ark. State Highway & Transp. Dep’t v. Lamar Advantage Holding Co., 2011 Ark. 195, 381 S.W.3d 787.
17An administrative decision should be reversed as arbitrary and capricious only when it is not supportable on any rational basis, not simply because the reviewing court would have acted differently. Ark. State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). Determining whether the Board’s decision was arbitrary or capricious involves a limited inquiry into whether it acted with willful and unreasoning disregard of the facts and circumstances of the case. Id. In determining whether an administrative decision is supported by substantial evidence, the reviewing court is to give the evidence its strongest probative force in favor of the agency’s ruling. Id. The question on review is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. Id. The reviewing court cannot displace the Board’s choice between two fairly conflicting views even though the court might have made a different choice had the matter been before it de novo, and the question of whether the Board’s action was arbitrary or capricious is only applicable when the decision is not supported by any rational basis and is made in disregard of the facts and circumstances. Fontana v. Gunter, 11 Ark.App. 214, 669 S.W.2d 487 (1984). A reviewing court may not set aside a Board’s decision unless it cannot conscientiously find from a review of the entire record that the evidence supporting the decision is substantial. Id.
III. Discussion
Appellants’ first two points of appeal can best be discussed together. They contend that Lamar’s Bistro failed to establish that it had a nonprofit purpose other than the ^consumption of alcohol, and that the Board’s interpretation of the applicable statute in granting the permit was erroneous and overly broad. We disagree.
Arkansas Code Annotated section 3-9-202(12)(A)(i) (Supp.2011) provides:
“Private club” means a nonprofit corporation organized and existing under the laws of this state, no part of the net revenues of which shall inure directly or indirectly to the benefit of any of its members or any other individual, except for the payment of bona fide expenses of the club’s operations, and which is conducted for some common recreational, social, patriotic, political, national, benevolent, athletic, community hospitality, professional association, entertainment, or other nonprofit object or purpose other than the consumption of alcoholic beverages.
(Emphasis added.) In making their argument, appellants rely heavily upon Gil-reath’s application for the permit and his testimony at the original hearing where he stated that the nonprofit had “the sole purpose of enhancing the dining experience of our customers.” They argue that Gilreath described no secondary civic purpose for Lamar’s Bistro; that the two purposes articulated for the restaurant and the private club are dining and consumption of alcohol; that the restaurant itself serves the purpose of providing a dining experience; and that the only purpose the private club serves independent from the restaurant is the consumption of alcohol. The argument totally segregates Lamar’s Bistro from Bayou Bistro, despite the fact that they operate, in stated purpose and in fact, as integrated entities. If Lamar’s Bistro were not an integral part of the restaurant, ie., if it stood alone on a street in Magnolia and served only alcohol, we would likely agree with appellants’ contention. However, it does not stand alone. The stated purpose is not merely the consumption of alcoholic beverages. That is, Lamar’s Bistro is not simply ajobar; rather, it operates in conjunction with the restaurant and is designed to enhance the dining experience. Moreover, Gilreath testified about the self-imposed restrictions that he instituted to help assure that the provision of alcoholic beverages merely enhanced the dining experience, rather than serving as the object of a customer’s patronage. Specifically, he explained that no customer could come into the restaurant and consume only alcohol, that there was a three-drink maximum, and that nobody was served if they arrived already showing signs of alcohol consumption.
In the permit application process, Gil-reath submitted the following description:
Bayou Bistro of Magnolia is a food service establishment in which I would like to serve alcoholic beverages. The primary purpose of the club is to operate as a restaurant. The sale of alcohol is to supplement the dining experience. The majority of sales from this operation will be food related.
(Emphasis added.) In addition, Gilreath candidly testified before the Board that his “nonprofit is in existence for the purpose of operating inside ray restaurant as a nonprofit granted to the larger business which is Gilreath Enterprises, LLC, for the sole purpose of enhancing the dining experience of our customers.” The ABC Board did not view the private-club operation in the totally separate fashion argued by appellants, and neither did it interpret section 3 — 9—202(12) (A) (i) so narrowly as appellants urge. As noted previously, the ABC’s form application specifically states that a private club must exist for some reason other than the consumption of alcoholic beverages, explaining:
Arkansas law requires that a private club must exist for some reason other than the consumption of alcoholic beverages. On this sheet of paper, which is a part of your verified application, you are to describe, in complete detail, what entertainment (live bands, |mdancers, food service, etc.), social functions, or other recreational events will be available at the club for the members. If you are in doubt about whether to list an item, you are urged to include it.
(Emphasis added.) ABC clearly defines the statutory term “entertainment” to include “food service,” and it clearly regarded Lamar’s Bistro and Bayou Bistro to be part and parcel of the same operation. In other words, ABC determined that Lamar’s Bistro existed for some purpose other than the consumption of alcoholic beverages in that food service was also available.
Though we review issues of statutory interpretation de novo, the interpretation placed on a statute or regulation by an agency or department charged with its administration is entitled to great deference and should not be overturned unless clearly wrong. Ark. State Highway & Transp. Dep’t v. Lamar Advantage Holding Co., 2011 Ark. 195, 381 S.W.3d 787. Here, the Board found in part:
The Board further finds that the existence of the private club will serve people who live in the local Magnolia, Columbia County area, as well as persons who may visit the locale and it will give residents of that territory an opportunity to enjoy a dining experience with alcoholic beverage products without having to go out of town. The Board further finds that based on legislative enactments that the purpose of the nonprofit corporation, which is the serving primarily of food products is a proper application and meets the requirements of ACA 3-9-221, as amended by provisions of Act 1813 of 2003. The Board finds that the addition of the private club permit will enhance the dining experience and the Board concludes that the application is one that is fully authorized by Act 1813 of 2003. The Board further notes that the Arkansas General Assembly, at its earliest convenience, has rendered moot the decision found in Chili’s v. State, 75 Ark. App. 239, 57 S.W.3d 288 [228], a decision handed down on October 17, 2001. It was in that case that the Arkansas Court of Appeals opined that being a mere “social eatery” was an insufficient purpose for receiving a private club permit. Then an amendment was passed by the Legislature at its earliest opportunity on the ln definition of a private club permit at ACA 3-9-202(10) and the declaration of legislative intent at 3-9-221 and that the amendment clearly sets forth that restaurants do serve the hospitality of the community wherein they are located.
The Board further finds that there is no necessity under the amendment for there to be a convention or meeting in order for alcoholic beverages to be served at a properly qualified private club. The Board finally concludes that under all of the appropriate amend ments that have been made by the Arkansas Legislature, that the application is one that meets all requirements as the Board finds that it is in full compliance with the amendments made by Act 1813 of 2003, that the organization exists for a lawful purpose and that the application is qualified to be received by the agency and is in the overall public interest, all as required by law. It is therefore the final conclusion of the ABC Board that the private club permit issued to Mr. Gilreath as mánager for the not for profit corporation should be continued and that the same stays in force and GRANTED by the ABC Division.
In reviewing the ABC Board’s interpretation of the statutory definition of a “private club,” we cannot say that it is clearly wrong.
It is central to our decision that we are not convinced by appellants’ argument that our decision in Chili’s of Jonesboro, Inc. v. State Alcohol Beverage Control Division, 75 Ark.App. 239, 57 S.W.3d 228 (2001), remains viable. First, it is important to note that in the Chili’s case, our court was affirming the Board’s denial of private-club permits to two restaurants. In addition, at the time Chili’s was decided, the definition of private club did not include the terms, “community hospitality,” “professional association,” or “entertainment.” Those terms were added by a 2003 amendment to the statute that was passed during the first regular session of our legislature after our decision in Chili’s was handed down. The ABC Board has clearly changed its position in light of the statutory amendments. ABC’s permit application plainly provides that “food service” is [18encompassed within “entertainment,” and in its decision under review here, it specifically found that “restaurants do serve the hospitality of the community, wherein they are located.” Determining that eating out at a restaurant constitutes a form of entertainment does not strike us as unreasonable. We recognize that the legislature had the discretion to actually name the Chili’s case and specifically overturn it by amendment; we likewise recognize that it was not necessary for the legislature to do so in order to produce the same effect with its amendments to the statute. As the agency charged with its administration, the ABC Board’s interpretation of the definition of “private club” under section 3-9-202 is entitled to great deference, and its interpretation should not be overturned unless clearly wrong. We cannot say that the Board is clearly wrong in its interpretation.
For their final point of appeal, appellants contend that Lamar’s Bistro did not establish that it was a valid nonprofit corporation in existence for one year before it applied for a private-club permit. In making this argument to us, however, they have significantly expanded it to note several concerns that were not raised before the Board. For example, they argue here that Todd and his father were not authorized to change the name of the nonprofit corporation; that the record does not detail how a nonmember could be chairman of a nonprofit corporation; that the minutes do not identify the secretary who prepared the minutes; that the secretary is not listed as a present member; that the minutes stated a majority of members were present, but the Gilreaths were the 11Ronly persons listed as present; and that Arkansas law requires a nonprofit corporation to have no fewer than three directors, yet the minutes only note the two Gilreaths as directors. Moreover, as mentioned above, the opposition witnesses essentially limited their testimony to stating that they opposed the consumption of alcohol generally, that the voters of Columbia County had made clear their desire for the county to be dry, and that granting the permit would erode the dry nature of the county. Consequently, the ABC Board was not presented with the expanded arguments now made on appeal, nor was evidence on those issues adequately presented. In fact, appellants’ counsel at that hearing stated that he was going to save the nonprofit issue “for another day.”
In short, the ABC Board was presented with Lamar Bistro’s certification of nonprofit status from the Arkansas Secretary of State, and from that certification, the ABC Board specifically found that the nonprofit corporation “had been in existence for more than one year prior to the date of application, going back to the date that the Roadrunner organization was first filed with the Secretary of State’s Office,” which was 1997. We affirm that finding. The expanded arguments appellants present to us in this appeal to challenge the nonprofit status of the corporation were not fully developed before the Board, and, consequently, they were not properly preserved for our review, and we do not address them.
Affirmed.
VAUGHT, C.J., and HART, ROBBINS, and ABRAMSON, JJ., agree.
GRUBER, J., dissents. | [
117,
-17,
-51,
-4,
56,
-62,
16,
-76,
91,
-93,
-25,
83,
-23,
120,
29,
107,
-85,
-49,
84,
91,
-57,
-74,
3,
64,
-58,
-5,
-16,
-57,
-80,
111,
-26,
124,
92,
116,
-54,
-43,
68,
-49,
-55,
-100,
-126,
1,
27,
65,
113,
-61,
48,
-21,
2,
-113,
113,
29,
-47,
45,
25,
67,
41,
76,
89,
45,
80,
120,
-104,
29,
59,
6,
32,
116,
-119,
-127,
-56,
56,
-104,
49,
8,
-24,
115,
-74,
6,
52,
27,
-103,
-119,
48,
99,
2,
57,
-57,
-32,
-120,
23,
-81,
-99,
-122,
-46,
25,
75,
41,
-105,
30,
92,
22,
6,
-4,
110,
-43,
25,
108,
-123,
-52,
-100,
-79,
-27,
41,
20,
3,
-23,
103,
-80,
85,
-49,
-2,
87,
-42,
22,
27,
-122,
-108
] |
Johnson, C. J.
Appellant was indicted by the Crawford County Grand Jury as follows:
“The grand jury of Crawford County, in the name and by the authority of the State of Arkansas, accuse George Fain and Skip Nobles of the crime of robbery committed as follows, to-wit: The said George Fain and Skip Nobles, in the county and State aforesaid, on the 13th day of January, A. D. 1934, wilfully, unlawfully, feloniously, forcibly and of their malice aforethought, did make an assault upon one Albert Rich and wilfully, unlawfully, forcibly, feloniously and against his will did rob, take and steal $25, gold, silver and paper money of the United States of America, of the value of $25, and the personal property of the said Albert Rich, and against the peace and dignity of the State of Arkansas.”
Upon trial to a jury, appellant was convicted as charged in the indictment, and was sentenced to three years in the State penitentiary, and this appeal is prosecuted to reverse this judgment of conviction.
Prior to trial and conviction, appellant brought into question the legal sufficiency of the indictment by demurrer, and after conviction the same question was raised by motion in arrest of judgment. The demurrer and motion in arrest of judgment being overruled, appellant saved exceptions, and this is the first question presented for consideration.
We think the indictment was sufficient when measured by the rule announced by us in Green v. State, 185 Ark. 1098, 51 S. W. (2d) 511, wherein we determined that an indictment for robbery which alleged that the defendant violently and forcibly against its will and by intimidation did rob, take and carry away a certain sum of money, was sufficient to- charge robbery under-the' statutes of this State.
It is next insisted that the trial court erred in permitting a witness, Mrs. Reed, to detail a certain conversation between witness and one George Fain which occurred the day following the commission of the alleged offense. This testimony was to the effect that George Fain told Avitness that he had had some trouble with his brother and wanted to go away until it quieted down. This testimony, although immaterial, was not prejudicial to appellant, and Ave cannot reverse because of it. Castevens v. State, 79 Ark. 453, 96 S. W. 150.
Appellant next urges that the verdict of the jury and the judgment of the court were contrary to the law and the evidence. This contention is grounded upon the proposition that the evidence upon behalf of the State does not sIioaa'- that the alleged offense was committed Avithin three years prior to the returning of the indictment. The evidence upon behalf of the State shows that the alleged offense Avas committed on the 12th or 13th day of January, and no question was raised as to the year in which it occurred. It must be remembered that venue need not be established beyond a reasonable doubt, but may be proved by a preponderance of the testimony. Cuzic v. State, 152 Ark. 230, 237 S. W. 1094. Even so, in the matter of the time when the offense was committed, this may likewise be established by a preponderance of the evidence. Section 577, 16 C. J. 771. Viewed in this light, the jury was fully warranted in finding that the 12th or 13th day of January, as detailed by State witnesses, was the 12th or 13th day of the last January preceding the trial which would have been within the requisite time.
Appellant also complains that the court erred in refusing to give his requested instructions Nos. 4, 5 and 6. The instructions given by the trial court fully covered all issues of fact presented by the evidence, and we cannot say that the court erred in refusing to give additional instructions on the same issues. Moreover, these requested instructions were fully covered by instructions given by the court.
No error appearing, the judgment is affirmed. | [
-80,
-22,
-23,
62,
41,
96,
10,
58,
-46,
-93,
-74,
82,
105,
-58,
0,
117,
115,
-51,
92,
121,
-128,
-73,
55,
75,
-110,
-77,
-87,
-59,
-77,
73,
-84,
-11,
9,
48,
-50,
-103,
102,
82,
-59,
28,
-114,
-128,
-71,
80,
67,
64,
60,
39,
68,
15,
-11,
47,
-21,
42,
54,
-40,
109,
46,
89,
47,
-64,
-29,
-118,
-123,
-19,
22,
-95,
-92,
-101,
1,
88,
60,
-100,
49,
8,
120,
115,
-122,
6,
84,
111,
25,
12,
98,
98,
1,
-107,
-101,
60,
-119,
63,
118,
-99,
-89,
-112,
64,
75,
41,
-76,
-99,
111,
20,
-109,
-2,
-4,
77,
49,
104,
-93,
-34,
-108,
-79,
-81,
53,
30,
115,
-21,
37,
48,
97,
-49,
-30,
125,
21,
113,
-101,
-106,
-95
] |
Smith, J.
On May 26, 1930, Mrs. G. P. McDonald, who resided in Brinkley, purchased a Frigidaire from J. E. Freeman, a local dealer at Helena. The purchase price was $598, of which $64 was paid in cash. The balance was to he paid in monthly installments of $22.25 each, the first payment being due June 26,1930. The purchase was made under a written conditional sales contract, whereby the title was reserved by the seller until the purchase money had been fully paid, and the right was reserved upon default in any payment to retake- the possession of the Frigidaire, wherever found and without notice to the purchaser.
This contract of sale was executed upon a printed form, which was prepared in contemplation of its assignment to the, General Motors Acceptance Corporation, hereinafter referred to as the corporation, and that assignment was made by Freeman, who guaranteed that deferred payments would be made, in consideration for which assignment and guaranty the dealer was paid his profit in the transaction, and the appellant corporation became the owner of the sales contract retaining the title and giving the right to repossession upon default in payments. •
The Frigidaire was purchased for and used in a store in Brinkley in which Mrs. K. E. Hicks had an interest, and she testified that she made most of the payments while she and Mrs. McDonald were jointly interested in the Frigidaire, and that she later acquired Mrs. McDonald’s interest, after which time she alone made payments. The sales contract provided that the purchaser should not resell the Frigidaire except with the consent of the owner of the sales contract, and that a transfer charge of ten dollars should be paid for that consent. Upon being advised that Mrs. McDonald had sold her interest in the Frigidaire to Mrs. Hicks, the corporation’s general agent at Memphis, Tennessee, wrote Mrs. Hicks and demanded payment of the ten-dollar transfer charge. Upon being shown this letter, Freeman advised Mrs. Hicks that the transfer charge would be waived, and it was not paid, nor was further demand of payment made.
The sales contract prohibited the removal of the Frigidaire from Brinkley, the place of its original installation, without the consent of the owner of the contract, but Freeman gave this consent to Mrs. Hicks, and the Frigidaire was removed to 'Clarendon by her and installed there. She discontinued the business in connection with which the Frigidaire was used and placed it in storage. Payments were made and accepted after the removal of the Frigidaire to Clarendon, and the testimony sustains the finding by the jury that, if Freeman did not possess the authority which he exercised, his unauthorized acts had been ratified and confirmed by the corporation.
The payments were not made on or before the 26th of each month as the sales contract required, and Mrs. Hicks testified that Freeman agreed she might have a month’s indulgence, that is, that the payments thereafter to be made might each be made one month later than when due. -Several, in fact, a number of payments appear to have been so made, .which were accepted by the corporation, and were duly credited. On December 29, 1931, Mrs. Hicks deposited in the mails at 'Clarendon a postoffice money order for $22.25 to cover the payment which, according to the sales contract, was due November 26. This payment was accepted and credited by the corporation. In the forenoon of January 26, 1932, Mrs. Hicks remitted from Clarendon another postoffice money order for $22.25, which, in due course of the mails, would have been received by the corporation at its Memphis office not later than January 27. The -corporation had from time to time written Mrs. Hicks about her payments, but in none of those letters had it been intimated that the corporation would take possession of the Frigidaire if the payments were not made in strict accordance with the sales contract.
On the afternoon of January 27, after the money order had been mailed in the forenoon of the preceding day, an agent of the corporation broke into and entered the building where the Frigidaire was stored and removed it. This was done without demand or notice to Mrs. Hicks. Through the failure to properly lock the building where the Frigidaire had been stored other trespassers entered the building and committed other trespasses, removing certain articles of personal property belonging to Mrs. Hicks which were also stored there. These consisted of lumber, a meat pan, a meat saw, knives, and a pair of scales, alleged'to be worth $102.50. The corporation had no interest in any of this property except the Frigidaire, and removed nothing else. At the time of taking possession of the Frigidaire, there was a balance of $66.75 due, and it was sold to Mrs. Hicks’ son by the corporation for that amount. This son testified that he bought the Frigidaire for his own, and not for his mother’s, account, and that she was not advised of nor interested in his purchase. Mrs. Hicks gave testimony to the same effect.
Mrs. Hicks brought suit for the conversion of the Frigidaire, and for the loss of the other personal prop erty, and prayed judgment for $612.50, which was alleged to be the value of the property, less the balance due the corporation. There was a verdict and judgment in Mrs. Hicks’ favor, from which is this appeal. The verdict awarded $321.95 on account of the Frigidaire and $12.50 for the other property.
The court submitted the issues raised by the testimony herein summarized, over the objection of the appellant corporation, under an instruction reading as follows:
“The contract by which defendant held title to the motor and coils required plaintiff to pay certain installments of the purchase price at certain times, and under the contract defendant had the right to take possession of the property on a default in payment of any installment, unless the defendant had waived that provision of the contract by agreeing to an extension of the time, and unless it had established a long course of dealing in disregard of that provision of the contract and payments had been made pursuant to such agreed extension and such established course of dealing, if any. Plaintiff had not made her payment of installments according to the terms of the contract, so the plaintiff must prove a waiver of such terms of the contract in order to recover. The mere fact that plaintiff offered to accept a return thereof would not necessarily defeat her right, if any, under the evidence and instructions of the court to recover. If the defendant, without notice, wrongfully and unlawfully broke and entered the building in which property of the plaintiff, if any, was lawfully stored, and, if at such entry the building in which it was stored had been and was securely locked, closed and fastened, and if defendant negligently and wrongfully and without authority left the'building open and unlocked and left the property of plaintiff, if any, unprotected and open to trespassers, and if, because of such acts and conduct of defendant, if any, any property of plaintiff was taken away and lost to plaintiff, without any fault on the part of plaintiff, then defendant would be liable to plaintiff for damage, if any, thereby caused to plaintiff by defendant.
“If you find for plaintiff on account of the Frigidaire equipment, motor and coils, you may so state in your verdict, and there state the amount of your verdict; and, if you find for the plaintiff as to the other property, you should so state in your verdict, and state the amount you find. In other words, your verdict may show the amount of the two separate items, in the event you find for the plaintiff.
“If you find for the plaintiff, you may add interest to your verdict at the rate of 6 per cent, per annum from July 1, 1932.” This was the date of the conversion.
We think there was no error prejudicial to the appellant corporation in this instruction. The court gave correct instructions on the measure of damages, and directed the jury, if there was a finding for the plaintiff, to allow credit for any balance of purchase money unpaid. The court also charged the jury that: “If you find fyom the testimony that Freeman had the authority to grant extension on monthly payments, and the company ratified it, then the company would be bound by his acts.” This instruction is a correct application of an elementary principle of the law of agency, except, of course, that Freeman’s acts would not require ratification if he acted with authority.
It is conceded by appellee that the vendor may grant an extension of time, and may change the means of payment without waiving his reservation of title, provided he does not cancel the debt thus -secured. Hollenberg Music Co. v. Bankston, 107 Ark. 337, 154 S. W. 1139; Summers v. Carbondale Machine Co., 116 Ark. 252, 173 S. W. 194. It is conceded also that, if the right to repossess the Frigidaire existed at the time that action was taken, the fact that appellant corporation wrongfully entered the building would not make it liable for the value of the Frigidaire as for conversion, whatever the liability for the trespass may have been. Berger v. Miller, 186 Ark. 58, 109 S. W. 1015. See also chapter on Sales, 55 G. J., page 1288, and cases there cited.
But it is also the law, as was said by the Supreme Court of Washington in the case of Lundberg v. Switzer, 146 Wash. 416, 263 Pac. 178, that (to quote a headnote): “The right to forfeit a conditional sales contract for overdue payments cannot be exercised without demand and a reasonable opportunity to comply, after there has been a waiver of strict performance by the acceptance of delayed payments.” This case is annotated in 59 A. L. R. 131, where many other cases to the same effect are cited.
The testimony abundantly supports the finding, if, indeed, it is not undisputed, that there had been a waiver of strict performance by the acceptance of delayed payments. Indeed, according to Mrs. Hicks’ testimony, she was not in arrears with her payments, because of the one-month extension granted her by Freeman. This being true, the corporation should have given reasonable notice of its intention to thereafter demand strict compliance, and must have given reasonable time in which to comply, before taking possession of the Frigidaire. However, thbre was no notice that strict performance would be required, and the instruction set out above correctly states the principle of law upon which the corporation was held liable for conversion.
This principle is that one may lose the right to enforce a contract strictly according to its terms if he induces the other party to the contract to believe that he will not strictly enforce it, unless, after inducing this belief, he gives reasonable notice that the indulgence will not be continued and a reasonable opportunity is given to comply after such notice.
This principle is not confined in its application to questions arising under conditional sales contract. It was recently applied in the case of Columbian Mutual Life Ins. Co. v. High, 188 Ark. 798, 67 S. W. (2d) 1005, which involved the payment of a monthly insurance assessment, which the insurer had been accustomed to accept at a later date than was'provided for in the contract-of insurance. We there said: “After such custom had been established, appellant could not change the custom and lapse the policy where payment was made within the customary time, without notice of its intention to abandon the custom. Sovereign Camp W. O. W. v. Condry, 186 Ark. 129, 52 S. W. (2d) 638,”
Other questions are discussed in the briefs which are of minor importance. One of these is that there was no proper and sufficient proof of the market value of the Frigidaire at the time and place of the conversion. This assignment of error may be disposed of by saying that the testimony shows the market value of this Frigidaire, when new, to have been $598, and that it was in sound and undamaged condition, and was described by the witnesses as being as good as new. Moreover, the purchaser of the Frigidaire testified that he knew its market value, which he stated to be largely in excess of its value as found by the verdict of the jury.
There appears to be no error prejudicial to appellant, and the judgment must therefore be affirmed, and it is so ordered. | [
-13,
-7,
-56,
-116,
26,
96,
58,
-102,
119,
-78,
-91,
-41,
-21,
84,
28,
97,
-89,
127,
85,
105,
-9,
-93,
3,
66,
-46,
-45,
-47,
-39,
49,
-49,
116,
-59,
76,
32,
66,
-99,
-26,
-126,
-51,
-34,
10,
-128,
57,
-16,
-3,
66,
52,
-70,
-64,
14,
65,
-114,
99,
46,
16,
75,
57,
42,
-19,
41,
-16,
-16,
43,
12,
127,
22,
-96,
100,
-106,
33,
-40,
14,
-104,
-75,
56,
-24,
115,
-74,
-58,
116,
15,
-115,
40,
102,
102,
2,
9,
-17,
-56,
-100,
-122,
-37,
31,
-90,
116,
92,
3,
97,
-65,
-99,
-5,
17,
8,
58,
-14,
85,
29,
100,
3,
-85,
-106,
-127,
109,
116,
-98,
31,
-17,
-125,
52,
112,
-49,
-78,
92,
6,
126,
-125,
-49,
-14
] |
McHaney, J.
Appellee brought this action against appellants to cancel an alleged transfer of a certain wholesale grocery and feed business, which, it is alleged, belonged to the bankrupt, B. B. Conine, Jr., located in the city of Batesville and which in some manner was transferred by him to appellants, his father and sister. It was alleged the transfer was fraudulent and made with the intent to hinder, delay and defraud creditors of the bankrupt. Also that the conveyance was void in that the Bulk Sales Law had not been complied with. Appellants defended on the ground that the bankrupt was not and never had been the owner of said business, but that it was their property; that the bankrupt had not transferred it to them, as it had always been their property, except for a few dollars invested in it by the bankrupt, which had been repaid to him, and that he operated the business for them on a salary basis; that they had permitted him to operate the business for a timedn the name of B. B. Co-nine, Jr., Company, knowing that he was indebted in a considerable sum, but did not think such old indebtedness would involve said business until about June, 1933, when a judgment was taken against Conine, Jr.; that on the advice of counsel, and to save possible complications, they changed the name of said business to B. B. Conine, Sr., Company.
Just when Conine, Jr., was adjudicated a bankrupt is not shown, but in October and November, 1933, on hearings before the referee in bankruptcy to obtain authority for the trustee to bring this action, certain testimony was taken and transcribed relating to the ownership of the bankrupt of the property here involved. On the trial of this case, this transcript of testimony taken before the referee was offered in evidence and excluded by the court, but a decree was entered awarding judgment against appellants in the sum of $2,500, or that they turn over goods and merchandise of that value to the trustee.
We agree with, the trial court that the testimony taken before the referee was incompetent, no showing being made that the witnesses who there testified were not available as witnesses in this proceeding. Appellants were not parties to the hearing before the referee, had no opportunity to cross-examine the witnesses, and were not bound by such testimony. It has long been the rule in this State that testimony of a witness at a former trial between the same parties in the same case may be admitted if such witness is dead, or out of the jurisdiction without the procurement of the offering party, and if the address of the absent witness could not be obtained by reasonable diligence in time to take his deposition, provided the adverse party had an opportunity to cross-examine such witness when his original evidence was given. Clinton v. Estes, 20 Ark. 216; Pine Bluff Co. v. Bobbitt, 174 Ark. 41, 294 S. W. 1002. It will readily be seen that the offered testimony was not competent under the above rule.
The only evidence left in the case touching the ownership of the business is that of the bankrupt, Conine, Jr., and he testified that at fifst he put $115 in the business and that appellants put all the other money that was invested in it; that he withdrew all he had in it shortly thereafter, and that appellants at all times owned it; that it was for a time operated in his name, but, when it appeared that complications might arise because of his old indebtedness, the name Avas changed to B. B. Conine, Sr., & Company; that there was no sale or transfer of the business to appellants; and that it at all times belonged to them. This testimony was offered by appellee, and it is not contradicted by any other evidence. We are therefore of the opinion that the judgment of the court is with out evidence to support it. No fraudulent conveyance is established. Indeed no conveyance of any kind is estab-. lished. The creditors complaining are all prior creditors and must prove fraud to prevail. We said in the recent case of Stuttgart Rice Mill Co. v. Lockridge, 185 Ark. 349, 47 S. W. (2d) 596: “Fraud is never presumed, but must be proved, and the burden of proving it is upon the party alleging it. It need not be shown by direct or positive evidence, but may be proved by circumstances. ‘Slight circumstances or circumstances of an equivocal tendency, or circumstances of mere suspicion, leading to no certain results ’ are not sufficient evidence. ‘ They must not be, when taken together and aggregated, when interlinked and put in proper relation to each other, consistent with an honest intent. If they are, the proof of fraud is wanting.’ They may be sufficient to excite suspicion, but suspicion is not the equivalent of proof. Circumstances necessary to prove fraud must be such as naturally, logically and clearly indicate its existence. ’ ’
The burden of proving a fraudulent conveyance was on appellee. Not having met the burden, the decree of the trial court must be reversed, and the cause dismissed at the cost of appellee. | [
112,
-20,
-55,
-116,
26,
96,
42,
-70,
82,
-93,
37,
83,
-23,
84,
4,
75,
-26,
121,
85,
122,
-60,
-77,
2,
99,
-37,
-77,
-47,
-60,
-79,
-53,
-28,
-41,
77,
48,
74,
-43,
-30,
-126,
-57,
28,
14,
1,
-71,
108,
73,
20,
52,
-21,
84,
79,
81,
12,
-93,
46,
25,
78,
105,
44,
105,
57,
64,
-72,
43,
5,
127,
5,
49,
36,
-102,
1,
-56,
10,
-104,
49,
1,
-24,
115,
-74,
-122,
84,
11,
-99,
8,
102,
-29,
0,
-123,
-17,
-68,
-104,
46,
127,
-99,
-90,
-48,
88,
3,
97,
-65,
-99,
89,
16,
-122,
-10,
-4,
-124,
31,
108,
3,
-114,
-42,
-77,
-115,
124,
-102,
-101,
-1,
35,
-78,
81,
-49,
-32,
93,
71,
56,
-101,
6,
-47
] |
McHaney, J.
This is the second appeal of this case-For the former opinion see City National Bank v. Riggs, 188 Ark. 420, 66 S. W. (2d) 293. On the former appeal we held that the appellants had wrongfully satisfied the record as to certain property covered by a mortgage to it as agent to secure an indebtedness to appellees and others represented by notes which had been assigned by it, and that appellants became liable to the noteholders for their pro rata share of the sale price of the property so released from the record of said mortgage; that the inclusion of the homestead of appellee, Jessie M. Johnson, in the new mortgage was induced by fraud, and that appellants became liable to her for whatever loss she might sustain in the foreclosure and sale thereof; and that the decree, of the chancery court should be affirmed.
This proceeding involves the foreclosure of the new mortgage. The court entered a decree in accordance with the prayer of the complaint.
For a reversal of this decree it is first argued by appellants that the court should have granted a continuance on their motion. There are several answers to this suggestion. One is that the makers of the notes and mortgage have not requested a continuance. Another is that matters of continuance rest in the sound discretion of the court which will not be disturbed by this court unless an abuse of discretion is shown. The record discloses that one continuance was granted, from the April to the October term, 1933, and no abuse of discretion is shown.
It is next argued that, since the City National Bank, hereinafter called the Bank, purchased the two notes held by E. N. King, the Bank should be subrogated to all the rights .of King as against Mrs. Johnson’s homestead, which we held, on the former appeal, was included in the new mortgage through misrepresentation and fraud of the officers of the Bank. The court gave the Bank a judgment against the Johnsons on the King notes, but refused to permit it to participate in the security as to said homestead. This was manifestly correct. The general rule is that subrogation will not “be- allowed where to do so would relieve a party from the consequences of his own wrongful or unlawful act.” 60 C. J. 709. As said by Judge Cockrill in Tribble v. Nichols, 53 Ark. 271, 13 S. W. 796: “One who seeks protection under the equitable doctrine of subrogation must come into court with clean hands. It is not applied to relieve one of the consequences of his own wrongful or illegal act.” See also Roe v. Kiser, 62 Ark. 92, 34 S. W. 534; Hill v. Kavanaugh, 118 Ark. 34, 176 S. W. 336; Troyer v. Bank of DeQueen, 170 Ark. 703, 281 S. W. 14; Bank of Mulberry v. Frazier, 178 Ark. 28, 9 S. W. (2d) 793. So here, the Bank having induced Mrs. Johnson to include her homestead in the mortgage on the representation that it was a mere matter of form and that it would protect her from loss in event of foreclosure, it would necessarily follow that the Bank could not take advantage of its own wrong and be subrogated to the rights of an innocent noteholder whose note it purchased.
The only other argument appellant makes which we think necessary to consider in this opinion is the contention that the Bank should be subrogated to the rights of the Biggs and Mrs. Taylor, it having paid them the amount heretofore adjudged against it for the unlawful diversion of the $12,300 sale price of the property wrongfully released from the record of the mortgage. What we have heretofore said in answer to the contention for the right of subrogation on the King notes applies with equal force to this. We do not understand that the court refused to give the Bank a judgment against the John-sons for the amount it paid to the Biggs and Mrs. Taylor. The decree did provide that, if the Bank paid said judgments to the Biggs and Taylor, such payments shall be credited fro rata on their notes, and the Bank was subrogated to the rights of the Johnsons in any surplus that remained from a sale of the mortgaged property after paying. the noteholders, except as to the proceeds of Mrs. Johnson’s homestead. Certainly the Bank is entitled to a judgment against the Johnsons for the amount-of their indebtedness it is required to pay. The Johnsons owe $25,000 and interest which they do not deny. It cannot have satisfaction out of said homestead.
No error appearing, the decree is affirmed. | [
-15,
-5,
-112,
-66,
90,
-32,
-88,
26,
74,
-96,
-90,
83,
-87,
66,
20,
109,
-26,
121,
-11,
96,
-11,
-77,
39,
-64,
-46,
-14,
-47,
93,
-75,
95,
-28,
95,
12,
48,
-54,
-43,
102,
-126,
-61,
84,
-114,
-127,
-119,
68,
-39,
66,
52,
-5,
80,
14,
-43,
-113,
-29,
44,
25,
74,
104,
40,
75,
61,
-48,
120,
-101,
4,
111,
5,
17,
39,
-72,
69,
-22,
14,
-104,
53,
1,
-40,
114,
-90,
-106,
20,
79,
27,
8,
102,
98,
0,
-91,
-17,
-112,
-104,
46,
-98,
-113,
-90,
-112,
88,
2,
34,
-66,
-100,
100,
8,
7,
-4,
-18,
-123,
28,
-20,
13,
-50,
-44,
-79,
-113,
93,
-102,
-126,
-9,
3,
-79,
113,
-49,
-86,
92,
86,
59,
-101,
-114,
-39
] |
Humphreys, J.
This is an appeal from a judgment of the circuit court of Grant County dissolving School District No. 12 and annexing the territory contained therein to Special School District No. 37.
A petition for the purpose of consolidating the districts was filed with the county examiner in September, .1933. The county judge, J. W. Lybrand, who was a member of the board of directors of said District No. 37, certified his disqualification to hear and try the cause to the Governor on October 9, 1933; and on the 6th day of November, 1933, T. Nathan Nall, an attorney at Sheridan, was appointed and commissioned as special county judge of said county to hear and determine the cause. On application, a writ of' prohibition was granted by Hon. Thomas E. Toler, judge of the circuit court, preventing the special county judge from trying the cause for the reason that proper notice had not been given of the date set for hearing and that the petition had been filed with the county examiner instead of with the county clerk.
On January 1,1934, a new petition for the consolidation of said districts was filed with the county clerk, and on May 10, 1934, the special county judge, assuming to act under his appointment and commission to hear and determine the petition filed in September, 1933, heard the new petition filed on January 1, 1934, which trial resulted in a judgment dissolving District No. 12 and annexing the. territory contained therein to Special School District No. 37.
The board of directors of District No. 12 duly appealed the case to the circuit court. The circuit court affirmed the judgment of the county court, and said board, has appealed from the judgment of affirmance to this court.
There is no authority in the law for a special county judge appointed and commissioned to try a particular cause of action to hear and determine a separate and independent cause of action filed after his appointment. There was no connection between the first and the last petitions filed except that they were both filed for the same purpose. The first was filed with the county examiner and the last was filed with the county clerk. The special judge was prohibited by the circuit court from hearing and determining the first petition. The special county judge was not appointed and commissioned to try the petition filed January 1, 1934. He had no authority to try the cause, and, he being without jurisdiction to do so, the circuit court acquired no jurisdiction to try it on appeal.
On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to the circuit court to remand the cause of action to the county court. | [
-15,
-24,
-12,
60,
-86,
-96,
10,
-122,
73,
-69,
103,
87,
-23,
-102,
4,
63,
-14,
111,
117,
91,
-13,
-74,
82,
67,
-78,
-13,
-3,
-57,
-77,
109,
-10,
-43,
8,
-80,
74,
85,
70,
-63,
-121,
20,
-114,
5,
-119,
74,
88,
-126,
60,
101,
114,
15,
49,
-82,
-14,
42,
28,
-61,
104,
44,
-39,
-85,
81,
-16,
-98,
69,
73,
10,
-79,
35,
-102,
-125,
-40,
-86,
-104,
49,
-127,
-8,
59,
-10,
-126,
-11,
3,
25,
-120,
118,
102,
19,
60,
-49,
-76,
-56,
30,
47,
61,
-26,
-126,
24,
107,
-126,
-72,
-99,
116,
18,
3,
126,
-27,
-123,
86,
108,
-124,
-50,
-62,
51,
-50,
60,
-114,
3,
-45,
98,
48,
16,
-45,
-10,
94,
70,
18,
27,
71,
-72
] |
Humphreys, J.
On the 25th day of January, 1932, appellee obtained a judgment for $10,000 against Joe McCracken in the circuit court of Marion County, and on the 20th day of January, 1933, caused a writ of garnishment to be issued thereon against appellant, upon the allegation of appellee that it had reason to believe that appellant was indebted to Joe McCracken.
After due service of the writ, appellant filed an answer on the 25th day of January, 1933, admitting that it issued a fire insurance policy to Joe McCracken and E. L. Huddleston, doing business under the firm name of Joe & Hud, on their stock of goods and fixtures, protecting them against loss in the sum of $2,250, and that they suffered a fire loss, but stating that no adjustment of the claim had been made, and for that reason it did not then know whether it was indebted to them in any sum, and that, when the adjustment was completed, further answer to the garnishment would be made. It further answered that a previous garnishment had been served upon it by the Little Rock Tent & Awning Company.
Appellant filed no additional answer, and appellee filed no reply to what purported to be the original answer of the garnishee.
About a year afterwards, and at a regular term of court, appellee obtained a judgment against the garnishee (appellant) in the full amount of the policy, from which is this appeal.
Appellant contends for a reversal of the judgment and a dismissal of the garnishment on the ground that it denied any liability in its answer, and that it was incumbent upon appellee to file a reply contravening the issue tendered and to establish its liability before judgment could have been rendered against it. Had appellant denied liability on the policy, it would have been the duty of appellee to file a denial in accordance with the statute (Crawford & Moses’ Digest, § 4912), and the rule announced in the case of Beasley v. Haney, 96 Ark. 568, 132 S. W. 646, and cases therein cited. Appellant did not deny liability, but, on the contrary, stated in its original answer that the claim was under adjustment, and that, as soon as completed it would file an additional answer. This it neglected to do for a year or more, and by its silence admitted liability to the partnership in the full amount of the policy.
It was the duty, however, of appellee before taking a judgment for the full amount to have made his partner, E. L. Huddleston, a party and to have shown that he was not entitled to any part of the claim; also to have made the Little Rock Tent & Awning Company a party and to have shown it was entitled to no part thereof, or, if entitled to any part, what part; and to have shown there were no partnership debts. If there were any partnership creditors, they were entitled to be paid ont of the claim before McCracken was entitled to any part thereof. Appellee’s right to any part of the claim depended on whether McCracken had any share therein, or, in other words, its right must have been worked out through Mc-Cracken’s interest in the claim.
The judgment is reversed, and the cause is remanded with directions to the circuit court, when all necessary parties are brought in, to render judgment against appellant in favor of appellee for the amount it owes Mc-Cracken after the partnership debts are paid and after the claim, if any, of the prior garnishee is paid and the partner, E. L. Huddleston, is awarded his share, in case he is entitled to any part thereof. The appellant can protect itself from double payment by paying the entire amount of the claim into the registry of the court and getting a discharge. | [
-76,
-19,
-8,
-83,
-120,
-32,
40,
-118,
83,
-95,
-75,
-45,
-7,
-26,
12,
125,
-10,
105,
-43,
122,
-31,
-77,
7,
98,
-38,
-5,
-37,
-59,
-76,
79,
-28,
-41,
76,
48,
74,
85,
-58,
-62,
-59,
28,
-50,
-124,
41,
-20,
-7,
72,
48,
-21,
16,
75,
97,
-106,
-30,
42,
21,
75,
108,
46,
123,
-119,
-45,
-15,
-118,
5,
127,
21,
49,
52,
-102,
1,
104,
26,
-112,
53,
1,
-8,
115,
38,
-122,
116,
79,
-103,
8,
100,
98,
40,
53,
-25,
-88,
-104,
46,
-66,
-99,
-90,
-78,
121,
43,
9,
-73,
-99,
125,
4,
5,
124,
-20,
-99,
93,
40,
1,
-114,
-108,
-73,
-81,
100,
-104,
-121,
-17,
-121,
-96,
113,
-49,
-90,
93,
71,
61,
-101,
6,
-39
] |
Carleton Harris, Chief Justice.
Appellant, Iva D. Green, married appellee, Hubert B. Green, in February, 1931. Sometime in 1946, the parties hereto adopted a male child, nine days old, whose name is Hubert William Green. In October, 1958, appellee instituted suit against appellant for divorce. Appellant entered her appearance, but did not contest the action. Appellee’s complaint, inter alia, alleged:
“The parties are the parents of an adopted child, Hubert William Green, now twelve (12) years of age and in the custody of defendant, who desires his custody and plaintiff feels that defendant is the proper person for his care and custody, and further feels that he should be required by order of this Court to pay into the registry of this Court for the maintenance and support of said minor child the sum of $25.00 per month, and should also pay into a trust fund account in some bank to be selected by the defendant the sum of $25.00 per month to provide an educational fund for said minor child.”
The divorce was granted, and the decree included the provision:
“* * * that plaintiff should contribute into the registry of this court the sum of $25.00 per month for the maintenance and support of said child, and an additional sum of $25.00 per month into some bank, to be selected by the defendant, as an educational fund for said child.”
In November, 1959, Mr. Green filed a petition alleging that Mrs. Green had taken the minor child from the State of Arkansas, thus depriving him of reasonable visitation rights; that he had remarried since the decree of divorce, and was now required to support a wife and step-daughter, as well as his mother; that he was unable financially to pay the $25 each month into the educational fund as provided in the original divorce decree, and prayed the court to modify the decree by eliminating the provision requiring the payment of said sum into an educational fund. Appellant responded, denying that she had deprived appellee of visitation rights with the boy, and alleging that Mr. Green was in arrears in the amount of $75 in his payments to the educational fund, and seeking judgment for that amount. She further asserted that the $25 for maintenance was insufficient, and prayed the court to increase the allowance. On hearing, the court discontinued the requirement for the payment of the $25 to the educational fund, and denied the motion for an increase in support and maintenance payments. From such order of the court, appellant brings this appeal.
Of course, it is necessary that appellee show a change in circumstances before being entitled to a reduction; for instance, his income is reduced, or increased obligations leave him less able to comply with the requirements of the original decree. We do not think such a change was shown. Mr. Green did not testify relative to the amount of money he was making at the time of the divorce, but Mrs. Green stated that, due to an injury he had received, he was drawing $100 per month workmen’s compensation. At the time of the hearing, Mr. Green had been an employee of the State Hospital for the past two years, and lived at the hospital. His testimony reflects that he earned $284 per month from this job, and obtained free rent and utilities; in addition, he received a veteran’s disability check of $52 each month. His present wife had an income of $170 per month, and his mother received $41 per month. Though the record does not reflect Mr. Green’s job income at the time of the divorce, it would appear from this record that he is perhaps even better off financially, since he was only drawing $100 a month at the time of the decree, and, by his own admission, was not at that time receiving free rent and utilities. Appellee mainly relies upon the fact of his remarriage to justify a modification of the decree. In Bostic v. Bostic, 229 Ark. 127, 313 S. W. 2d 553, this Court, in quoting from 27 C. J. S., Divorce, § 322, p. 1245, said:
“The fact that a divorced husband has remarried or was contemplating remarriage is not alone ground for reducing the amount of the allowance, although it is a circumstance that may be considered in weighing the equities of the situation; and the same rule applies to the remarriage of the wife, at least in the absence of an assumption by the second husband of any obligation to support the children of the first marriage; nor is the remarriage of both husband and wife to third persons, in itself, regarded as such a change of circumstances as requires a modification of the allowance.”
Certainly, the remarriage is not a ground for modification in this ease; the record reflects that Mr. Green married his present wife shortly after obtaining the divorce, and was well aware, at the time he asked the court, through his complaint, to enter the educational fund provision, that he was fixing to assume additional obligations, vis., a second wife and a step-daughter. In Wilson v. Wilson, 186 Ark. 415, 53 S. W. 2d 990, a divorced husband sought reduction of an award for support of the ex-wife and two minor children. The facts in that case were far stronger for reduction than the present one, in that it was established that the appellant’s salary had been reduced, and that one of the minor children, a daughter, had married. The Chancellor refused to grant a reduction, and on appeal, we affirmed the decree.
Appellee also argues that appellant’s financial condition has improved considerably since the divorce, since she was unemployed at that time, and attending school, while presently, she is employed in Oklahoma City, having net earnings of $170 per month. Of course, this fact does not relieve Mr. Green of his obligation to the boy, particularly when it appears that he is financially able to comply with the decree. Appellee also makes reference to an alleged agreement at the time of the adoption of the child, which he asserts should relieve him of the payment to the educational fund. We find no merit in this contention. Appellee’s obligation to this boy is the same as though it were his own natural child.
Likewise, the child should not be deprived of the opportunity to obtain an education because appellant removed him to Oklahoma. This was done, according to Mrs. Green, because she could obtain higher wages in Oklahoma City. Mr. Green complains that though he has extended invitations to the boy to visit him here in Arkansas, snch visits have not been made, and implies that appellant has alienated the affection of the child for appellee. Appellant testified that Hubert "William was very fond of Mr. Green, but the child did not want to go to appellee’s home. She insisted that she had not kept the boy away, but had, to the contrary, told him that he might visit Mr. Green whenever he wanted to. The evidence leaves some doubt as to appellee’s actual desire to visit with the child, since the testimony reflects that the boy visited in Little Rock for three weeks in the summer of 1959, and Mr. Green only visited with him one time. Certainly, appellee is entitled to have the child visit him at a time when the boy is not in school, and, if he (Green) desires such visits, and will furnish costs of transportation, the Chancery Court can be petitioned for this purpose. Except for the fact that the youngster is away from the state, we would give consideration to increasing the allowance for maintenance.
The decree is reversed, insofar as it relates to relieving appellee of the payment to the educational fund, and the cause is remanded with directions to reinstate the $25 monthly allowance for the educational fund for Hubert William Green, together with judgment for any unpaid amounts that may have accrued; in all other respects, the decree is affirmed.
Appellant’s attorneys seek an additional fee for services rendered on this appeal, and because of the findings herein contained, and the further fact that the attorneys have only received a $50 fee, we are of the opinion that an additional attorneys’ fee of $50 should be allowed.
It is so ordered.
From the testimony of Mr. Green during cross-examination:
“Q. How soon did you remarry? A. Just as soon as the law allows. Q. And this woman had a daughter when you married her? A. Yes, sir. Q. You had already made an obligation to pay $50.00 a month to the defendant at that time? A. Yes, sir. Q. And you were represented by Counsel at the time the divorce was granted? A. That is right. Q. Whose idea was it about this educational fund? A. It was mine when she insisted.” | [
-76,
-20,
-108,
92,
26,
49,
10,
58,
82,
1,
101,
83,
-21,
123,
0,
105,
-50,
-21,
112,
120,
-57,
-77,
6,
120,
-102,
-13,
-7,
-43,
-75,
93,
-27,
-41,
77,
48,
-118,
-43,
102,
-62,
-63,
-108,
-122,
10,
-86,
-60,
88,
71,
32,
97,
90,
15,
5,
-66,
-13,
40,
61,
79,
108,
44,
-35,
-96,
80,
-78,
-118,
7,
-1,
7,
-79,
38,
-110,
-123,
72,
110,
-104,
-71,
-124,
-24,
51,
-90,
-122,
116,
107,
-103,
9,
96,
98,
-128,
44,
-9,
-100,
-120,
-26,
-1,
-99,
-90,
-102,
120,
107,
73,
-74,
-74,
108,
-108,
127,
114,
113,
-123,
23,
100,
33,
-114,
-42,
-95,
-115,
-70,
-100,
3,
-25,
-25,
-112,
85,
-53,
-72,
92,
-57,
59,
-109,
-106,
-26
] |
Sam Robinson, Associate Justice.
This is the fourth time the parties hereto have been before this Court as the result of a series of controversies arising out of a contract executed by them on November 13, 1951. At that time the parties were joint owners of certain real and personal property located in Little Rock. The agreement required appellee to relinquish her interest in this property to appellant in consideration for which appellant agreed to pay appellee $250 per month for the remainder of her life or until she married. The contract further required that should appellant predecease appellee, then a payment by his estate to appellee would be made in the sum of $10,000. Pursuant to the agreement appellee conveyed her interest in said property to appellant and the $250 monthly payments were commenced. Thereafter the validity of the contract was raised by appellant in a suit brought for arrearages and we held the contract was valid. Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322. Subsequently appellee was awarded a judgment totaling $8,500, but the lower court refused to grant appellee specific performance under the contract. This latter point was appealed and we held that since the body of the complaint did not state a cause of action for specific performance, such relief could not be granted. Karoley v. Reid, 226 Ark. 959, 295 S. W. 2d 767.
In the meantime appellant had taken voluntary bankruptcy on September 14, 1955, and the above judgment and all future payments to become due under the contract were scheduled as a part of his liabilities. Appellee filed a claim in the bankruptcy proceeding for the amount of the judgment, but did not include in her claim any future payments to become due under the contract. Appellant was discharged in bankruptcy on November 13, 1956.
Appellee then filed the present suit in chancery court for further arrearages which had become due under the contract dating from appellant’s adjudication as a bankrupt, and the lower court rendered appellee a judgment on the pleadings. This decision was reversed and the cause remanded for further proceedings. Reid v. Karoley, 229 Ark. 90, 313 S. W. 2d 381. Appellee then filed an amended complaint. The case was tried on its merits and a judgment was rendered for appellee in the amount of $12,000. The present appeal is from that judgment.
Appellant contends that the chancery court did not have jurisdiction because appellee, has an adequate remedy at law. The record reflects that the first real objection to the jurisdiction of the court on this ground was made orally immediately preceding the taking of testimony on the merits when appellant’s counsel asked, that the cause be transferred to circuit court. Appellant argues that the question of jurisdiction was raised prior to this time by the filing of a demurrer, but we have held a number of times that the proper method of procedure in this type situation is by a motion to transfer and not by demurrer. The Church of God in Christ v. The Bank of Malvern, 212 Ark. 971, 208 S. W. 2d 770; Higginbotham v. Harper, 206 Ark. 210, 174 S. W. 2d 668.
Further, it is well established that where a defendant has answered and not reserved any objection to the jurisdiction of the court on the ground that there is an adequate remedy at law, he cannot insist on it at the hearing unless the court is wholly incompetent to grant the relief sought. Cockrell v. Warner, 14 Ark. 345; Trapnall, Ex’r., etc., v. Hill, et al, 31 Ark. 345.
The remainder of appellant’s arguments for reversal are discussed together. Under the provisions of the U. S. Code a discharge in bankruptcy releases a bankrupt from all his provable debts, with some exceptions not applicable here. 11 U. S. C. § 35. Appellant contends that appellee’s claim for future payments under the contract was provable; that it was scheduled by appellant in the bankruptcy action, and was therefore discharged.
Payments due under the contract can be terminated by either death of the appellee or her marriage; the first contingency can be calculated by reference to tables on life expectancy, yet it would be impossible to ascertain with any degree of certainty when the second or alternative contingency might occur. An analogous situation was presented in Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084, where the court said: “Even though it may be that an annuity dependent upon life is a contingent demand within the meaning of the bankruptcy act of 1898, . . . yet this contract, so far as regards the support of the wife, is not dependent upon life alone, but is to cease in case the wife remarries. Such a contingency is not one which, in our opinion, is within the purview of the act, because of the innate difficulty, if not impossibility, of estimating or valuing the particular contingency of widowhood. A simple annuity which is to terminate upon the death of a particular person may be valued by reference to the mortality tables. . . . But how can any calculation be made in regard to the continuance of widowhood when there are no tables and no statistics by which to calculate such contingency? How can a valuation of a probable continuance of widowhood be made? "Who can say what the probability of remarrying is in regard to any particular widow? We know what some of the factors might be in the question: inclination, age, health, property, attractiveness, children. These would, at least, enter into the question as to the probability of continuance of widowhood, and yet there are no statistics which can be gathered which would tend in the slightest degree to aid in the solving of the question.”
The appellant further urges that whether this claim was provable can only be decided by the court in the bankruptcy action and therefore the chancery court could not delve into the problem. Appellant contends that since appellee failed to file a claim for the future payments under the contract in the bankruptcy proceeding, and have that claim ruled on there, the question is now res judicata. We do not agree. In order to properly adjudicate the rights of the parties, the court in which the action is pending must look to the characteristics of the claim upon which suit is brought to determine whether the nature of the debt is such that would make it dischargeable in bankruptcy. Raia v. Goldberg, 33 Ala. App. 435, 34 So. 2d 620, and Dick v. Dick, 11 N. J. Super. 533, 78 A. 2d 580. As a matter of fact, a footnote to the order of discharge in the bankruptcy proceeding contains the following language: ‘ ‘ The Court is not obligated and therefore does not rule as to the question whether future payments (after date of adjudication) due on the contract signed October, 1951, between the bankrupt and Mary Karoley, comes within the discharge granted herein.” We hold that the chancery court was correct in taking up the question of whether the claim for future payments under the terms of the contract was the type of debt which could be proved in appellant’s proceeding in bankruptcy.
Under the authority of the Dunbar case cited above, we find the claim to be contingent and not provable within the requirements of the Bankruptcy Act, the debt was therefore not discharged, and the decree must be affirmed. | [
80,
-19,
-112,
92,
-56,
64,
58,
-126,
115,
-125,
117,
81,
-23,
67,
20,
109,
-12,
121,
97,
104,
65,
-77,
6,
96,
66,
-77,
-39,
-35,
-88,
95,
-28,
-105,
76,
40,
-54,
-43,
-26,
-54,
-59,
94,
30,
-128,
25,
100,
-39,
-128,
48,
127,
18,
15,
65,
-114,
-13,
-83,
61,
74,
104,
60,
93,
41,
-48,
-80,
-118,
-115,
127,
17,
17,
36,
-102,
69,
120,
10,
-104,
49,
8,
-24,
115,
38,
-126,
116,
107,
-101,
12,
98,
98,
2,
-123,
-17,
-36,
-104,
14,
-9,
-99,
-90,
-110,
88,
3,
73,
-74,
28,
92,
69,
7,
-10,
-1,
-107,
29,
108,
33,
-54,
-42,
-79,
15,
120,
-106,
27,
-25,
2,
-80,
117,
-51,
-32,
92,
67,
115,
-109,
-114,
-13
] |
Carleton Harris, Chief Justice.
This appeal questions the validity of Act 180 of 1959. The title of that Act is “An Act to Enable Municipalities Owning and Operating Utility Plants to Issue Revenue Bonds for the Purpose of Securing and Developing Industry within or Near Said Municipalities, Said Bonds to he Paid by Rentals from Property Acquired by the Use of the Proceeds of Said Bonds and Any Additional Amount That May be Needed from the Net Revenues of Said Utility Plants; Declaring an Emergency; and for Other Purposes.” After reciting, in the preamble, the purpose of the legislation, the act provides that the legislative body of any municipality may issue revenue bonds, in the manner, and under the conditions set out in Section 3 of said act. The act then provides that the bonds are payable from the revenues derived from the property acquired with the proceeds of the bonds, and that surplus revenues derived from utilities owned by the municipality may be pledged. The legislation further provides that a statutory mortgage lien upon the property acquired by the proceeds of the bonds, shall be created in favor of the bond holders. Section 4, however, states that£ £ any pledge of rentals or revenue shall be subject to the restriction that the municipality shall never in any fiscal year be bound in an amount that would together with the other expenditures and contracts of the municipality, call for a payment or payments in that fiscal year in excess of the total revenue for such municipality for that fiscal year, so that the municipality shall never at any time by its contract or pledge of net revenues and rentals violate the provisions of Amendment No. 10 to the Constitution of the State of Arkansas. The bonds issued under this Act shall not in any event constitute an indebtedness of such municipality within the meaning of the constitutional provisions or limitations, and it shall be plainly stated on the face of each bond that the same has been issued under the provisions of this Act and does not constitute an indebtedness of such municipality within any constitutional or statutory limitation.”
Proceeding under this Act, the city council of Clarksville enacted a resolution on July 13, 1959, authorizing the publication of a notice of certificates of indebtedness to be sold under the authority of the aforementioned act. The notice of sale was duly published, and the city received a valid bid of par plus accrued interest for $25,000 of its proposed issue of certificates of indebtedness (the total proposed issue was $150,000), bearing interest at the rate of 4% per annum. Prior to issuance of these certificates, this suit was instituted by appellant as a citizen and taxpayer of the city of Clarksville. The suit questioned the validity of Act 180, and sought, through injunction, to prevent appellees from proceeding further with the proposed issue of the certificates. The court, on hearing, declared Act 180 to be valid and constitutional, and entered its decree dismissing the complaint. From such decree, appellant brings this appeal.
We are of the opinion that the question herein presented has now become moot, for the aforecited provisions of Act 180 have been superseded by the provisions of Act 9 of the First Extraordinary Session of the Sixty-second General Assembly, the validity of which is being upheld in an opinion handed down by the Court this day. Both Act 9 and Act 180 deal with the issuance of bonds for the purpose of securing and developing industry. Act 9 is a much more comprehensive statute, but embraces the entire subject matter covered by Act 180 as far as the bonds are concerned, i.e., both acts provide for the issuance of revenue bonds; both provide that the bonds are payable from the revenues derived from the property acquired by the proceeds of the bonds; both provide for the statutory mortgage lien upon the property acquired ; and both permit the pledging of surplus revenues derived from utilities owned by the municipality. Likewise, Act 9 has the almost identical requirement of Section 4 of Act 180, heretofore cited. Furthermore, both acts give practically the same definition of surplus revenues. In fact, relative to the issuance and payment of revenue bonds, the provisions of the two acts are substantially the same — with one exception. Section 3 of Act 180 is in direct conflict with Section 4 of Act 9. The former authorizes the legislative body of any municipality, upon its own determination, to issue the bonds, while the latter provides that “revenue bonds may be issued only with the approval of a majority of the qualified electors of the municipality or county voting at an election called for that purpose.” Following approval of the electors, the legislative body of the municipality is authorized to act. While Act 9 contains no repealing clause, and in fact, provides that it is intended to supplement existing constitutional and legislative provisions designed to secure industry, it is self-evident that the provisions (Section 3 of Act 180 and Section 4 of Act 9) are in irreconcilable conflict, for Act 9 is specific and definite in stating that the bonds may be issued only with the approval of a majority of the qualified electors. We recognize that repeals by implication are not, generally speaking, favored. Here, however, all the factors necessary to bring about a repeal by implication are present. As stated in Corpus Juris Secundum, Vol. 82, Sec. 291, page 489:
“Where two legislative acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, will, although it contains no repealing clause, govern, control, or prevail, so as to supersede and impliedly repeal the earlier act to the extent of the repugnancy.”
In our own ease of C. R. I. & P. RR. Co. v. Cohen, 223 Ark. 621, 267 S. W. 2d 774, this Court quoted the rule stated in Coates v. Hill, 41 Ark. 149, concerning repeals by implication:
“Repeals by implication are not favored. To produce this result, the two acts must be upon the same subject and there must be a plain repugnancy between their provisions; in which case the latter act, without the repealing clause, operates to the extent of repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then this latter act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended as a substitute for the first.”
See also Curlin v. Watson, 187 Ark. 685, 61 S. W. 2d 701. Since Section 3 of Act 180 is in absolute conflict with Section 4 of Act 9, we hold the former to have been repealed. This results in Act 180 being inoperative insofar as it relates to revenue bonds for the purposes mentioned in the act, for Section 3 is the provision that authorizes the issuance of the bonds. No bonds have actually been issued by the city of Clarksville, so the question of impairing the obligation of a contract does not arise.
Summarizing, the manner of issuing revenue bonds for the securing and development of industry is controlled and regulated by Act 9 of the First Extraordinary Session of the Sixty-second General Assembly. This act supersedes Act 180 of 1959, and the city of Clarksville may not now further proceed with the issuance of bonds except in conformity with the provisions of Act 9.
It follows that the decree of the Chancery Court must be reversed. It is so ordered.
This evidently refers to provisions dealing with other than this type of revenue bonds. | [
84,
125,
-108,
124,
10,
-32,
26,
-102,
91,
-79,
-27,
-13,
-19,
46,
20,
73,
-93,
127,
101,
104,
69,
-74,
19,
98,
82,
-45,
-37,
-51,
-76,
95,
-12,
-113,
76,
112,
-56,
-99,
-58,
-62,
-43,
94,
14,
-125,
-117,
-20,
-39,
64,
52,
74,
82,
-121,
69,
-116,
-13,
44,
24,
98,
-115,
46,
89,
36,
81,
-14,
-104,
-115,
-1,
5,
1,
69,
-120,
1,
-64,
46,
-104,
113,
0,
-24,
114,
-90,
-122,
-44,
13,
25,
40,
98,
98,
-128,
-91,
-1,
-94,
-120,
7,
-54,
-115,
-92,
-73,
25,
11,
0,
-73,
-99,
93,
23,
7,
126,
-94,
-75,
94,
108,
5,
-66,
-26,
-79,
9,
108,
24,
1,
-57,
103,
112,
117,
-51,
-78,
92,
71,
19,
91,
-114,
-8
] |
Ed. F. McFaddin, Associate Justice.
This appeal necessitates a study of the law relating to garnishments. C. C. Coward, appellant, recovered judgment against Pfeifer on September 2, 1958 for $821.03 and interest and costs. On September 30, 1958 Coward had a writ of garnishment served on appellee, Luther Barnes, . . to answer what goods, chattels, moneys, credits, and effects he may have in his hands or possession belonging to said defendant, Ralph Pfeifer, to satisfy the judgment aforesaid”. On October 3, 1958 Barnes filed answer, stating that Pfeifer was then indebted to him, and that be (Barnes) bad nothing in bis bands then belonging to Pfeifer. On September 24, 1959 trial in the Circuit Court, without a jury, resulted in a judgment discharging Barnes as garnishee; and from that judgment Coward prosecutes the present appeal.
At the outset it is well to mention that the factual findings of the Circuit Judge have the force and effect of a jury verdict. (Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954.) Barnes testified that Pfeifer was his sharecropper for 1958; that he furnished Pfeifer $817.40 in cash during the crop year; that half of the gross crop would go to Pfeifer, less — from Pfeifer’s said half — all advances; that when the garnishment was served and answer made on October 3, 1958, only three bales of the 1958 crop had been gathered, and that no proceeds had been determined because the remainder of the crop had not even been picked. One who cultivates land for a specified portion of the crop, the landlord furnishing the land, team, and tools, is not a tenant, but a laborer. Gardenshire v. Smith, 39 Ark. 280; Hammond v. Creekmore, 48 Ark. 264, 3 S. W. 180; Douglas v. Lamb, 157 Ark. 11, 247 S. W. 77; Houck v. Birmingham, 217 Ark. 449, 230 S. W. 2d 952. Barnes, being thus an employer of Pfeifer, was subject to garnishment proceedings under § 31-501 Ark. Stats., just as any other employer would be subject to garnishment proceedings; and our statute (§ 31-502) recognizes that wages may be garnisheed.
The question presented is, whether the undetermined amount due the sharecropper Pfeifer, was subject to garnishment on September 30, 1958 or on October 3, 1958 (Harris v. Harris, 201 Ark. 684, 146 S. W. 2d 539). Did Barnes have anything in his hands definitely belonging to Pfeifer on either September 30, 1958 or October 3, 1958? Did it belong to Pfeifer at all events, or was any such amount entirely contingent? In Wyatt Lbr. Co. v. Hansen, 201 Ark. 534, 147 S. W. 2d 366, we had occasion to consider the matter of contingent obligations not subject to garnishment proceedings. In that case there had been a garnishment of the owner, Hansen, for whatever might be due by him to a building contractor, whose work had not been completed or finally accepted at the time of garnishment or answer. We held that any amount due to the contractor by the owner was entirely contingent and, therefore, not subject to garnishment at the times involved in the case. Mr. Justice Prank Gr. Smith, speaking for a unanimous Court, said:
“Another reason why relief by way of garnishment may not be awarded the Wyatt Company is that the building contract was not fully completed. It is argued that there had been a substantial compliance with the original written building contract. But the court made a specific finding to the contrary; and we cannot say that this finding is contrary to the preponderance of the evidence. But, even so, by the terms of the written contract, additions thereto became a part thereof . . .
“There is an extended annotator’s note to the case of McKendall v. Patullo, 52 R. I. 258, 160 Atl. 202, 82 A. L. R. 1111, and the annotator cites many cases in support of the following note: ‘It is held that, in order that a garnishee may be charged, there must be an existing debt at the time of the service of the garnishment, and not a mere conditional or contingent liability. So, in the case of a construction contract, where the employer is not to become indebted to the contractor until performance in all particulars, .there is no indebtedness owing to the contractor which may be reached in a garnishment proceeding until the terms of the contract have been performed. ’
“Here, as has been said, the contract price for the work was payable ‘Upon the completion of the work.’
“In the case of Medley v. American Radiator Co., 27 Tex. Civ. App. 384, 66 S. W. 86, it was said: ‘In order for a fund or liability to be subject to garnishment, there must be no condition precedent, no impediment of any sort between the garnishee’s liability and defendant’s right to be paid . . .’ ”
Even though the 1958 cotton crop may have been matured at the time Barnes answered the garnishment, nevertheless the major portion of the cotton had not been picked, and it was Pfeifer’s duty to pick this cotton and carry it to the gin. The cost of picking was a sizeable advance. The gin tickets were introduced in evidence, and twenty-three of them are dated after October 6, 1958. Who could have told on October 3, 1958 how many bales of cotton Pfeifer would make, when part of the cotton was still in the field ungathered? Who could have told the price to be received from the cotton? Barnes testified: “We always wait until we get through before we settle up”. So on October 3, 1958, whether Barnes might owe Pfeifer any amount was entirely contingent on future events. We cannot view the results as they were at the time of the trial in September 1959. The issue is, what was the situation on October 3, 1958? In the annotation in 2 A. L. R. 506, the holdings are summarized in this language:
“But where a further performance of a contract is necessary before money payable thereon becomes due, the payment is conditioned on the performance, and is not subject to garnishment until the condition has been fulfilled . . . The rule rests on the view that ‘as a plaintiff can have no greater right against the garnishee than the defendant would have, and can occupy no better position with respect to the garnishee than the defendant could in a suit brought by him against the garnishee, it follows that, where a contract between the defendant and the garnishee had not been fully performed by defendant at the time of attachment by plaintiff, the garnishee is not chargeable’. Johnson v. Healey (1913), 35 R. I. 192.”
We therefore conclude that the evidence is amply sufficient to support the finding and judgment of the Circuit Court to the effect that on September 30, 1958, as well as on October 3, 1958, any amount Barnes might ever owe Pfeifer was entirely too contingent to be subject to garnishment process.
Affirmed.
Our cases hold that unless the answer of the garnishee is denied by written pleadings, it is taken as conclusive. See Kochtitzky & Johnson v. Malvern Gravel Co., 195 Ark. 84, 111 S. W. 2d 478, and cases there cited. The transcript before us does not contain a written pleading by Coward controverting the answer of Barnes; but we will not rest our opinion on that omission because it is not even mentioned or suggested in the appellee’s brief, and such a pleading controverting the garnishment might have been filed and inadvertently omitted from the transcript, since the absence of such denial is not mentioned.
It was shown — at the trial in September, 1959 — that the total 1958 cotton crop was thirty bales, which, after paying ginning, brought a gross sum of $5,392.59; and that one-half of what remained of this sum, after paying advances and expenses for which Pfeifer was liable, ultimately belonged to Pfeifer. The calculation appears to be as follows:
Sharecropper’s Vz gross $2,696.29
Less cash advances by Barnes to make the crop ' $ 817.40
Less cost of fertilizer and poison 340.76
Less advance for cotton picking 1,223.36
Total charged against Pfeifer 2,381.46
Net balance to Pfeifer from crop $ 314.83
This is really the point on which the learned Circuit Judge decided the case; for he stated, after argument of counsel: “I cannot find any evidence that Mr. Barnes tried to beat the creditor out of the debt. If I did, I wouldn’t hesitate to hold him responsible for it. I think he, under advice of counsel, stated what the situation was on September 30th.”
To the same effect see 4 Am. Jur. p. 682, “Attachment and Garnishment” § 200; annotation in 2 A.L.R. 506, entitled; “Money due only on further performance of contract by debtor as subject to garnishment;” and annotation in 134 A.L.R. 853, entitled; “What amounts to a contingency within statute or rule permitting garnishment or similar process before an obligation is due or payable, if payment or delivery is not dependent upon a contingency”. | [
-79,
-24,
-39,
13,
42,
-56,
10,
-118,
83,
-87,
55,
82,
-27,
6,
4,
105,
-13,
109,
117,
59,
70,
-73,
55,
-63,
-102,
-69,
-125,
-43,
57,
75,
-92,
-44,
15,
20,
-62,
-47,
-30,
-94,
-63,
-36,
-114,
-122,
43,
-3,
121,
64,
56,
123,
48,
11,
49,
-66,
-5,
46,
61,
78,
44,
44,
111,
-87,
80,
-8,
-70,
14,
127,
23,
1,
70,
-108,
3,
-38,
-82,
-112,
49,
1,
-56,
114,
-76,
-122,
84,
11,
-103,
12,
102,
102,
17,
61,
-51,
-104,
-40,
54,
-2,
-115,
-89,
-48,
72,
3,
99,
-66,
-99,
106,
68,
14,
-8,
-27,
-115,
93,
104,
3,
-114,
-44,
-93,
-117,
-8,
-98,
27,
-21,
3,
49,
113,
-50,
-94,
93,
69,
113,
-101,
-122,
-41
] |
Carleton Harris, Chief Justice.
Appellee, Francis N. Carnahan, was granted a divorce from appellant, Virginia Mae Carnahan, on December 17, 1956. Prior to the rendition of such decree, the parties entered into an agreement regarding care and custody of their minor child, Carolyn Sue Carnahan, born May 8,1947, and also entered into a property settlement, the agreements being incorporated into the decree. The decree, inter alia, provided :
“That the said Francis Carnahan, on or before January 1, 1957, and on or before the first day of every Calendar month thereafter, pay to the said Virginia Carnahan the sum of $125.00 per month until the minor child of the parties hereto, Carolyn Sue Carnahan, reaches the age of 18. That out of said payments the said Virginia Carnahan is to provide for the care and maintenance of herself and minor child, Carolyn Sue Carnahan. ’ ’
A few months subsequent to the divorce, appellant moved to Greenville, Mississippi, where she and Carolyn have resided since that time.
On September 8th, 1959, Mrs. Carnahan filed a motion with the court, asserting that Mr. Carnahan was delinquent in the monthly payments, and seeking judgment for the alleged arrearage. On the same date, Mr. Carnahan filed a motion, setting up that he “has for some time passed been acutely financially embarrassed, and is threatened with bankruptcy, and has been unable to make the payments ordered by the court”; that his income was insufficient to make the payments, and he prayed a reduction in “the support and maintenance and alimony to a sum that the plaintiff can pay, and the plaintiff believes that if given sufficient opportunity, he will be able to pay the arrears on an installment basis.” Appellee further sought an amendment of the custody order to permit him to have custody of the minor child during the summer months. On October 13th, the date set for the hearing, appellee amended his motion, alleging further as a defense that appellant had taken the minor child to the State of Mississippi without the permission of the Chicot Chancery Court. Following a hearing on that date, the court found that Mr. Carnahan was in default in payments totaling seven months, or a total amount of $875, but refused to enter judgment, finding as follows:
‘ ‘ The Court further finds that said child is now and has been since 1957, outside of the jurisdiction of this Court with her mother; that permission was never sought or granted by this Court for authority for the removal of said child outside of the jurisdiction of this Court; that a judgment for said $875.00 should be refused for the reason that said child is not now nor has she been within the jurisdiction of the Court during the period of delinquency as above found. The plaintiff-respondent should not be held in contempt for willful violation of the order of this Court incorporated in the decree of December 17, 1956, for the reason that the child has been removed from the jurisdiction of this Court without the Court’s permission. It is further found that the defendant-petitioner should be granted authority and permission to remove said child from the jurisdiction of the Court upon the filing of a good and sufficient bond with the Clerk of this Court, conditioned that defendant-respondent will comply with all orders of this Court relating to the care, custody, support and general welfare of the child involved in this action, and a written appointment of the Clerk of this Court and/or her successor in office designating said Clerk and/or her successor as agent for service for all writs that may be issued in this action relating to the care, custody, support and general welfare of said child. ’ ’
A decree was entered in accordance with the findings, and from the court’s order refusing to render judgment for the back payments, appellant brings this appeal.
The Chancellor evidently relied on the case of Pence v. Pence, 223 Ark. 782, 268 S. W. 2d 609, in which case, this Court held that the right of the mother to claim support payments was suspended during a period when she kept the minor child outside the jurisdiction of the court, at a place unknown to the father; i.e., such payments were remitted. This opinion somewhat modified the holding in Sage v. Sage, 219 Ark. 853, 245 S. W. 2d 398. In the Sage case, the mother had taken the children to Virginia, and the trial court relieved the father of the obligation to pay past due installments amounting tó $450. This Court reversed the trial court on that point holding that the court had no power to remit accumulative payments under the circumstances of the case. See also Allison v. Binkley, 222 Ark. 383, 259 S. W. 2d 511 (1953).
The case at bar is, we think, easily distinguishable from the Pence case. There, the mother refused the father the right to have the child visit him during the father’s coming furlough from the Navy, sometime in 1944; just prior to the father’s return to this state, Mrs. Pence, without permission of the Chancery Court, took the boy to the Pacific Northwest. Pence and his family made diligent effort to find the child, but were unable to do so. After living for a time in Washington and Oregon, Mrs. Pence and her subsequent husband returned to Joplin, Missouri, and in 1950, returned to Arkansas to live. During this entire period of time, Mr. Pence was without knowledge of the whereabouts of the child, and never had the opportunity to visit with him. Nor did Mrs. Pence endeavor to collect any payments from Mr. Pence during that period. This Court said: ‘‘Now, after a lapse of years, Mrs. Pence wants all of the accumulative payments — without having allowed Mr. Pence — in all the intervening years — to have the pleasure ■of seeing his child. Equity cannot aid her in such a situation. ’ ’ Here, the situation is vastly different. Appellee has known at all times the whereabouts of the child; the evidence reflects that he has visited the child in Greenville, and it is further indicated (though this is not entirely clear from the transcript) that the child has visited him. The distance from appellee’s home in Eudora to Greenville is approximately 35 miles, and certainly, this distance did not occasion undue hardship or inconvenience to appellee when he desired to visit the child. There is absolutely no evidence in the record that Mrs. Carnahan has refused Mr. Carnahan the right of visitation, nor is such a fact even alleged.
Mr. Carnahan made these payments from the time of the decree, all through the year of 1958, and into 1959, without complaint that the child had been removed. As heretofore mentioned, appellee only asserted this defense on the day of the hearing, after previously setting up other defenses. It would appear that Mr. Carnahan’s failure to pay was based on something other than the removal of the child to another state. However, no testimony was offered on behalf of appellee; in fact, the sole testimony in the hearing was offered by Mrs. Carnahan.
While appellant noted her exceptions to the entire order of the court, the notice of appeal relates only to that portion denying her the back payments. Likewise, this is the only point argued in the brief. Accordingly, we are not called upon to determine whether the court was justified in requiring the compliance bond, and in directing appellant to designate the clerk of the court as her agent for service in all matters relating to the custody and support of the minor child.
The court should have awarded appellant judgment for sums due for the following months of 1959: March, April, June, July, August, September, and October, or a total amount of $875. The decree is accordingly reversed, and the cause remanded with directions to enter judgment for appellant in the said amount of $875. Appellant’s attorney is awarded an attorney’s fee of $150. Costs against appellee.
Counsel for appellee requested that he be permitted to take a non-suit on his motion for reduction in support payments, and part-time custody, and the court permitted the motion to be withdrawn. | [
112,
-28,
-12,
108,
11,
48,
90,
24,
122,
-95,
-11,
83,
-93,
102,
16,
109,
-17,
75,
116,
123,
97,
-77,
6,
96,
-29,
-13,
-47,
-43,
-79,
-51,
-20,
-41,
76,
56,
-104,
-41,
102,
-117,
-55,
-106,
30,
-94,
-5,
100,
88,
-122,
52,
121,
18,
15,
53,
-98,
-29,
46,
53,
106,
44,
44,
-33,
57,
-56,
-78,
-118,
7,
111,
103,
-79,
38,
-106,
7,
104,
44,
-104,
49,
0,
-5,
114,
-74,
-122,
116,
75,
-69,
-119,
112,
98,
-128,
109,
-11,
-100,
-103,
7,
-34,
-99,
-90,
-109,
49,
2,
71,
-65,
-108,
108,
20,
123,
126,
60,
-115,
22,
96,
10,
-118,
94,
-95,
-116,
56,
-98,
0,
-17,
-29,
48,
113,
-17,
-76,
92,
86,
59,
-109,
-58,
-106
] |
Carleton Harris, Chief Justice.
Appellant, E. W. Edwards, was charged by Information with violation of the Overdraft Act (Ark. Stat. Anno., 1947, Sections 67-714 to 67-716), was found guilty by the jury, and Ms punishment fixed at six months imprisonment in the State Penitentiary. Several points are raised in urging a reversal, but the first contention effectively disposes of the appeal, vis., the Garland County Circuit Court was without jurisdiction.
The undisputed proof reflects that appellant, a building contractor, issued a payroll check upon the Worthen Bank and Trust Company of Little Bock in the amount of $48.10 on May 29, 1959, to an employee, Howard Duff. The check was delivered to Duff, a resident of Hot Springs, in appellant’s office in Little Bock. Duff subsequently cashed the check at Halsell’s service station and grocery store in Hot Springs. Thereafter, the bank at Hot Springs processed the check for payment, but it was returned by Worthen Bank and Trust Company with the notation “insufficient funds.” On two later occasions, the check was presented for pay ment, but was returned with tbe same notation. Thereafter, tbe prosecuting attorney of Garland County filed tbe Information against Edwards. An oral motion to dismiss for lack of jurisdiction was made, both during tbe trial, and at tbe end of tbe State’s evidence, on tbe ground that tbe State bad failed to prove that the crime was committed in Garland County. A written motion in arrest of judgment and motion to set aside tbe verdict of tbe jury and dismiss for want of jurisdiction was filed at tbe end of tbe trial. All of these motions were denied.
Appellant’s primary assertion, that tbe Garland County Court was without jurisdiction, is well founded. Section 10, Article II, of the Arkansas State Constitution provides:
“In all criminal prosecutions tbe accused shall enjoy tbe right to a speedy and public trial by impartial jury of the county in which the crime shall have teen committed; provided that tbe venue may be changed to any other county of tbe judicial district in which tbe indictment is found, upon application of tbe accused, in such manner as now is, or may be, prescribed by laws; . . . ”
"We have held that jurisdiction of statutory offenses is within tbe county where tbe crime is committed, Smith v. State, 169 Ark. 913, 227 S. W. 530. Tbe venue of tbe offense charged herein is not transitory, Cousins v. State, 202 Ark. 500, 151 S. W. 2d 658, and tbe alleged violation was consummated when tbe check was executed in Pulaski County and delivered to tbe payee in Pulaski County. In Shepherd v. State, 221 Ark. 191, 252 S. W. 2d 621, this Court said:
“Appellant contended that tbe venue was in Clark, bis home county, and not in Hempstead County, where be was charged and tried. It appears undisputed that tbe check in question was executed in Arkadelpbia, but there is conflict in tbe testimony as to whether it was delivered in Clark or Hempstead County. If delivered in Clark County, as appellant contended, then tbe venue would be in Clark, and not Hempstead.”
It is therefore clear, in the canse before us, that if Edwards committed a criminal offense, same was committed in Pulaski County, and not in Garland County, and the Circuit Court of the latter county was without jurisdiction.
Reversed.
Emphasis supplied. | [
80,
-24,
-16,
124,
10,
-64,
50,
-102,
26,
-93,
-91,
83,
-23,
93,
20,
121,
99,
47,
116,
121,
-57,
-77,
37,
99,
-14,
-13,
-51,
-59,
-78,
-55,
-92,
-43,
76,
112,
-54,
-39,
103,
64,
-59,
-100,
78,
-128,
-88,
64,
80,
-126,
48,
-85,
4,
15,
37,
-99,
-2,
62,
19,
-53,
109,
44,
91,
-81,
72,
-5,
-102,
21,
95,
21,
-79,
-91,
-115,
3,
120,
60,
-40,
57,
0,
-8,
59,
-122,
-126,
84,
111,
57,
12,
96,
98,
0,
-43,
-49,
-84,
-119,
30,
-1,
-99,
-89,
-110,
121,
91,
15,
-74,
-99,
122,
22,
-114,
-12,
-29,
69,
27,
108,
-121,
-50,
-36,
-93,
-115,
61,
22,
67,
-61,
33,
16,
117,
-50,
-30,
94,
79,
91,
-101,
-114,
-48
] |
Sam Robinson, Associate Justice.
This is a libel action wherein appellee, Bob Troutt, was awarded a judgment in the sum of $100,000 against appellants, Harold P. Dunaway, Cecil B. Hill and Gazette Publishing Company. The publishing company publishes the Arkansas Gazette, a daily newspaper having statewide circulation. Dunaway and Hill are engaged in the business of the distribution and operation of music and pinball machines. Troutt is a newspaper reporter employed by the Arkansas Democrat, a daily newspaper published in Little Bock and circulated throughout the State.
On March 9, 1959, Troutt filed the complaint in this action in the Pulaski Circuit Court, alleging that on the 26th day of February, 1959, the defendants falsely and maliciously accused him of extortion, blackmail and accepting a “pay-off”; that the defendants “did unlawfully, wrongfully, and maliciously fabricate, invent and cause to be prepared certain tape recordings of purported telephone conversations and interviews” with him and caused such tape recordings to be materially altered and spliced and changed so as to distort and falsify the purported conversations. The complaint further alleges that Dunaway and Hill entered into a scheme and conspiracy with the Gazette to use the alleged “spurious and falsified tape recordings for the purpose of publicly discrediting the plaintiff, Bob Troutt, with his newspaper and destroying his reputation as a competitive newspaper reporter by depicting and portraying him as an extortionist and blackmailer, thereby exposing him to the public hatred, ridicule and contempt.” And the complaint further alleges “that on or about the 27th day of February, 1959, the defendant Gazette Publishing Company falsely and wilfully and maliciously published in the Arkansas Gazette the said defamatory articles.”
The defendants answered and admitted the publication of the alleged conversations between Troutt and Dunaway and Hill and alleged as a defense that such conversations as shown by the tape recordings did take place. The newspaper account of the alleged conversations is libelous per se, and since defendants admitted the publication of the defamatory matter, the burden was on them to prove that such alleged conversations between Troutt and Dunaway and Hill did occur. Stallings v. Whittaker, 55 Ark. 494, 18 S. W. 829; 33 Am. Jur. 256.
In support of Dunaway’s and Hill’s testimony that the conversations with Troutt took place as alleged, it was shown that on February 26,1958, Dunaway and Hill bought a tape recording machine and installed it in their place of business at 11th and Main in Little Bock. The machine is such as will record on a tape telephone conversations without the knowledge of those using the telephone. It does not appear that at the time of purchasing the tape recorder on February 26th Hill and Dunaway knew Troutt, but on March 4th Dunaway called Troutt and told him that someone had been making pictures of Dunaway’s and Hill’s place of business and wanted to know if Troutt knew anything about it. Both Dunaway and Hill testified that subsequently they had telephone conversations with Troutt which resulted in Hill’s paying to Troutt the sum of $2,000 for the purpose of preventing him from publishing in the Arkansas Democrat false articles that would be detrimental to Dunaway’s and Hill’s business. By its verdicts the jury necessarily found that Dunaway and Hill did not pay Troutt $2,000 as they claimed they did, and that the purported conversations as recorded on the tapes produced by Dunaway and Hill in corroboration of their testimony did not occur. The tapes were introduced in evidence, appellants contending that they are what they purport to be, a true record of the conversations between the parties; that they are the original tapes and have not been spliced or altered in any respect. On the other hand, Troutt maintains that Dunaway and Hill paid him no money whatever ; that the proposition of Dunaway and Hill paying money to him was never discussed; that the only conversation he had with them about money was when they called bim in February, 1959, and indicated that the pinball operators’ organization wanted to donate $2,000 to the March of Dimes and that pursuant to such conversation that organization did donate $2,050 to the proper officials of the March of Dimes. Troutt contends that Dunaway and Hill changed, altered and spliced the recorded tapes to make it appear that they made a deal with bim whereby he was paid $2,000 for an improper purpose, as heretofore mentioned.
In support of his contention that the tapes were altered, Troutt produced as a witness Mr. Bobert Oakes Jordan, a qualified expert in the field of recording devices. He testified that it is easy to alter tapes like the ones introduced in evidence and that in his opinion those particular tapes had been altered and spliced. Mr. Jordan testified that there are 50 or 60 spots in the tapes that indicate they have been altered in one way or another and that about 15 of such places give him absolute assurance that the tapes are altered. Mr. Jordan used the tapes to point out to the jury those things upon which he based his opinion that they have been altered. Troutt’s testimony, coupled with that of Jordan, is substantial evidence to support a verdict in favor of the plaintiff. Moreover, Mr. William S. Bachman, an expert called as a witness by appellants, testified that in his opinion the tapes had not been altered, although he said they showed evidence of having been spliced. Defendants produced weighty evidence to support their version of what transpired but of course here we do not consider the weight of the evidence. On that point the only question considered is whether there is substantial evidence to support the verdict. Providence Washington Ins. Co. v. Eagle Milling Co., Inc., 214 Ark. 918, 219 S. W. 2d 233; Bockman v. World Ins. Co., 223 Ark. 665, 268 S. W. 2d 1.
Hill testified that he paid $2,000 to Troutt in the presence of Judge Robert Laster of the Little Rock Municipal Court. Prior to the trial of the case, appellants gave due notice that the discovery deposition of Judge Laster would be taken. Before the date set for the taking of such deposition, appellants petitioned the trial court for an order authorizing the issuance of a subpoena duces tecum requiring the production of records of Judge Laster’s bank transactions along about the time Dunaway and Hill claimed they paid $2,000 to Troutt. This was on the theory that Troutt may have given some of the money to Judge Laster. The petition was denied. Ark. Stat. § 28-256 provides that upon the motion of any party showing good cause the court may order the production of documents, etc. The trial court has a wide discretion in determining whether good cause is shown for the production of documents. Vale v. Huff, 228 Ark. 272, 306 S. W. 2d 861. We cannot say the trial court abused its discretion where the appellants were asking for an investigation of the financial affairs of one who was not a party to the case and was never called as a witness in the case.
The complaint alleges that the defendants schemed and conspired together to use spurious and falsified tape recordings for the purpose of publicly discrediting the plaintiff. The Gazette requested the following instruction which was refused by the court: “You are instruct that there is no evidence that the defendant Gazette Publishing Company schemed or conspired with the co-defendants Hill and Dunaway to discredit the plaintiff or impeach his reputation, and you will therefore find for the defendant Gazette Publishing Company on that issue.” In view of the evidence the court did not err in refusing this instruction. Mr. Hugh Patterson, called as witness by appellee, testified that he is the publisher of the Arkansas Gazette; that he was out at Mr. Dunaway’s house the day before the press conference at which the transcript of the tape recordings was released to the press; and at that time, the day before the press conference, he heard the tapes played. No written transcript of the recordings had then been made, but later, and before the press conference, the attorney for Dunaway and Hill furnished to Mr. Patterson a written transcript of the recordings. Patterson drove by and picked up the transcript but did not stay. A reasonable inference deducible from the testimony is that the day before the transcript was released to the press, Dunaway and Hill, their attorney and Patterson agreed that such a release would be made. The court therefore did not err in refusing to give the above mentioned requested instruction.
The court gave appellee’s requested instruction No. 1, as follows: “You are instructed that the article published by the defendant, Gazette Publishing Company, on February 27, 1959, and set out in the complaint and exhibits thereto, is actionable of itself and that it is not privileged, and the plaintiff is entitled to recover against the defendant, Gazette Publishing Company, such compensatory damages as will fully and adequately compensate him by reason of the publication of the defamatory article by the defendant, Gazette Publishing Company, not in excess of the amount sued for, unless you find the matters concerning the plaintiff contained in the article to be true or substantially true.” This instruction was copied from an instruction approved by this Court in The State Press Co., Inc. v. Willett, 219 Ark. 850, 245 S. W. 2d 403. In the case at bar, by instructions No. 3 and No. 11 the court properly informed the jury as to the law on measure of damages.
Appellants complaint of appellee’s instruction No. 2 given by the trial court, as follows: “You are instructed that in an action for libel where the words or article published are libelous of themselves, the law implies some damage from the publication of the libelous matter, if any, and the law further implies that the person, or persons, if any, publishing such libelous matter intended the injury the libelous matter is calculated to effect, and in this case you have been told that the article and tapes complained of herein are libelous of themselves unless true or substantially true and that the burden rests upon the defendants to prove the truth of the contents of said publications.”
In contending that the instruction is erroneous, appellants first say that the law does not imply some damages from the publication of libelous matter, but appellants concede that “where the slanderous words are actionable per se, the plaintiff is entitled as a matter of law to compensatory damages and is not required to introduce evidence of actual damages in order to recover substantial damages.” It is hard to understand how under the law as just quoted and conceded by appellants to be correct, a plaintiff who makes out a ease of libel to the satisfaction of the jury is not entitled to some damages as a matter of law. In fact, appellants say “In an ordinary case a plaintiff has to prove that actual damages were sustained. Libel is made the exception be cause of the difficulty in proving actual damages.” In Taylor v. Gumpert, 96 Ark. 354, 131 S. W. 968, the Court said: “Where the slanderous words are actionable per se, the plaintiff is entitled as a matter of law to compensatory damages, and is not required to introduce evidence of actual damages to entitle him to recover substantial damages. In such a case the plaintiff need not prove actual damages in order to recover substantial damages. [Citing Murray v. Galbraith, 95 Ark. 199.]”
Next, appellants contend that although the publication was libelous per se, it was error to tell the jury that the defendants intended the injury the libelous matter is calculated to effect. The great weight of authority is to the effect that if the publication is libelous per se, the publisher is presumed to intend the natural consequences of his own act. Restatement, Torts, Vol. 3, § 580; 33 Am. Jur. 114; 53 C. J. S. 124.
Appellants further argue that the instruction is a comment on the weight of the evidence. We do not find that the instruction is defective in that respect, and, moreover, no specific objection was made in that regard. Dunaway and Hill complain of the instruction because, they say, it treats the tapes, transcript and newspaper article as one publication. For all practical purposes, it was one publication. Dunaway and Hill made the tape recordings, made a written transcript thereof, and furnished such transcript to the publishing company, which published it in the Arkansas Gazette.
Appellee’s instruction No. 12 given by the court submitted to the jury the issue of punitive damages. The Gazette objected specifically on the ground that there had been no showing of the financial condition of the Gazette. There had been some evidence introduced as to the worth of the other defendants, Dunaway and Hill. This phase of the case has caused us considerable concern. The jury returned two verdicts, one in the sum of $50,000 for compensatory damages, and one in the sum of $50,000 as punitive damages. The point is whether that part of the judgment based on punitive damages can be allowed to stand. At the trial evidence was introduced shedding some light on the financial worth of Hill and Dunaway, but there is no direct evidence in the record as to the financial condition of the Gazette. True, the record shows the Gazette is the oldest newspaper west of the Mississippi River and that it has a statewide circulation with some circulation throughout the United States, but such meager evidence is not sufficient to show just how severe the punishment would be by causing it to pay all or a pro rata part of a $50,000 judgment for punitive damages. While the payment of $50,000 or a pro rata part thereof may be practically no punishment at all for a very wealthy person or corporation, it may be the most severe punishment and ruinous to other. Where there are joint defendants and a judgment is against them jointly, as in the case at bar, all or any one of such defendants is liable to the plaintiff for the entire judgment. Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894. The individual liability of joint tort-feasors to the injured party is unaffected by the Contribution Among Tort-feasors Act, Ark. Stat. §§ 34-1001 — 34-1009. Section 34-1003 provides: “Nothing in this act . . . shall be construed to effect the several joint tort-feasors’ common law liability to have judgment recovered and payment made from them individually by the injured person for the whole injury; . . .” Under our contribution Among Joint Tort-feasors statutes, one defendant may proceed against others liable to the injured party for his pro rata share, but this does not affect the right of the injured party to recover from the joint tort-feasors individually or collectively.
This kind of action, involving punitive damages, has given rise to two lines of decisions. First, the majority holds that since the judgment for punitive damages against joint tort-feasors may actually result in greater punishment for one or more of those jointly liable, than to another who is equally liable, the right to recover such punitive damages is waived when two or more par ties are made defendants in a case where punitive damages may be assessable.
There is an annotation on the subject in 63 A. L. R. 1405. In support of the majority rule cases are cited from the United States Supreme Court and from the states of Illinois, Missouri, Texas, Vermont, Virginia, Washington and Wisconsin. On the other hand, in support of the minority rule cases are cited from the states of Mississippi, Ohio and Pennsylvania. Perhaps the leading case in support of the majority is that of Washington Gas-Light Co. v. Lansden, 172 U. S. 534, 19 S. Ct. 296, 43 L. Ed. 543. There the Supreme Court of the United States said: “Punitive damages are damages beyond and above the amount which the plaintiff has really suffered, and they are awarded upon the theory that they are a punishment to the defendant, and not a mere matter of compensation for injuries sustained by plaintiff. While all defendants joined are liable for compensatory damages, there is no justice in allowing the recovery of punitive damages, in an action against several defendants, based upon evidence of the wealth and ability to pay such damages on the part of one of the defendants only. As the verdict must be for one sum against all defendants who are guilty, it seems to be plain that, when a plaintiff voluntarily joins several parties as defendants, he must be held to thereby waive any right to recover punitive damages against all, founded upon evidence of the ability of one of the several defendants to pay them.” And in Leavell v. Leavell, 114 Mo. App. 24, 89 S. W. 55, the Missouri court quoted with approval the above language of the United States Supreme Court. See, also, Chicago City R. Co. v. Henry, 62 Ill. 142; Schafer v. Ostmann, 148 Mo. App. 644, 129 S. W. 63; Smith v. Wunderlich, 70 Ill. 426; Lister v. McKee, 79 Ill. App. 210; Singer Mfg. Co. v. Bryant, 105 Va. 403, 54 S. E. 320. And in McAllister v. Kimberly-Clark Co., 169 Wis. 473, 173 N. W. 216, the court said: “Plaintiff here, however, having an option to sue one or more of the joint tort feasors concerned in this transaction has elected to sue more than one. Having so elected, whatever judgment is to be en tered in such action must be entered as against all such defendants found liable. Such defendants necessarily stand on the same footing so far as compensatory damages are concerned; but when, for the purpose of enhancing what may be given by the jury for punitory damages, evidence is offered as to the financial ability of the one, it cannot but affect the amount of punitory damages to be recovered against the others, for these also must be assessed against all or none. There is no provision of the statute by which the amount of punitory damages may be assessed separately against the several defendants and we have no inclination, even if we had the power so to do, to establish by decision any such innovation in favor of this element of damage. Where, as here, the financial ability of the several defendants is different, as manifestly it would be in the vast majority of cases, a number of authorities have held the admission of such evidence as against the one to be prejudicial error against the other, and we adopt that view.”
In support of the minority view it is argued that a wealthy person may join with him one of meager means and thereby avoid the risk of having a judgment for punitive damages rendered against him. In the Mississippi case of Bell v. Morrison, 27 Miss. 68, the court said: “The action was for the joint tort of the defendants, who joined in their pleas. In such a case, it is held to be proper for the jury to assess damages against all the defendants jointly, according to the amount which, in their judgment, the most culpable of them ought to pay . . . Whatever, therefore, would be competent evidence with that view as to one, would be competent as to all of the defendants. Otherwise a wealthy defendant, who is principally implicated in a wrong of this character, might escape the payment of just and reasonable damages, by having others, without character or property, associated in the unlawful act.”
Up to this time this Court has not had occasion to rule on the question, and there is no statute covering the situation. After reviewing all of the authority on the subject, we are of the opinion that the better rule is that the plaintiff waives the right to punitive damages when more than one party is made defendant in a case where ordinarily punitive damages would be assessable. Compensatory damages are awarded for the purpose of making the injured party whole, as nearly as possible. To accomplish this result, Troutt was given a judgment for $50,000, based on the verdict for that amount as compensatory damages. The $50,000 verdict based on punitive damages was not to compensate him for any damages he had sustained, but was to punish the defendants for the wrong the jury found they had committed. When a plaintiff is awarded a judgment based on punitive damages, it is somewhat of a windfall for him, because punitive damages cannot be assessed unless compensatory damages are awarded. Kroger Gro. & Baking Co. v. Reeves, 210 Ark. 128, 194 S. W. 2d 876.
By adopting the majority view, it is possible that one wrongfully publishing a libel may go unpunished by not having a judgment for punitive damages rendered against him. But on the other hand, if the minority view were adopted, a joint tort-feasor may be unjustly punished. The principle is firmly established and recognized in all courts and in every civilized country that it is better that several guilty persons go unpunished than that one innocent person be punished. Having reached this conclusion, it follows that the judgment based on punitive damages must be reversed and dismissed. This leaves intact the judgment to the extent of $50,000 for compensatory damages.
Appellants have argued other points, all of which we have examined carefully, but we find no other error.
It follows that the judgment will be reduced to the sum of $50,000, and judgment be rendered here in favor of appellee against appellants for that amount. Since the judgment is reduced by a substantial amount, the costs of the appeal will be awarded to the appellants. Hodges v. Smith, 175 Ark. 101, 298 S. W. 1023.
Ward, J., concurs.
McFaddin and George Rose Smith, JJ., not participating. | [
56,
-18,
-86,
94,
40,
-32,
56,
-86,
99,
-63,
-90,
83,
-19,
-26,
8,
113,
-77,
45,
84,
107,
-58,
-73,
39,
-30,
-62,
-77,
121,
-43,
-93,
75,
-28,
-42,
77,
48,
-118,
65,
114,
66,
-123,
92,
-98,
2,
-119,
80,
91,
64,
48,
-18,
24,
71,
101,
-65,
-14,
40,
28,
-53,
72,
60,
-53,
-122,
65,
-109,
-6,
-113,
125,
22,
33,
39,
-70,
23,
120,
44,
-40,
48,
8,
-84,
115,
-90,
2,
101,
73,
-40,
4,
98,
98,
4,
-123,
-91,
-84,
-120,
47,
-9,
29,
-81,
-110,
97,
10,
73,
-66,
-35,
122,
16,
-125,
-14,
-7,
5,
29,
40,
11,
-114,
-48,
-89,
47,
-92,
-116,
43,
-5,
115,
0,
116,
-55,
-30,
93,
79,
115,
11,
-58,
-76
] |
J. Seaborn Holt, Associate Justice.
This is a suit in ejectment for possession of land. Paul Wycough and his wife filed a complaint in the Circuit Court of Independence County sounding in ejectment, stating that they were the owners of a certain parcel of land described as the Northeast Fraction Northwest Quarter of Section 26, Township 12 North, Range 5 West, and that they were rightfully entitled to possession of the land, but that the defendant, D. A. Wyatt, had refused to allow them to take possession, and prayed they be awarded immediate possession. At the trial of the cause, the Wycoughs produced deeds tracing their chain of title back to the original government patent to the lands. Exhibits, photos, plats, maps, and testimony relating thereto, were introduced to show the location, character, and change in the lands through the course of the years. The testimony and
exhibits show that the land in question was, during early official government surveys date 1826 and 1854, located on the east side of White River. Immediately north of the land at the time was an island known locally as Crow Island. Sometime around 1900 (the witnesses could not pinpoint the exact year), the river changed its course, cutting around the Wycough lands. Subsequently, the river has since changed its course twice. As a result of these chánges, the land of the Wycoughs is now on the west side of White River and .lies adjacent to Crow Island. D. A.. Wyatt, who owns part of Crow Island, claims that the Wycough land is an accretion to his property, and further, that he had acquired title by adverse possession. The preceding drawing shows the present location of the land here involved after river changes.
The trial court entered judgment for the plaintiffs and Wyatt has appealed. For reversal the appellant first contends that the lower court erred in declaring in its judgment that the appellees were the owners of the lands. Although it is true that ejectment is in its nature a possessory action, it is equally well settled in this state that title to real property may be settled as between the parties in an action of ejectment. Brasher v. Taylor, 109 Ark. 281, 159 S. W. 1120. And we have many times held that a plaintiff must recover on the strength of his own title and not on the weakness of the defendant’s. Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610; Jadkson v. Gregory, 208 Ark. 768, 187 S. W. 2d 547. Some contention is also made as to whether the judgment can bind R. K. Wyatt, who secured' title to some of the lands from D. A. Wyatt, after filing of the suit but before judgment was rendered. In Ritchie v. Johnson, 50 Ark. 551, 8 S. W. 942, under a somewhat similar factual situation, this Court held that a presumption exists that one who secures title in such a situation holds in privity with the defendant in the ejectment suit, and that if such a person holds by an independent title, it is incumbent upon him to then show it. Here there was no showing that R. K. Wyatt secured title independent of D. A. Wyatt. In Hobbs v. Lenon, 191 Ark. 509, 87 S. W. 2d 6, we laid out the general rule in the following language:
“It follows from the general rule that a person who acquires the property pendente lite takes subject to the court’s adjudication of the rights in the property which is the subject-matter of litigation; such persons will be bound whether a party to the litigation or not. Parties, their privies, and purchasers pendente lite are all grouped together as bound by the court’s decision, 17 R. C. L., § 28, p. 1031. Also to the same effect, 2 Pomeroy’s Equity Jurisprudence, 3d ed., pp. 632-635. The rule as above stated has been recognized and followed by this court from its early days to the present time . . .”
Since it is not shown in the present case that R. K. Wyatt holds a title independent of D. A. Wyatt, it follows that the fact that R. K. Wyatt is not a party to this case is not a ground for its dismissal.
The appellant also argues that the deeds under which the appellee claimed title were void because the description was vague and indefinite, and there is a discrepancy in the amount of acreage shown in the parcel. Without an extended discussion, suffice it to say that three surveys were run on the property, and they all agreed within approximately four feet of each other. No contention was made at the trial that the surveys were inaccurate. In order to locate the parcel, it is only necessary to locate the NW corner of the NE % of Section 26, and from there, by surveying west and south on the proper variation. The old river bed locates the other boundaries and all witnesses stated this bed is clearly visible. As to the excess acreage, we have held the fact that the acreage is stated incorrectly does not lessen the certainty of the description. Rucker v. Arkansas Land & Timber Company, 128 Ark. 180, 194 S. W. 21. See also Doe v. Porter, 3 Ark. 18; Jones, Arkansas Titles, Sec. 233. • Further, the discrepancy in acreage seems adequately explained by the United States Survey of 1826, a certified copy of which is attached and made a part of the appellees ’ brief, and which we will take judicial notice of, Pope v. Shannon Bros., Inc., 195 Ark. 770, 114 S. W. 2d 1, shows that the surveyor listed the parcel as containing 8.80 acres, but later surveys indicate that it contained only 6.87. The draftsman of the title instruments apparently copied the acreage listed in the early survey.
Two additional grounds urged upon us for reversal are that the trial court erred in failing to find that the land was an accretion to Crow Island, and that the appellant had acquired title by adverse possession of the land. Both of these questions present issues of fact, which we will not disturb here if supported by substantial evidence. Lewis v. Houchins, 220 Ark. 610, 249 S. W. 2d 1. In St. Louis, I.M. & S. R. Co. v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L.R.A. 559, we defined accretion as:
“Accretion is the increase of real estate, by the addition of portions of soil by gradual deposition, through the operation of natural causes, to that already in the possession of the owner. The term ‘alluvion’ is applied to the deposit itself, while accretion rather denotes the act.”
When land is formed by such gradual deposits, it belongs to the owner of contiguous land to which the addition is made. Nix v. Pfeifer, 73 Ark. 199, 83 S. W. 951. Avulsion is a sudden and perceptible gain or loss of riparian land and may arise from the sudden abandonment by a stream of its old channel and the creation of a new one, or the sudden washing from one of its banks a considerable body of land and the depositing of it on the opposite bank. Thompson, Real Property § 2561. When a stream shifts suddenly by avulsion the boundaries of the riparian owners do not change with the course of the stream. Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L.R.A. 317. In the present case three eye-witnesses testified that the river changed its course not gradually, as contended by appellant, but by a sudden and perceptible change, in fact, cutting a new channel. We think the evidence is sub stantial and sufficient to show that an avulsion occurred and title to the land did not change.
As to adverse possession, the record reflects that the first acts which could have even amounted to acts of adverse possession were the cutting of timber and the clearing of a small parcel of land in 1949. However, at that time the title to the land was in the State of Arkansas and adverse possession cannot run against the state. Bengel, Executor v. City of Cotton Plant, 219 Ark. 510, 243 S. W. 2d 370. The first time that adverse possession could have begun to run was in 1954 when title was acquired by the appellees from the State. Simple arithmetic shows that seven years from 1954 would be 1961, a date still in the future, hence the appellant could not have acquired title by adverse possession from the appellee.
Finding no error, the judgment is affirmed. | [
113,
110,
-16,
60,
-72,
97,
96,
-78,
-61,
-61,
-28,
115,
47,
-125,
8,
113,
99,
121,
-43,
123,
-57,
-73,
31,
114,
-48,
-45,
113,
77,
-78,
77,
-20,
-57,
76,
32,
66,
21,
-60,
-28,
-51,
28,
-122,
-118,
9,
108,
-61,
72,
48,
105,
64,
11,
81,
-113,
-9,
44,
113,
67,
73,
46,
-53,
-115,
65,
122,
-116,
-59,
95,
22,
-95,
38,
-7,
65,
74,
42,
-112,
49,
45,
-4,
127,
-76,
-122,
116,
5,
-101,
-84,
102,
99,
18,
-115,
-49,
-80,
24,
46,
-38,
25,
-90,
-112,
0,
67,
72,
-100,
-103,
126,
16,
7,
126,
-17,
-123,
24,
104,
3,
-49,
-106,
-95,
15,
40,
-115,
3,
-13,
-93,
48,
112,
-50,
-62,
92,
71,
121,
-69,
-114,
-69
] |
Jim Johnson, Associate Justice.
This case involves the question of whether bringing an action for tortious conduct (negligence and misrepresentation) growing out of a particular set of facts will bar the bringing of a later suit on implied and express warranty, also based on the same set of facts.
Appellants, C. W. Kapp and Mrs. Nancy B. Kapp, are residents of Blytheville, and appellee, Bob Sullivan Chevrolet Company, has its place of business there. Appellee sold and installed a set of seat belts on the Kapp automobile in December 1956. While wearing one of the seat belts during an automobile collision near Amarillo, Texas, on October 12, 1957, Mrs. Kapp received severe and permanent injuries as a consequence of the belt webbing breaking. Appellants first filed suit No. 5133 for personal injury damages against appellee in the Civil Division of the Chickasawba District, Mississippi Coun ty Circuit Court, on December 6, 1958, alleging liability in negligence. Upon refusal of the trial court to permit joinder of warranty claims with the original negligence action in said suit No. 5133, appellants on September 12, 1959, filed the present suit No. 5221 in the same court against the same parties for personal injury damages grounded in breach of warranty. Upon appellee’s motion on November 21, 1959, the trial court dismissed appellants’ separate warranty action holding as follows:
“After hearing the argument of counsel, the court finds from the face of the pleadings, as a matter of law, that the plaintiffs have made an election of remedy, by reason of which this present action sounding in warranty should be dismissed.”
From such ruling comes this appeal.
For reversal appellant contends that the trial court erred in holding plaintiffs ’-appellants ’ prior personal injury suit based in negligence was an election of remedies barring a subsequent personal injury suit based in warranty.
Ark. Stats., § 27-1301 sets out what causes of action may be joined. The trial court was correct in its refusal to permit the joinder of the warranty claim with the original negligence action since this Court has repeatedly held in the application of this statute that an action for the recovery for damages for tort cannot be joined in an action on contract. See: Harris v. True-blood, 124 Ark. 308, 186 S. W. 836; Unionaid Life Ins. Co. v. Crutchfield, 182 Ark. 825, 32 S. W. 2d 806. However, we have been unable to find where this Court has interpreted the statute to mean that an action in tort and an action in contract are necessarily, under all circumstances, inconsistent. In the two cases mentioned, the appellant alleges, in effect that the appellee intentionally misrepresented the quality of the belts and that he negligently selected them, and that he was charged with knowledge that they were not sufficient for the job he sold them for, and that he should be held liable for:
(1) Negligently selecting inferior materials for a given purpose and misrepresenting that they were sufficient when he knew, or by the use of reasonable care could have known they were not sufficient.
(2) That defendant expressly promised (warranted) that they were “the best” and would hold in a collision as well as any belt made.
(3) That even if he didn’t make express representations, that he selected and recommended two belts for the job of preventing persons from being tossed around in a collision and that his implied warranty of fitness for the job intended was breached.
As we view these actions, the facts that would support (1) would support recovery under (2) and (3), and the facts developed to support (2) would support recovery under (3). (1) and (2) require proof of express statements, (1) with intent to defraud and with knowledge of the actual untruth; and (2) requiring only that appellee made the representations and appellant relied upon them. Finally (3) requires only that seller sold the goods for a given purpose and that he held them out as being fit for that purpose and purchaser relied upon this.
Therefore, from the facts in this case, we cannot say that the remedies sought by appellants are inconsistent. The doctrine of election does not apply to two actions, one upon a contract and the other for fraud on its procurement, when both depend upon an affirmance of the contract. See: Dilley v. Simmons National Bank, 108 Ark. 342, 158 S. W. 144.
As was held in Davis v. Lawhon, 186 Ark. 51, 52 S. W. 2d 887, it is only in cases where the causes of action are inconsistent that the prosecution of one suit bars the other. Where the two remedies are cumulative and not inconsistent, both suits may be prosecuted at the same time. Also see: Sturdivant v. Reese, 86 Ark. 452, 111 S. W. 261; Craig v. Meriwether, 84 Ark. 298, 105 S. W. 585.
The Court in the Lawhon case, supra, quoting a Florida decision, American Process Co. v. Florida Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054, very clearly stated the rule as follows:
“Where the law affords several distinct but not inconsistent remedies for the enforcement of a right, the mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies. In order to operate as a waiver or estoppel, the election must be between coexistent and inconsistent remedies. To determine whether coexistent remedies are inconsistent, the relation of the parties with reference to the right sought to be enforced as asserted by the pleadings should be considered. If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general be pursued concurrently even to final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.”
From what we have said above, the judgment of the trial court dismissing the warranty action is reversed and since the causes of action are of a like nature growing out of the same accident and are pending before the same court involving the same litigants, we have been unable to find a valid reason to prevent, on proper motion, the consolidation of the causes for trial under the terms of Ark. Stats., § 27-1305, and proper determination under special interrogatory. See: Waters-Pierce Oil Co. v. Van Elderen, 84 Ark. 555, 106 S. W. 947.
Reversed and remanded.
McFaddin, J., concurs. | [
-16,
-22,
-72,
-18,
10,
-32,
56,
2,
122,
-121,
101,
-45,
-83,
-25,
13,
127,
-2,
61,
97,
123,
-11,
-77,
3,
-94,
-42,
-109,
89,
85,
-71,
75,
-16,
23,
76,
48,
-54,
-43,
-58,
74,
-51,
94,
-54,
4,
63,
-20,
89,
-45,
-80,
-6,
16,
15,
101,
-122,
-62,
62,
49,
67,
40,
40,
107,
41,
64,
48,
-113,
5,
125,
18,
51,
4,
-104,
-91,
124,
30,
-40,
-79,
-86,
-4,
114,
-90,
66,
-74,
105,
-103,
12,
98,
119,
34,
57,
-61,
-4,
-72,
46,
-81,
15,
-90,
-72,
89,
11,
8,
-74,
-67,
119,
6,
13,
116,
-16,
85,
31,
40,
7,
-113,
-108,
-79,
111,
98,
-106,
3,
-21,
35,
-76,
101,
-51,
-32,
93,
71,
19,
-109,
-49,
-104
] |
Carleton Harris, Chief Justice.
Arkansas Power & Light Company, appellant herein, brings this appeal from a judgment entered in the Hot Spring County Circuit Court in favor of numerous landowners who successfully contended that their lands had been damaged by the negligence of appellant company in its operation of Remmel and Carpenter Dams. The judgments totaled $18,541.07. Three points are urged for reversal, including alleged erroneous instructions, but under the view that we take, it is only necessary that we discuss the first point, vis., that the trial court should have directed a verdict in favor of the company.
On the morning of June 16, 1963, between the hours of 2:00 and 3:00 A.M., it began to rain in the area of Carpenter and Remmel Dams and continued until approximately 12:00 noon on the same date. Total rainfall at Remmel Dam (which formed Lake Catherine) during this period was 6.14 inches, and the total rainfall at Carpenter Dam (forming Lake Hamilton) during this same period was 4.56 inches. The maximum elevation at which water may be contained in Lake Catherine is 305 feet, and the maximum in Lake Hamilton is 400 feet. Both dams contain flood gates for the purpose of channelizing the water.
Appellees, in their complaint, alleged that appellant on July 16, 1963, carelessly and negligently raised flood gates under its control, and permitted excessive water to flow into the Ouachita River below Remmel Dam, causing such water under its control to overflow lands on which the appellees had crops, destroying and damaging such crops. It was specifically asserted that appellant failed to obtain weather reports from the United States Bureau showing rainfall predictions, and that such failure amounted to negligence. Their main contention was set out in their answer to the company’s Interrogatory No. 4, wherein the question was propounded relative to how the Power and Light Company held back water and prevented it from flowing naturally down the Ouachita River. The answer to this interrogatory states:
“It had water stored held back by its dams prior to any Act of God causing an unusual inflow. After discovering and recording the rise coming on its lakes, including the rate of rise, it delayed opening of gates to let the water flow down the river naturally and then after seeing that it was getting more water than could be handily handled, it opened its gates and turned water down the Ouachita River in a larger volume than would have gone down the river naturally. After releasing sufficient volumes of water to cause a flood on the lands below the dam. it continued to release larger volumes of water than were naturally flowing into its lakes, lowering the water level of its lakes while so doing and thus held flood waters on crops of the plaintiffs a longer period of time than the water would have remained thereon by natural flow.”
The lands of the appellees are located in the Ouachita River bottom area below Rockport, near Malvern, and are downstream from both Remmel Dam, and Carpenter Dam, which is about 11 miles farther away. Elevation maps reveal that there is a 95-foot drop from Carpenter to Remmel Dam and a 47-foot drop from Remmel to Rockport. There is a further drop from Rockport Bridge to Morrison Island where most of the appellees were farming) of 39 feet, making a total drop in elevation from Carpenter Dam to Morrison Island of 181 feet. It is thus apparent that the lands of appellees are very low.
One of the principal witnesses for appellees was Lewis Cash, who lives in the Midway community, and has farmed in the Ouachita River bottoms for many years. Cash has observed various floods in the vicinity throughout the years, and the witness testified that the flood in question was different from the others in that the water remained on the lands longer than usual. “Normally when it crests, it peaks, and within 3 or 4 hours it goes to falling pretty fast. This time it hung on when the main part of the water left there.” Cash said that his land remained under water for 40 or 45 hours. The witness stated that when flood waters run off quickly without the property being subjected to a hot sun, there is but little effect on the crops; however, if the water stays on for a long period of time under hot sunshine, the crops will sour. Cash said that the 17th of June was a “real hot day,” and that the water was still over the crops at that time. This appellee testified that 10 or 12 hours of hot sun would ruin the crops, but that water staying on overnight probably would have no adverse effect. “I don’t think it would just staying-on it overnight, a short period of time, if it was cool.” He “couldn’t say definitely” what time period alone (for the water to remain on the crop) would kill the corn.
Doyle Cook, a farmer in the area, received the report of a flood about 8:00 A.M., and he testified that he forthwith checked various creeks and streams, some running into the Ouachita River below the dam at Lake Catherine, and some of the streams running into the lake above the dam. According to the witness, most of the creeks and streams were “normal,” and others indicated that they might have been a little out of their banks (because of debris that was observed), but the witness found no creek or stream out of its banks. This included Tigre Creek and G-ulpha Creek, and this evidence is rather strange in light of the testimony of other witnesses which will subsequently be quoted. As to Tigre Creek, Cook stated that it had been up some, but was down when he crossed it around 10:30 or 11:00 A.M.; there was no debris in the road or highway at Grulpha Creek. Cook even stated that there were places where it appeared there had been no rain at all (Cooper Creek, which empties into Lake Catherine), and there were other creeks where the rain did not “amount to anything.” Some of this testimony is confusing, but the purport of his evidence was that the water, about which the appellees complained, came from Remmel Dam.
E. C. Stewart, presently retired, but at the time of the flood, Systems Operator for the Middle South System, and whose office was in Pine Bluff, was called by both appellees and appellant. Mr. Stewart had control over opening the gates, including the determination of which gates would be opened, at both Remmel and Carpenter Dams. The witness said that the drainage area between Blakely Dam and Carpenter Dam was 300 square miles; from Carpenter to Remmel was 120 square miles; in other words, all the water in this area flowed into Lakes Hamilton or Catherine. He testified that on a normal day, his office would be in touch with personnel at the dams not less than once an hour, but that when something unusual happened, communications were increased. Flood records for July 16 were introduced, and these reflected the following facts:
When the water level in Catherine exceeded the 305-foot elevation, employees of the company began opening the gates, the first opening being 4 feet, and occurring at 6:08 A.M. At 8:47 A.M., the same action occurred at Lake Hamilton. Subsequently, the gates at Remmel were opened to 10 feet.
The evidence offered was voluminous, but a summary reflects that at Remmel Reservoir for the 24-hour period from 12:01 A.M. to 12:00 midnight on July 16, 48,934 acre feet came into the reservoir, and 45,085 acre feet were discharged. On July 17, 11,325 acre feet flowed into Remmel, and 14,792 acre feet were discharged. In other words, during this 48-hour period of July 16 and 17, the total inflow was 60,259 acre feet, and the total discharge was 59,877 acre feet; i.e., approximately 400 acre feet more came into Lake Catherine than went ont. On July 16, 28,116 acre feet flowed into Lake Hamilton and 18,490 acre feet flowed out. Prom midnight until noon on the 16th, more water flowed into Hamilton than was discharged at the dam, but from noon on more water was discharged than came into the lake. There were no figures on the intake and discharge at Hamilton on the 17th. A flood record sheet for Carpenter Dam on the 17th was not kept because it was considered that the flood was over.
Appellees contend that the power company, although it had the capacity to do so, did not maintain the smoothest possible flow of water; that though appellant at Bemmel Dam had the gate capacity to let out all water coming in, as it came in, the company failed to do this, but instead, held the water, discharging it hours later. It is asserted that appellant should know that:
“* * * unnecessarily discharging water into the main channel of the Ouachita Biver at a time flood water was out over the crops would hold the crops under water a longer period of time and thereby destroy them, when if the water had come on through naturally, even if it peaked at a higher point, would have cleared from the crops much sooner than it did in this case.”
Unquestionably, the rainfall at the sites of the dams, and the general surrounding area, was unusually heavy, conditions being described by some witnesses as being the worst that they had seen.
G-len Teeter, a vocational teacher and resident of Magnet Cove, testified that when he awakened around 6:00 A.M. on the morning of July 16, it had rained to the point that Stoney Creek, which flows through his field and empties into Ouachita Biver about 4 miles below Bemmel Dam, was up enough that the creek ran knee deep through a neighbor’s house which was just across a road adjoining the creek; he also determined the amount of rain by checking a 5-gallon bucket that he had emptied the night before and left in the back yard. Teeter stated that the bucket had straight sides and was 12 inches deep, and that on the morning of the 16th it was full. He said that it did not rain prior to his going to bed on the night of the 15th which was 9:00 or 10:00 P.M. The weather record at Malvern shows rainfall of 5.20 inches on the 16th.
Barney Roark testified that there had been a big flood on G-ulpha Creek (which empties into the upper end of Lake Catherine) on the morning of the 16th, and that the water flowed over the bridge on Highway 270, and washed away the Rock Island Railroad tracks for % of a mile; big gum trees were “snapping” as though they were toothpicks. Roark owns a building approximately 40 yards from the creek, with a 7-foot ramp built around it, and the water reached 24% inches in this building. The witness also lost other property in the flood, including a trailer parked on his property: “It was a big show trailer and well equipped, and I had a new, brand new Evinrude motor in there, and I haven’t found one part of it yet.” This occurred around 7:00 A.M.
Yal Hall, Superintendent of the Municipal Water System at Hot Springs, testified that he was called to the plant about 8:00 A.M. on the 16th because there were indications that the dam used for the Hot Springs water supply (Lake Dillon) might wash out. The water was running over the dam about 5 feet deep:
“Well, on the way out I had a little trouble getting through town. Town was flooded down Central Avenue. As soon as I got out to the plant, the -engineer wanted me to come out there. I don’t know what I could have done if it had washed out. But anyway, water was in the end of the pump- house. We never experienced anything like it on that watershed, not since we have been there. When I got out there, water was everywhere and I asked how much rain we had since midnight. We always read the gauge at midnight. We went out to the rain gauge and checked the rain gauge and had 9.98 rain since the meter was read at midnight. It was about 9:30 or ten o’clock a.m. when I read the meter. ’ ’
The witness stated that the next day he went down to the basin known as Bull Bayou, which empties into Lake Hamilton, to see what damage had been done.
* * But in going down to the basin, it looked like a dozer had gone in down there. Trees were washed up. I never seen trees with bark peeled on them before, or since. It had washed up trees, washed bark off. It was really a fierce deal down in that basin. * * *
“On Grulpha Creek we had ten inch cast iron pipelines across Grulpha Creek and it washed three lengths out of it. One length we found about six months later, on down stream where it lodged on a little dam on Grulpha Creek. Part we never did find. But, there was three lengths that washed out. ’ ’
These lengths were of 10-inch inside diameter, 18 feet long, and weighed 1150 pounds each. Mr. Hall testified that a daily log of rainfall was kept at the pump station; that the record reflected no rain at all on July 15, but on July 16 there was recorded 9.98 inches.
Ernest Echols testified that in 1963 he lived above Remmel Dam near Wilson Mineral Springs Creek (also known as Potash Sulphur Creek), which empties into Lake Catherine. Echols testified that he had a boat landing at the point where this creek runs into the lake, and that this boat dock was severely damaged by the flood:
“Well, when I got home from work right after seven o’clock that morning, during the flood, when I drove into my landing, I seen the boats was all washed away and the boat dock, big dock, had washed out and my gasoline pump washed away.”
This occurred about 7:30 A.M. on the 16th, and Mr. Echols also testified that on his way home he crossed Tigre Creek, which also empties into Lake Catherine, and that this creek was the highest that he had ever seen it — “way out of banks.”
“The Pierson house sets on the right just before you get to the bridge. Water was running in the windows of the house, and a car setting out in the yard, water was running in the glass on the door of the car. That’s how high it was.”
As to the force of the water, the witness said:
“Coming down, well, it was real high and a lot of force and the water coming in that G-ulpha Creek, coming in at my landing, comes under the railroad trussle, this big bridge, they have a trussle, it was round about twenty foot of water was coming through that and hitting the lake water in such force, it was like a water spout or a nozzle, bouncing as high as this ceiling, washing my boats and bouncing through there. Water was bounding fifteen feet or higher from the creek.”
Echols said the water was up all day; that he had lived in the area for 22 years, and had never seen Gulpha or Potash Creeks up to the extent that existed on this occasion.
Don McGrew, who operated a store and court near Glazypeau Creek (which empties into Lake Hamilton) was called to testify, and counsel for appellees stated:
“We will agree there came the biggest rain he had ever seen since he had been living up there and the biggest flood on Glazypeau since he had been there and it washed his cabins off and he hasn’t seen them since and also the water went down into Lake Hamilton.”
When asked where he was during the flood, McGrew replied:
“Part of the time on top of them [cabins] trying to help a man get out.
“It was washing a big long trailer away on the east end of the cabin and a fellow was there that couldn’t swim out and I was helping him. We decided we better get him on top.”
The witness stated that the water rose to approximately 6 feet inside the cabins which are about 75 yards from Glazypeau Creek. This occurred about 8:00 A.M., and McGrew said that it rose about 10 feet from daylight until that hour.
County Judge Lon Warneke testified that the heaviest rains in Garland County were from the Mountain Pine area, east, and between the town and the mountain range just north of Hot Springs, and that all this water emptied into either Lake Hamilton or Lake Catherine. It was the heaviest rain, and more damage was suffered, than at any time since Warneke had been County Judge.
It appears that it would be extremely difficult to find in the record sufficient evidence to make a jury question on the issue of negligence. In Ark Power and Light Company v. Beauchamp, 184 Ark. 698, 43 S.W. 2d 234, also a case involving Carpenter and Remmel Dams, the court commented that employees at Remmel Dam had means by which they could communicate with the weather bureau, and thus obtain information concerning rainfall and the volume of water likely to come down Ouachita River, but that this precaution was not taken. In the present case, there was an effort to obtain information from the United States Weather Bureau at Little Rock, but this agency had no information relative to rainfall in the Hot Springs area (which it had not predicted) and, in fact, the weather bureau asked the company for information. Appellees state that there is no evidence that company employees endeavored to utilize the services of television, radio or otherwise obtain other weather information — but there is no indication of what would have been shown or disclosed by such information. Apparently, the rainstorm was of a very sudden nature, taking .everyone by surprise. The company was confronted with an emergency. Who can say that, if the water from the creeks and streams, described in the testimony heretofore set out, had been permitted to go immediately through the dams, that an even greater flood might not have resulted?
In Beauchamp, the court said that the circumstances warranted the inference that the water came from Lake Catherine, and that the flood gates had been opened negligently, thus precipitating within a few hours the water which had been flowing naturally, and more slowly, downstream. We held that the jury was justified in concluding that the company had opened the flood gates more than necessary, and to such an extent that the flood resulted. Here, actually, the contention of appellees is in reverse, for they state that, if the company had permitted the water, occasioned by the terrific rainfall, to flow unimpeded, the water would have moved much faster, and though perhaps reaching a higher crest, would still have flowed off more quickly. Mr. Stewart, who had long years of experience in operating dams, and Colonel Charles Maynard, who has spent 24 years with the Army Engineers (the latter conceded by appellees to be an expert on flood control and the movement of water), testified emphatically that the manner in which the gates were operated under the circumstances of July 16, was entirely proper. Colonel Maynard stated that the water removal from the dams was consistent with the best principles. It was his view that the lands belonging to appellees received less damage than would have been done had the two dams not been in existence.
There really is no necessity in discussing at length the question of negligence, for even though it should be established that appellant’s employees were negligent, there is another factor which is of equal or greater importance, vis., whether the negligence of the Power and Light employees was the proximate cause of the damages suffered by appellees.
As to this phase of the litigation, appellees’ claim for damages is wholly predicated on the theory that the company, by holding the flood waters for several hours and then letting the water out in the amount heretofore set out, caused water to remain on the lands for a longer period of time, permitting the crops to be exposed to long hours of hot sun, and thus causing them to sour and ruin.
Lewis Cash testified that his corn was under water for 40 to 45 hours (entirely over the stalks of a lot of the crop), and that 10 or 12 hours of hot sun would ruin the crop. Cash testified that a few years back, the water came over his corn one evening, and went off the next morning, but he made a “fair” crop.
Bill Cook testified that he could not say exactly how long it would take for water to kill a crop, because of the fact that temperature would have a lot to do with it. The witness said that it was hot on July 16, and that he would estimate that it would take about 45 hours to ruin the crop. This estimate was apparently based on the fact that the water was on his crop for that period of time, but he had no idea whether water, standing for a lesser period would likewise have ruined the crop. This answer was given relative to his corn crop, but he said that the same answer would apply to soy beans and hay. The basis of the opinion of the witness was the fact that he had been flooded before, but the water had not remained on his land for that long a period of time.
Doyle Cook stated that the water was off the bulk of the crops by the night of the 17th.
C. C. Bozeman testified that his corn, which was in the tasseling stage, was entirely covered by the water, but he was unable to say how long water would have to stay on corn before it would be damaged.
Glen Teeter testified that corn begins to be damaged after water stays on it for 5 or 6 hours, and that in 10 or 12 hours the crop would probably be destroyed. He was of the opinion that a soy bean crop would be destroyed within 10 hours.
It will be observed that the witnesses pretty well agreed that the flood waters remained on the crops from 40 to 45 hours. However, the testimony reflects that if the lands were under water for a much lesser period (10 to 12 hours under hot sun, according to Cash; 10 or 12 hours under water, according to Teeter), the crops would be totally destroyed anyway. In other words, even though appellant’s operation of its dams caused the water to remain on the crops for a considerably longer period, the company would not be liable if the water would have remained on the lands long enough to ruin the crops, had it been permitted to flow unimpeded through the dams. Thus, the 40 to 45 hour period would appear to be immaterial, for the maximum damage had been reached many hours previously. The question therefore is, “Did the manner by which appellant company released water from the dams cause the crops to remain under water for the first 15 or 20 hours after being flooded?” Here, we come upon a blank wall — for there is no evidence that this was true. Prior experiences of the witnesses have but little evidentiary value for the reason that it seems established that previous floods did not compare with this flood in magnitude.
Stewart testified that this was the heaviest and most sudden downpour of rain that had been experienced since the dams had been constructed, and the rise was much sharper than prior rises.
Appellant presented a graph prepared by Stewart , the purpose of which was to show that the flood would have been greater, i.e., much more water would have gone below Remmel Dam if the Ouachita River had flowed uninterrupted. According to the witness, the presence of the dams prevented the flood from reaching the peak that would have occurred had the dams not been present.
From the record:
“Q. In regard to the rate of flow that yon have talked about on this chart, will you state whether or not — Let me ask you this: What was the measurement in acre feet per hour that would have gone down had there been no dam at that particular point as shown on your chart, Exhibit No. 26?
A. The highest point is 8,653 acre feet per hour.
Q. What is the feet, the discharge as it actually occurred?
A. That occurred at 10 A.M. and was 4,655.”
Further:
Q. What was the time interval from the time, beginning of the flood in the Ouachita at that point without any dam, the red line, ’til it got below flood stage at that point?
A. It was eighteen hours.
Q. What was the time intermal from the time, with the two dams, it got in the flood stage to the time it got out of flood stage?
A. * * * Eighteen on the red line without the dams and twenty-one on the blue with the dams.”
At any rate, for appellees to establish their contention that appellant was responsible for the loss of the crops, it must be shown that the water would not have remained on the lands long enough to occasion the damage except for the actions of appellant. Such a conclusion can only be reached through speculation, for there is absolutely no evidence that this happened — nor is there any evidence that would tend to support this as a reasonable conclusion. In Kapp v. Sullivan Chevrolet Company, 234 Ark. 395, 353 S.W. 2d 5, we said:
“* * * Appellants’ entire case rests upon conjecture and speculation. Several possible causes of the break are argued, but in truth, there are only possibilities, and do not reach the status of probabilities.”
In that same case, quoting from Henry H. Cross Company v. Simmons, 96 F. 2d 482 (a decision under Arkansas law), we said:
“ ‘To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other.’ ”
Here, it is not sufficient to show that the crop damage could have been caused by the manner in which the water was released from the dams. Proximate causation must go far beyond guesswork. Who can say that the damage would not have occurred if the water had been permitted to flow unhampered and unhindered? Unquestionably, more water would have descended upon appellees, and logic dictates that the larger the body of water, the longer it would take it to run off. Who can say — or who did say — that, except for the manner of operation of appellant’s dams, the water would only have stayed a few hours? To this most pertinent question there is a total absence of substantial evidence. That being true, appellees must fail.
Reversed.
Jones and Byrd, JJ., dissent.
J. Fred Jones, Justice.
I am of the opinion that the appellees made out a jury question in this case even though the negligence and causal relationship border on the speculative.
It appears that there is little question that appellees suffered damage to their crops because of high water. The alleged damage was not based on the volume of water covering the crops; the alleged damage was based on the length of time the water remained on the crops.
Piad there been no dams maintained by the appellant on the Ouachita River, the appellees would have been confronted with a situation commonly referred to on the Ouachita River as a “head rise.” In the normal flow under such conditions as is evidenced by this case, the water would have flowed down the Ouachita River basin in one tremendous volume, receding as fast as it rose, carrying away obstructions and leaving debris in its wake, as occurred on Grulpha Creek and in the Bull Bayou basin under the testimony in this case.
So it appears to me, that the appellant was confronted with two alternatives; it could release the water from its reservoir in the same volume and over the same period in which it fell, thereby permitting a higher, faster and possibly more devastating flood below Remmel Dam on the Ouachita River; or it could release less water than fell in the first twenty-four hours and more water than fell in the second twenty-four hours, thus regulating and controlling the height of the flood below the dam but maintaining it over a longer period of time.
I recognize the speculative nature of what the damage might have been had the appellant released the flood waters in the same volume and over the same period they were impounded, but it is my opinion that all of this was presented to the jury under proper instructions so I would affirm the judgment rendered on the verdict.
I am authorized to state that Byrd, J., joins in this dissent.
Mr. Stewart explained in detail the calculations on the chart, and how they were arrived at. He stated that he had a gauge on the Ouachita River before the dams were ever built which enabled him to determine how long it took for water to flow down the stream naturally to> Remmel Dam. | [
-12,
-18,
-80,
-20,
8,
-23,
120,
-110,
89,
-69,
-11,
83,
-65,
-69,
24,
117,
-61,
-33,
-12,
121,
-58,
-74,
63,
82,
-46,
-45,
-7,
-41,
-72,
92,
-12,
-57,
76,
49,
74,
-43,
-26,
-128,
-51,
-36,
70,
-122,
-117,
-28,
73,
-106,
52,
107,
86,
-49,
53,
-116,
-13,
46,
24,
-61,
13,
36,
-1,
44,
67,
50,
-118,
94,
-1,
20,
32,
-90,
-118,
65,
72,
62,
-112,
-15,
8,
-4,
115,
-78,
-122,
-11,
9,
-101,
12,
112,
102,
1,
5,
-49,
-84,
-119,
7,
-33,
-115,
-90,
-112,
8,
74,
65,
-73,
-99,
112,
22,
70,
126,
102,
-91,
87,
108,
3,
-125,
-76,
-91,
29,
-84,
-103,
51,
-21,
-117,
48,
116,
-50,
-30,
92,
69,
51,
-97,
-114,
-15
] |
Conley Byrd, Justice.
By this appeal the City of Fayetteville raises two issues — i.e. (1) can a sign ordinance prohibiting flashing or blinking signs be applied to existing signs at the time the ordinance becomes effective and (2) can a non-conforming “on-site” sign be constitutionally amortized by the City over a period of seven years? These issues were submitted to the trial court upon a stipulated record and from a judgment holding that such interests were vested and that the sign ordinance could not constitutionally be applied to such vested interests, the City appeals.
Ordinance No. 1893 of the City of Fayetteville states its purposes and the City’s Findings in this language:
“WHEREAS, the Board of Directors of the City of Fayetteville, Arkansas, believes that the construction, repair, alteration, location and maintenance of signs should be controlled within the city limits of the City of Fayetteville, Arkansas, in order to protect the public investment in the streets and highways, to promote the safety and recreational value of public travel and to preserve natural beauty, and
WHEREAS, the purpose of this Ordinance is to promote the reasonable, orderly, and effective display of signs while remaining consistent with the city policy to protect the public investment in the streets and highways, to promote the safety and recreational value of public travel and to preserve natural beauty, and
WHEREAS, the Board of Directors has made the following findings of fact:
(1) That the uncontrolled proliferation of signs is hazardous to the users of streets and highways within the limits of the City of Fayetteville, Arkansas.
(2) That a large and increasing number of tourists have been visiting the City of Fayetteville, Arkansas, and as a result the tourist industry is a direct source of income for citizens of said city, with an increasing number of persons directly or indirectly dependent upon the tourist industry for their livelihood.
(3) Scenic resources are distributed throughout the city, and have contributed greatly to its economic development, by attracting tourists, permanent and part-time residents, and new industries and cultural facilities.
(4) The scattering of signs throughout the city is detrimental to the preservation of those scenic resources, and so to the economic base of the city, and is also not an effective method of providing information to tourists about available facilities.
THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS:”
The specific provisions of the ordinance as amended states:
17B-7(f) “. . . It shall be unlawful for any person to . . . continue in operation an attraction device or sign which flashes, blinks or is animated.”
17B-5(a) “Non-conforming signs. For the purpose of this section, a non-conforming sign shall be defined as a sign which does not conform with the provisions of this chapter. All on-site non-conforming signs not otherwise prohibited by the provisions of this chapter shall be removed or shall be altered so as to conform with the provisions of this chapter within 7 years from the effective date of Ordinance 1983 (1-19-73).”
The ordinance does not prohibit all signs. The signs in question are non-conforming because of the size, height and set-back requirements.
The record, as abstracted, shows that the signs involved are constructed of structural steel imbedded in concrete. The Holiday Inn sign has been in continuous use for more than 13 years. It had an original cost of more than $10,000 and the replacement cost would be in excess of $20,000. The “Minute Man” sign originally cost $5,811 and has a replacement value in excess of $9,000. The original cost of the Whit Chevrolet sign was in excess of $10,000 and its replacement cost would exceed SI 5,000. The Chief Motel sign originally cost in excess of S6,000 and the replacement cost would exceed S12,000. The cost of eliminating the blinking characteristics of the Holiday Inn sign is SI,000, the Minute Man sign SI,500, the Whit Chevrolet sign S3,000 and the Chief Motel sign SI ,000.
In the trial court the City contended that the flashing and blinking signs were inimical to the safety of the traveling public and furnished proof to that effect. No such contention has been made with respect to the restrictions on size, height and set-back requirements.
To reverse the trial court’s holding that the seven year amortization for non-conforming uses was constitutionally invalid as applied to appellees’ signs, the City relies upon the following cases from other jurisdictions: Art Neon Company v. City & County of Denver, 488 F. 2d 118 (10th Cir. 1973); E. B. Elliott Advertising Company v. Metropolitan Dade County, 425 F. 2d 1141 (5th Cir. 1970); Grant v. Mayor and Council of Baltimore, 212 Md. 301, 129 A. 2d 363 (1957); National Advertising Company v. County of Monterey, 83 Cal. Rptr. 577, 464 P. 2d 33 (1970); City of Escondido v. Desert Outdoor Advertising Co., Inc., 106 Cal. Rptr. 172, 505 P. 2d 1012 (1973); Village of Larchmont v. Sutton, 217 N.Y.S. 2d 929 (1961); Rochester Poster Advertising Co. v. Town of Brighton, 357 N.Y.S. 2d 346 (1974); and Naegele Outdoor Advertising Company v. Village of Minnetonka, 281 Minn. 492, 162 N.W. 2d 206 (1968). In relying upon these cases, appellant argues and quotes from Grant v. Mayor & City Council of Baltimore, supra, as follows:
“The court in Grant v. Baltimore, 212 Md. 301, 129 A. 2d 363 (1957), upheld the constitutionality of a five year amortization period for non-conforming signs. In what is one of the leading opinions on the point, the court reviewed the problem of non-conforming uses as it has developed since the inception of zoning and pointed out that early optimism about the spontaneous withering away of non-conforming uses has proved erroneous. Describing the inability to eliminate non-conforming uses as ‘the fundamental problem facing zoning,’ the court concluded that ‘the only positive method yet devised of eliminating non-conforming uses is to determine the normal useful remaining economic life of the structure devoted to the use and prohibit the owner from using it for the offending use after the expiration of that time.’ In its opinion, the court states:
‘The distinction between an ordinance that restricts future use and one that requires existing uses to stop after a reasonable time, is not a difference in kind but one of degree, and, in each case, constitutionality depends on overall reasonableness, on the importance of the public gain in relation to the private loss.
* # * *
There is no difference in kind, either, between limitations that prevent the adding to or extension of a non-conforming use, or provisions that the right to use is lost if abandoned or if the structure devoted to the use is destroyed, or the denial of a right to substitute a new use for the old, all of which are common if not universal in zoning laws and all of which are established as constitutional and valid, on the one hand, and a requirement on the other, that an existing non-conformance must cease after a reasonable time. The significance and effect of difference in degrees in any given case depends on circumstances, environment, and length of the period allowed for amortization.”
The authorities upon which the City relies approach their conclusions upon this reasoning — i.e. the regulation of non-conforming signs fall within the zoning authority of cities and since the right of a city to zone is constitutionally permissible under the police power, the regulation of nonconforming signs is constitutionally permissible under the police power. If we should take the City’s argument that nonconforming signs can be lawfully amortized even though they are not inimical to the health, safety or morals, then it would follow that the City could lawfully amortize the buildings in any area declared to be an urban renewal area upon the same basis — i.e. it would enhance the economic base of the city. The City in relying upon these authorities does not attempt to grapple with the pragmatical result of such rulings when applied to the facts before us — i.e. that the appellees’ property rights are being taken purely for the economic benefit of the public without payment of just compensation to the property owner. However, in reviewing our own authorities on the subject, we find that our Constitution, Art. 2 § 22, provides:
“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”
In cases involving vested interests that were not inimicable to the health, safety or morals of the community under Art. 2 § 22, supra, we have held differently to the authorities relied on by appellants. For instance, in Ark. State Hwy. Commission v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W. 2d 387 (1972), the issue was whether the Highway Commission by constructing a new highway within 1000 feet of an automobile salvage yard could force the salvage yard to expend approximately $7,000 to screen the salvage yard from the view of the highway. In holding that the Highway Commission’s demand on the property owner amounted to a taking of private property without just compensation we said:
“It is undisputed that at the time of the enactment of the Act in question the appellee was conducting a lawful business. Article Two, Section 22, of the Constitution of our State provides:
‘The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation.’
It was aptly said in Ark. State Highway Comm’n v. Union Planters National Bank, 231 Ark. 907, 333 S.W. 2d 904 (1960):
‘The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to.warrant achieving the desire by a shorter cut than the con stitutional way of paying for the change.’ ”
Likewise in Blundell v. City of West Helena, 258 Ark. 123, 522 S.W. 2d 661 (1975), we had before us a non-conforming use of a mobile home park. In stating the issue and in discussing the rights of a pre-existing business operation we stated:
“This appeal brings into sharp focus the conflict between private property rights and the right of municipal government to control the owner’s use of property. . . .
In construing the city ordinances and their effect, we must remember that zoning ordinances, being in derogation of the common law, must be strictly construed in favor of the property owner and that, under our constitution, the right of private property is regarded as before and higher than constitutional sanction. See City of Little Rock v. Williams, 206 Ark. 861, 177 S.W. 2d 924; Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628; Art. 2, § 22, Constitution of Arkansas. Attempts to deprive the owner of a pre-existing use have been regarded as unconstitutional as a taking of property without compensation or in violation of due process of law. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A. 2d 506; Hoffmann v. Kinealy, 389 S.W. 2d 745 (Mo., 1965); McCaslin v. City of Monterey Park, 163 Cal. App. 2d 399, 329 P. 2d 522 (1958); City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W. 2d 759 (1953); O’Connor v. City of Moscow, 69 Idaho 37, 202 P. 2d 401, 9 ALR 2d 103 (1949). See City of Little Rock v. Sun Building & Development Co., 199 Ark. 333, 134 S.W. 2d 582. See also, Amereihn v. Kotras, 194 Md. 591, 71 A. -2d 865 (1950); People v. Miller, 304 N.Y. 105, 106 N.E. 2d 34 (1952).
It is widely recognized that a property owner has vested rights in a non-conforming use of his property. An apt articulation of the rule governing the vesting of such rights, as we apply it to the facts of this case, is found in the following language of the Kentucky Court of Appeals in Darlington v. Board of Councilmen, 282 Ky. 778, 140 S.W. 2d 392 (1940):
. . . The mere ownership of property which could be utilized for the conduct of a lawful business does not constitute a right to so utilize it (Cayce v. City of Hopkinsville. 217 Ky. 135, 289 S.W. 223) which cannot be terminated by the enactment of a valid zoning ordinance, as such a concept involves an irreconcilable contradiction of terms. It would seem, therefore, that the right to utilize one’s property for the conduct of a lawful business not inimicable to the health, safety, or morals of the community, becomes entitled to constitutional protection against otherwise valid legislative restrictions as to locality, or, in other words, becomes ‘vested’ within the full meaning of that term, when, prior to the enactment of such restrictions, the owner has in good faith substantially entered upon the performance of the series of acts necessary to the accomplishment of the end intended.”
When our prior decisions are considered in connection with the City’s finding that the existence of signs throughout the City were detrimental to its scenic resources and therefore to its economic base, we must conclude that the seven year provisions of the ordinance amortizing non-conforming on-site signs used in connection with a going business, that are not inimical to the health, safety or morals of the City, amounts to a taking of the appellees’ properties without just compensation therefor in violation of Art. 2 § 22, supra.
However, the prohibition against flashing or blinking signs falls within that area of police regulation that is exercised for the protection of the health and morals of the people, Thompson v. Wiseman. 189 Ark. 852, 75 S.W. 2d 393 (1934). On its face the portion of the ordinance prohibiting the use of flashing and blinking signs would appear to be a matter that could affect the safety or health of the City. To that extent we hold that the trial court erred in holding that the appellees had a vested right that was protected by Art. 2 § 22 supra.
Reversed in part.
George Rosf. Smith, Fogleman and Roy, JJ., dissent.
Hickman, }., concurs. | [
113,
-17,
-44,
124,
11,
-64,
80,
-73,
81,
-119,
-92,
19,
-83,
-40,
20,
43,
-13,
-33,
116,
105,
-12,
-73,
5,
66,
82,
-13,
-53,
85,
-40,
77,
-26,
-1,
78,
33,
-54,
-35,
103,
-54,
-51,
-34,
-50,
-95,
27,
113,
-35,
-11,
36,
98,
114,
15,
-15,
31,
-74,
60,
24,
-62,
-23,
108,
89,
39,
91,
-78,
-120,
-51,
127,
5,
19,
-42,
25,
7,
-6,
9,
-108,
49,
-120,
-24,
115,
-90,
-122,
-12,
77,
-103,
12,
50,
-29,
1,
13,
-1,
-88,
-120,
6,
122,
-83,
-92,
-126,
49,
75,
35,
-97,
-106,
-7,
22,
69,
122,
110,
21,
81,
108,
-125,
-50,
-112,
-95,
-25,
61,
-126,
113,
-21,
103,
19,
113,
-52,
-49,
95,
95,
17,
95,
-114,
-12
] |
Frank Holt, Justice.
Appellant, represented by court appointed counsel, pleaded guilty to three charges of burglary and grand larceny. His five year sentence on each charge was suspended conditioned on good behavior. Approximately a week later appellant appeared before the same court for plea and arraignment on a charge of robbery with a firearm which he allegedly committed four days following his probation. Appellant refused appointment of an attorney and entered a plea of guilty. The court revoked his three five year suspended sentences, ordered that they run concurrent and then assessed 21 years imprisonment for the robbery plus ten years (suspended) for commission of a felony with a firearm. Subsequently, appellant petitioned the trial court for post-conviction relief pursuant to Rule 37, contending that he was denied his constitutional right to counsel at the time of his guilty plea to robbery with a firearm. The court denied appellant’s petition. Appellant argues that even though he admittedly refused the court’s offer to appoint counsel, nevertheless the court erred in not appointing counsel to assist appellant in deciding whether or not he should waive counsel and plead guilty.
The trial judge took great pains to ascertain that appellant’s waiver of counsel was knowingly and voluntarily made. He ascertained that appellant was twenty-five years old with two years of college education. The court explained the charges against appellant and the possible penalties therefor, including revocation of his suspended sentences. Appellant stated that he understood the charges and penalties. The court advised appellant that since he had pleaded guilty to three felonies the preceding week, he was now subject to the habitual criminal statute with its enhanced penalties. Appellant also stated that he understood this facet of the proceeding. The court further explained the presumption of innocence, advised appellant of his right to remain silent, his right to a speedy trial and the cross-examination of witnesses. Appellant responded that he understood these rights.
The court also informed appellant of his right to an attorney free of cost. When asked if he wanted a court appointed attorney, appellant refused. The court again explained appellant’s right to counsel and further asked him if his refusal was “voluntary and of your own free will and that you just don’t want an attorney.” Appellant again refused appointment of an attorney. Appellant admitted that he knew the value of an attorney’s services and twice again refused the court’s offer. He told the court that he was guilty of robbery with a firearm and that he, also, had violated the terms of his recent suspended sentence. Appellant further stated that his plea was not the result of any threats or abuse.
A defendant in a criminal proceeding has a constitutional right to represent himself and a state has no right to force a lawyer upon him if he voluntarily and intelligently elects self-representation. Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975); Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); LaPlante v. Wolff, 505 F. 2d 780 (8th Cir. 1974), cert. denied, 420 U.S. 995 (1975). The right to counsel is a personal right which the accused may knowingly and intelligently waive either at the pretrial stage or at trial. Burton v. State, 260 Ark. 688, 543 S.W. 2d 760 (1976); Evans v. State, 251 Ark. 151, 471 S.W. 2d 346 (1971); Barger v. State, 249 Ark. 878, 462 S.W. 2d 216 (1971); and Slaughter v. State, 240 Ark. 471, 400 S.W. 2d 267 (1966).
Here it clearly appears that the trial court was solicitous of appellant’s constitutional rights and thoroughly advised him of them. In view of his age, education and recent ex perience in court, represented by counsel, we are of the view that appellant knowingly and intelligently chose to waive his right to counsel.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Roy, JJ. | [
48,
-22,
-18,
63,
27,
96,
58,
-68,
-47,
-29,
39,
19,
-87,
-58,
1,
123,
-1,
125,
85,
121,
-51,
-73,
119,
113,
-14,
-5,
90,
-43,
-79,
111,
-19,
-100,
72,
48,
-62,
-43,
102,
-120,
115,
88,
-114,
1,
-71,
102,
-16,
8,
32,
31,
68,
15,
49,
-100,
-77,
46,
53,
-56,
8,
104,
11,
-67,
-48,
-71,
-98,
-115,
-19,
20,
-77,
38,
-72,
7,
112,
38,
-104,
-111,
1,
-8,
115,
-106,
-126,
84,
75,
-102,
-124,
102,
98,
32,
105,
-30,
-88,
33,
62,
58,
-67,
-26,
-39,
113,
73,
72,
-106,
-35,
113,
20,
55,
-4,
73,
28,
17,
108,
2,
-34,
-108,
-109,
-113,
117,
-58,
-37,
-5,
37,
32,
117,
-116,
102,
92,
87,
121,
-105,
-114,
-107
] |
Darrell Hickman, Justice.
George Johnson was convicted in the Circuit Court of Jefferson County of escaping from the Department of Corrections. The only issue on appeal is Johnson’s allegation that he should have been granted a mistrial because he was brought into the courtroom before the jury handcuffed.
Before the trial started, Johnson’s attorney notified the trial judge of the fact that Johnson was brought into the courtroom in handcuffs before the jury. There was no hearing held and this simple fact was- presented to the judge. The judge ruled that he could find no prejudice and denied the motion for a mistrial.
Normally, a defendant should not be brought into a courtroom handcuffed. However, such an act is not prejudicial per se. In this case, the defendant was charged with being an escapee from the penitentiary; he was an inmate at the time of the trial. All of this would become known to the jury during trial. There is nothing in the record to indicate what impression may have been made on the jurors, and on these facts, we cannot presume prejudice. McCoy v. Wainwright, 396 F. 2d 818 (5th Cir. 1968).
In order to justify a new trial, the error must appear to have seriously affected the fairness of the trial. Johnson did not offer any proof of prejudice and we can find no abuse of discretion by the trial judge in denying the motion for mistrial. See Barksdale v. State, 255 Ark. 272, 499 S.W. 2d 851 (1973), and Gregory v. United States, 365 F. 2d 203 (8th Cir. 1966).
Affirmed.
We agree. Harris, C.J., and Fogleman and Roy, JJ. | [
112,
-30,
-3,
-65,
40,
97,
2,
28,
67,
-125,
102,
115,
105,
94,
77,
47,
51,
103,
117,
121,
-55,
-105,
-73,
-27,
-14,
-37,
8,
-43,
-77,
75,
-12,
-35,
12,
112,
-14,
-47,
38,
-54,
-25,
86,
-114,
-95,
-79,
64,
22,
-80,
32,
55,
84,
31,
21,
-114,
-29,
42,
55,
75,
-23,
40,
75,
13,
-16,
89,
-52,
-121,
-49,
20,
-77,
-92,
-97,
-89,
112,
52,
88,
21,
1,
-8,
-14,
-106,
-125,
116,
77,
59,
-84,
102,
98,
1,
-35,
-21,
-88,
-87,
31,
-106,
-115,
-90,
-103,
64,
75,
12,
-74,
-3,
115,
20,
-90,
108,
102,
28,
124,
110,
9,
78,
-76,
-77,
13,
41,
2,
-93,
-29,
5,
16,
113,
-50,
-30,
84,
37,
89,
-37,
-117,
-76
] |
John A. Fogleman, Justice.
Ronald Lee Kelley was found guilty of the crime of possession of a controlled substance with intent to deliver the substance (marijuana). On appeal, he first contends that the trial court abused its discretion in denying his motion for continuance. He also argues that the trial court erred in denying his motion to suppress certain evidence. We find no reversible error and affirm.
In considering the argument relating to the motion for continuance, it is necessary that we review some of the history of the case. The motion for continuance was not made until the morning of the trial. It was made for the purpose of procuring the attendance of David Hodges, alleged to be a material witness.
The crime was alleged to have been committed on November 22,1975. The information charging appellant with the crime was filed on February 11, 1976. Appellant was arraigned on March 8, 1976. He was represented by the Chief Deputy Public Defender of Pulaski County at that time. His jury trial was then set for May 11, 1976 and was held as set. Appellant was at liberty on bail at the time of his arraignment and until the date of his trial. In the interim, appellant had been cooperating with John Sparks, a detective in the narcotics section of the Arkansas State Police, in buying narcotics, and, on the eve of trial, was working on a transaction that the officer thought would be consummated later the same week.
Appellant had been aware of the trial date from the date of his arraignment. When he informed Sparks of it during the week preceding that date, the officer told him he would attempt to contact the prosecuting attorney and ask for a continuance. Sparks testified that he had been unable to do so until the morning of the trial because he was on assignment out of town. Even though appellant testified that he understood that his trial would be postponed, he also said that he understood that he was supposed to meet someone in the prosecuting attorney’s office on the morning the case was set to take care of the matter, so he could make the planned buy. His anticipation of a successful arrangement was his excuse for not furnishing his .lawyer with the names of witnesses for the trial. In his testimony at the hearing on the motion for new trial, he detailed the testimony he expected Hodges to have given. This testimony would have been material and relevant.
The action of the trial judge in denying a continuance will not be reversed on appeal in the absence of such a clear abuse of the sound judicial discretion of the trial judge as to amount to a denial of justice. Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516; Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500. The burden rests upon an appellant to show that there has been such an abuse. Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623.
There are several significant factors to be considered in the trial court’s exercise of discretion in the matter of a continuance. Among them are the diligence of the movant, the probable effect of the testimony at the trial, the likelihood of procuring the attendance of the witness in the event of a postponement, and the filing of an affidavit, stating not only what facts the witness would prove, but that appellant believes them to be true, as required by Ark. Stat. Ann. § 27-1403 (Repl. 1962). The denial of a motion which is not in substantial compliance with the statue is not an abuse of discretion. Venable v. State, 260 Ark. 201, 538 S.W. 2d 286 (1976).
Even if we say that appellant’s testimony as to the anticipated testimony of Hodges was substantial compliance with the statutory requirements, there is absolutely no showing that Hodges would probably be available to testify at a later date, or that appellant believed that the facts as to which Hodges would testify to be true. What is more important there is no showing of diligence on the part of appellant. He was represented by counsel for over two months. There is no indication that appellant had suddenly learned of Hodges’ potential testimony on the eve of trial. Had he made his attorney aware of the testimony Hodges might be expected to give, Hodges would have either been present on the date set for trial, or a satisfactory reason for his absence given. Furthermore, such information would have permitted the appellant’s attorney to prepare and file a proper affidavit at a time that would have permitted the state to controvert the statements therein contained, as it had a right to do under the statute. Appellant’s reliance on the intervention of Detective Sparks, who expressly stated that he did not tell appellant that the case would not go to trial and did not indicate that appellant should not bring his witnesses to court on the trial date set, does not excuse his failure to communicate with his attorney. This information should have been passed on to his attorney much earlier than one week before the trial, when Sparks promised to intervene in seeking a postponement in behalf of appellant. We are unable to find any showing of abuse of the trial court’s discretion.
Appellant’s “motion to suppress evidence” related to the seizure of a clothes hamper, 15 cellophane packages containing marijuana and a cardboard box and 27 bags of marijuana. It was not made until after the evidence had been mentioned in the testimony, but before it was exhibited. The sole basis of the motion was that appellant’s arrest was illegal. An in camera hearing held on the motion was upon the probable cause for arrest. The court found that there was probable cause for the arrest “since [the police officers] saw a man walking around with a clothes hamper full of what appeared to be marijuana.” The basic question is whether the officers conducted an unreasonable search in order to see marijuana in appellant’s possession, because there was not probable cause for the arrest if they discovered this fact by a warrantless search.
Members of the narcotics division of the Little Rock Police Department were informed by Trooper Mullineaux of the Arkansas State Police that Kelley was in possession of 50 pounds of marijuana in Room 17 of the Howard Johnson Motor Lodge on South University Avenue in Little Rock. Acting pursuant to this information, which probably was hearsay, Detectives Best, Isom and Mize of the Little Rock Police Department went to the motel and set up surveillance on Room 17, which was located close to the top of the stairs. They stationed themselves in a meeting room next to the registration desk. They saw a pickup truck occupied by a driver and a passenger pull up to the window. The passenger identified himself to the desk clerk as Kelley and asked for the key to Room 17. The truck was then driven to a point near the room. The officers proceeded through the back door of the meeting room, directly facing Room 17. They started walking toward the room and saw Kelley get out of the green truck and go upstairs. They approached the bottom of the stairs and saw Kelley come out of the room with a box which he set down. As the officers started up the stairs, they saw Kelley come out of the room with a yellow clothes basket or hamper containing some plastic packages encasing green vegetable matter, readily visible to the officers, only six to ten feet away, through square openings in the clothes basket, the top of which was covered with a sheet. The officers identified themselves to Kelley, who stepped back and collapsed into a chair, setting the basket on top of the box he had earlier brought out of the room. Best laid back the sheet over the basket and saw the packages that filled the basket. Isom began to advise Kelley of his rights and Best slipped into the open door of the room, which was unruffled as if it had never been occupied. The officer took the basket off the box and lifted the box, finding it to contain “squeeze-lock” bags filled with the same type of vegetable matter. The driver of the pickup truck was identified as David Hodges. Best testified that Kelley was arrested on the basis of what they had seen in the basket. He testified that he had previously seen marijuana on 50 to 75 occasions.
Detective Isom, who had worked for two years as a narcotics investigator, testified that he had seen marijuana approximately 150 times. He said that the material in the clothes basket appeared to be marijuana. As they approached Kelley, Isom said he could clearly see that it could be marijuana, and placed Kelley under arrest. The testimony of the officers was the only evidence on the subject but it is not contradicted.
Appellant argues that the “plain view” doctrine did not justify the arrest and accompanying search, because there were no exigent circumstances to excuse the officers from obtaining a search warrant, in spite of the fact that he simultaneously argues that the information obtained from Trooper Mullineaux was not sufficient probable cause for Kelley’s arrest. The testimony in this record does not reveal sufficient evidence to have justified the issuance of a search warrant prior to the surveillance at the motel. Be that as it may, appellant’s argument is based upon the erroneous premises that the “plain view” doctrine is not applicable in any case unless exigent circumstances justify a warrantless search or seizure and the discovery of evidence in plain view is inadvertant.
The observation of evidence in plain view is not a search, or to say the least, not an unreasonable one. A resulting seizure is not the result of an unreasonable search. Looking at what is in plain view, or not concealed is not a search, as prying into hidden places would be. Edwards v. State, 38 Wis. 2d 332, 156 N.W. 2d 397 (1968); State v. Ashby, 245 S. 2d 225 (Fla. 1971); Alire v. People, 157 Colo. 103, 402 P. 2d 610 (1965). See, Gerard v. State, 237 Ark. 287, 372 S.W. 2d 635. See also, Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). The basic test is whether the officer had a right to be in the position he was when the objects seized fell into his plain view. In Harris v. U.S., 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067, the United States Supreme Court said:
Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled, that objects falling in the plain vie .v of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. ***
See also, State v. Ashby, supra. It is not an unreasonable search for an officer to move into a position where he has a legal right to be and look for things he may have reason to believe will be seen. State v. Ashby, supra. Cf. Durham v. State, 251 Ark. 164, 471 S.W. 2d 527. Police officers in the performance of their duties may, without violating the constitution, enter into the common hallway of an apartment building or motel without a warrant or express permission to do so. People v. Terry, 77 Cal. Rptr. 460, 454 P. 2d 36 (1969), cert. den. 399 U.S. 911. See also, Edwards v. State, supra. The fact that it may be necessary for an officer to crane his neck, bend over, or squat, etc. in order to see what may thus come into his view, does not render the plain view doctrine inapplicable, if what he saw would have been visible to an equally curious passerby. James v. U.S., 418 F. 2d 1150 (D.C. Ct. App. 1969).
We do not view the discussion of the plain view doctrine in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), relied upon by appellant, to severely limit the doctrine where there is no intrusion by the police officers. Furthermore, the majority opinion in that case emphasizes the fact that contraband was not involved there, citing Ker v. California, supra. Unlike the situation in Coolidge, the officers here did not know they would find marijuana or have any plan to seize it. They were simply engaged in a proper surveillance. And in any event, the seizure here was under exigent circumstances. There is no reasonable doubt that taking the time to obtain a warrant after the officers saw what they did would have permitted the easy removal of the contraband.
In order to constitute probable cause for the arrest and seizure, it was not necessary for the officers to have a chemical analysis made, if from their experience and observation they had reason to believe that the substance viewed by them was marijuana. Alire v. People, 157 Colo. 103.
We find no error in the finding that there was probable cause for appellant’s arrest and in the denial of the motion to suppress.
We agree. Harris, C.J., Roy and Hickman, JJ.
See Theriault v. U.S., 401 F. 2d 79 (8 Cir., 1968), cert. den. 393 U.S. 1100, 89 S. Ct. 898, 21 L. Ed. 2d 792, reh. den. 394 U.S. 939, 89 S. Ct. 1201, 22 L. Ed. 2d 474; Cox v. State, 254 Ark. 1, 491 S.W. 2d 802, cert. den. 414 U.S. 923, 94 S. Ct. 230, 38 L. Ed. 2d 157; Russell v. State, 240 Ark. 97, 398 S.W. 2d 213; Williams v. State, 237 Ark. 569, 375 S.W. 2d 375, appeal dism., cert. den, Turney v. Arkansas, 381 U.S. 276, 85 S. Ct. 1457, 14 L. Ed. 2d 431. CF. Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909.
For a post-Coolidge reiteration of the Harris rule, see United States v. Johnson, 506 F. 2d 674 (8 Cir., 1974), cert. den. 421 U.S. 917, 95 S. Ct. 1579, 43 L. Ed. 2d 784. | [
16,
-19,
-3,
30,
9,
96,
40,
60,
-31,
-29,
115,
81,
-83,
-62,
5,
121,
43,
95,
84,
121,
-63,
-89,
39,
121,
-77,
-109,
74,
-41,
-74,
75,
-28,
-35,
12,
-80,
-53,
-43,
-26,
72,
-63,
90,
-50,
-128,
-117,
104,
-112,
-126,
48,
38,
50,
15,
49,
30,
-94,
43,
24,
-50,
105,
56,
91,
9,
66,
-88,
-102,
13,
-17,
20,
-77,
-122,
-99,
5,
-8,
126,
-112,
49,
18,
-24,
114,
-74,
-110,
116,
77,
-103,
-116,
96,
102,
33,
-35,
-19,
-88,
-103,
-74,
62,
-99,
-90,
88,
81,
73,
13,
54,
61,
100,
52,
14,
-8,
105,
68,
85,
-68,
34,
-50,
-76,
-111,
-115,
117,
-122,
-109,
-21,
37,
48,
113,
-51,
-26,
92,
102,
113,
-101,
-50,
-107
] |
John A. Fogleman, Justice.
Appellant Kenneth Allen Britt was charged with, and found guilty of, two counts of aggravated robbery [Ark. Stat. Ann. § 41-2102 (Crim. Code, 1976)] and one count of battery in the first degree [Ark. Stat. Ann. § 41-1601 (Crim. Code, 1976)]. He was sentenced on each charge; however, the court made the sentences run consecutively and suspended the sentences on one of the robbery charges and on the battery charge. All of the charges were included in one information. Appellant’s sole point for reversal is his contention that the court erred in submitting instructions and “finding instructions,” or forms of verdict, on three offenses which were part of one criminal transaction “and/or” same conduct. The gist of the argument is that, in spite of the fact that two people were robbed and one of them wounded by appellant’s gunfire, all within a few minutes after appellant entered a beauty shop and before he left it, all the acts were part of the “same conduct,” and, thus, he could not be convicted of more than one offense under Ark. Stat. Ann. § 41-105 (1) (e) (Crim. Code, 1976). We disagree, so we affirm.
The evidence showed that appellant came into a beauty shop operated by Helen McPherson on January 12, 1976, at about 3:00 p.m., locked the door, threatened to “shoot the head off” Mrs. McPherson, put a gun to her head, and said he wanted money. He took money from the cash register and Mrs. McPherson’s purse. He then took money from the purse of Mrs. Nethercott, who was in the beauty shop. Mrs. McPherson then went to the back of the shop and got her gun and started firing. Britt fired first, according to Mrs. Nethercott. When the firing stopped, Mrs. Nethercott grabbed appellant and he struck her on the head, splitting it open, and she fell to the floor. Mrs. McPherson took appellant’s weapon away from him, but he had another and used it to shoot Mrs. McPherson in the head. She was left lying on the floor. The whole sequence of events did not last more than five minutes. Appellant was also wounded by the gunfire. The net proceeds of the robberies amounted to about $200.
Appellant contends that he could only be convicted of one offense, because of the language in § 41-105 (1) (e) that one whose “same conduct” may establish the commission.of more than one offense, may not be convicted of more than one of them if the conduct constitutes an offense defined as a continuing course of conduct and this conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses. We do not so read the statute.
Neither robbery nor battery in the first degree is defined as a continuing course of conduct. Examples of this kind of offense are: non-support, Ark. Stat. Ann. § 41-2405 (Grim. Gode, 1976); promoting prostitution, Ark. Stat. Ann. § 41-3004, 3006 (Crim. Code, 1976); erecting or maintaining a gate across a public highway, Ark. Stat. Ann. § 41-2102 (Repl. 1964), now codified as obstructing a highway, Ark. Stat. Ann. § 41-2915 (Crim. Code, 1976). “A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy; an offense which continues day by day; a breach of the criminal law, not terminated by a single act or fact, but subsisting for a definite period and intended to cover or apply to successive similar obligations or occurrences.” 22 CJS 6, Crim. Law § 1. The following examples are listed in § 281, Crim. Law, 22 CJS 731 et seq: carrying concealed weapon; continuous keeping of a gaming or a disorderly house; desertion and neglect to provide for family; embezzlement; engaging in business without license; maintaining nuisance; offenses relating to intoxicating liquors; and a conviction for violating a Sunday law. Another example is found in Eclectic State Medical Board v. Beatty, 203 Ark. 294, 156 S.W. 2d 246, where we said:
In the case of State Board of Health v. Roy, 22 R.I. 538, 48 A. 802, 803, the court held that where one obtains a license from a state medical board by false or fraudulent representations, this is a continuing offense. Every time such person undertakes to practice under his license he keeps up and continues the fraud initiated when he obtained by false representations his pretended authority to practice.
The continuing course of conduct contemplated by Ark. Stat. Ann. § 41-105(1)(e) is explained with considerable clarity, and in a manner peculiarly applicable here, in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). There the court said:
*** The distinction between the transactions here involved and an offense continuous in its character is well settled, as was pointed out by this court in the case of Re Snow, 120 U.S. 274, 30 L. Ed. 658, 7 S. Ct. 556. There it was held that the offense of cohabiting with more than one woman, created by the Act of March 22, 1882, chap. 47, 22 Stat. at L. 31, was a continuous offense, and was committed, in the sense of the statute where there was a living or dwelling together as husband and wife. The court said (pp. 281, 286):
It is, inherently, a continuous offence, having duration; and not an offence consisting of an isolated act. *** A distinction is laid down in adjudged cases and in textwriters between an offence continuous in its character, like the one at bar, and a case where the statute is aimed at an offence that can be committed uno ictu.
The Narcotic Act does not create the offense of engaging in the business of selling the forbidden drugs, but penalizes any sale made in the absence of either of the qualifying requirements set forth. Each of several successive sales constitutes a distinct offense, however closely they may follow each other. The distinction stated by Mr. Wharton is that “when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.” Whart. Crim. Law, 11th ed. § 34. Or, as stated in note 3 to that section, “The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. ... If the latter, there can be but one penalty.”
The common law rule was certainly contrary to the construction appellant urges upon us. This statute, a part of a comprehensive code, should not be construed to overrule a principle of established common law unless the intent to do so is plain. Our language in Starkey Construction, Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W. 2d 509, is appropriate, viz:
Of course, as pointed out by appellees, in attempting to codify a large body of law it is almost impossible to anticipate all the factual situations that may arise. And it is for this reason that courts have adopted the principle of statutory construction that a statute will not be construed so as to overrule a principle of established common law, unless it is made plain by the act that such a change in the established law is intended. In Barrentine and Ives v. State, 194 Ark. 501, 108 S.W. 2d 784, we said,
It has long been the rule in this state that “A statute will not be taken in derogation of the common law unless the act itself shows such to have been the intention and object of the legislature. ” (citing cases). A careful reading of the act fails to convince that such was the intention and object of the Legislature.
Appellant, however, seizes upon the language of the commentary to § 41-105 (1), which was before the General Assembly, but not adopted by it as a part of the Criminal Code of 1976, giving examples of the “same conduct” as the term is used in the section. There it was said that:
*** If X comes upon A, B, and C and robs them one at a time, the robberies arise from the “same conduct” despite the fact that X engages in separate acts with respect to A, B, and C. However, “same conduct” does not have application to a situation where X, pursuant to a single scheme, robs A on Monday, B on Tuesday, and C on Wednesday.
It should be noted that the first sentence of the section clearly states that, when the “same conduct,” i.e., the robbery of A, B, and C, establish the commission of more than one offense, the defendant (X) may be prosecuted for each such offense, unless the conduct constitutes one of the exceptions listed in the second sentence. Nowhere is it indicated that the robbery of more than one person or a robbery and a subsequent or accompanying battery are only one crime. As a matter of fact, the commentary also contains this statement:
*** This section retains the basic power of the state to prosecute for as many offenses as are committed by defendant.
The lifting of this example of the “same conduct” out of the context of the full commentary may be misleading, but subsequent statements in that commentary relative to § 41-105 (1) (e) show clearly that there was no intention to apply the exception relied upon by appellant as he does. There it is said:
Subsection (1) (e) prohibits multiple convictions for an uninterrupted course of conduct that violates a statute defining a continuing offense. It would find application in prosecutions for such offenses as Nonsupport (Section 2405) or Promoting prostitution (Sections 3004-3006). The proviso at the end of paragraph (e) leaves the legislature free to indicate, for example, that each day that illegal conduct continues constitutes a separate offense. See, e.g., Ark. Stat. Ann. § 41-2103 (Repl. 1964) (Gate across public road).
In considering such illustrations as appellant relies upon, it has been said that “[a]n explanatory tale [sic] should not wag a statutory dog.” A. P. Green Export Co. v. U.S., 284 F. 2d 383 (Ct. Claims, 1960). We add that the commentary to the Criminal Code is a highly persuasive aid to construction, but it is not controlling over the clear language of the statute. See Schultz v. Young, 205 Ark. 533, 169 S.W. 2d 648; Keeler v. Superior Court, 2 Cal. 3d 619, 87 Cal. Rptr. 481, 470 P. 2d 617, 40 ALR 3d 420; In re Augustin Bros. Co., 460 F. 2d 376 (8 Cir., 1972); Northern Pac. Ry. Co. v. Sanders County, 66 Mont. 608, 214 P. 596 (1923); Houston Bank & Trust Co. v. Lee, 345 S.W. 2d 320 (Tex. Civ. App., 1961).
Where the language of a statute is clear and unambiguous and susceptible of a sensible construction, resort to extrinsic and collateral aids in construing it is not permitted. Cross v. Graham, 224 Ark. 277, 272 S.W. 2d 682; Arkansas State Licensing Board for General Contractors v. Lane, 214 Ark. 312, 215 S.W. 2d 707. See also, John B. May Co. v. McCastlain, Commissioner, 244 Ark. 495, 426 S.W. 2d 158; 82 CJS 736, Statutes, § 351. If it is possible to do so, we ascertain the legislative intent from the language used in the statute itself. Arkansas State Highway Commission v. Mabry, 229 Ark. 261, 315 S.W. 2d 900. It is only when the statute is ambiguous and there is doubt as to its meaning that we resort to such extrinsic matters to shed light on the legislative intent. Arkansas State Highway Commission v. Mabry, supra; Gibbons v. Bradley, 239 Ark. 816, 394 S.W. 2d 489; Callahan v. Little Rock Distributing Co., 220 Ark. 443, 248 S.W. 2d 97.
Since we agree with the trial judge’s application of the statute, and disagree with appellant’s construction of it, the judgment is
Affirmed.
Byrd and Hickman, JJ., dissent. | [
112,
-22,
-48,
63,
27,
96,
10,
-72,
99,
-95,
-79,
-109,
-27,
-63,
5,
105,
80,
93,
-43,
105,
-76,
-73,
63,
97,
-94,
-37,
-111,
-59,
-78,
75,
-10,
-35,
88,
112,
-26,
93,
102,
2,
101,
28,
-82,
-96,
42,
96,
-62,
6,
96,
63,
66,
11,
-79,
-98,
-77,
43,
30,
-50,
73,
44,
75,
60,
96,
-69,
-126,
-51,
-19,
20,
-109,
-89,
-101,
7,
-40,
4,
-100,
49,
1,
-104,
115,
-128,
-126,
84,
109,
-119,
76,
98,
98,
32,
-104,
-49,
-88,
-87,
46,
127,
-83,
-89,
28,
72,
67,
45,
-106,
-100,
111,
-107,
2,
-14,
-14,
76,
65,
108,
-91,
-98,
-80,
-79,
-115,
60,
-110,
-6,
-21,
39,
48,
113,
-50,
-26,
93,
85,
84,
-101,
-98,
-107
] |
John A. Fogleman, Justice.
This appeal involves the validity of an antenuptial agreement between appellee Lelia E. Arnold and the late W. F. (Floyd) Arnold, which was considered by the chancery court; and the validity of claims for alleged loans allowed by the probate court which were made against the estate by Mrs. Arnold. The actions were consolidated for trial by agreement of the parties and have been consolidated for the purpose of consideration on appeal. Appellants contend that the chancery court erred in declaring the antenuptial agreement void and in finding title to various items of personal property to be in appellee and that the probate court erred in allowing the claims. We are unable to say that there was error in holding the antenuptial agreement void, but we do find error in awarding certain items of personal property to appellee and in allowing her claims against her husband’s estate.
Floyd Arnold, a retired Crawford County farmer died testate December 21, 1973, leaving his widow, the appellee here, a brother and sisters. He never had any children. His first wife with whom he lived for many years died in February, 1970, when he was 64 years of age. A few months after her death he made a trip to Hawaii, in the course of which he met appellee, then Lelia Gates, a 56-year-old school teacher, whose two previous marriages had been terminatec by divorce. He became enamored of her and they were married on May 30, 1970. They were separated in October 1971, and he obtained a decree of divorce from her or November 23, 1971. They begin seeing and communicating with one another within the week following the divorce, anc planned a remarriage. They entered into the antenuptia agreement in question on December 30, 1971, and wer< remarried on the same day, without leaving the courthous< where the agreement was signed. On the day after th< remarriage, appellee gave her husband a check for $28,000 which he used to pay off a loan he obtained in raising $50,00< he paid appellee under a separation agreement entered int by the parties before their divorce. She then had $20,000 lef from this payment which was deposited in a joint savings ac count in the Superior Savings & Loan Association in th names of W. F. Arnold and Lelia Arnold, with right of sui vivorship. From this account, $7,282.22 was used to pay pai of the purchase price of a home in Tulsa, which was soli when they moved into a new home in Van Burén a fel months later.
The terms of the antenuptial agreement provided that appellee receive $100,000 in cash, the family automobile, and an Avion trailer. The cash payment was to be made from the husband’s estate after crediting it with any sum or sums she received by reason of his death leaving her as the survivor of a tenancy by the entirety or joint tenancy. The terms of Floyd Arnold’s will, executed December 31, 1971, were totally consistent with and in recognition of this agreement. The balance of his $400,000 estate was left to his surviving brothers and sisters. Appellee received $33,000 from joint accounts, $20,000 of which came from the account in Superior Savings & Loan Association.
Appellee alleged that the antenuptial agreement was invalid, void and unenforceable for various reasons, among which were: her entering into the agreement without being aware of its legal implications or of her rights, and without the advice of independent legal counsel; the violation of the husband’s duty to make full disclosure to her of the nature, extent and value of his property; designed concealment by the husband presumed from the disproportionality of the provision made for appellee and his means; that Floyd Arnold’s sole reason for obtaining the divorce from appellee (then unknown by her) was to obtain the antenuptial agreement and then remarry appellee; and that he accomplished this by design, studied planning, concealment and taking advantage of appellee’s love and affection for him.
It is obvious that the chancellor believed the testimony of ippellee and her witnesses, and we must yield to his superior >osition to make that judgment. In stating the facts, we will laturally have this in mind, particularly where the testimony s undisputed or uncontradicted. Appellants made several ibjections to some of the testimony by appellee in the trial ourt on the basis of the deadman’s statute. Appellee con-ended that the deadman’s statute did not apply and that, by aking her discovery deposition, appellants had waived the tatute and she introduced it in evidence to show that it contituted a waiver. Appellants did not abstract that deposition iecause of the limited purpose for which it was introduced. The chancellor appeared to sustain most of these objections but permitted the testimony to be proffered, with the statement that he would again consider the matter when he reached his final decision in the case, after the parties had submitted briefs. It is obvious that the chancellor, in making his findings, did consider all the testimony to which this objection was made. Appellants do not seriously argue these objections here insofar as the antenuptial agreement is concerned or cite any authority for their position in the trial court. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606; Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614. We will not consider them for this reason.
Appellee was employed as an elementary school teacher and media specialist in Florida at a salary of $10,065 per year when she met Floyd Arnold in April, 1970, just before they joined a tour to Hawaii with a group of Avion trailer enthusiasts.* They were married at Van Burén. She had then sold her home in Florida and was receiving payments on the contract of sale. She owned a condominium in Florida, had an interest in property in New York, a certificate of deposit and money in a tax shelter annuity. She sold the New York property after her marriage to Floyd Arnold. The parties signed an agreement on the day before they were married, at Floyd’s request. It was labeled “Antenuptial Agreement” and prepared by an attorney. It provided for payments that she should receive in lieu of any and all claims against him and his property, alimony, dower, and homestead, as a settlement of property rights in the event the marriage did not work out and there was a separation or divorce. It provided for no other eventuality. If a separation occurred during the first year, she was to receive $25,000; if during the second year, $50,000; during the third year $75,000; and, if during the fourth year $100,000. In no event was he to be liable foi more than $100,000 by reason of any rights accruing to her by reason of the marriage.
The parties lived together in Van Burén during their firs marriage. They travelled extensively. There is a conflict it the evidence as to how they got along, but Floyd Arnolc decided he wanted a divorce. Appellee testified that he firs expressed this desire to her on Saturday, October 2, 1971 She said that she was shocked and upset and the next day she went to the home of Floyd’s sister, Audrey Cox, in Tulsa. She returned to Van Burén the following day and went to see a doctor, who directed that she enter the Crawford County hospital, where she remained for 17 days. Floyd Arnold came to see her there and on one occasion they discussed the divorce. He brought some papers there and told her he was filing suit for divorce, and was going to give her $50,000, according to their agreement. She executed a waiver of service and entry of appearance on the day she left the hospital and on October 22, 1971, she received two checks from Floyd totalling $50,000.
She returned to Florida in November. She was ill and Floyd drove her in an automobile she had bought with some of her own funds and $2,000 of the payment made to her by Floyd. Before he left Florida, she accompanied him to Leesburg where he purchased a new Avion trailer on November 13. The title was taken in his name, but she said she paid the balance of $4,714.47 by her check, after a “trade-in” was credited. Floyd then flew back to Arkansas. Appellee said she asked him just before he left whether he was going into the court the following Friday and get the divorce. He replied that he was. She then stopped payment on the check for the trailer.
The divorce was granted on November 23, 1971. Floyd called her by telephone six days later, saying that he wanted to come to Florida and asked her not to change her name on any papers or affairs. He also said that he needed money to pay off a note and asked her if she would let him have the money. She called him back and asked if he wanted her to fly to Arkansas and help him bring the trailer down. They agreed on this. In this or a later call by him, he mentioned remarriage, asking her if she wanted to get married in Florida or in Arkansas. She arrived in Arkansas on December 1 or 2 and gave him a check for $28,000 dated December 2, 1971. It was drawn on her bank account she had opened in a Florida bank upon closing her Arkansas bank account which had consisted of something over $3,000 from her own funds and the $50,000 paid her by Floyd. The Florida account was in the names of “W. F. Arnold or Lelia Arnold.” Floyd then broached the subject of a “premarital” agreement. They went to the office of his attorney on December 6 and discussed the matter and the attorney explained what an antenuptial agreement was. They later discussed the matter and still later returned to the attorney’s office, who had then prepared a draft of a proposed agreement. Appellee said that when she asked about provision for a home for her if they did not own one when Floyd died, Floyd became “very irate,” left, and later gave her another check for $28,000 dated December 9. She then left and went to visit her children in New York.
After eight or nine days, she was ill and called Floyd and told him she was going to Florida for Christmas. She actually came back to Arkansas on December 24. They spent Christmas at the home of Floyd’s sister in Tulsa. Appellee said Floyd told her that he was having the antenuptial agreement redrafted; that she would have to sign it before they were remarried; that Floyd told her it could be changed and amended later; and that she signed it without protest. On the day after the remarriage, she opened an account in a Van Burén bank, with $48,000 from her Florida bank account. She immediately wrote a check to Floyd for $28,000, as he said he still owed a balance on a loan at the Peoples Bank. On the same date she opened the $20,000 account in Superior Federal Savings & Loan Association with a check on her bank account.
After this remarriage, she resigned from her position in Florida, having been on leave without pay since 1969. She also sold her condominium. According to appellee, her prospects for a substantial increase in pay had been good and | if she had continued her employment, her retirement pay would have been many times the $147.73 she will receive monthly at age 65.
Appellants rely upon the basic requirements for a valid antenuptial contract stated in Davis v. Davis, 196 Ark. 57, 116 S.W. 2d 607, i.e., it must be freely entered into, not be unjust or inequitable and must be free from fraud. All these requirements must be met. Appellants emphasize appellee’s education and Floyd’s lack of it; the comfortable and superior lifestyle he had afforded her during the first marriage, testimony by them indicating that he did indeed have grounds for divorce because of differences about money and travel and because she embarrassed him constantly by correcting his grammar and speech patterns before his family and friends; her opportunity to know her husband’s means and the extent of his estate during the one and one-half years of their first marriage; and the failure of appellee to show that Arnold had misrepresented the value of his property.
Appellants rely heavily upon knowledge of Floyd Arnold’s wealth appellee gained from her first marriage to him. In particular, they point out that the two went to his lawyer’s office to prepare a joint income tax return for 1970 (which showed interest and dividend income of $14,768.56), that the couple lived comfortably and travelled extensively, that income from his investments was deposited in joint bank accounts, that they kept horses on the farm Floyd owned and went there frequently, that Floyd was retired and did no work, and that she was furnished credit cards and charge accounts and a fine automobile for her own use and was extended the privilege of writing checks on Floyd’s bank account. There is evidence from which the trial court might have found in favor of appellants on these points. Some of it is in such balance that we could not sustain the court’s findings without deferring to the chancellor’s superior position in determining the question of preponderance. Gammill v. Gammill, 256 Ark. 671, 510 S.W. 2d 66; Arkansas State Highway Commission v. Troutman, 240 Ark. 424, 399 S.W. 2d 686.
Because of testimony relating to Floyd Arnold’s conduct and statements pertaining to the divorce, the antenuptial agreement and the remarriage, we are unable to say that the chancellor’s findings of fact, in the following particulars, at least, were clearly against the preponderance of the evidence:
1. W. F. Arnold had a net worth of $400,000 or more when the agreement was entered into.
2. As a result of her marriages to W. F. Arnold, appellee lost substantial future income from salary, tenure and retirement benefits. [The only testimony on the subject shows that this loss did not become final until the second marriage.]
3. Appellee was unaware of the extent of the rights she lost by executing the same.
4. W. F. Arnold did not make a full disclosure to appellee, or otherwise make her aware of the extent and value of his property prior to the time she executed the antenuptial agreement.
5. W. F. Arnold’s sole reason for obtaining a divorce from the first marriage was in order to obtain the antenuptial agreement and then remarry appellee, but that this purpose was unknown to appellee until after W. F. Arnold’s death. W. F. Arnold obtained the agreement through design, studied planning and concealment, which constituted fraud and overreaching on his part.
6. The antenuptial agreement was unjust, inequitable, and unconscionable in view of the circumstances.
The factors in support of the chancellor’s findings that are significant and prevailing are disclosed by the testimony of three witnesses who may have been the most disinterested ones to testify, and whom the chancellor obviously found to be credible.
Mary Ann Smith, who had been married to Burl Keller, a nephew of W. F. Arnold’s first wife, for five years, testified that she had maintained a close relationship with Arnold, and that Arnold and his first wife were very devoted to her children of that marriage. She had been divorced from Keller for two years before she married John Smith. During that period, Floyd Arnold bought her a house, new furniture and an automobile, and more or less supported her, according to her testimony. She said that this close relationship continued after Floyd’s marriage to appellee. She testified that he came to her home and reported the separation in 1971 the day after it occurred and told her he was getting a divorce. When she asked why, he explained that he had heard that if he stayed married two or three years, appellee would get all his money; that he thought a lot of appellee; that she cared a lot about him and that after he got a marital agreement, maybe they could get back together. She stated that he said he would have to give appellee $50,000 but maybe they could get back together if she would sign a marital agreement containing terms which were similar to those of the antenuptial agreement actually executed. She also stated that he said he was going to get the $50,000 back. According to this witness, Floyd was very upset after the divorce and tried to call appellee, once from the house where the witness lived.
Paul Alexander, an 83-year-old resident of Mulberry, who like Floyd Arnold, had retired some years earlier, also lent considerable corroboration to the testimony of appellee. He had known Floyd for 20 or 25 years, had done business with him and considered him a close friend. These two, and their wives, visited each other, both in Arkansas and in Florida after Floyd and appellee were married. Alexander said that when he read in a Van Burén newspaper that Floyd Arnold had obtained a divorce from Lelia Arnold in November 1971, he called Floyd, who told him that this was another W. F. Arnold from the town of Rudy. Shortly thereafter, the Alexanders went to Florida and contact was established between the couples. When the Alexanders went to visit the Arnolds in January 1972, according to Alexander, Floyd went with him when the ladies went into the house. He said that Floyd started telling him about the divorce proceedings. He testified that Floyd was anxious to explain because of the earlier misrepresentation about the divorce. According to him, Floyd said that a lawyer had told him that, in a second marriage with no children, if you lived with the wife one year she got one-third of the husband’s estate, or after two years, she got one-half and after three years she got it all, but that after he and appellee had adjusted this like he wanted it they were married a second time. He said that Floyd said he could not live without her and that they were well satisfied now.
Clyman E. Izard, Chairman of the Board of Peoples Bank & Trust Company testified about conversations with W. F. Arnold about remarriage of the couple. Arnold often sought free legal advice from Izard, who had practiced law. He said that Arnold seemed concerned about the financial aspects. Izard said that he had asked Arnold whether he had ever heard of a “prenuptial” agreement and had explained this concept. He was at first positive that this conversation took place after the divorce, but upon further examination could not fix the time of the conversation except to say that it took place at a time when Floyd was contemplating remarriage, which, according to him, would mean that it was before the second marriage. Of course, Arnold had heard of at least one “antenuptial agreement,” even though he may not have previously gained full knowledge of the concept.
There is no indication that Floyd Arnold, who was admittedly in a confidential relationship with appellee, ever made any attempt to inform appellee of the extent of his property, even though he was insistent upon her signing the agreement before the remarriage. We note that the attorney who prepared the two drafts of the agreement at the request of Floyd Arnold and with whom the parties consulted was not called as a witness, even as to the conferences. Arnold’s conduct after the divorce was quite consistent with the testimony of Mr. Alexander and Mrs. Smith (which was not really contradicted by that of Izard) as to his designs and purpose. Perhaps his beliefs about the rights of appellee after the third year of their marriage were ill founded; perhaps the witnesses did not fully understand what he was saying; perhaps Arnold’s extravagant statements about his widow’s rights were hyperbolic; but reference to the first “antenuptial” agreement demonstrates that it limited the amount to which she would be entitled only in case of divorce. (Floyd Arnold may oven have suspected that this bargain was invalid. See Oliphant v. Oliphant, 177 Ark. 613, 7 S.W. 2d 783.) Under that agreement she would have been entitled to all the rights of a widow if she survived W. F. Arnold. She would have had, in addition to dower, a right of homestead in the Van Burén residence, which was valued at $30,000 to $40,000. She would have been entitled also, in addition to dower, to a widow’s allowance of $2,000, furniture, furnishings, appliances, implements and equipment reasonably necessary for the occupancy of her dwelling, and a sustenance allowance of $500. Ark. Stat. Ann. § 62-2501 (Repl. 1971). She would have been entitled to an undivided oné-half interest in a farm valued by an apparently well qualified real estate appraiser at $118,000. Ark. Stat. Ann. § 61-206 (Repl. 1971). The balance of his $400,000 estate was in personalty. With personalty of $282,-000, she would have been entitled to dower of $141,000. Ark. Stat. Ann. § 61-206 (Repl. 1961). Quite a lot of this estate would have had to have been dissipated for the value of her widow’s rights in W. F. Arnold’s estate to be reduced to $110,000 (with the automobile and camper taken to have a value of $5,000 each, on inventory values).
Appellants argue that there was no showing as to the amount of W. F. Arnold’s liabilities at the time of the signing of the agreement, but there is no indication that there were any, other than the loan he obtained to make the divorce settlement. It seems highly probable that appellant would have produced evidence of any other that existed.
In considering the evidence as it relates to the requirements for a valid agreement, it would not be unreasonable for a fact finder to infer that Floyd Arnold had established himself as the dominant personality, and that the parties married and divorced when he said they would and lived where he said they would. On both occasions he drove his bargain just before the wedding. The second wedding was obviously arranged before the signing of the agreement in question or it could not have taken place so quickly. If appellee’s testimony is accepted, Floyd Arnold dictated the terms and when his terms were questioned, he flew into a rage and called off the wedding. Appellants argue that appellee was free to consult an independent attorney about the agreement, but accepting appellee’s uncontradicted testimony at face value would at least arouse a suspicion that her doing so would not have pleased Floyd Arnold, to say the least.
Under the circumstances of this case, there were questions on all three essentials, i.e., whether the agreement was freely entered into, whether it was unjust or inequitable, and whether it was tainted with fraud. In Wylie v. Wylie, 249 Ark. 316, 459 S.W. 2d 127, this court emphasized the requirement of the law that a man and a woman entering into the status of husband and wife employ frankness and candor in dealing with one another. There is enough evidence of Floyd’s scheme of divorce and remarriage to negate the idea that he was frank and candid with appellee and it was not unreasonable to arrive at the conclusion that the antenuptial agreement was tainted with fraud. The widow’s rights would probably have been twice as valuable as the provision for her under the agreement, so it was not unreasonable for the chancery court to conclude that the agreement was unjust and inequitable.
It must be remembered that an agreement making provision for dower must be made fairly, without fraud or imposition, with a full understanding on the part of the wife of its force and effect; that such agreements are to be regarded with the most rigid scrutiny and will not be enforced against the wife where the circumstances show that she has been overreached and deceived; that, because of the confidential relations between the parties, such an agreement is sufficiently suspicious to cast the burden of proof upon those who seek to support it to show that the husband took no advantage of his influence and knowledge and that the arrangement was fair and conscientious. Burnes v. Burnes, 203 Ark. 334, 157 S.W. 2d 24. See also, 25 Am. Jur. 2d 177, Dower, § 120; 28 CJS 125, Dower, § 55. We cannot say that this burden was met by a preponderance of the evidence, and we certainly cannot say that the chancellor’s contrary holding was clearly against the preponderance of the evidence.
Appellee concedes that the deadman’s statute does apply to the probate proceedings. She filed claims against the estate of W. F. Arnold for $32,068.82 and for $8,209.96, alleging that she had loaned W. F. Arnold $28,000 on December 31, 1971 (the day after the second marriage) and $7,282.22 to apply on the purchase price of the home in Tulsa, Oklahoma. She also claimed interest on the two amounts at six per cent per annum. Pertinent facts as to the $28,000 check she gave W. F. Arnold after their second marriage have been previously stated. The other item was the withdrawal from the joint account at Superior Federal Savings & Loan Association on April 13, 1971. Appellee clostíd her (joint) account in the Florida bank on December 31, 1971 by opening the Superior Federal Savings & Loan Association account and by writing the $28,000 check to her husband, who then paid off a bank loan he had obtained to give her the check on December 9. It seems to us that it was the clear intention of the parties to abrogate the property settlement made pursuant to the first “antenuptial agreement” in connection with the divorce.
Appellee observed that the cases cited by appellants concern relations where there was either no final divorce decree or the decree was vacated or annulled by the agreement of the parties, and argues that those cases do not apply because in this case there was a final divorce which was not vacated or annulled.
It is generally said that a separation agreement is r Vogated when the parties resume a marital relationship because the consideration for the settlement fails, at least insofar as the executory provisions are concerned; although in some jurisdictions the question of whether a separation agreement survives a reconciliation depends on the intention of the parties. But, when there is a property settlement, it is generally held to be a final and binding contract between the parties which can only be voided by mutual agreement. Reconciliation alone does not terminate the settlement. Therefore the settlement survives the reconciliation unless the court can find an intention or an express agreement that it shall not survive. See: Annot, 35 ALR 2d 707 (1954), supplementing 40 ALR 1227 (1926); Lindey (1976), Separation Agreements and Ante-Nuptial Contracts, vol. 1, § 8 par. 10, pp. 8-11 to 8-23.
It is the nature of the agreement, then, rather than the precise condition of the marital relationship that has been a distinguishing factor in determining whether, and under what conditions the respective agreements survive reconciliation. We have assiduously avoided making this distinction, and properly so, coilsidering the fact that it is often difficult to determine whether a document is a separation agreement or a property settlement. In all cases it has been the intention of the parties, as evidenced by their relationship and their treatment of the property involved, which has determined whether the bargain survives. See, e.g., Ward v. Ward, 249 Ark. 1001, 463 S.W. 2d 90; Dennis v. Younts, 251 Ark. 350, 472 S.W. 2d 711. In O’Quin v. O’Quin, 217 Ark. 321, 230 S.W. 2d 16, a property settlement was signed and the wife made deeds to the husband of property which they had held in tenancy by the entirety. A divorce decree was entered but a short time later was annulled. Four months later the wife filed for divorce and requested that the deeds be set aside. The divorce was not granted but, on appeal, the Supreme Court, reversing the trial court, held that she showed by a preponderance of the evidence that they had resumed their former married status in every respect “which, in effect, cancelled their property settlement ...” The court observed that she delivered to her husband all the property she received in settlement and deposited the money in their joint account. “There appears to have been no effort by them during this period to separate their property interests.” In making this determination the court quoted from and followed as authority rules set out in Sherman v. Sherman, 159 Ark. 364, 252 S.W. 27 and Carter v. Younger, 112 Ark. 483, 166 S.W. 547. Both those cases involved separation agreements.
That a distinguishing feature in the survival of a property settlement incident to divorce is remarriage rather than annullment of the divorce has not been mentioned in any of the authorities that we have examined and appellee has not directed us to any authorities which have so distinguished the cases. When we consider the conduct of the parties and their handling of the money involved we can only find that the clear preponderance of the admissible evidence shows that the property settlement was abrogated and that the probate court erred in finding that these sums were due and owing by the decedent to the appellee at the time of his death.
We agree with appellants that the chancery court erred in holding that appellee was entitled to a Lady Elgin watch, a .38 caliber pistol, and a set of wedding rings which had belonged to W. F. Arnold’s first wife. There is no evidence to support a gift to appellee without her testimony, which was clearly barred by the deadman’s statute. See Greer v. Stilwell, 184 Ark. 1102, 44 S.W. 2d 1082. Significantly, appellee does not argue the validity of these gifts on appeal. As to other items of personal property claimed by appellee as her property, the deadman’s statute had no application. Her testimony that she owned certain items of household goods and appliances before either marriage and that certain other items were purchased with her own funds is not contradicted. As to other items of this nature, appellee’s testimony as to the manner in which they were purchased and paid for was not barred by the deadman’s statute. Neither was it contradicted. We cannot say that the holding of the chancery court was against the preponderance of the evidence as to these items.
The decree of the chancery court is affirmed, insofar as it relates to the cancellation of the antenuptial agreement and the award of personal property, except for the wristwatch, pistol and the set of wedding rings, as to which the decree is reversed. The judgment of the probate court is reversed insofar as it relates to claims of appellee against the estate of W. F. Arnold.
We agree. Harris, C J. and Hickman, J. Byrd, J., concurs. | [
113,
108,
-39,
13,
10,
32,
10,
-120,
122,
-95,
37,
83,
-21,
91,
80,
105,
-11,
47,
97,
120,
87,
-77,
22,
96,
-14,
-77,
-23,
-43,
-95,
111,
-10,
-41,
76,
40,
10,
-43,
98,
-118,
-123,
84,
-50,
2,
-117,
108,
-39,
-58,
48,
125,
116,
15,
97,
-98,
-13,
42,
29,
102,
72,
46,
25,
51,
80,
40,
46,
4,
95,
7,
-111,
6,
-104,
-123,
72,
10,
-104,
49,
0,
-23,
114,
-74,
-122,
84,
75,
-101,
8,
96,
103,
1,
-27,
-17,
-112,
-104,
7,
126,
-99,
38,
-110,
88,
41,
101,
-66,
31,
92,
80,
7,
-2,
-20,
-123,
29,
100,
0,
-49,
-42,
-79,
-115,
114,
-100,
3,
-29,
-93,
51,
113,
-53,
-94,
95,
98,
59,
-69,
-113,
-80
] |
John A. Fogleman, Justice.
Appellant entered a plea of guilty on June 30, 1976 to separate charges of felonious burglary and theft. He was on the same date, sentenced and committed to the State Penitentiary for a term of four years, with credit for two months pretrial incarceration in each case, which would run concurrently. See Ark. Stat. Ann. § 41-903 (Crim. Code, 1976). On July 28, 1976, he filed his motion to vacate the judgments and sentences. The motion was heard as one for post-conviction relief under Rule 37, Rules of Criminal Procedure, and denied. Hence, this appeal. We find no error and affirm.
Two informations charging the crimes were filed June 15, 1976. The informations alleged burglary from two separate dwellings in Jacksonville and theft from each of them. On June 25, 1976, the public defender was appointed by order of the circuit court to represent appellant. Deputy Public Defender Bill Simpson actually represented him. Employed counsel represented him on the motion to vacate his sentence. The motion was in the name of appellant, allegedly 16 years of age, and his natural guardian, father, and next friend, Don Shipman. It contained allegations that appellant had been unable to freely communicate with his parents during his pretrial incarceration due to his being held on excessive bail, that his parents did not know that he was going to plead guilty, did not consent to the entry of this plea, were not present when it was entered, or advised that he would appear in court on the day the plea was entered and that he should not have been represented by the public defender. It was also alleged that there were mitigating circumstances in his favor, that he had not been previously convicted, that he and his parents believed that he was not a party to the offense charged, that he tried to persuade others not to commit the offenses and that the person who actually committed the crimes had never been brought to trial. He asked that his guilty plea be set aside and that he be given a jury trial.
One of the points relied upon by appellant for reversal is his contention that the trial court refused to hear his motion, on the ground that the court was without jurisdiction to hear it. Appellant characterizes his motion as a motion for new trial. The trial judge correctly held that, unless the motion was amended so that it could be treated as a motion under Rule 37, Rules of Criminal Procedure, he could not consider it. Basically it was only a motion to permit appellant to withdraw his guilty plea. This could have been permitted in the trial court’s discretion at any time before sentencing. Rule 26.1 (e) Rules of Criminal Procedure. A timely motion to withdraw a guilty plea to correct a manifest injustice may be made after the entry of judgment. Rule 26.1 (b), Rules of Criminal Procedure. Such a motion must necessarily be made under Rule 37, if the sentence has been carried into execution. Rule 26.1 (c), Rules of Criminal Procedure requires that in order to be entitled to withdraw a plea of guilty, one must show that it is necessary in order to correct a manifest injustice for such reasons as denial of effective assistance of counsel, the involuntariness of the plea and other such grounds as would make the sentence subject to collateral attack under Rule 37.
This is consistent with case law prior to the adoption of the Rules of Criminal Procedure in that such a motion could have been entertained after entry of judgment but before the sentence had been put into execution. See Morris v. State, 226 Ark. 472, 290 S.W. 2d 624. However, when a valid sentence had been put into execution, the trial court was without jurisdiction to modify, amend or revise it, either during or after the term at which it was pronounced. Charles v. State, 256 Ark. 690, 510 S.W. 2d 68; Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W. 2d 242; Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005.
Appellant’s contention that the trial court permitted him to offer testimony in his motion, but that the evidence was not considered by the court, is not borne out by the record.
Otherwise, appellant’s attack is based, for the most part, on the alleged failure of the trial court to comply with Rule 24, Rules of Criminal Procedure. First, he claims that Rule 24.2 was not complied with and, perhaps inferentially, that he was denied the effective assistance of counsel.
According to the record the public defender was appointed when appellant made an affidavit of indigency. Appellant argues that appellant should have been accorded the right to employed counsel, who would surely, he says, have endeavored to obtain a suspended sentence on a plea of guilty to grand larceny (now theft), noting that Jones, allegedly the principal offender, had not been prosecuted. He contends that the record shows that his father and the father’s fiancee were prepared to employ counsel for him. The evidence on this score hardly bears out the argument. Appellant had been in jail two months without representation when he was sentenced. His affidavit of indigency was filed only five days earlier. He had been represented by a public defender at a hearing in a municipal court attended by his father, who said that he could not afford to employ an attorney for him at that time. The father testified that he had wanted appellant to have a different public defender, but that he thought the son would not be taken to court if he (the father) did not appear. He said that he was trying to get the money to employ appellant’s present counsel. He testified, however, that he had quit his job for health reasons, and had only been employed for a very short time before the hearing on the motion. The father’s fiancee was employed and said that she had tried to help appellant, but had no opportunity to do so. She never talked with the public defender and took no step toward employment of counsel for appellant prior to his sentencing. Rule 24.2 simply provides that a defendant shall not be required to enter a plea until he has had an opportunity to employ counsel, or, if he is eligible for the appointment of counsel, until counsel has been appointed, unless the assistance of counsel has been waived or refused. There was certainly compliance with the rule. The prospect of appellant’s having employed counsel was not very bright and there was no showing of any definite or specific efforts to employ counsel for him until after he was sentenced.
The record discloses nothing on which we can say that the trial judge erred in holding against appellant on the question of the effective assistance of counsel. There was good reason for appointment of the public defender and appellant was not deprived of adequate opportunity for the employment of an attorney of his or his father’s choice. The fact that appellant was represented by Simpson at the municipal court hearing was well known to his father, who was present, but was without means of employing an attorney.
Appellant’s argument includes assertions that employed counsel would certainly have made an effort “to turn the case on a grand larceny [now theft] plea of guilty followed by a suspended sentence,” due to his age and the fact that he is a first offender, pointing out that “the principal offender, Jones,” who had a penitentiary record, was never prosecuted.
There are certain facts that are clearly reflected by the record. Appellant and one Lawrence, who was also charged with the crimes, were arrested while in an automobile owned and driven by Jones and had made voluntary statements incriminating themselves, but exonerating Jones. Appellant wanted to plead guilty at the time of a preliminary hearing in the Municipal Court of Sherwood, but preliminary hearing was waived, after Simpson’s efforts to have appellant’s case referred to the juvenile court were unsuccessful. Appellant, in his testimony at the hearing on the motion claimed that he was unaware of the intentions of the others, protested against them and refused to participate. Yet he admitted either taking two radios from one house that was burglarized or at least carrying them from the house to the automobile. He admitted that an eyewitness had seen all three enter one of the houses, and that, when a lady started shooting at them, he dropped some of the groceries taken from it. He stated that he, Lawrence and Jones went to a “Dairy Queen” after leaving the last place under gunfire and had a hamburger and a coke and played some music. Even though he testified that he protested all along and wanted to leave before the thefts and to return the stolen goods after the thefts, he reentered the Jones automobile and was in it when they were stopped by a police officer. In relating the course of events in his own words, appellant stated that the policeman was “getting stuff out of the car that they have stole, that we stole. ...” He had not told his father the full extent of his involvement.
Simpson, who had served as a deputy public defender for five months after one year and seven months as an intern in the office, had talked with appellant on three or four occasions, at least one of which was prior to the circuit court appointment. He said that appellant freely admitted his guilt when they discussed the matter at the time of the preliminary hearing. Simpson had been permitted to review the prosecuting attorney’s file in the case and had talked with a deputy sheriff who was familiar with the case. He felt that the state had a strong case and advised appellant’s father that it would be a difficult case to win in a jury or court trial. He had talked with appellant’s father by telephone about the matter at least three times and had advised the father of the fact (admitted by appellant) that, in spite of the father’s and the father’s fiancee having advised appellant not to plead guilty, appellant had decided to accept the plea bargain. He told the father when the plea would be entered and encouraged him to be present. The father did not attend because “he just didn’t want to be down there.” He said he didn’t think appellant would be sentenced if he did not appear. The father’s fiancee also knew of the date when appellant’s plea of guilty was entered, but, in spite of the fact that she wanted an opportunity to come and do what she “could for the boy with Judge Kirby,” she did not come to court on that occasion because it was not convenient and she did not know what she could do. Parental consent is not essential to a voluntary custodial confession. See Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319. Certainly it is not required for a voluntary plea of guilty in open court.
Simpson conferred with the deputy prosecuting attorney handling the case for the state. This attorney refused to recommend a suspended sentence because of the trial judge’s strong policy against such sentences in burglary cases. After negotiating for a three-year sentence, the best offer Simpson was able to obtain was a four-year sentence to cover all charges. He knew that the prosecuting attorney’s office sometimes charged larceny only in some cases and recommended a suspended sentence but he made no effort to get the charges in this case changed. When Simpson said that he could not enter a guilty plea for appellant unless appellant was actually guilty, appellant said that he was guilty and signed a plea statement acknowledging his guilt, after Simp son had carefully read it to him. This statement certainly indicated that the plea of guilty was made voluntarily, knowingly and understandingly.
Simpson had told appellant’s father that a trial could result in a greater sentence, that juries sometimes recommended suspended sentences for youthful offenders but the judge before whom the case would be tried was not lenient on burglars and generally sentenced them to the penitentiary.
Simpson testified that appellant’s father agreed to the acceptance of plea bargain, if that was what his son wanted to do. The public defender said that he had told him that the judge would require that appellant serve one-third of the sentence before being eligible for parole, but that this did not necessarily mean that he would have to do so. Don Shipman testified that his objection was not to the four-year sentence, but to the length of time his son would have to serve and admitted that he had said that it would be all right if he knew approximately how long appellant would have to stay at the penal institution at Tucker. He said that Simpson told him that young offenders did not stay very long. The burden was on appellant to show that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657. We cannot say that he met it.
Appellant contends that the trial court ignored other provisions of Rule 24 in that the court was never advised of the facts in the case, and that the sentencing judge had stated that he did not know what had happened. Appellant seizes upon remarks of the trial judge during the course of the hearing but before its conclusion. The rule in question requires that before accepting a guilty plea, the court advise the defendant of his rights and ascertain that the plea is accurate and voluntary. Appellant introduced a transcript of the proceedings at the time the plea was entered. It reflects that the deputy prosecuting attorney stated details of the crimes and circumstances surrounding appellant’s arrest, after the trial judge read the informations in full. It was disclosed that appellant’s attorney had explained the elements of the crimes charged to appellant and had read to him the pertinent Criminal Code provisions. The judge determined, by inquiring of appellant himself, that appellant knew that he was waiving his right to a jury trial, was voluntarily entering a guilty plea to the charges, and was in fact guilty and that he knew that the judge was not bound to accept the terms of the plea bargain. The age of appellant and the absence of any criminal record were disclosed to the sentencing judge. Appellant’s testimony at the hearing on the motion clearly indicates that he was well aware of the nature of the charges and the potential sentence. There was substantial compliance with this rule, insofar as the particulars mentioned by appellant are concerned.
Appellant also contends that the transcript as certified to this court shows that the trial judge never signed the judgment sentencing him and that this is required by Ark. Stat. Ann. § 22-314 (Repl. 1962). There are at least two reasons why this contention is without merit. It is raised for the first time on appeal. The statute relied upon applies only to actions of the court in vacation. Furthermore, the transcript is a reproduction of the court record, which would not necessarily, reflect signatures on an original judgment.
The judgment is affirmed.
We agree. Harris, C.J., and Byrd and Hickman, JJ. | [
80,
-32,
-44,
62,
43,
97,
58,
-100,
-46,
-13,
103,
115,
-25,
70,
4,
57,
123,
127,
-43,
121,
-63,
-78,
107,
99,
-77,
-69,
89,
-43,
54,
107,
-28,
-41,
72,
-32,
-58,
-11,
70,
92,
-25,
94,
-114,
1,
-70,
104,
-120,
66,
48,
45,
16,
11,
53,
-98,
-29,
43,
17,
-52,
73,
44,
75,
61,
88,
58,
-111,
13,
-17,
4,
-77,
71,
-71,
-123,
-12,
56,
-100,
49,
0,
-24,
115,
-110,
-122,
116,
79,
-101,
-120,
98,
98,
1,
-35,
-25,
-87,
-87,
22,
106,
-99,
-90,
-47,
64,
75,
13,
-73,
-99,
115,
20,
13,
-6,
117,
-116,
21,
108,
0,
-50,
-12,
-79,
-83,
56,
6,
-69,
-21,
37,
52,
113,
-52,
-30,
92,
86,
48,
-101,
-50,
-47
] |
Conley Byrd, Justice.
After the administrator had sold the mortgaged real estate and paid the creditors but before there had been a distribution to the heirs, appellant Fred Quick, Jr. as the surviving spouse filed his petition for the assignment of his curtesy rights. The trial court ruled that by waiting until the real estate was sold and the debts paid, appellant had waived his curtesy rights in the real estate, but by treating the balance remaining in the hands of the administrator as personalty, the appellant was awarded one-third thereof absolutely.
Ark. Stat. Ann. § 61-232 (Repl. 1971) provides that the surviving husband’s curtesy rights are the same as that given to the wife by way of dower. Ark. Stat. Ann. § 62-701 (Repl. 1971) places the duty of assignment of dower upon the heir at law. With respect to mortgaged real estate, Ark. Stat. Ann. § 61-210 (Repl. 1971) provides:
“Where a person seized of an estate of inheritance in land, shall have executed a mortgage of such estate before marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged as against every person, except the mortgagee and those claiming under him.”
The appellant here only claimed curtesy rights of one-third for life in the $12,700.83 net proceeds of the sale of the real estate. His age at the time of the wife’s death was 44 and based upon an annuity factor of 6% his comminuted value of the real estate would amount to $3,121.14. There was a small bank account in which his curtesy rights amounted to $11.43 about which there seems to be no dispute.
To sustain the action of the trial court, appellees Tom Davidson, administrator, and Dawn Marie Rollins, a daughter of the decedent, rely upon Walls v. Phillips, 204 Ark. 365, 162 S.W. 2d 59 (1942) and Wofford v. James, 204 Ark. 700, 163 S.W. 2d 710 (1942). The latter case involved only statutory allowances. The former was an action against an administrator’s bondsmen for monies that had been paid out under orders of the court. Neither case affects the rights between the surviving spouse and heirs at law to undistributed funds.
As we construe the foregoing statutes the duty of allotting dower or curtesy is pláced upon the heir at law. While the filing of the petition for allotment of curtesy may have been tardy as to creditors to whom distribution has been made, we fail to see how such conduct on the part of the surviving spouse could be considered a waiver as against the funds remaining and particularly in favor of one upon whom the law places the duty of allotting dower.
The record shows that one of the creditors was Kansas City Fire & Marine Company, who held a joint judgment of $3,200.12 against both appellant and the decedent arising out of a default by the decedent in her capacity as personal representative of an estate. We agree with appellant that under the circumstances shown, his rights of curtesy were superior to that judgment for purposes of calculating his monetary interest in the proceeds of sale.
Appellant also complains that his rights of curtesy should have been allowed with reference to certain proceeds of a fire insurance policy paid to him and disbursed by him and in an automobile and jewelry that had been delivered to the daughter before the probate proceedings were commenced. Neither party has bothered to abstract the insurance policy nor explained why the proceeds were paid directly to appellant. Under the circumstances, we are unable to say that the proceeds of the fire insurance policy constituted a part of the estate.
With respect to the jewelry and the automobile, we agree with the trial court that the delivery thereof to the daughter appears to have been made in accordance with some understanding as to a family settlement and that appellant having voluntarily delivered them to the daughter for her own personal use and benefit is now estopped to claim his right of curtesy therein.
Accordingly, this matter is being remanded to the trial court with directions to award curtesy rights in the proceeds of the sales of the real estate in the amount of $3,121.14 and the bank account in the amount of $11.43, together with all costs.
Reversed in part with directions.
We agree: Harris, C.J., and Holt and Rov, JJ. | [
85,
110,
-48,
92,
24,
96,
26,
-104,
98,
-10,
37,
91,
-21,
106,
85,
105,
-77,
75,
97,
-23,
-123,
-77,
86,
72,
82,
-13,
-79,
-59,
-77,
121,
-25,
-105,
76,
32,
66,
21,
-26,
-94,
71,
80,
14,
-62,
-118,
100,
-35,
70,
48,
43,
84,
15,
1,
-113,
-13,
-81,
53,
98,
104,
46,
73,
32,
80,
-72,
-118,
-123,
-1,
21,
-109,
5,
-8,
71,
72,
-118,
-104,
49,
0,
-24,
115,
-90,
-42,
116,
106,
27,
41,
102,
114,
-94,
-127,
-3,
-112,
-120,
15,
-2,
-67,
-89,
-110,
89,
3,
104,
-66,
-100,
123,
-124,
30,
-4,
-30,
-99,
92,
108,
31,
-114,
-42,
-79,
12,
123,
-108,
-117,
-13,
-63,
112,
113,
-49,
-94,
93,
71,
91,
-109,
-122,
-48
] |
Frank Holt, Justice.
In 1976 appellee Bobby Garner was the Democratic nominee for Justice of the Peace, District One, Jefferson County, and appellant was the Republican nominee for the same position at the general election. Before the election the appellant sought a declaratory judgment to the effect that Garner was not a qualified elector nor a resident of District One. He also sought a writ of mandamus against the appellee Election Commission (Smith, et al) directing that the ballots on which Garner’s name appeared not be Used in the election or that any votes cast for Garner not be counted nor certified. Appellant also sought certification as an unopposed candidate. The trial court, sitting as a jury, found that Garner was a qualified elector and resident of District One. For reversal, we first consider appellant’s argument that a candidate for office must, at all times, be a resident of a district he represents and a removal from that district, as here, is an abandonment of his candidacy. Therefore, appellant contends that Garner was not a qualified elector or resident of his district. We cannot agree.
It is true, as appellant asserts, that a Justice of the Peace must be a qualified elector and a resident of his township or district. Ark. Constitution, Art. 7, § 41 (1874). See also Ark. Constitution, Art. 19, § 4 (1874). §§ 4 and 10 of Amendment 51 are to the effect that once a voter registers in a county, as here, and remains there he does not have to register again unless he moves into another county or his permanent registration is cancelled or subject to cancellation. § 10 also provides that when a registered voter moves from one precinct to another one in the same county, the voter “may cause his [registration] to be transferred to his new address. ...” In other words, a re-registration is not required. Obviously, the voter could continue, as the trial court held, to vote in the precinct where he was properly registered.
Here it is undisputed that appellee Garner was a qualified elector, a properly registered voter and a resident of District One when he was nominated for Justice of the Peace for that district. Garner testified that he occasionally deals in real estate and in July, following the nomination, he bought a house as investment property. He temporarily moved outside his district into the house, made some improvements and stayed there until he located an apartment in District One. He then moved back into his district on October 12,1976, twenty days before the general election and nine days before this suit was filed by appellant. The lease on the apartment is dated October 12, 1976, and utility receipts indicate a electricity deposit was made on October 13, 1976. Garner testified that it was never his intent to change his residence outside of District One and his removal was temporary.
The findings by a trial court, sitting as a jury, as to residency requirements, have the force and effect of a jury verdict which we uphold if supported by any substantial evidence. Pike Co. Sch. Dist. 1 v. Pike Co. Ed. Bd., 247 Ark. 9, 444 S.W. 2d 72 (1969). There we also said that in resolving the issue of residence, the intent of the voter is correctly considered together with his conduct as to his asserted residence. It is also well established that in testing the sufficiency of the evidence on appellate review, we need only consider the testimony of the appellee and that part of the evidence most favorable to him. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935). Here the evidence is amply sufficient to support the finding of the trial court that Garner, admittedly a qualified elector and resident of District One before he moved therefrom, never abandoned his residency and, therefore, was qualified as a candidate in the general election.
It follows we need not concern ourselves with appellant’s argument that Garner did not transfer, twenty days before the election, his registration from the precinct in District One where he lived when nominated to the precinct in District One where he was residing at the time of the general election. At that time he was a qualified voter and a resident of District One, which is all the law requires.
Affirmed.
Harris, C.J., not participating. | [
53,
-20,
-59,
124,
10,
0,
26,
-124,
-6,
-77,
103,
83,
111,
-46,
84,
105,
-21,
47,
85,
105,
-35,
-77,
71,
82,
116,
-14,
-53,
-57,
-77,
109,
-4,
-36,
72,
49,
-54,
-43,
68,
14,
-123,
24,
-58,
-118,
43,
73,
90,
-62,
44,
63,
64,
-85,
85,
-34,
-77,
62,
25,
-53,
73,
40,
89,
-96,
-64,
-69,
-98,
-123,
-17,
6,
-77,
102,
-102,
7,
120,
46,
28,
29,
20,
-4,
19,
38,
-126,
-58,
45,
-39,
32,
102,
99,
16,
33,
-81,
-88,
9,
47,
63,
31,
-26,
-106,
89,
107,
46,
-74,
-99,
-19,
-76,
74,
-2,
100,
-123,
21,
44,
46,
-50,
-106,
-77,
4,
32,
-115,
2,
-25,
100,
-112,
113,
-52,
-9,
87,
87,
17,
-101,
-121,
-46
] |
Darrell Hickman, Justice.
This appeal from Lawrence County Circuit Court involves similar facts and issues to those in a case we have decided this date.
The appellants filed an affidavit with the county clerk of Lawrence County claiming that three Lawrence County banks had not assessed their property. The affidavit set forth the assets of the three banks and a claim was made for ten percent of the total amount of the assets of all three banks. Thereafter, the appellants made demand on the assessor and county clerk to meet with them in accordance with Ark. Stat. Ann. § 84-444 (Repl. 1960) to determine the value of the bank property that was reported in the affidavit and to fix a fee according to the statute which would be paid to the appellants.
Apparently the county clerk and assessor would not meet with the appellants and a lawsuit was filed in circuit court of Lawrence County for a writ of mandamus to compel Billy Holder, the county clerk, and Vurnece Jones, the assessor, to meet and act according to the Arkansas statute. The appellee county officials responded that the affidavit did not sufficiently describe the property to warrant a meeting, the meeting would be futile and mandamus was not the proper remedy. The case was submitted to the circuit court on stipulation. It was stipulated that the property of the banks that the appellants claimed was not assessed was a list of “resources” taken from the annual statements of the banks, which are published annually in a newspaper. The list of assets includes cash, loans, stocks, bonds, and other assets of various categories. The court made a finding that Ark. Stat. Ann. § 84-443 (Repl. 1960) requires a complete and accurate description of the property, and the annual printed statement of banks is not sufficient to comply with the law; that a meeting between the parties would be futile; that mandamus could not be used to require an act of discretion or judgment. The court dismissed the complaint.
The purpose of Ark. Stat. Ann. § 84-444 is to permit an individual taxpayer to report personal property that has not been assessed and collect an award. The statute presumes that there will be no disagreement between the taxpayer and the county officials that the reported property has not been assessed, because there is no provision in the statute to resolve such a disagreement. The meeting between the taxpayer, the county clerk and assessor is to determine a value of the property and to fix a fee for the taxpayer.
In this case the county officials argue that the banks in question have been properly assessed and taxed, but there is no evidence in the record regarding assessment and taxation of the banks’ property. Furthermore, there is nothing in the record to show the “resources” listed on the affidavit have or have not been assessed to the bank in question. Obviously, not all of the items listed as “resources” or “assets” in the affidavit are subject to taxation. Therefore, it comes down to whether or not it is up to the taxpayer or the county officials to determine, on their own, the validity of the claim.
If there is a dispute as to whether or not property should be assessed and taxed, the statute does not provide a means or method to resolve that dispute. Furthermore, there is no mention in the statute of the owner of the property. Ordinarily an owner of property has some recourse when his property is assessed or taxed and would have a right to challenge any assessment. The statute apparently presumes that there will be no objection by the owner. There is a serious question regarding the constitutionality of the statute as it applies to the owner of property because there is no provision for notice to the owner. Although the appellees raised the constitutional issue, it was not ruled on by the trial court, nor were the owners of the property parties to this lawsuit. Therefore, we will not rule on the constitutionality of this statute.
We agree with the trial court that the bare financial statement of a bank, which obviously includes property not subject to taxation, is an insufficient description of property upon which a demand can be made for a meeting pursuant to the statute. Therefore, the trial court was correct in holding that a meeting would have been futile.
We believe that the statute in question was primarily drafted as a means of providing for a reward to the individual taxpayer who reports property that has, for any reason, been left off the tax books. The statute necessarily assumes there will be no disagreement between the parties as to the legality of the assessment. In this case we have a disagreement before the meeting is even held. In such an instance mandamus is not an appropriate remedy. See our decision in Bunting v. Ted-ford, supra.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Roy, JJ.
Bunting et al v. Tedford et al, 261 Ark. 638, 550 S.W, 2d 459 (1977).
The statute was amended by Act 202, 1977 General Assembly. | [
114,
-20,
-31,
60,
-56,
-64,
50,
-82,
67,
-127,
-92,
83,
-27,
-54,
21,
43,
-26,
121,
101,
105,
71,
-73,
127,
97,
-62,
-14,
-39,
68,
-67,
75,
-28,
-108,
76,
49,
-54,
-99,
68,
-96,
-57,
-36,
14,
2,
11,
76,
-39,
-59,
60,
105,
86,
11,
49,
-68,
98,
56,
28,
66,
72,
44,
73,
-65,
81,
-45,
-82,
-107,
95,
20,
1,
4,
-104,
1,
88,
8,
-104,
49,
0,
40,
115,
-90,
-126,
116,
9,
25,
9,
126,
98,
2,
53,
-49,
-16,
-84,
38,
-70,
-97,
-90,
-110,
73,
75,
11,
-74,
-100,
124,
80,
71,
-2,
-26,
4,
95,
108,
-113,
-49,
-106,
-109,
15,
45,
27,
27,
-5,
47,
48,
113,
-53,
-62,
91,
71,
57,
59,
-34,
-15
] |
Elsijane T. Roy, Justice.
This action was brought by James F. Kyser individually and as father and next friend of James Greg Kyser for injuries the youth sustained in an automobile accident while a passenger in a Volkswagen van driven by Thomas J. Aston. The Aston vehicle, while proceeding up a hill, pulled out into the lane of oncoming traffic to go around a car parked next to the curb, resulting in a head-on collision with a Cutlass Oldsmovile drive by John Patrick Porter. The accident occurred in a residential area in western Little Rock as all the youths were on their way to school. Kyser, who was lying in the back of the van, sustained serious injuries when he was thrown toward the front of the vehicle on impact.
Appellant sued appellees, Thomas J. Aston and his parents, Jaral D. Aston and Mari Alyce Aston, as persons statutorily liable for the negligence or willful misconduct of their minor son pursuant to Ark. Stat. Ann. § 75-315 (Supp. 1975). Appellant also sued appellees John Patrick Porter and Union National Bank, Administrator of the Estate of J. O. Porter, John’s deceased father, under the theory of negligent entrustment. At the time of the accident Porter was seventeen years of age while both Kyser and Aston were sixteen.
At the close of appellant’s case, the trial court directed a verdict in favor of the Astons, finding the guest statute, Ark. Stat. Ann. § 75-913 (Repl. 1967), was applicable and that appellant had failed to prove willful and wanton misconduct on the part of Thomas Aston. At the conclusion of the case the jury returned a general verdict favorable to appellees Porter and Union National Bank, Administrator.
With regard to the action based on the liability of driver Aston in whose vehicle Kyser was a passenger, appellant contends that Aston’s parents cannot avail themselves of the defenses inherent to the minor operator of the vehicle under the Arkansas guest statute because of the provisions of § 75-315 (Supp. 1975). This statute reads in pertinent part:
(a) The original application of any person under the age of eighteen (18) years for an instruction permit or operator’s license shall be signed and verified ... by both the father and mother of applicant, if both are living and have custody of him, or in the event neither parent is living then by the person or guardian having such custody ....
(b) Any negligence or wilful misconduct of a minor under the age of eighteen (18) years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct.
(c) If any person who is required or authorized by Subsection (a) of this Section to sign the application or a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct or said minor shall be imputed to such person or persons and such person or persons shall be jointly and severally liable with such minor for any damages caused by such neligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a drivers license may or may not have been issued to said minor. For purposes of this act, a minor is hereby defined to be any person who has not attained the age of eighteen (18) years.
The Arkansas guest statute (§ 75-913) reads as follows:
No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of the others. (Italics supplied.)
The Arkansas statute requires the guest to prove willful and wanton misconduct on the part of the operator before there is a cause of action against him, but appellant contends this is no bar to recovery against Mr. and Mrs. Aston because the defenses the minor might have under the guest statute are not available to them. Accordingly, appellant urges it was error to direct a verdict against him even if the evidence did not show willful and wanton misconduct on the part of Tommy Aston because all that is required to hold the parents liable is “any negligence or wilful misconduct.” Appellant urges that Garrison v. Williams, 246 Ark. 1172, 442 S.W. 2d 231 (1969), supports his contention. We do not agree.
From a review of authorities presented we conclude the better construction of the statutes is that the defenses available to the minor are also available to the parent. The statutory purpose of § 75-315 (Supp. 1975) is to insure financial responsibility for the minor’s use of the vehicle. We do not view the statute as imposing liability on the party signing the application for license where the law imposed none on the minor for whom the financial responsibility was assumed.
8 Am. Jur. 2d Automobiles and Highway Traffic § 473, p. 38, states:
The owner of a motor vehicle who would be otherwise liable to a guest injured through the negligence of a- third person, to whom he has granted permission to drive his vehicle, is entitled to the benefit of a guest statute, or comparable common-law rule. This is particularly the case where the protection of the guest statute is extended by its terms to the “owner or operator” of the motor vehicle. * * *
In Rogers v. Watkins, 258 Ark. 394, 525 S.W. 2d 665 (1975), plaintiffs alleged their damages were the result of the negligent driving of a motor vehicle by a minor daughter and her negligence was imputed to her father under Ark. Stat. Ann. § 75-315 (Repl. 1957). The Court held the daughter’s defense inured to the parent’s benefit, and it was thus improper to strike her father’s late answer.
Hately v. Hamilton, 81 N.M. 774, 473 P. 2d 912 (1970), held that an act imposing liability on the parent signing the driver’s license application of a minor did not deprive the parent of the defenses of the New Mexico guest statute. The court stated:
Plaintiff argues that this statute imposes responsibility for a minor’s negligence upon the person signing the application for license and the fact that the minor is absolved from liability under the Guest Act does not relieve the signers of financial responsibility for damages. With this contention we do not agree.
In McHugh v. Brown, 50 Del. 154, 125 A. 2d 583 (1956), plaintiff sought to charge the father of a minor defendant under a Delaware statute which provided that the person signing a minor’s driver’s license application was jointly liable for the minor’s negligence. In rejecting plaintiff’s contention that the parental responsibility statute modified the scope of the predecessor guest statute the court noted:
The guest statute, ... , is a statute of a special nature, dealing with one specific feature of the liability of an owner or operator of a car to a limited class of persons — guests riding in his car at the time of the accident. It is a general rule that in such a case the two statutes are read together and harmonized, and that in the event of repugnancy the special statute prevails .... The Delaware statutes, read together, may be harmonized by construing the parental-responsibility statute as placing liability on the parent in all cases in which the minor is liable to a third party, but eliminating the parents ’ liability in cases in which the minor is not liable to a guest. (Italics supplied.)
Appellant relies in part on Garrison v. Williams, supra, a case in which Garrison had entrusted his automobile to his minor son, Gary, so that he and his friend, George Baugher III, could attend a movie. Both youths were fifteen years of age. At the movie Gary gave the keys to the automobile to Baugher who took his fourteen year old girl friend, Pamela Williams, for a ride. Baugher lost control of the automobile and crashed into a concrete wall, causing Pamela to sustain serious physical injuries. Pamela’s father sued Gary’s father for negligent entrustment of the automobile and Baugher for willful and wanton negligence.
In Garrison an instruction on assumption of risk was requested and given in Baugher’s behalf, but no instruction on assumption of risk was requested by Gary’s father. Thus, the Court was dealing with the defense of assumption of risk and not with the question of whether the Arkansas guest statute applies to cases of imputed liability under § 75-315. The last paragraph of the opinion states:
The jury apparently found that the appellee assumed the risk of the willful and wanton neligent conduct of young Baugher and thereby waived her right of recovery against him. The jury did not find, nor were they requested to find, that the appellee assumed the risk of appellant’s own wrongful act of negligent and unlawful entrustment and we are unable to say, that as a matter of law, she waived her right of recovery against him.
Furthermore, in Garrison we recognized liability under § 75-315 is “vicarious,” and vicarious liability cannot exist unless there is primary liability.
The record reflects that as Aston proceeded around the parked automobile he was driving at a speed of approximate ly 25 to 30 miles an hour and that the automobile was parked next to the curb on the street. He testified he was still going up the hill and everything happened so fast that he “just saw a black flash” as the collision occurred. Conceding his conduct may indicate negligence in not pulling around the car more carefully, nevertheless even if we assume his conduct constituted gross negligence it does not show substantial evidence of willful and wanton conduct.
In St. Louis Southwestern Railway Co. v. Clemons, etc., 242 Ark. 707, 415 S.W. 2d 332 (1967), we stated:
Our court is committed to the majority rule that willful and wanton misconduct is, as a matter of law, higher in degree than gross negligence. Froman v. J. R. Kelly Stave & Heading Co., 196 Ark. 808, 120 S.W. 2d 164 (1938). * * *
In Steward, Administrator v. Thomas, 222 Ark. 849, 262 S.W. 2d 901 (1953), this Court stated:
* * * But assuming the facts would justify a finding of negligence, even gross negligence, still we do not believe there is any substantial evidence going to show that Jessie’s conduct was wilful and wanton within the meaning of the statute. * * * Splawn, Adm. v. Wright, 198 Ark. 197, 128 S.W. 2d 248.
* * *
In Edwards v. Jeffers, 204 Ark. 400, 162 S.W. 2d 472, there was testimony that the car was being driven 65 to 70 miles per hour on loose gravel over the protest of a guest. The court said that although the evidence was sufficient to show gross negligence, it was not sufficient to permit a recovery under the guest statute.
There being no substantial evidence of willful and wanton misconduct, we find the trial court correctly directed a verdict for Thomas Aston and his parents.
Appellant next contends as to the appeal involving Porter and the Administrator the court erred in giving Arkan sas Model Jury Instruction 910, which states that “a passenger in an automobile or other vehicle is required to use ordinary care for his own safety.”
The testimony reflects at the time of this collision Kyser was reclining in the back of the Volkswagen on his own mattress, which was propped up by concrete blocks, leaning on one elbow, smoking a cigarette, with his head toward the front of the van and just behind the front seat, not paying any attention to anything, while the van in which He was riding was being driven up a hill. Although he was unable to see from his position in the van, we cannot say as a matter of law under the circumstances here Kyser was exercising “ordinary care” for his own safety. Accordingly, there was no error in the court’s giving the instruction to the jury.
Appellant finally contends it was error for the trial court to grant appellee Porter’s motion in limine which prohibited appellants from introducing any evidence on the issue of negligent entrustment. It was stipulated that the estate of J. O. Porter would be liable for any negligence on the part of John Porter under the provisions of § 75-315 (Supp. 1975). Appellant contends this ruling prevented him from presenting evidence of Porter’s past driving record and traffic offenses which would have proved negligent entrustment by young Porter’s father.
Our cases hold that a negligent entrustor, though guilty of a separate tort, is only liable to a third party for his en-trustee’s negligence, if any. See Chaney v. Duncan, 194 Ark. 1076, 110 S.W. 2d 21 (1937); Ark. La. Lumber Co. v. Causey, 228 Ark. 1130, 312 S.W. 2d 909 (1958); and Sanders v. Walden, 214 Ark. 523, 217 S.W. 2d 357 (1949). Thus, in the case at bar, had the appellant been allowed to present any available evidence on this theory of negligent entrustment to the jury, the end result could only have been established, at best, that the estate of Dr. Porter was liable, along with John Patrick Porter, for any damages chargeable to John. Since the estate of Dr. Porter had already stipulated to this effect the end result would have been the same.
John Patrick Porter testified that after he stopped to pick up A1 Crossland he drove uphill to the point of impact and during that time was entirely on his right side of the street and was driving about 25 miles per hour. He stated that the Volkswagen bus just popped up in front of him, and it happened so fast it seemed like it was only a car length away.
Porter stated that when he first saw the Volkswagen it was pretty close to the middle of his lane and the accident happened in a flash, and that he only had time for one instinctive reaction and that was to get his foot on the brake. He did get his foot on the brake and left skid marks up to the point of impact.
Porter stated that after the collision he had to get out on the right side of his car because his left door was jammed, and when he stepped out he stepped onto the Hedrick yard.
A1 Crossland and Kevin Selakovich, passengers riding in the Porter vehicle, confirmed Porter’s testimony.
Charles M. North, Jr., who has a Ph.D. in Engineering Mechanics, gave testimony based on the testimony of Don Eppinette, a witness for appellant who testified that he had made a model of part of the street to scale and that Porter could have seen the Volkswagen bus when he was about 90 feet from the point of impact. Based on this testimony and on the testimony that the Porter vehicle was traveling 25 miles per hour, Dr. North testified the Porter vehicle would have traveled this 90 feet in less than 2 1/2 seconds.
Appellees contend the court should have directed a verdict in their behalf since there was no substantial evidence of negligence on the part of John to go to the jury. Even though there may be merit in this contention, it is not necessary for us to consider it because of the jury verdict absolving Porter from any liability.
Finding no reversible error, the judgment is affirmed. | [
114,
104,
-56,
44,
25,
104,
58,
26,
117,
-57,
37,
-109,
-85,
-51,
21,
105,
99,
-33,
96,
105,
-73,
-77,
23,
48,
-48,
-13,
-7,
69,
-126,
73,
100,
-10,
77,
112,
-54,
-43,
-58,
78,
-59,
28,
-58,
-128,
11,
100,
25,
-45,
52,
122,
20,
11,
101,
31,
-62,
62,
59,
-49,
109,
44,
73,
-67,
-47,
-78,
-55,
5,
-49,
23,
-95,
36,
-102,
5,
80,
8,
-100,
-79,
56,
-4,
50,
-94,
-126,
-76,
111,
-103,
9,
98,
102,
2,
21,
-59,
-12,
-120,
38,
-86,
45,
-123,
-78,
121,
11,
13,
-73,
-98,
122,
17,
8,
-4,
-5,
28,
83,
104,
5,
-49,
-42,
-79,
-27,
-16,
92,
43,
-21,
77,
48,
117,
-54,
-42,
84,
69,
51,
-109,
70,
-9
] |
Frank Holt, Justice.
A jury convicted appellant of arson and assessed her punishment at four years ’ imprisonment in the Arkansas Department of Correction. Ark. Stat. Ann. § 41-501 (Repl. 1964). Appellant argues for reversal that the procedure used in selecting the jury was arbitrary and contrary to the mandatory provisions of Ark. Stat. Ann. § 39-201 — 39-212.1 (Supp. 1975). Two jury panels were selected in the following manner. The judge of the Criminal Division and the judge of the Civil Division each appointed six commissioners who selected the requisite names and placed them in the jury wheel. Thereupon each of the judges drew sixty names to serve as jurors for their respective terms of court. Here the trial court of the Criminal Division needed ten additional jurors and drew them from the panel of jurors which were selected for the Civil or Second Division. In attacking this method, appellant overlooks Ark. Stat. Ann. § 39-215 (Supp. 1975), which prescribes the grounds for sustaining a challenge to the jury. That statute provides:
A challenge to the jury drawn from the jury wheel or box may be made by a litigant in a particular case and shall be sustained by the Court if it shall appear that there was a substantial irregularity in ‘be drawing or summoning of the jury, the Court shall in open court order another panel drawn for the trial of such case, and such other cases in which a similar challenge is sustained.
Here the record does not reflect nor does the appellant demonstrate any substantial irregularity in the drawing or summoning of the jury or jurors. Consequently, we find no merit in appellant’s contention that the court erred by “borrowing” the ten additional jurors.
Appellant next asserts that the trial court erred in refusing to allow her to submit two jury instructions which would enable the jury to determine if two of the state’s witnesses were accomplices. We cannot agree. When, as here, the court’s instructions fully covered the subject, there is no error in refusing the defendant’s proffered instruction. Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113 (1963). Also when it appears, as here, that the defendant’s theory of a case is presented by other instructions, the court is not required to multiply instructions on that point. Fisher v. State, 161 Ark. 586, 256 S.W. 858 (1923).
Appellant also argues that there was not sufficient evidence corroborating the testimony of the accomplices. Appellant argues that the state’s witnesses, France, Seratt and Clark, are accomplices as a matter of law. It is true that France testified that he burned the building and was employed to do so by the appellant. France enlisted the aid of Seratt, who acknowledged that he aided France in burning the building. However, Clark denied any complicity. He was present when appellant solicited France to burn the building in order to destroy financial records where appellant was employed. Sometime later when France burned the building, he left there and came by his parents’ home where Clark happened to be. France was smelling like “kerosene.” At France’s request, he drove him to appellant’s home. He testified that he had dissuaded France from committing the alleged arson, telling him that “he was going to get himself in a heap of trouble. ” Clark thought appellant “could have been blowing off at the mouth. . . ” According to Clark, he “had no idea that Richard was going to do it.”
The burden is on the appellant to show that a witness for the state is an accomplice and if there is conflicting evidence as to the extent of the participation of the witness, it is a factual dispute for the jury to decide pursuant to the proper instructions as to the witness’ intent and participation. Russey v. Stale, 257 Ark. 570, 519 S.W. 2d 751 (1975). Here we cannot say that Clark was an accomplice as a matter of law. Therefore, the court properly submitted the issue to the jury as to whether Clark was an accomplice. The evidence is sufficient to sustain the verdict.
Neither can we agree with appellant’s argument that the trial court erred in not sustaining the motion for a new trial on account of irregularities of the jury during the trial of the case. The trial court has wide latitude of discretion in granting or denying a motion for a new trial and a judge’s action will not be reversed in the absence of an abuse of that discretion or manifest prejudice to the complaining party. Harvey v. State, 261 Ark. 47, 545 S.W. 2d 913 (1977); Gross v. State, 242 Ark. 142, 412 S.W. 2d 279 (1967). Here the appellant, three spectators and one defense witness testified on the motion for a new trial that members of the jury mingled with and conversed with witnesses for the state and court officials in and out of the jury room during recess and the jury’s deliberations. Court officials and nine of the jurors appeared as witnesses and denied there were any irregularities. The trial court found that there was no evidence that “anything actually improper was said or done by anybody.” There was no abuse of discretion in denying the motion for a new trial since the appellant has not demonstrated that she was denied a fair and impartial trial. See Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924 (1969); and Parrott v. State of Arkansas, 497 F. 2d 1123 (8th Cir. 1974).
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Roy, JJ. | [
16,
-18,
-28,
-66,
8,
67,
62,
-104,
66,
-93,
-94,
-109,
109,
-40,
-108,
59,
107,
-3,
84,
105,
-42,
-73,
21,
91,
-70,
-45,
25,
-57,
-65,
75,
-4,
-1,
72,
48,
-54,
-43,
-26,
96,
103,
92,
-122,
10,
-119,
99,
73,
-110,
48,
55,
70,
3,
113,
30,
-77,
40,
30,
-54,
111,
100,
75,
61,
72,
-79,
-104,
-57,
73,
22,
-77,
-90,
-102,
1,
88,
46,
-40,
53,
0,
-8,
115,
-122,
-126,
85,
107,
-101,
4,
102,
98,
0,
28,
67,
-72,
33,
54,
55,
-83,
-89,
-104,
41,
75,
10,
-73,
-43,
118,
22,
30,
-2,
103,
5,
85,
108,
1,
-113,
-108,
-79,
79,
38,
-44,
-30,
-53,
-93,
16,
53,
-52,
-14,
87,
5,
83,
27,
-50,
-106
] |
George Rose Smith, Justice.
In a sense this case is a sequel to Borden, Inc. v. Smith, 252 Ark. 295, 478 S.W. 2d 744 (1972). There Vogel’s, Inc., a subsidiary of the appellant Borden, Inc., inserted in its employment contracts a provision prohibiting former employees from competing with Borden for one year after the termination of their employment and within a territory comprising 63 of Arkansas’s 75 counties and parts of three neighboring states. We held the restrictions invalid, on the ground that the prohibited territory was unreasonably large.
After that decision, according to the testimony in this case, Vogel’s rewrote the non-competition clause to bring it down “into the smallest area we could to protect the integrity of our contract.” The revised contract retained the one-year limitation, but reduced the territorial restriction to the county seats of counties in which the employee had sold Borden’s products (frozen and unfrozen foods, primarily) during the last two years of his employment by Borden.
The plaintiff, Sammy L. Huey, worked as a salesman for Vogel’s from 1966 until 1969 and again from September, 1970, until he voluntarily left the company in June, 1975. He had signed an amended and substituted employment con tract in December, 1974, containing the new restrictions. Huey, upon leaving Vogel’s, went into a competitive business as a salesman for Porter Foods. When he brought this suit against Borden to recover severance pay, about which there is no longer any dispute, Borden sought by counterclaim to enjoin Huey from violating the restrictions in his contract of employment and to recover damages for its breach. This appeal is from a decree finding the territorial restrictions to be valid but the one-year limitation to be unreasonably long.
We agree with the chancellor’s finding that the territorial restrictions are valid. Under the contract Huey was forbidden to engage in a competitive business in only four county seats, having these 1970 populations: Conway, 16,-772; Morrilton, 6,814; Clinton, 1,029; and Perryville, 815. Huey testified that he had understood the contract to refer only to the county seat of his residence, Conway; so he did not compete there after he left Borden. Thus the prohibition extended to three cities having a total population of less than one half of one percent of the State’s population of 1,923,295, or, if Conway be included, about 1.3 percent of the total. Huey worked in Pulaski County and elsewhere while he was temporarily enjoined from competing in the four specified county seats. Apparently he earned as much as he had been earning before he left Borden. We find the territorial restriction to be reasonable. In fact, counsel for Huey make no argument to the contrary.
The one-year limitation presents a closer question, but we think it too to be reasonable. Each case of this kind is to be determined upon its own facts. Miller v. Fairfield Bay, 247 Ark. 565, 446 S.W. 2d 660 (1969). Sam Vogel, Borden’s district manager, testified that the time limitation had previously been reduced from two years to one year, which he considered reasonable. It was co-ordinated with one-year promotions provided by suppliers. The preliminary injunction against Huey was not issued until nine months after he left Borden. Vogel testified that the company’s sales in Huey’s territory had been running about 1% behind the preceding year, but Huey’s competition caused that figure to drop to about 9% behind by the end of the year (Huey left in June) and to about 13% the next year. The consequent loss of profits was estimated at from $10,000 to $15,000. There was no comparable testimony in the two cases cited by the appellee: Orkin Exterminating Company v. Weaver, 257 Ark. 926, 521 S.W. 2d 69 (1975), and Rector-Phillips-Morse v. Vroman, 253 Ark. 750, 489 S.W. 2d 1, 61 A.L.R. 3d 391 (1973). To the contrary, in Orkin the former employee had obtained, a year after his discharge, only 18 out of Orkin’s 702 monthly customers. No comparable figures are mentioned in Rector.
The appellee argues that Borden’s restrictions were designed to shield Borden from the ordinary competition that may occur whenever any employee leaves a job. In the circumstances of this case that is hardly true. Vogel described the company’s vulnerability to competition from former employees who knew the company’s customers and their credit ratings. Many decisions in other states have recognized the importance of such “customer-contact” by employees. “The most important single asset of most businesses is their stock of customers. Protection of this asset against appropriation by an employee is recognized as a legitimate interest of the employer. A restrictive covenant, therefore, fulfills the first requirement on which its enforceability depends, if it is necessary to protect the employer against loss of his customers.” Annotation, 41 A.L.R. 2d 15, 71 (1955). The annotator goes on to point out that an employer is especially vulnerable when an employee, such as a route man, deals with customers away from the employer’s place of business and builds up personal relationships that bind the customers to himself instead of to the employer’s business. That reasoning applies to the case at bar, Huey having been an outside salesman for Borden.
The appellee also argues that his written contract with Borden recited that he was employed for 12 weeks, after which either party could terminate the relationship upon 14-days’ notice. Hence, it is said, Borden could hire a person for only 12 weeks and then, by discharging him, invoke the one-year restriction upon competition. Here that argument is academic. Huey had been working continuously for Borden for more than four years when the particular contract was signed. He was not discharged; he resigned. Vogel explained that the 12-week provision was meant for new employees and really shouldn’t have been in Huey’s contract. Moreover, a period of 12 weeks would presumably be sufficient for a route man to ingratiate himself with the company’s customers. Thus the 12-week limitation is not shown to be so unreasonable as to vitiate the contract.
Reversed and remanded.
We agree. Harris, C.J., and Byrd and Roy, JJ. | [
112,
-2,
-16,
44,
26,
-32,
16,
-74,
122,
-118,
-27,
83,
-19,
88,
5,
121,
-29,
29,
81,
105,
-9,
-110,
17,
102,
-46,
-9,
-87,
-43,
-72,
91,
100,
84,
76,
52,
74,
-43,
-58,
-54,
-55,
-100,
-14,
0,
43,
120,
60,
1,
56,
42,
114,
95,
65,
-65,
-13,
46,
25,
-49,
45,
44,
89,
45,
89,
121,
-78,
69,
109,
21,
48,
36,
-102,
7,
88,
94,
-104,
49,
40,
-24,
114,
-74,
-118,
92,
71,
-103,
12,
32,
99,
10,
-99,
-57,
-20,
-88,
6,
-17,
-103,
-90,
-108,
24,
2,
66,
-66,
-98,
122,
18,
2,
122,
-26,
69,
27,
60,
-119,
-98,
-106,
-93,
71,
100,
-42,
23,
-21,
-89,
20,
101,
-55,
-90,
125,
87,
115,
-102,
-121,
-108
] |
George Rose Smith, Justice.
The question here is whether the residents of an area that is in the process of being annexed to a city have the right to vote in a municipal bond election before the annexation is effective. We agree with the trial court’s holding, upon stipulated facts, that the asserted right to vote does not exist.
At the 1975 general election the voters approved the proposed annexation of certain territory to the City of Little Rock. However, the effective date of the annexation was postponed by a circuit court action challenging the validity of the annexation. Ark. Stat. Ann. § 19-307.2 (Supp. 1975). On August 17, 1976, while the annexation contest was still pending, the city directors called a municipal election, to be held on September 21, to authorize the issuance of bonds to finance five separate public improvements. Notice of the elec tion was published for four weeks, as required by Amendment 13 to the Constitution of 1874.
On September 15, after a two-day trial of the annexation contest, the circuit judge orally announced his decision sustaining the annexation. On September 21 the electors residing within the city approved the proposed bond issue by a vote of more than four to one. On September 30 the circuit judge signed an order approving the annexation. On October 11 the appellants filed this class suit for a declaratory judgment holding the bond election to be void, on the ground that the residents of the area that was being annexed were not allowed to vote in the election. (There is actually no indication that any resident of the area asked to be allowed to vote.)
The trial court was right in refusing to set aside the bond election. Amendment 13 provides: “Qualified voters of said municipality only shall have a right to vote at said elections.” Section 19-307.2 of the statutes provides that the annexation, in the event of a contest, becomes effective on the date the circuit court judgment becomes final. Under our procedural statutes a circuit court judgment does not become final until at least thirty days after its entry. Cranna v. Long, 225 Ark. 153, 279 S.W. 2d 828 (1955). As a practical matter, the city presumably needed a similar period of thirty days before the election in which to give notice of the election and to make the necessary arrangements for holding it. Yet, according to the appellants’ argument, the election would have been void even if the circuit judge had not announced his oral findings until the day before the bond election. If that were the law it would be a virtual impossibility for a city to hold a valid bond election during the pendency of a contested annexation proceeding, since it could never be known'in advance when the circuit judge might announce his decision.
The appellants also argue that they were constitutionally entitled to vote at the bond election, else they would be denied due process and equal protection and would be taxed without representation. Not so. Property owners within an area that is annexed to a city are ordinarily subject to municipal taxation for municipal purposes, even though the taxes may have been approved by the municipal electors before the annexation. McQuillin, Municipal Corporations, § 7.48 (3d ed., 1966). The right to vote for or against taxes may be limited to voters who are residents of the city at the time of the election. We so held in McKenzie v. City of DeWitt, 196 Ark. 1115, 121 S.W. 2d 71 (1938). There a nonresident of the city of DeWitt, who owned property in the city, argued that he was entitled to vote at an election which might subject his property to taxation. In rejecting that argument we said:
[O]ne of the appellants who did not reside in the city was not permitted to vote in the election, although he owned real property in said city, which will be subject to the additional tax of five mills. This contention [that the tax upon his property was invalid] is by no means unique, but because of the fact that the principle involved, of taxation without representation, has the heritage of generations to support it, adds nothing to its merit. In truth, it is wholly without merit because a provision of the Constitution, under which the city of DeWitt is acting, provides: “Qualified voters of said municipality only shall have a right to vote at said elections.”
That is the same constitutional issue that is now before us.
Affirmed. | [
84,
-4,
-12,
60,
10,
64,
22,
-98,
82,
-85,
109,
83,
-83,
-56,
20,
57,
-101,
-1,
117,
89,
-44,
-94,
69,
106,
-16,
-45,
-21,
-59,
-65,
105,
-10,
-67,
12,
33,
-54,
-43,
70,
79,
-115,
88,
-18,
-125,
-53,
77,
-48,
18,
60,
122,
0,
-113,
85,
-72,
-32,
-84,
24,
-29,
109,
45,
73,
101,
67,
-5,
-100,
-57,
-19,
-124,
-79,
-25,
-104,
-121,
112,
10,
-40,
49,
8,
-24,
115,
-90,
-122,
118,
45,
25,
12,
102,
98,
-128,
45,
-1,
-8,
-119,
15,
-62,
15,
-26,
-106,
89,
107,
14,
-74,
-107,
103,
20,
15,
-2,
103,
-123,
89,
44,
-116,
-50,
-44,
-93,
5,
56,
5,
3,
-29,
-45,
-80,
117,
-52,
-10,
94,
66,
51,
-101,
71,
-48
] |
George Rose Smith, Justice.
The appellant, a corporation owned by Joseph Elston, owns and operates a funeral home in Little Rock. Elston testified that the inadequacy of his facilities led to a decline in his volume of business. He decided to acquire a larger building and, being black himself, sought such a building in a predominantly black neighborhood. This resulted in his entering into a contract to purchase the vacant Magnolia Lodge Building at the corner of Sixteenth and Battery Streets. The contract was conditioned upon Elston’s being successful in having the property rezoned and in obtaining a building permit for the necessary remodeling of the building.
The city directors approved the rezoning of the property from a residential classification to a Lodging, Nursing Home, and Undertaking classification. This suit, however, was brought by four owners or lessees of residential property in the neighborhood, asserting that the funeral home would constitute a nuisance in the surrounding residential district and should be enjoined. Another protestant intervened in the case. After an extended hearing the chancellor entered a decree permanently enjoining the appellant from operating the proposed funeral home.
The applicable principles of law are settled by our cases. A funeral home is not a nuisance per se. It may be a nuisance, however, in a residential district as a result of its continuous reminder of death and dead bodies, which may destroy the comfort and repose sought by homeowners and lead to a decline in property values. Mitchell Funeral Home v. Bearden, 255 Ark. 888, 503 S.W. 2d 904 (1974); Powell v. Taylor, 222 Ark. 896, 263 S.W. 2d 906 (1954).
In the present case there was comparatively light opposi tion to Elston’s proposal. Even though the district is entirely residential for at least two blocks in every direction from the site of the Lodge Building, a number of witnesses testified in Elston’s favor. In fact, the chancellor’s decree is somewhat unusual in that upon almost every point he found that the protestants had not proved their assertions by a preponderance of the evidence. Specifically, the chancellor found that no serious traffic problems would be created, that it had not been shown that the neighborhood would gradually become commercial if the Lodge Building were converted to a funeral home, that it had not been shown that there would be a genuine detrimental effect upon property values, and that the witnesses who testified about the presence of the funeral home as a reminder of death were comparatively young. Actually, only two witnesses touched upon that issue, and the one who would be very near the funeral home purchased his property after the rezoning and with knowledge of it. Our review of the record convinces us that the chancellor’s evaluation of the conflicting proof was an accurate summation.
Despite his misgivings, the chancellor concluded that “the testimony of the witness, Hill, . . . convinces the Court the injunction must be and it is made permanent.” We must, therefore, examine Hill’s testimony in some detail.
Hill is (or was at the time of the trial) the City Director of Human Resources. In that capacity he is responsible for planning and implementing programs to upgrade several neighborhoods that have deteriorated. To that end he participates in allocating and administering federal funds in an effort to save and revitalize residential areas. During a period of seven years about $20,000,000 was so spent in neighborhoods throughout the city.
Although the neighborhood now in question is predominantly black, Hill testified that young professional whites were beginning to move back into it. Hill personally believed that a racial mixture is good for any neighborhood and that anything causing a reversal of that process would be detrimental to the neighborhood. He pointed out that most of the protestants were white and expressed the opinion that if a black funeral home were established in the neighborhood it might cause the moving in of whites at least to slow up and their moving out to start up again.
It is unnecessary for us to weigh the merits or demerits of Hill’s position, for even if his point of view were found to be wholly correct it is still not a controlling consideration in a judicial proceeding such as this suit. Hill’s testimony might more appropriately’ have been presented to the city authorities when the application for rezoning was submitted for their consideration. In the courts the issue is whether the proposed funeral home will have such an effect upon the surrounding residential property as to constitute a nuisance. The long-range and intangible sociological consequences of the establishment of the funeral home are not, in our opinion, matters that can be given weight in a case of this kind. Consequently we cannot agree with the chancellor’s conclusion that Hill’s testimony has the effect of overcoming the deficiencies that otherwise exist in the protestants’ proof.
The Magnolia Lodge, as the seller of the property, intervened in the case and sought specific performance of its contract. To this point its prayer for relief has been premature, because the completion of the sale has been contingent upon the appellant’s successful defense of this case. That issue having now been settled, the cause will be remanded for further proceedings.
Reversed.
We agree. Harris, C.J., and Holt and Roy, JJ. | [
115,
-22,
-44,
92,
24,
-32,
82,
-72,
82,
-96,
37,
83,
105,
8,
21,
111,
-29,
23,
113,
105,
-59,
-109,
71,
34,
-48,
-45,
-13,
-43,
-72,
-51,
-11,
-35,
76,
101,
106,
-35,
-26,
-50,
-51,
-36,
30,
0,
8,
97,
-35,
82,
52,
43,
86,
15,
69,
-49,
-73,
-84,
81,
-63,
105,
60,
121,
45,
80,
-7,
-118,
21,
126,
7,
49,
-28,
-102,
-125,
104,
12,
-112,
53,
8,
-88,
115,
-90,
-106,
100,
39,
89,
12,
32,
98,
-118,
-87,
-9,
-96,
-110,
7,
-94,
-99,
-89,
-114,
57,
115,
19,
-98,
-105,
120,
16,
15,
124,
-10,
-43,
89,
40,
-51,
-114,
-10,
-73,
-91,
-87,
-106,
19,
-5,
71,
48,
112,
-117,
-54,
126,
119,
114,
-37,
-121,
-71
] |
Darrell Hickman, Justice.
The only issue in this case is the constitutionality of an Arkansas statute permitting a nonresident corporation to be sued in a contract action in the county where the plaintiff resides.
The lower court overruled Philco-Ford Corporation’s motion to quash service and from that order, Philco-Ford, the petitioner, requests a writ of prohibition against the circuit judge from proceeding further.
Philco-Ford is a non-resident corporation which has an agent for service in Pulaski County, Arkansas. It has no principal place of business or chief officer in the State. It was sued in Sebastian County, Arkansas by the respondent, a plaintiff-resident of that county, pursuant to a venue statute which reads as follows:
Contract actions against a non-resident of this state or a foreign corporation may be brought in the county in which the plaintiff resided at the time the cause of action arose. Ark. Stat. Ann. § 27-619 (Repl. 1962).
We have said, and the U.S. Supreme Court has held, that foreign corporations must be treated the same as domestic corporations regarding the venue of law suits. See Cavette v. Ford Motor Credit Co., 260 Ark. 874 (1977). Power Manufacturing Company v. Saunders, 274 U.S. 490 (1927).
The respondent in this case argues that the Power case was overruled by the U.S. Supreme Court in the case of American Motorists Insurance Co. v. Starnes, 425 U.S. 637 (1976). The Starnes case did not overrule the Power case. The Starnes case involves a Texas venue statute and the court found that the Texas law did not really discriminate against foreign corporations but treated them substantially the same as domestic corporations.
Arkansas law does not permit a domestic corporation to be sued in a contract action in the county where the plaintiff resides at the time the cause of action arises. The suit must be brought in the county where the corporation has its principal office or place of business, or where the chief officer resides. See Ark. Stat. Ann. § 27-605 (Repl. 1966).
Therefore, we hold that Ark. Stat. Ann. § 27-619 (Repl. 1962) is unconstitutional in that it discriminates against foreign corporations in violation of the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution.
Writ granted.
We agree: Harris, C.J., and Fqgleman and Roy, JJ. | [
116,
-2,
-16,
-68,
9,
-32,
50,
26,
122,
-29,
37,
83,
-87,
-38,
-124,
121,
-21,
63,
113,
91,
-43,
-78,
65,
106,
-46,
-77,
-39,
-51,
-88,
75,
-28,
126,
76,
48,
-54,
-105,
-122,
64,
-123,
-100,
-22,
32,
25,
112,
-7,
-109,
52,
-70,
66,
75,
1,
-115,
-15,
60,
19,
-54,
45,
46,
-39,
-83,
80,
122,
-54,
21,
127,
20,
49,
68,
-120,
37,
120,
14,
-112,
-71,
24,
-8,
115,
-78,
-90,
52,
41,
-99,
8,
44,
99,
2,
33,
-57,
-36,
-120,
54,
-1,
13,
-90,
52,
41,
35,
13,
-66,
-97,
122,
22,
3,
126,
-2,
-59,
18,
108,
-123,
-113,
-106,
-89,
-91,
-32,
20,
66,
-17,
-50,
-76,
97,
-54,
-14,
125,
71,
59,
-37,
-114,
-48
] |
Carleton Harris, Chief Justice.
Appellee, Orley Woodard, a policeman of the City of Piggott from February 4, 1969, until May 27, 1976, upon retirement, claimed pay for holidays during his service on the force (Ark. Stats. Ann. 19-1713) and also claimed the maximum accumulation of “sick leave,” a total of 60 days’ pay at the rate in effect during his service on the force (Ark. Stats. Ann. 19-1720 [Í975 Supp.]). The circuit court found the plaintiff entitled to accumulated sick leave and entitled to pay for 68 holidays, totaling $2,-772.74. The judgment has been stayed pending appeal.
For reversal, appellant first contends that there has been an illegal appropriation of city funds by the Legislature. A heterogeneous mixture concerning defects in the Legislative Act and other alleged reasons for reversal are mentioned under point two.
The first point relates to an assertion that the acts in question are violative of Article 5, § 29 of the Arkansas Constitution. That provision provides:
“No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years.”
This provision is not pertinent. The language “No money shall be drawn from the treasury” has reference to the state treasury and does not refer to money held elsewhere. See Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595.
Nor do we find merit in the arguments under point two. This' case was tried entirely on a stipulation which only included three paragraphs, first, the dates of Woodard’s employment as previously set out in this opinion, second, the amount of accumulated unpaid sick leave time, also previously mentioned, and third, the number of holidays during each pay rate, including the period of time for which each rate was applicable.
The city contends that it has never adopted an ordinance providing for special pay and it asserts that such an ordinance is mandatory before Woodard can be paid. We do not agree. If this were the case, a city could vitiate a legislative act through inaction.
In Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726, and cases cited therein, we pointed out that whenever an obligation is legally imposed upon a county by legislative enactment within the power of the General Assembly, it must be paid without regard to the existence or exhaustion of a specific appropriation so long as the county general fund is not exhausted. While that case involved the obligation of counties, the same logic holds true as to the obligation of cities. In 56 Am. Jur. 2d Municipal Corporations § 132, it is stated that the state may provide a metropolitan police system for municipalities and compel them to pay the expenses thereof, even though the municipality acts under a home-rule charter, such charter being subservient to the general laws. As has been pointed out so many times that no citation of authority is necessary, municipalities only have such authority as is given by the General Assembly. The act in question is a general law and Article 12, § 4 of the Arkansas Constitution prohibits a municipal corporation from passing any law contrary to the general laws of the state. To say that a city could nullify a general act by simply refusing to pass an ordinance or make an appropriation would, in actual effect, be the same as passing a law contrary to such statute.
It is argued that the legislation is unconstitutional in light of Article 2, § 18 of the Arkansas Constitution which provides:
“The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.”
It is asserted that the Legislature has singled out certain type employees for special privileges, such privileges not being afforded to all employees of the city.
This is not the test. In 16A C.J.S. Constitutional Law § 505, the subject is discussed as follows:
“State and municipal legislation is subject to the constitutional requirement that no state shall deny the equal protection of the laws to any person within its jurisdiction; and it is valid as complying with, or invalid as violating, this requirement accordingly as it does or does not, within the sphere of its operation, affect and treat alike, with equality and uniformity, and without arbitrary or unreasonable distinction or discrimination, all persons similarly situated. Legislation which meets this test satisfactorily is not invalid because it is not all-embracing but instead is limited, for example, * * * as to persons, subjects, objects to which the legislation is to be applied, or evils or abuses to be remedied or corrected.
Equal protection is not achieved through indiscriminate imposition of inequalities, but discrimination alone, irrespective of its basis or effect, is not the test of denial of equal protection of the laws by a statute. A discrimination which is merely technical and in no sense substantial or unjust does not render a statute void. Also, the constitutional requirement does not prevent a state or municipality from adjusting its legislation to differences in situations and making a discrimination or distinction in its legislation in respect of things that are different, provided the discrimination or distinction has a reasonable foundation or rational basis and is not palpably, purely, and entirely arbitrary in the legislative sense, that is, outside of the wide discretion which the legislative body may exercise. The courts will not lightly assume legislative arbitrariness, nor will they draw the dividing line between rational and arbitrary legislation with a view of remote possibilities, but instead they will refuse to set aside a statutory discrimination as a denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.”
Our own cases are fully in accord. In Thompson v. Continental Southern Lines, Inc., et al, 222 Ark. 108, 257 S.W. 2d 375, this court held that when classification of subjects is made by legislation, such classification must rest on some substantial difference between classes created and others to which it does not apply, but where the statute or ordinance appears to be founded upon a reasonable basis and operates uniformly upon a class to which it applies, it cannot be said to be arbitrary. See also the early case of Willis, et al v. City of Fort Smith, et al, 121 Ark. 606, 182 S.W. 275.
In the first place, the legislative act (Act 133 of 1955) granting the additional pay for holidays applies to all policemen and Act 393 of 1969 provides that “All firefighters and police officers employed in cities of the first and second class shall accumulate sick leave,” etc. So it is at once apparent that there is no discrimination as between the members of the class — all city policemen are included. It must be remembered that because of the nature of their duties, policemen are required to work on holidays, or, at least are subject to call, for the public cannot be left without police protection. This situation is vastly different from that of a secretary or a clerk, other office help, or sanitation workers, as there could but rarely be occasion for the services of these personnel on a holiday. Sick leave is controlled by Act 393 of 1969 (Ark. Stats. Ann. 19-1720) which provides for unused accumulated sick leave for policemen and firemen. The act points out that existing provisions for sick leave are not uniform, and are entirely inadequate. We think, under our decisions, these classifications are entirely reasonable, and appellant’s argument is found to be without merit.
Appellant calls attention specifically to Article 12, § 4 of the Constitution of the State of Arkansas, as amended by Amendment 10 to the Constitution and says:
“Realizing, of course, that cities only have such powers as may be given by the General Assembly, either express or implied, Article 12, Section 4 of the Constitution of the State of Arkansas specifically limits the Appellant herein from levying a tax or more than 5 mills and, also, specifically prohibits the Appellant from paying or issuing any type certificate of indebtedness in excess of the revenues from all sources for the current fiscal year. At the time of the trial of this case there was no way of knowing whether or not payment of this judgment would, by making such payment, put the Appellant in the position of exceeding its revenues from all sources for the current fiscal year.”
There is absolutely nothing in the record to denote whether the allowance of appellee’s claim would necessarily cause the revenues of appellant for any year or years to be exceeded. We have said:
“The burden of showing that payment of an obligation would constitute a violation of this amendment is upon the party making that assertion if a question of facf is involved.” Deason v. City of Rogers, 247 Ark. 1061, 449 S.W. 2d 410.
In the same case, this court commented:
“There is no way that this court or the circuit court could possibly ascertain, on the record, what the revenues or expenditures of the city amounted to in the year or years involved, what disposition may have been made of any surplus in any such year, or what other claims against any surplus might be outstanding.”
Whether the statutes (19-1713 and 19-1720) are constitutional and thus valid, and we so find, is entirely a separate question from whether revenues are available to pay the judgment. Of course, such judgment cannot be paid if violative of Amendment 10, and though there is much law on the subject, that matter is not presently before us.
Affirmed.
A similar right to holiday pay was given to firemen in Act 132 ofl955 as amended by Act 264 of 1957.
The Deason case also involved the question of the holiday pay for policemen, but the constitutionality of the statute was not attacked. | [
16,
-17,
-16,
-4,
10,
-127,
18,
-78,
83,
-95,
-89,
91,
-19,
65,
20,
113,
99,
-3,
116,
121,
-123,
-77,
21,
72,
98,
-45,
-37,
-59,
-67,
75,
-28,
-36,
95,
48,
-62,
-39,
70,
-26,
-49,
92,
-54,
-122,
-85,
-23,
81,
5,
48,
43,
-46,
11,
49,
-105,
-5,
46,
16,
75,
108,
40,
91,
8,
19,
-14,
-118,
13,
-17,
21,
-95,
36,
-102,
7,
-48,
46,
-112,
49,
65,
-40,
115,
-74,
-126,
116,
101,
-103,
12,
98,
98,
-94,
13,
-25,
-120,
-83,
22,
-34,
-99,
-90,
-112,
57,
43,
11,
-106,
-108,
-2,
20,
79,
126,
119,
-43,
-109,
44,
-121,
-50,
-36,
-95,
-68,
-19,
-108,
-126,
-17,
103,
48,
97,
-49,
-26,
92,
71,
51,
-37,
-122,
-44
] |
Elsijane T. Roy, Justice.
Appellant was charged with burglary and grand larceny in connection with the alleged theft of certain items from a grocery store. On trial to a jury he was found guilty and sentenced to 15 years for burglary with a fine of $7,500 and to 5 years for grand larceny with a fine of $5,000, the sentences to run consecutively.
On appeal the only point relied upon for reversal is the court erred in failing to grant appellant’s motion to suppress evidence obtained as a result of an unlawful search.
The State contends the items were properly admitted because appellant consented to the search. At the hearing on the motion to suppress evidence Deputy Sheriff St. Clair testified he went to appellant’s home with Billy Quillman, appellant’s employer, to question him about the burglary of the Quillman home. St. Clair stated he asked appellant, “Do you mind if I search your house?” Appellant replied in the negative. St. Clair also testified he was wearing his gun and appellant recognized him as a policeman.
Quillman, a witness for the State, verified St. Clair’s testimony as to the alleged consent but noted he thought appellant was pretty drunk at the time. Although Deputy St. Clair testified appellant seemed to have control of his faculties, he admitted appellant was placed in the drunk tank to spend the night. It was undisputed that the alleged consent of appellant was obtained some time after midnight, about one o’clock in the morning, and that appellant had a strong odor of alcohol on his breath. St. Clair went to appellant’s home at Quillman’s request, and although appellant was a suspect no search warrant was sought; appellant was not asked to sign a consent form; and appellant was not advised he did not have to consent to the search.
Appellant testified he worked most of the day at Billy Quillman’s and started drinking about one o’clock that afternoon. After he left work he went next door to Willard Wilson’s house, where they drank “some whiskey and beer and some more whiskey and beer.” Appellant was asked if he recalled Deputy St. Clair’s asking to search the house. Appellant replied:
No, I don’t. The only thing I remember is somebody hollering and Mr. St. Clair in the door and the only other thing I remember is the man pulling his gun and putting it in my face, it was a chrome plated .38.
In Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), the Court stated:
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. * * * (Italics supplied.)
The Court in Judd v. United States, 89 U.S. App. D.C. 64, 190 F. 2d 649 (1951), stated:
. . .[S]uch a waiver or consent must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied. (Citing cases.) (Italics supplied.)
When we consider all the circumstances in connection with the alleged consent here we are unable to say the State met its burden of proving consent freely and voluntarily given by clear and positive testimony. Therefore the evidence obtained in the search should have been suppressed.
Reversed and remanded.
We agree. Harris, C.J., and Fogleman and Hickman, JJ | [
113,
-2,
-35,
-100,
59,
96,
-70,
-68,
114,
-109,
-25,
115,
-91,
-64,
12,
43,
-5,
-1,
117,
121,
-39,
-110,
7,
65,
-42,
-13,
-16,
-59,
-79,
79,
-12,
-11,
13,
48,
-62,
53,
102,
8,
-9,
-40,
-114,
-123,
-72,
-32,
-62,
16,
100,
27,
68,
14,
113,
-98,
-93,
46,
17,
-53,
9,
44,
-53,
61,
112,
-7,
-71,
29,
-113,
38,
-94,
6,
-99,
71,
-8,
14,
-100,
25,
1,
-24,
123,
-106,
-126,
116,
75,
-101,
45,
102,
98,
0,
5,
-26,
-20,
-7,
-88,
110,
-99,
39,
-40,
41,
73,
108,
-97,
-97,
100,
16,
45,
104,
-31,
-108,
25,
108,
32,
-49,
52,
-111,
-115,
32,
-122,
-45,
-49,
33,
100,
113,
-58,
-28,
92,
67,
51,
-101,
-114,
-105
] |
David N. Laser, Special Justice.
Appellant, Arkansas Power & Light Company (AP&L) is an Arkansas public utility within the meaning of Act 324 of 1935, and is subject to regulation by the Arkansas Public Service Commission (Commission). This act requires that the Commission must approve any change in rate schedules of a public utility. Pursuant to Ark. Stats. Ann. Sec. 78-217, as amended, AP&L submitted an application to the Commission on March 18, 1974, for authority to change certain rates and charges in schedules filed with the Commission. AP&L placed the rates filed pursuant to the application into effect, under bond and subject to refund, on September 1, 1974, and these rates remained in effect until superseded by newly filed rate schedules on November 17, 1975. The hearings in this case on the requested rate increase were quite lengthy, commencing on October 21, 1974, and, after eighteen days of hearings, adjourning on January 7, 1975. Suffice to say that the length of the hearings and the complexities and collateral issues raised in the course of the hearings produced a very cumbersome and voluminous record before the Commission, comprised of over thirty-eight hundred pages of printed words, and in addition thousands of figures contained in various exhibits. Much of the testimony before the Commission consisted of the testimony of expert witnesses, primarily accountants representing both AP&L and the Commission. Much of this testimony dealt with mixed issues of law and fact and went into the record in the form of opinion evidence, projections, statistical analyses, etc. In addition to the participation by AP&L and the staff of the Commission, additional parties were granted leave to intervene in the proceeding, and most of these parties were represented by counsel and took an active role in the proceedings. These additional parties included Arkansas Community Organizations for Reform Now (ACORN), Reynolds Metals Company, Arkansas Consumer Research, Associated Industries of Arkansas, City of North Little Rock, the Attorney General’s office and Little Rock Air Force Base. The request for the rate increase by AP&L was in essence motivated by the general inflationary trends over the past few years and its effects upon the company’s operations as well as the rapidly expanding construction programs, arguably necessary to meet the needs of Arkansas electric consumers. AP&L argued that the requested rate increases were necessary for the fruther reasons that AP&L had incurred or would be required to incur in the future increased capital costs for the financing of construction programs and, additionally, claimed an inability to earn an adequate rate of return under the existing rate schedule under which AP&L was operating. AP&L contended, based on a number of reasons, that a $38,600,000 rate increase was required in order to fix an appropriate base and rate of return for AP&L to earn on its rate base. On March 14, 1975, the Commission entered its Order, granting AP&L $20,155,055 of the $38,-600,000 requested. Following this ruling by the Commission, AP&L filed an application for rehearing with the Commission, citing numerous errors alleged to have been made by the Commission. Additionally, other applications for rehearing were filed by other parties involved in the action. None of the applications for rehearing were acted upon by the Commis sion and, in accordance with Ark. Stats. Ann. Sec. 73-229.1, the applications for rehearing were deemed denied. Whereupon, AP&L and other parties to the proceeding filed Petition to Review, Partially Set Aside and Modify the Order of the Commission with the Puláski County Circuit Court. All of the Petitions to Review were consolidated for hearing with AP&L’s appeal by the Pulaski County Circuit Court, and said Court affirmed the Commission’s Order in all respects. From that Order, AP&L has appealed to this Court. An Amicus Curiae Brief was filed in this action by the Attorney General’s office, which brief essentially supports the position taken by the appellee, the Arkansas Public Service Commission. Basically, three points for reversal were argued by the appellant, although in AP&L’s original Petition with the Commission and in its application for rehearing, AP&L raised several additional issues. These additional issues have been waived or abandoned as relates to this appeal.
It is the position of appellant, AP&L, that the determination by the Commission of the Company’s earnings and revenue deficiency was based on an arbitrary and erroneous assessment by the Commission of estimated future growth in retail sales. Secondly, AP&L contends that the Commission erred in failing to eliminate, for rate-making purposes, certain tax benefits associated with construction work in progress and, thirdly, that the Commission erred in refusing to recognize the working capital allowance for AP&L, in that the Commission deducted a negative working capital figure from AP&L’s rate base. The judicial scrutiny by this Court of the Commission’s decisions is limited by legislation which recognized the need for a specialized tribunal to handle the complex and technical field of utility regulation. Under applicable statutes, the Commission has been granted broad discretion, as a fact-finding body, in determining what amount constitutes the fair rate of return for the utility consistent with the public interest. As relates to the scope of review of this Court, Ark. Stats. Ann. Sec. 73-229.1 (b) provides in pertinent part:
“The finding of the Commission as to the facts, supported by substantial evidence, should be conclusive. The review shall not be extended further than to determine whether the Commission’s findings are so sup ported by substantial evidence, and whether the Commission has regularly pursued its authority, including a determination of whether the Order or decision under review violated any right of the complainant under the Constitution of the United States or of the State of Arkanaas.”
This Court has held that the Commission must and does have broad powers in regard to rate-making, and that the Commission is a fact-finding body. Furthermore, the Commission is a creature of the Legislature as relates to the administration of Act 24. This Court’s review of the Commission’s findings on the record before the Commission is limited pursuant to Ark. Stats. Sec. 73-229.1 (b), supra, and as stated in Arkansas Power & Light Company v. Arkansas Public Service Commission, 226 Ark. 225, 289 S.W. 2d 668 (1956), to a determination of whether or not there is any substantial evidence in the record before the Commission to support the Commission’s findings, and if such substantial evidence is found and the Commission’s decision is free from fraud and not arbitrary, then this Court has no alternative but to affirm the findings of the Commission, even though this Court might not agree with the wisdom of the Order. See City of Fort Smith v. Southwestern Bell Telephone Company, 220 Ark. 70, 247 S.W. 2d 474. Limiting our scope of review in accordance with these decisions and the applicable statutes, we proceed to dispose of the issues herein presented.
Based upon the record before this Court and considering the complexities of the issues involved and the exhibits and expert testimony presented, this Court cannot state that the Commission’s assessment of the estimated future growth in retail sales, in determining the Company’s earnings and revenue deficiency, was not supported by substantial evidence. We therefore find that the Commission’s assessment of future growth and retail sales, in determining the Company’s earnings and revenue deficiency, was supported by substantial evidence, and was not arbitrary, capricious nor erroneous.
By the same token, from a review of the record before us, we cannot state that the Commission’s decision with regard to the working capital allowance and non-investor’s supplied capital was either arbitrary or capricious, and we find that the Commission’s handling of that matter was supported by substantial evidence, and that the action of the Commission in that regard should be affirmed.
As to the Commission’s failure to eliminate for rate-making purposes certain tax benefits, including alleged investment tax credits associated with construction work in progress, we must respectfully differ with the Commission’s finding in this regard, and it is the finding of this Court that there is no substantial evidence in the record to support the Commission’s failure to eliminate, for rate-making purposes, tax benefits associated with construction work in progress. The Company’s filing with the Commission included construction work in progress in the rate base, and allowed for funds used during construction in net utility operating income, and AP&L strongly urged the Commission to include construction work in progress in the rate base, citing the alleged deteriorated bond coverage ratios of the company and other factors which AP&L felt required the inclustion of construction work in progress in the rate base, and allowance for funds used during construction in net utility operating income. The Commission disallowed the inclusion of construction work in progress in the rate base and, while AP&L disagreed with the Commission’s decision on the construction work in progress issue, the ruling with regard to the inclusion of construction work in progress in the rate base is not argued on appeal. However, in the company presentation and the inclusion of construction work in progress in the rate base, AP&L also included the tax benefits associated with interest deductions attributable to funds invested in construction work in progress as a reduction in cost of service to the customer. As hereinabove stated, the Commission excluded construction work in progress from the rate base, but did not exclude the tax benefits associated with interest on funds invested in construction work in progress for rate-making purposes. This tax benefit takes the form of reduced income taxes resulting from deductions from taxable income to the extent of interest charged to finance the construction program. Also included were certain investment tax credits utilizable in the event that construction work in progress was included within the rate base. By exclusion of construction work in progress from the rate base and yet continuing to include tax benefits associated with construction work in progress, the result is that present customers are not paying any return on the investment of the Company in construction work in progress, and are therefore not contributing revenues needed to cover the cost of providing service, and yet the Company is required to continue to provide service which necessitates an ongoing program of construction work in progress. It appears that this same basic question was presented to the Pennsylvania Public Utility Commission in Pennsylvania Public Utility Commission v. Pennsylvania Electric Company, 1 Pur. 4th 272, 301 (Penn. Puz. 1973). In that case, the Company argued that if construction work in progress was excluded from the rate base and the present customers were therefore not providing a return on the investment therein, the present customers should not receive the benefits associated with the reduced income taxes. The Commission agreed with the position of the Company, and stated:
“Respondent believes that since construction work in progress is not included in rate base, present customers are not providing a return on this item and should not receive the tax benefit of the reduced income taxes. Also, construction work in progress creates a penalty in earnings since it is non-return producing. Since construction programs are at an all-time high and it is not unusual for these construction dollars to remain non-return producing for a number of years, we agree with the respondent.”
Therefore, we find that the tax benefits associated with construction work in progress must be eliminated for rate-making purposes, inasmuch as construction work in progress was excluded from the rate base. Based upon the record before us, it appears that our reversal of the Commission’s ruling, as relates to this point, requires that AP&L be afforded a $7,530,000 upward adjustment in rate relief. The effect of the tax investment credit is a matter to be considered when the construction becomes a part of the rate base.
From a reading of the record filed herein and the briefs of the respective parties, it appears obvious to this Court that the issues presented to the Public Service Commission were indeed complex, and that much of the testimony presented by many of the parties on various sides was, to say the least, confusing and based on variable criteria and that substantive criteria determinative of the rate-making issues were at times inconsistent and in certain areas sorely lacking. There seems to be little question that the Commission has, on different occasions, approved different methods of accountings and methods of computation of rates of return, etc. The same applies to the proof as presented by the Company. While this Court recognizes that it may be quite difficult to establish hard and fast substantive rules to be followed and utilized in determining a fair rate of return in cases of this type, it would seem that a more uniform application of established and predictable criteria would lead to a fairer result as well as a result that is explainable to persons of average intelligence and understandable from the standpoint of the ultimate consumer.
The Judgment of the Pulaski County Circuit Court is therefore affirmed except as relates to the inclusion of tax benefits associated with construction work in progress, and the cause is remanded to that Court for the purpose of affording AP&L the additional relief as required by this Opinion.
Roy, J., not participating. | [
52,
111,
-10,
92,
-100,
96,
24,
-110,
89,
-79,
-91,
83,
-87,
-60,
-108,
113,
-109,
123,
116,
105,
-48,
-74,
33,
106,
-47,
-77,
113,
-61,
-80,
-33,
-12,
-121,
76,
41,
-54,
85,
-26,
-64,
-59,
92,
46,
9,
-53,
96,
-40,
-62,
52,
41,
82,
-53,
17,
-84,
-13,
44,
16,
-56,
77,
62,
89,
44,
1,
122,
10,
-121,
-1,
20,
0,
101,
-102,
5,
-8,
30,
-104,
49,
0,
-20,
115,
-90,
6,
117,
109,
89,
12,
32,
98,
64,
33,
-81,
-20,
-88,
54,
-66,
-99,
-92,
-110,
24,
2,
5,
-74,
22,
100,
-108,
23,
-2,
-9,
-107,
91,
110,
-121,
-118,
-68,
-29,
45,
100,
-102,
-109,
-21,
-58,
16,
116,
-54,
-94,
126,
95,
51,
-37,
-122,
-88
] |
Frank Holt, Justice.
A jury convicted appellant of second degree murder and assessed his punishment at 21 years in the State Department of Correction. Appellant first argues, through court appointed counsel, that the court’s instruction, based upon Ark. Stat. Ann. § 41-2246 (Repl. 1964), was erroneous because this statute was repealed effective January 1, 1976 by the enactment of the new Arkansas Criminal Code, Act 1975, No. 928, § 3 (Ark. Grim. Code § 41-101, et seq. [1976]). The alleged offense was committed approximately one year before the effective date of the Code. § 41-102 (3) provides that any offenses committed before the effective date of the Criminal Code are to be prosecuted under the appropriate statute or law which existed at the time of the alleged offense. § 41-102 (5) specifically preserves any repealed statute for the purpose of authorizing prosecution of an offense which was committed when that statute existed. However, § 41-102 (4) gives a defendant, who is charged with an offense predating the Code, the option of presenting his defenses either by the Code or the pre-existing law. To do so, however, it is necessary for a defendant to file a timely motion electing to have “the construction and application of any defense to such prosecution governed by the provisions of this Code. ...” Since no such election appears here, the preexisting law, § 41-2246, was applicable to appellant’s defenses and not the provisions of the Code.
Appellant also argues that the instruction given by the court on self-defense is insufficient to satisfy the due process requirements of the Fourteenth Amendment as delineated by Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 508 (1976). Here appellant contends that Mullaney dictates that the court’s instruction should have required the prosecution to prove beyond a reasonable doubt the absence of circumstances of mitigation when the issue, as here, is properly presented. Appellant also offered and was refused an instruction to that effect. We cannot agree that Mullaney is applicable. There the issue was whether the prosecution could be relieved of proving a required element of the alleged offense. It was held that the prosecution must prove every essential element of the crime and, therefore, it was error to shift the burden to defendant to prove he was acting in the heat of passion in order to reduce the charge from murder to manslaughter. In the case at bar, the jury was instructed that the state had to prove all elements of the crime charged beyond a reasonable doubt. Therefore the prosecution was not relieved of any burden of proof and appellant had only his proper burden of proving an affirmative defense; i.e., self-defense. Where, as here, the instructions given properly placed the burden of persuasion as to an affirmative defense on appellant and left intact the state’s burden of proving beyond a reasonable doubt the essential elements of the crime, the instruction is not erroneous. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977).
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Roy, JJ. | [
52,
-17,
-36,
-66,
11,
98,
58,
-100,
-45,
-61,
-28,
19,
45,
-125,
5,
113,
51,
105,
85,
97,
-124,
-73,
55,
91,
-14,
-13,
-63,
-41,
-73,
-49,
-18,
-66,
12,
48,
-30,
81,
102,
74,
-63,
24,
-126,
8,
27,
121,
80,
68,
48,
111,
76,
15,
33,
-100,
-93,
43,
26,
-54,
105,
44,
75,
-65,
74,
-79,
-110,
-113,
107,
22,
-77,
-90,
-104,
5,
112,
6,
-100,
49,
0,
-8,
115,
-122,
-126,
68,
109,
25,
4,
96,
98,
-96,
45,
-49,
-88,
-119,
54,
-1,
-115,
-89,
-104,
89,
75,
76,
-105,
-99,
6,
52,
6,
-10,
-25,
-11,
85,
108,
0,
-34,
-48,
-77,
79,
32,
-106,
106,
-21,
39,
112,
117,
-50,
-30,
93,
87,
81,
-97,
-106,
-44
] |
Frank Holt, Justice.
A jury convicted appellant of delivery of heroin (Ark. Stat. Ann. § 82-2617 (a) (1) (i) [Repl. 1976]) and assessed his punishment at 15 years imprisonment in the Department of Correction. For reversal appellant first contends that “the court erred in refusing to let the defense introduce evidence of the arrangement of the undercover officer and one Billy Lincoln whereby Lincoln would be compensated for getting people to sell drugs to the undercover officer.” An undercover police officer, Morfey, arranged to buy heroin from appellant through James “Jazz-bone” Barnes, who was paid by Morfey for setting up drug buys. Appellant was arrested after two separate sales to Morfey procured by Barnes. Appellant’s defense was entrapment which Morfey denied. However, Morfey agreed that “James Barnes is not the only person [he, Morfey] had told that [he] would pay them money to bring people to [him] to buy from. ...” Further, “that if [Barnes] brought Fred Brascomb [appellant] to [Morfey] that according to [Morfey’s] agreement [Barnes] would get this kick back you’re talking about. ...” Appellant attempted to cross-examine Morfey about Billy Lincoln, another drug producer. Morfey admitted knowing him and that he was working for him.
Q. You never did pay Billy Lincoln to bring people to you?
A. That was done—
Mr. Fields: Your Honor, I’m going to object to the final question unless defense counsel can show that it is relevant to that.
Mr. Graves: Your Honor, what I’m trying to show is the entire operation or scheme of paying people to set other people up.
Appellant argues that evidence as to the activities of the state’s witness is permissible as relevant to proving appellant’s defense of entrapment. Entrapment is an affirmative defense. Ark. Crim. Code § 41-209 (1976). The state responds that any evidence with respect to Morfey and Lincoln is a collateral issue and, therefore, the limitation on cross-examination was proper. We cannot agree. In French v. State, 260 Ark. 473, 541 S.W. 2d 680 (1976), the contention was made that a contingent arrangement, which depended upon whether an informer made a case and how many arrests resulted, involved a collateral issue. In rejecting this contention and holding that an arrangement between an undercover agent and his informer was not a collateral issue, we said:
The same contention, now made by the State, was argued by the Government in Sorrells v. United States, [287 U.S. 435 (1932)]. In answer to the argument there that the defense of entrapment would lead to ‘the introduction of issues of a collateral character relating to the activities of the officials of the Government. . .,’ the court there stated: ‘The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused. . . .’
Here the defense was entrapment by the activities of a government official and, consequently, we are of thtí view that evidence sought by the cross-examination of the witness was not a collateral issue. Common justice requires that any evidence pertinent to the controlling issue of the defense, entrapment, should be permitted. Here appellant sought to show the course of conduct or activities utilized by the state’s witness in his undercover operations.
We next consider appellant’s contention that the trial court erred in giving instruction No. 5 which defiYied delivery of a controlled substance and then told the jury that if they believed beyond a reasonable doubt that the defendant committed the offense “you should find the defendant [appellant] guilty. ...” Appellant argues that the instruction, in effect, is binding and prejudicial since it omits his defense of entrapment. The state responds that another instruction, which immediately followed, supplied the omitted defense and no pre judice resulted. It appears that our cases are in conflict on these opposing contentions. Typical cases in support of the state’s position are Clingan v. State, 77 Ark. 141, 91 S.W. 12 (1906); Satterwhite v. State, 82 Ark. 64, 100 S.W. 70 (1907); Slaytor v. State, 141 Ark. 11, 215 S.W. 886 (1920); and Edwards v. State, 180 Ark. 363, 21 S.W. 2d 850 (1929). In the latter case we said:
As to the omission of the self-defense plea, the next instruction fully covers the subject, and we do not think the jury could have been misled on either proposition.
Typical cases in support of appellant’s position are Claiborne v. State, 51 Ark. 88, 9 S.W. 851 (1888); Davis v. Self, 220 Ark. 129, 246 S.W. 2d 426 (1952); Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W. 2d 304 (1948); Vaughn v. Herring, 195 Ark. 639, 113 S.W. 2d 512 (1938); Holmes v. Lee, 208 Ark. 114, 184 S.W. 2d 957 (1945); Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W. 2d 171 (1958); Whaley v. Crutchfield, 226 Ark. 921, 294 S.W. 2d 775 (1956); and Miller v. Ballentine, 242 Ark. 34, 411 S.W. 2d 655 (1967). In Miller we said:
It is inherently wrong to give an instruction which ignores a material issue in the case and allows the jury to find a verdict without considering the omitted issue. Such error cannot be cured by correct instructions separately given.
There we further said: “It is not unreasonable to believe that the jury gave considerable weight to this instruction.”
We have consistently discouraged the giving of a binding instruction “because of the impracticability of stating all the various propositions of law involved in one instruction” and courts, “should wherever possible, avoid the giving of binding instructions.” Moore v. State, 252 Ark. 526, 479 S.W. 2d 857 (1972). Further, it is significant, as we recognized there, that AMI Civil “does not contain a binding instruction.”
It seems that in civil cases we have consistently disapproved a binding instruction which omitted a material or vital issue. We have not consistently so held in criminal cases. It is difficult to understand the double standard. Certainly it must be said that a jury is as competent and perceptive in criminal cases as in civil cases. We observe that a Supreme Court Committee is presently drafting model instructions for use in criminal cases. No doubt, these model instructions will not contain a binding instruction which, as indicated, was carefully avoided by the Committee which drafted AMI Civil.
Because of the inconsistency in our cases with respect to binding instructions, we deem it necessary to hold that after the effective date of this opinion, we will reconsider the disharmony in our cases.
We have considered appellant’s two other contentions for reversal and find no merit in them. For the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Harris, C.J., and Fogleman, J., dissent. | [
16,
-19,
-27,
63,
58,
64,
58,
56,
19,
-29,
100,
114,
105,
68,
5,
57,
-75,
127,
-44,
89,
0,
-73,
101,
83,
-13,
-45,
-56,
-61,
-65,
79,
-82,
-36,
29,
52,
-58,
81,
98,
74,
-15,
90,
-50,
32,
-94,
106,
-40,
-62,
48,
39,
9,
14,
113,
-122,
-117,
42,
20,
-49,
77,
44,
75,
-71,
120,
-15,
27,
-51,
-17,
20,
-94,
102,
-71,
33,
-38,
30,
-104,
49,
16,
-24,
115,
-74,
-126,
116,
71,
25,
-128,
98,
99,
-128,
-43,
-19,
-76,
-64,
62,
42,
-115,
-89,
-40,
72,
66,
109,
-105,
-105,
123,
20,
-122,
-22,
113,
-35,
85,
108,
3,
-114,
-74,
-109,
-55,
2,
22,
-46,
-17,
69,
112,
116,
-52,
-10,
81,
80,
82,
-101,
-118,
-41
] |
Darrell Hickman, Justice.
This case is an appeal from a summary judgment granted to Goodyear Tire and Rubber Company and its local store against Jimmy Smith, Administrator for the estate of James Albert Smith. The Washington County Circuit Court granted the judgment because the attorney for appellant, Jimmy Smith, Administrator, failed to file a response to the requests for admission of facts within the ten days required by Arkansas law.
Only two issues are raised on appeal. The appellant argues the trial court abused its discretion in granting the judgment because the responses were not timely filed and there remained material facts in dispute.
The facts necessary to make a decision are essentially undisputed. Goodyear filed suit against Smith, Administrator, on a promissory note alleged to have been signed by the deceased, James Albert Smith. Smith filed a motion to quash the summons and service. It was overruled. Smith filed a demurrer and an answer generally denying the allegations of the complaint. Goodyear filed fort-y-six requests for admission of facts on November 12, 1975, attaching to the requests copies of the promissory note, a deed and various certificates of title to vehicles. It is not disputed that the attorney for appellant called the attorney for appellee and stated he would get the answers filed on the 25th of November. They were not filed until November 26th, fourteen days after the requests were filed. Most of the answers to the requests were either “denied” or “unknown — neither denied nor admitted”.
The Arkansas law provides that answers to requests for admission of facts will be filed within ten days from service. Ark. Stats. Ann. § 28-358 (Repl. 1962). The appellant admits that the answers were pot filed within the time period required by the statute, nor were they filed on the date appellant agreed to file them. Furthermore, the appellant did not request from the court additional time to answer. Perhaps more important, the responses to the requests were almost all unresponsive. We have held that where a fact cannot be admitted, the reasons must be set forth in detail. See White River Limestone Products Company v. Mo.-Pac. Railroad Company, 228 Ark. 697, 310 S.W. 2d 3 (1958). If the answers are not responsive, we deem the admissions requested to be admitted. Brown v. Lewis, 231 Ark. 976, 334 S.W. 2d 225 (1960). We have held that the trial court has not abused its discretion by failing to grant summary judgment when requests for admissions have been filed three days late. See Gatlin v. Cooper Tire and Rubber Company, 252 Ark. 839, 481 S.W. 2d 338 (1972). In this case, however, the answers were not only filed late, without good cause, but also they were unresponsive. We cannot say that the trial court abused its discretion in granting the summary judgment.
We have reviewed the record and find no merit to the appellant’s argument that there remain essential facts in dispute.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ. | [
116,
-19,
-27,
-100,
-104,
-96,
50,
-118,
66,
67,
36,
83,
-81,
-50,
4,
59,
99,
59,
101,
107,
-43,
-77,
55,
74,
66,
-77,
-7,
85,
121,
73,
-28,
-76,
77,
48,
-118,
-107,
-60,
-62,
-59,
88,
-50,
1,
25,
-19,
-47,
64,
56,
107,
18,
15,
17,
-66,
-29,
46,
-103,
75,
73,
45,
-5,
-82,
-47,
-47,
-118,
31,
-3,
20,
-77,
-91,
-102,
3,
88,
58,
-112,
49,
33,
-24,
18,
-74,
-122,
-12,
107,
-103,
8,
106,
-29,
33,
25,
-25,
-4,
-56,
7,
-70,
13,
-26,
-78,
1,
107,
101,
-98,
-107,
123,
0,
-121,
-2,
-18,
5,
28,
44,
5,
-50,
-10,
-79,
23,
100,
-100,
27,
-21,
47,
52,
117,
-49,
-62,
92,
70,
127,
-101,
-58,
-79
] |
Elsijane T. Roy, Justice.
C. R. Ritcheson died on or about July 19, 1971, in Benton County, Arkansas. This is an appeal from an order of the probate court refusing to admit to probate a handwritten instrument as the holographic will of the decedent.
It was agreed by the parties inter alia that Ritcheson possessed the necessary testamentary capacity to make a will and that he had intended for some time to make a will; that the instrument in question disposed of Ritcheson’s entire property; that the purported will is not tainted with fraud, constraint or undue influence; and that the deceased is survived by his widow.
In January, 1971, Ritcheson asked his close friend, Paul D. Peevy, to help him prepare his will, but Peevy declined and suggested that Ritcheson see a lawyer. Ritcheson attempted to do so, but was unsuccessful. At one time the decedent stated he would make his own will, but evidently did not since several times thereafter he remarked he needed to see about getting his will drawn. In March, 1971, Ritcheson was involved in an automobile accident and remained in poor health thereafter.
Approximately one week before his death Ritcheson came by Peevy’s office complaining of considerable pain and asked Peevy to call his attorney for him so that he could have his will made. Ritcheson then made some notes pertaining to his proposed will on a yellow legal tablet, preparatory to going to the attorney’s office. Peevy telephoned Ritcheson’s attorney and was told the attorney was not in his office. Ritcheson then placed the legal tablet paper in his pocket and departed.
On July 19, 1971, Peevy, together with others, went to Ritcheson’s home and found him dead. Lying on Ritcheson’s dining room table was a brief case in which was found the handwritten instrument offered for probate. The yellow legal tablet sheet was never found.
On the trial court’s refusal to admit the instrument to probate this appeal was brought.
For reversal appellants first contend the court erred as a matter of law in making findings of fact contrary to and in conflict with the agreed statement of fact, which stated that the instrument in question disposed of all of decedent’s property.
in addition to the agreed statement of fact, at trial the parties stipulated:
It is stipulated between the parties that at the time of death of Mr. C. R. Ritcheson he owned three separate parcels of real estate in Benton County, Arkansas. A home in Rogers, Arkansas; approximately 19 acres in the vicinity of Pea Ridge, Arkansas; and approximately 39 acres in the vicinity of Avoca, Arkansas, all being in Benton County, Arkansas. That he had some interest in some real estate — correction, he had a mineral lease on some property situated in Illinois, Hamilton County, Illinois.
No objection was made to the stipulation, and no request made that the court consider the matter only on the aforesaid agreed statement of fact.
In addition to the stipulation the inventory of the estate of Ritcheson reflects the appraisement, sale and confirmation of sale of the above parcels of realty. The probate judge could not close his eyes to these facts; consequently, no error occurred when the court stated: “In this case there is not a full and complete disposal of all of the estate.”
Appellants’ other contention is that the court erred in refusing to admit the questioned document to probate.
It is imperative that a holographic document asserted as a will should clearly show intention to make a will before such instrument is declared by the courts to be a will. Smith v. Nelson, 227 Ark. 512, 299 S.W. 2d 645 (1957). Spec. Admr., el al, 252 Ark. 931, 481 S.W. 2d 741 (1972). However, we find the facts therein clearly distinguishable from the case at bar. In Smith v. MacDonald the testator executed a holographic will completely disposing of all his property, and his signature appeared in his own handwriting in two places on the face of the instrument in the following format:
. . . [T]he intention to make a will, and the existence of this intention is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that intention.
Stark v. Stark, 201 Ark. 133, 143 S.W. 2d 875 (1940).
Appellants rely on the case of Smith et al v. MacDonald,
Page 1
Will of Julian Leland Rutherford
l Julian Leland Rutherford of Monroe County, Arkansas, being over the age of twenty one years and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills here-to-fore made by me at any time.
(Thereafter specific directions follow.)
His signature also was on the envelope in which the instrument was sealed. The testator delivered the envelope to his attorney and told him it contained his will. Thus the probate judge correctly admitted the will to probate as testator’s last will and testament even though testator’s signature did not appear at the end of the instrument.
These facts are not present in this case. The decedent never stated it was his will and he did not mention his wife nor dispose of all of his property.
The facts in the instant case are similar to those in Nelson v. Texarkana Hist. Soc. & Museum, 257 Ark. 394, 516 S.W. 2d 882 (1974). In Nelson we held that if the testator’s name is written in or upon some part of the will other than at the end thereof, to be a valid signature it must be shown that the testator wrote his name where he did with the intention of authenticating or executing the instrument as his will.
In Nelson the document was styled “Will December 18th 1973,” and decedent’s name appeared in the second paragraph of the holographic instrument leaving certain property in memory of decedent’s mother, father and decedent. Two individuals were told the document was a will and, at the request of the writer, signed as witnesses to the instrument. Thus Nelson presents a much stronger case for probate than the case at bar. Nevertheless we held that decedent’s name was not written with the intent it constitute a signature, but of creating a memorial and did not meet the requirements of Ark. Stat. Ann. § 60-404 (Repl. 1971). The statute reads as follows:
Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three [3] credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting witnesses to such will.
Ritcheson’s name appears only once in the document, that being where the deceased makes the following request:
... I request that everybody that is mentioned in will come to my funeral C. R. Ritcheson which will be at McLeansboro, 111.
It appears that the name of the writer was placed there not as his signature, but to emphasize the fact that he wanted everyone to come to his funeral. This assumption is supported by the fact that approximately a month prior to his death decedent wrote the following letter:
June 24, 1971
To the Office of Bentonville Manor Home
C. R. Ritcheson Leaving with the National States Rights Party on June 25th. Expect to arrive back the 27th or 28th of June.
We are going on a speaking tour in case I am wanted, get in contact with the Mayor of the city as we are located at Louisville, Kentucky friday night 25th of June, Covington, Kentucky. I do not know the time for
Indianapolis, Indiana and Dayton, Ohio.
C. R. RITCHESON [signed]
C. R. Ritcheson [typewritten]
In case of accident that disables me I herein authorize Paul D. Peevy of Springdale, Ark. to take charge of the care of my wife during my disability [this paragraph was added to the foregoing typewritten letter in decedent’s own handwriting].
C. R. RITCHESON
signed 6/24/71
(Paul D. Peevy Phone 751-5755 Springdale, Ark)
These actions indicated Ritcheson knew how to authenticate a writing, and the logical assumption follows that if Ritcheson intended the document to be his will he would have signed the instrument at the end and would have dated it. He did neither. Furthermore, the letter and note indicate Ritcheson’s concern for his wife by leaving instructions for her care when he was going to be gone for only a short time. Thus it does not seem likely he would overlook mentioning her when he drafted his last will and testament.
Appellants also have filed a motion for abstracting costs, contending appellees unnecessarily designated the entire contents of the record for appeal purposes in violation of Arkansas Supreme Court Rule 9(d), Vol. 3A (Supp. 1975). Appellants request $181.50 for transcript costs of documents designated by appellees included in the record and $960 for their attorneys’ time spent in abstracting the “immaterial and irrelevant portions” of the record designated by appellees.
Appellees contend appellants did not comply with Ark. Stat. Ann. § 27-2127.5 (Repl. 1962) in that they designated only a portion of the record and did not designate points to be relied upon for reversal, leaving appellees not knowing what points appellants intended to rely upon. Because of this neglect appellees argue it was necssary to designate the entire record to protect themselves.
In Black v. Morton, 233 Ark. 197, 343 S.W. 2d 437 (1961), we stated that in an appeal from the probate court’s decision in a will contest, where all matters pertaining to the will contest were included in the record filed by appellants, it is a complete record within the meaning of Ark. Stat. Ann. § 27-2127.5, notwithstanding the fact that the record did not contain other matters relating solely to the administration of the estate.
However, circumstances are not exactly the same here. Appellants in their first point of argument referred to certain parts of the record not designated by them, those documents being the following: inventory of estate of decedent, petition for sale of real and personal property, notice of sale, order, report of sale and claims against estate.
Furthermore, even though appellees designated the entire record this does not mean appellants are required to abstract irrelevant parts of the record but only those parts pertinent to the appeal.
In Harvey v. Castleberry, 258 Ark. 722, 529 S.W. 2d 324 (1975), we stated:
Inasmuch as the judgment must be affirmed, we may without embarrassment to counsel mention once more the basic requirements of Supreme Court Rule 9. The rule states that the abstract or abridgement of the record should consist of an impartial condensation, without comment or emphasis, of “only such material parts of the pleadings, proceedings, facts, documents, and other materials in the record as are necessary to an Understanding of all questions presented to this court for decision.” What the abstracter should strive for is to present a condensation of all the record that is necessary to an understanding of the case, but nothing more.
The rule limiting the abstract to material parts of the record is, of course, for the benefit of the members of this Court. An appellee cannot change the rule by designating immaterial matter for inclusion in the record, nor should such matter be abstracted by the appellant.
Our review of the record reflects that most of appellants’ additional abstracting was evidently caused by a misunderstanding of our Rule 9, and for this reason we allow costs recovery on this item of only $200 plus the $181.50 costs for additional documents in the record because of appellees’ designation.
The decree of the probate judge is affirmed, except as to the modification as to costs.
APPENDIX A
Acopy of the handwritten instrument offered for probate is attached hereto as Appendix A. | [
48,
108,
52,
30,
8,
-32,
-104,
27,
-45,
99,
65,
83,
-81,
-42,
81,
75,
115,
-117,
117,
107,
-26,
55,
86,
0,
-45,
-77,
-13,
-42,
-11,
-51,
-12,
-33,
76,
44,
-54,
77,
70,
10,
-27,
-48,
-122,
64,
-119,
114,
-39,
24,
51,
35,
-105,
15,
81,
-114,
-25,
-81,
31,
-26,
9,
108,
123,
-102,
88,
-103,
-101,
15,
95,
23,
-126,
-106,
-107,
-115,
112,
14,
-112,
21,
8,
-8,
48,
-90,
-122,
-44,
42,
-84,
12,
98,
-61,
24,
77,
-7,
-80,
-119,
7,
54,
61,
-89,
-14,
88,
-55,
37,
-105,
-97,
63,
16,
15,
116,
-66,
85,
125,
104,
10,
-97,
-42,
-128,
-111,
56,
-124,
43,
-5,
-125,
112,
113,
-115,
-64,
84,
102,
51,
-97,
-50,
-78
] |
Georoe Rose Smith, Justice.
Our use tax law contains an exemption for “[mjachinery purchased to replace existing machinery in its entirety” and used directly in manufacturing, processing, and other activities not important in this case. Ark. Stat. Ann. § 84-3106(D, 2, b) (Supp. 1975). Four-co manufactures sheet glass at its plant in Fort Smith. Fourco claimed an exemption under the quoted language of the statute for many purchases made by it between September 1, 1971, and August 31, 1974. The appellee disallowed the claim, on the ground that the purchases were not made to replace existing machinery in its entirety. Fourco paid the additional tax under protest and brought this suit to recover the amount paid. This appeal is from a decree denying the exemption.
The chancellor was right, for Fourco is actually claiming an exemption for the purchase of replacement parts for its machinery rather than for the purchase of new machinery “to replace existing machinery in its entirety.” For example, the glass company uses cutting tables that are several feet long and several feet wide. A large sheet of glass is laid on a table, to be scored by small cutting wheels that are passed across the surface of the glass by means of a moving arm to which the cutting wheels are attached by small rrv’tal posts and small swivels. When the little wheels, posts, or swivels wear out, they are replaced by new ones. Fourco argues that this is a replacement of machinery “in its entirety,” because each little part is a unit in itself.
Such an argument might have been persuasive under the language of Act 113 of 1967, which exempted “tangible personal property used for repair, replacement, or expansion of existing manufacturing or processing facilities.” But in the following year, by Act 5 of the First Extraordinary Session of 1968, the legislature amended that language to read as we have quoted it. Simple repairs or replacements are no longer exempt; the machinery must be replaced in its entirety. Moreover, exemptions from taxation are to be strictly construed against the exemption; to doubt is to deny. Ark. Beverage Co. v. Heath, 257 Ark. 991, 521 S.W. 2d 835 (1975). We certainly cannot say that the substitution of a new metal post, about an inch and a half long, upon a moving arm several feet long, is a replacement of machinery in its entirety.
There are even greater obstacles in the way of Fourco’s claim of a similar exemption for its purchase of materials used in the rebuilding of its furnaces. Each furnace, made of fire-resistant bricks and mortar, is about 100 feet long. The ingredients from which glass is made are mixed and fed into one end of the furnace. After the mixture is subjected to intense heat, it becomes molten glass and flows by gravity to the other end of the furnace, where it is removed in sheet form and cooled. A furnace lasts about four years. It is then torn down and replaced by a new one, built upon the same foundation. The glass company now seeks an exemption for the cost of the bricks, mortar, and other materials used in the construction of the new furnace.
The statute exempts machinery purchased to replace existing machinery. Whether the furnace is “machinery,” as that term was interpreted under a different section of the statute, is open to doubt. (Heath v. Research-Cottrell, 258 Ark. 813, 529 S.W. 2d 336 [1975].) In any event, the old furnace is not replaced in its entirety, for the same foundation is used. If it could be said that the furnace is a machine, the foundation is certainly a necessary part of the whole. Again, to doubt the existence of the exemption is to deny it.
Affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
-112,
120,
-40,
-36,
28,
-30,
42,
-100,
89,
-87,
103,
17,
-31,
58,
85,
105,
-26,
95,
112,
80,
-11,
-93,
7,
10,
-46,
-69,
-15,
93,
-7,
77,
-28,
102,
76,
52,
-54,
-43,
-91,
-64,
-51,
-36,
-30,
0,
10,
109,
-7,
65,
52,
74,
114,
11,
81,
-51,
-79,
44,
18,
-49,
43,
46,
109,
61,
-47,
-8,
-110,
13,
127,
20,
33,
20,
-104,
103,
-40,
14,
-112,
25,
24,
-24,
114,
-90,
-126,
-4,
3,
-119,
-120,
96,
99,
-112,
29,
-25,
-52,
-104,
47,
-54,
-99,
-91,
84,
89,
115,
43,
-73,
29,
124,
18,
-116,
-2,
-10,
21,
95,
108,
23,
-106,
-106,
-80,
15,
96,
-100,
11,
-18,
-125,
48,
97,
-52,
-54,
92,
7,
63,
27,
-122,
-36
] |
Darrell Hickman, Justice.
The Chancery Court of Faulkner County found that Nabholz Supply Company, Inc. was entitled to a labor and materialmen’s lien judgment for S3,435.98 against a house and property owned by Charles A. Christy and his wife. The general contractor, Jack Harmon Construction Company, Inc., subsequently adjudged bankrupt, authorized the labor and material furnished by Nabholz and did not pay the account in full. Another contractor, Johnie Mode, an excavation contractor, was allowed a lien against the Christy property for S320.00.
Christy appeals and alleges five errors: (1) Nabholz should not have been allowed a lien for labor charges; (2) Nabholz did not prove the amount charged for labor; (3) The chancellor failed to recognize the “electrical contract” and the remainder of an open account, maintained by Nabholz, as two separate claims; (4) The improper finding by the chancellor that the electrical contract and the open account were a continuing charge extended the time for filing liens; and (5) The lower court improperly allowed the Mode lien claim.
All of these allegations of error, except the first one, are without merit because they involve a question of fact. We will not disturb the Findings of a chancellor on appeal regarding a fact question unless the findings are against the preponderance of the evidence. Porter v. Ark. Western Gas, 252 Ark. 958, 482 S.W. 2d 598 (1972). The chancellor’s findings were not against the preponderance of the evidence on these issues.
We disagree with the finding of the trial court allowing Nabholz, a supplier of material, to have a lien for labor. Nabholz did:-not have a fixed^su^i oontraet fiar any part of this job. It supplied materials to the job, and from time to time sent its laborers to the job to perform construction work. There were no liens filed by Nabholz’ laborers. The Arkansas lien statute is strictly construed because it is an extraordinary remedy not available to every merchant or worker. Ark. Stat. Ann. § 51-601 (Repl. 1971). Scott v. LeGrande, 225 Ark. 1022, 287 S.W. 2d 456 (1956). We have held that a laborer can assign his right to a lien, but there was no assignment in this case. Wyatt Lumber & Supply Co. v. Hansen, 201 Ark. 534, 147 S.W. 2d 366 (1940). Nabholz is not without a remedy, because it has a right to proceed against the company or individual who authorized the charges, in this case Harmon Construction Company. The fact that Harmon is bankrupt is, of course, irrelevant to the application of the materialmen and laborers lien law.
It cannot be exactly determined from the record what portion of the judgment granted to Nabholz is labor and labor-related employer expenses, such as social security payments. Therefore, on remand the trial court will determine what the labor and labor-related expenses are and deduct them from the lien judgment granted in this case. In other respects, the Nabholz judgment is affirmed.
We affirm the trial court’s judgment for Johnie Mode. The issue was credibility of the parties and the chancellor found for Mode.
Affirmed in part. Reversed and remanded in part.
We agree. Harris, C.J., and Fogi.eman and Roy, JJ. | [
116,
104,
-15,
-4,
-120,
-64,
26,
-102,
83,
-119,
101,
87,
-17,
-113,
4,
107,
-95,
89,
96,
105,
83,
-74,
51,
107,
-62,
-77,
-79,
-59,
-72,
75,
-44,
-99,
76,
16,
-54,
-43,
-58,
66,
-51,
88,
14,
-127,
-101,
-20,
-39,
64,
52,
63,
52,
15,
49,
-124,
-13,
44,
17,
-53,
73,
46,
93,
45,
72,
-80,
-102,
13,
127,
5,
19,
69,
-104,
7,
88,
40,
-108,
49,
1,
-8,
115,
-74,
-58,
116,
33,
-67,
8,
98,
98,
50,
-115,
-17,
-28,
-120,
27,
-1,
29,
-89,
-77,
41,
27,
15,
-73,
-108,
120,
24,
-124,
-2,
-26,
5,
93,
109,
3,
-114,
-42,
-31,
13,
100,
-99,
19,
-49,
7,
52,
116,
-51,
-30,
93,
7,
19,
-101,
6,
-45
] |
PER CURIAM
Petitioner was convicted of first degree rape in the Jefferson County Circuit Court. Petitioner presently alleges that due to retained counsel’s failure to perfect an appeal, petitioner should be granted a belated appeal.
From a review of trial counsel’s response to petitioner’s present motion, it is apparent that a notice of appeal was tendered; however, for some reason, it was not filed on or before the statutory deadline. The filing of a timely notice of appeal is a jurisdictional prerequisite to our review of an appeal. Accordingly, in view of the above findings, we conclude that petitioner’s request for belated appeal should be denied without prejudice to raising these allegations in a postconviction petition filed pursuant to Criminal Procedure Rule 37.
Motion denied. | [
-48,
-24,
77,
-115,
42,
97,
34,
60,
113,
-29,
63,
83,
-81,
-50,
-128,
123,
-85,
111,
117,
121,
-43,
-73,
119,
65,
-74,
-69,
-93,
-41,
-13,
79,
-10,
-68,
76,
-16,
26,
-11,
70,
-54,
-63,
-48,
-114,
7,
-103,
-19,
-111,
65,
48,
35,
90,
15,
49,
-34,
-29,
108,
25,
-61,
-120,
108,
89,
-67,
-62,
-79,
-101,
5,
95,
20,
-95,
-108,
-100,
-122,
80,
63,
-104,
49,
0,
-23,
114,
-10,
-122,
52,
75,
-85,
32,
104,
98,
-127,
13,
-41,
41,
-71,
14,
94,
25,
-90,
-39,
105,
75,
101,
-122,
-65,
112,
52,
39,
126,
110,
13,
85,
108,
-117,
-49,
-80,
-77,
-113,
97,
-96,
-29,
-13,
21,
80,
49,
-33,
-26,
90,
-42,
57,
-37,
-34,
-74
] |
Marian F. Penix, Special Justice.
Appellant Valmac Industries, Inc. and appellee Chauffeurs, Teamsters and Helpers Local Union No. 878, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, entered into a negotiated contract. This contract contained the following automatic renewal provision:
“This Agreement shall become effective January 19, 1972, and shall remain in full force and effect until January 18, 1975, and shall continue in force from year to year thereafter unless written notice of desire to cancel or terminate this agreement is served by either party upon the other at least sixty (60) days before the expiration date.”
In the following section the contract provided:
“Where no such cancellation or termination notice is served and the parties desire to continue said Agreements but also desire to negotiate changes or revisions in the Agreements, either party may serve upon the other a notice at least sixty (60) days prior to the expiration date or the expiration date anniversary in any subsequent contract year, advising that such party desired to revise or change terms or conditions of such Agreements.”
Neither party served written notice of desire to cancel or terminate prior to the expiration date of January 19, 1975. On November 13, 1974 an agent of the appellee served written notice upon appellant of appellee’s desire to revise and/or change terms and/or conditions of the contract for the period of time beginning January 18, 1975. This written notice of appellee’s desire to revise or change is not tantamount to a written notice of desire to cancel or terminate. If this were the case, each time a party to this type of negotiated contract indicated a desire to revise or change, he would place himself in peril of terminating the contract altogether. There was a very good reason for two sections to be placed together in the contract. Each party wanted a method of suggesting a change or revision without the risk of terminating the contract. The appellant cites many cases involving labor contracts. The two sections in this contract were written into the contract to avoid the situations arising in the cited cases.
The problem existing in this case is contractual. This Court has held in Stoops v. Bank of Brinkley, 146 Ark. 127, 135, 225 S.W. 593, 595 (1920), and again in Lee Wilson & Co. et al v. Fleming, 203 Ark. 417, 156 S.W. 2d 893 (1941):
“The first rule of interpretation is to give to the language employed by the parties to a contract the meaning they intended, and it is the duty of the court to do so from the language used where it is plain and unambiguous.”
The language of the contract between appellant and appellee is plain, clear and simple, and expresses the intent of the parties at the time the contract was executed. To construe the appellee’s letter desiring revision or change as notice of termination would be to take from the parties their rights to contractually agree upon a lawful procedure for the termination or revision of their labor agreement.
Appellant has plead equitable estoppel. The elements of equitable estoppel are not present. In Tarver v. Taliaferro, 244 Ark. 67, 423 S.W. 2d 885 (1968) this court stated:
“Estoppel involves the conduct of both parties and exists when the fault of one party induces the other to detrimentally alter his position.”
The appellee never stated nor wrote that they considered the contract terminated, therefore there was nothing for the appellant to rely on to its own detriment.
Accordingly, we affirm.
Special Justice Damon Young joins in this opinion.
Harris, C.J., and Holt, J., not participating.
Byrd, J., dissents. | [
48,
-8,
-44,
-52,
10,
64,
58,
-110,
115,
-23,
39,
83,
-19,
-42,
20,
75,
-57,
109,
85,
43,
85,
-94,
116,
98,
87,
-45,
-47,
-51,
-71,
127,
116,
94,
76,
32,
-62,
-43,
-26,
2,
-55,
30,
-22,
-89,
-39,
-24,
-8,
71,
48,
58,
16,
77,
69,
-34,
-77,
-84,
25,
-53,
45,
44,
93,
1,
-48,
-24,
-101,
-115,
127,
2,
-77,
68,
-100,
39,
-4,
14,
-100,
52,
25,
-24,
80,
-74,
-26,
62,
41,
9,
8,
98,
98,
2,
-60,
-59,
-36,
-100,
118,
-14,
-113,
-90,
-42,
56,
11,
5,
-74,
-97,
88,
20,
-89,
-66,
118,
21,
23,
-28,
-118,
-118,
-10,
-77,
95,
126,
-106,
-113,
-1,
7,
53,
117,
-24,
-27,
94,
71,
41,
-109,
-58,
-120
] |
Frank Holt, Justice.
In an action on a written contract, appellant sought recovery of fees for his engineering and construction manager services provided to Max Heiman, deceased, in connection with the construction of a project known as Country Club Manor Apartments. Appellees, administrators of the estate of Heiman, denied liability on the basis that the contract was unreasonable and unconscionable. Also appellant had breached the contract by substantial nonperformance and, therefore, any recovery should be on a quantum meruit basis. The chancellor found that appellant did not completely perform his contractual duties and appellant, on a quantum meruit basis, was adequately paid for his services. Appellant first contends that the findings of fact and conclusions of law and the judgment rendered by the chancellor are unsupported by the evidence and are contrary to the law and the facts.
According to the contract between appellant and Heiman, owner of the apartment project, the appellant was to render engineering services in the nature of planning, designing, assistance in construction loans, including costs and market studies, furnish and submit contract forms to bidders, construction observation and construction management for a fee of ten and one-half percent of the project construction costs, which eventually approximated $4,000,000. The total fee consisted of six and one-half percent for engineering services and four percent for construction management. He claimed he was due the sum of $417,861.93 and interest which represented his fee and additional services. Appellant had been paid $110,000 by Heiman before his death and appellant had also received $80,000 on his fee in settlement of his claim against the mortgagees of the project (a total of $190,000). Appellant argues that he fully performed the services required by the contract and is entitled to be paid according to the contract. The record indicates that the appellant, in the planning stage of his contractual duties, performed various duties of designing, providing specifications and preparing the necessary documents and data. However, there is evidence that appellant’s performance was faulty. Through certain design flaws, there developed problems with various apartments of the 210 apartment complex, such as sewage disposal when a storm occurred, lack of usable wall and closet space, improper door hangings, faulty locations of circuit breakers and electrical switches, lack of outside electrical receptacles and a maintenance storeroom, inadequate parking spaces (373 of 406 exist) and other complaints. These deficiencies were a result of poor design and lack of supervision and rendered the apartments difficult to rent.
Under the construction management phase of the contract, appellant’s duties were not specified. The contract does not define the term construction management and is admittedly ambiguous. Since the contract is ambiguous, it is construed most strongly against the party preparing it, here the appellant, and its meaning becomes a question of fact. Manhattan Factoring Corporation v. Orsburn, 238 Ark. 947, 385 S.W. 2d 785 (1965). Appellant argues that his duties as construction manager involved such things as surveys, obtaining information and governmental approval where necessary and negotiation of subcontractor bids for the general contractor’s approval. He contends that the majority of appellant’s duties as construction manager were complete at the time of the letting of the general contractor’s contract.
Appellant introduced a report of the American Council of Consulting Engineers as an aid in defining the scope and duties of construction management. This document provides, however, that, in addition to design duties in the planning stage, as soon as the construction contract is let, “the construction manager, working as the Owner’s Agent, provides general coordination and direction of the work of the various contractors.” Although appellant considered his duties as construction manager to deal primarily with financing the project and negotiations of bids, the chancellor felt, and we agree, that the term here, without being limited, requires supervision of construction in a position of authority between the contractors and the owner.
Mr. C. V. Barnes, a real estate developer, defined construction management as “the construction manager would be someone who in effect took the place of an owner, entrepreneur. He would do all the functions that normally an owner-developer would do if such a construction manager were not employed or engaged.” According to Jack Morgan, the general contractor for the project, a construction manager should supervise the project personally or his staff personnel on a fulltime basis. This conclusion is supported by a provision in the agreement between Morgan and Heiman wherein it states: “All work shall be done under the general supervision of the engineer.”
It is at this stage of his contractual duties that appellant’s nonperformance is most evident from the evidence. He admits that he did not supervise the construe- don. “I did not supervise. I observed for compliance with the plans and specifications. Mr. Morgan [the general contractor] does the supervising.” Further, it appears that appellant has neither the operational facilities nor the staff for day to day management on a project of this magnitude (210 apartments — approximately $4,000,000 in construction costs). Appellant operates alone from a small office and has no fulltime employees.
Mr. Maurice Mitchell, an attorney and co-administrator of Heiman’s estate, testified that appellant was uncooperative, incorrect in his information and more interested in financing the project than anything else. He felt that appellant delayed the project for four to five months by his lack of decision making. Tenants were waiting to occupy apartments. He had difficulty in getting appellant’s plans for a recreational facility which it appears was never built. He testified: “Every time he [appellant] got between us and a supplier, or a subcontractor, or the contractor, Jack Morgan, we had trouble.” Donna McClelland, resident manager of the apartments, testified she had problems in getting appellant to accomplish what was needed of him. There was evidence that she made a punch list consisting of twenty to thirty pages of legal size sheets “of items that were wrong and omitted, that had not been finished.” She herself had to ride “herd” on the contractor to get these items corrected and removed from her punch list. Sandra Morrison, an agent for the estate, testified that she had difficulty in getting appellant to act on complaints from the contractor, and she would sometimes have to follow up on them herself. There were problems about the recreational room plans, landscaping and the elevators. A storm caused sewage to back up in some bath tubs and appellant was unresponsive to the situation. Consequently, she had it corrected by calling one of the contractors.
It is well settled that the chancellor’s findings of fact will not be reversed unless clearly against the preponderance of the evidence. Titan Oil & Gas v. Shipley, 257 Ark. 278, 517 S.W. 2d 210 (1974); Minton & Simpson v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974); and Bollen v. McCarty, 252 Ark. 442, 479 S.W. 2d 568 (1972). Here the preponderance of the evidence supports the chancellor’s findings that appellant did not fully perform his contract and did not earn in excess of what he was paid ($190,000), on a quantum meruit basis, which was about five percent of the construction costs.
The thrust of appellant’s second point is that the chancellor erred in not finding according to appellant’s request for separate statements and conclusions of law and fact. The chancellor made separate findings of fact and conclusions of law. However, appellant attacks the finding by the court that appellant did not perform the engineering services required of him; appellant was required to supervise the construction of the project; appellant was in a position of authority to some extent over the contractor or subcontractor; construction management was not defined by the contract and that appellant, in this regard, failed to perform the contract; he was not entitled to certain amounts allegedly due for additional engineering services; the fee as sought was unreasonable and exorbitant; appellant did not earn in excess of what he was paid; and he is not entitled to interest, as a matter of law, on the sums he claims are due from the appellees. Findings of fact should be reviewed as a whole and liberally construed to ascertain their sufficiency. 5 Am. Jur. 2d § 844. Here we hold the chancellor’s findings, when reviewed as a whole, as previously and subsequently discussed, are clearly supported by a preponderance of the evidence.
Appellant’s third contention is that the court erred in permitting the introduction into evidence of the performance or nonperformance of contracts between appellant and other parties not involved in this proceeding and in admitting into evidence construction contracts not relevant to the issues before the court or within the scope of the pleadings. Evidence of two contracts which appellant had with other parties was admitted. The Nichols contract, which appellant was working on at the same time as the Heiman contract, was properly admitted to impeach appellant’s testimony that he spent practically 100% of his forty hour work week on the Heiman contract. Also evidence of performance or nonperformance was admissible for the purpose of defining “construction management,” inasmuch as the term here was admittedly ambiguous, and the Nichols contract also required appellant to furnish construction management services. See Wilkes v. Stacy, 113 Ark. 556, 169 S.W. 796 (1914). Further, here it was relevant to the reasonableness of the fee on a quantum meruit basis. Also the Breckenridge contract, an apartment project, and its performance or nonperformance by the appellant, were admissible to show the reasonableness of the fee received by appellant on the Heiman project, since the two projects were similar in nature and contemporaneous in time. In the Breckenridge contract, there was evidence that appellant earned about three percent of the construction cost as a fee for planning and supervising duties. As indicated, there was no error in the admission of the evidence as to these other construction contracts.
Appellant’s final point is that “the trial court erred in admitting into evidence over objection irrelevant statements to fees charged by architects and engineers on other projects, all of which were outside the scope of the pleadings and were given without any basis being established as to similarity and services performed or in similarity in the construction contract.” We cannot agree. The determination whether a non-expert witness has sufficient knowledge of the matter in question or has had sufficient opportunity for observation to be qualified to state an opinion lies largely within the sound judicial discretion of the trial judge and is not reviewable on appeal unless so clearly erroneous as to manifest an abuse of discretion. Farmers Equipment Co. v. Miller, 252 Ark. 1092, 482 S.W. 2d 805 (1972). Here, inasmuch as appellant only performed part of his contract, his recovery is limited to quantum meruit, or a reasonable value of the work done. Coley v. Green, 232 Ark. 289, 335 S.W. 2d 720 (1960); see also Royal Manor Apts. v. Powell Const. Co., 258 Ark. 166, 523 S.W. 2d 909 (1975); 98 CJS Work and Labor, §§ 34 and 66 (8) (1957); and Williston, Contracts, § 1459 (3d ed., 1970). Here the testimony complained of was that of Mr. Barnes, who has an educational background in architectural engineering and extensive experience in construction and development. Also Mr. Mitchell, experienced in real estate development since 1955, was permitted to testify. Their testimony, based on their experience in the construction industry, was that the fee paid to a consulting engineer or architect on an apartment complex for plans and supervision is generally six percent or less of the construction cost of building. Generally, a firm’s staff is sufficiently large enough to permit fulltime supervision. Here, there was only a one-man firm with no staff per sonnel. The evidence clearly shows that these witnesses were sufficiently familiar with architectural and engineering services to present competent testimony as to the fees customarily charged by architects and engineers on other projects of a similar nature. The chancellor did not abuse his discretionary authority in permitting them to testify.
As indicated, the chancellor’s findings that appellant failed to fully perform his contractual duties and did not earn in excess of what he was paid, on a quantum meruit basis, are supported by the preponderance of the evidence.
Affirmed.
We agree: Harris, C.L, and George Rose Smith and Byrd, JJ. | [
-112,
122,
-48,
-2,
-102,
32,
58,
-102,
81,
-62,
-89,
95,
-19,
-61,
21,
99,
-31,
127,
-16,
107,
-45,
-77,
70,
34,
-44,
-77,
-13,
-59,
-71,
109,
117,
-99,
72,
37,
-62,
31,
-30,
-126,
69,
-48,
10,
12,
8,
97,
-7,
80,
52,
93,
20,
15,
49,
-51,
-5,
44,
17,
-57,
108,
62,
123,
-87,
-64,
-15,
-125,
-115,
127,
21,
-80,
38,
-4,
71,
-40,
8,
-102,
-75,
0,
-88,
115,
-66,
-58,
118,
71,
-69,
8,
34,
98,
48,
9,
-77,
-16,
-100,
47,
-18,
13,
-91,
-109,
120,
27,
69,
-105,
-98,
88,
18,
55,
-4,
-28,
-99,
29,
45,
3,
-113,
-60,
-77,
-113,
-12,
-108,
-117,
-17,
11,
49,
112,
-49,
-94,
92,
103,
123,
91,
30,
-69
] |
George Rose Smith, Justice.
This case is so nearly iden tical with an earlier one that we can greatly simplify this opinion by beginning with a review of the other case. Arco Auto Carriers v. State, 232 Ark. 779, 341 S.W. 2d 15 (1960), appeal dismissed, cert. den., 365 U.S. 770 (1961).
In Arco the State of Arkansas brought suit to collect ad valorem taxes levied upon trucks and related equipment used in the transportation of merchandise through or into Arkansas, in interstate commerce. We assume that in Arco, as in the case at bar, the owners of the trucks had no fixed property in Arkansas and engaged in no intrastate business here. The trucks traveled into, through, and out of this state, from permanent facilities in other states. The ad valorem tax that the State sought to collect in Arco was computed upon a mileage formula which apportioned the tax according to the commerce carried on within Arkansas. The facts that we have recited are essentially present in the case at bar.
It was first argued in Arco tha the ad valorem tax was an unconstitutional burden upon interstate commerce. We discussed the point at some length, citing United States Supreme Court decisions holding that a nondiscriminatory ad valorem tax based upon the proportionate use of rolling stock in the taxing state is valid. The Supreme Court refused to review the Arco decision. The present appellants make the same argument that we rejected then, but no new authority is cited. We adhere to our position, which is demonstrably fair.
In Arco the second attack upon the tax rested upon Amendment 47 to our Constitution, which reads: “No ad valorem tax shall be levied upon property by the State. ” It was shown by the protesting carriers that the State determined the value of the trucks being taxed and also collected the taxes, which were then distributed through the County Aid Fund to the various counties on a proportionate basis. The truck companies argued that the State was actually levying a property tax, contrary to Amendment 47. We pointed out the fallacy in that argument: “Here the State has levied no ad valorem tax. ... It can readily be seen that this is a county tax merely administered by a State agency for the purpose of efficiency, and therefore is not in violation of Amendment 47. ”
Much the same argument is made in the present case, with one difference: When Arco was decided, the tax money was paid into the State’s county aid fund and was presumably distributed to the counties on a proportionate basis.,Now, however, the tax money is deposited in several specified State accounts, pursuant to a later statute. Ark. Stat. Ann. § 13-351 (Supp. 1975). It is stipulated that a comparatively small part of the tax money is actually paid directly to the counties.
Even so, the appellants, for either of two reasons, are not entitled to refuse to pay the ad valorem tax upon their trucks. In the first place, the State accounts enumerated in § 13-531, supra, appear to be devoted to local purposes, directly or indirectly. Absent a clear showing that the ad valorem tax is being used for State purposes only, with no benefit to local governments, we must defer to the General Assembly’s judgment with regard to the use of the funds. The legislature has the power to require counties to pay expenses imposed by state law. Walsh v. Campbell, 240 Ark. 1034, 405 S.W. 2d 264 (1966). By the same reasoning the legislature can apply the proceeds cf these ad valorem taxes to local purposes.
. Secondly, the appellants have no standing in this case to complain that their tax payments may be unconstitutionally diverted to State purposes. If the tax is a legal levy, as we hold it to be, the appellants are not in a position to refuse to pay the tax merely because part of the money may not be used for local purposes. Under Article 16, § 13, of the Constitution of 1874, the taxpayer’s remedy is to enjoin the illegal expenditure. Farrell v. Oliver, 146 Ark. 599, 226 S.W. 529 (1921); Garner, Sloan, and Haley, “Taxpayers’ Suits to Prevent Illegal Exactions in Arkansas,” 8 Ark. L. Rev. 129 (1954). Otherwise any taxpayer could refuse to pay a lawful tax on the ground that part of the money was to be used illegally.
Affirmed.
Harris, C.J., not participating.
Byrd and Hickman, JJ., dissent. | [
112,
-6,
80,
126,
26,
-32,
58,
-72,
81,
-86,
53,
-109,
-19,
75,
21,
121,
-1,
63,
117,
88,
-11,
-93,
71,
67,
114,
-73,
-7,
-43,
59,
-55,
-27,
84,
76,
112,
-22,
-11,
36,
74,
-59,
28,
110,
8,
-71,
-55,
-7,
4,
52,
107,
114,
15,
65,
-113,
-13,
44,
24,
-61,
105,
44,
75,
-83,
-63,
-16,
-84,
15,
111,
6,
49,
36,
-120,
-123,
-40,
8,
0,
17,
96,
-24,
115,
-90,
-126,
-44,
41,
-103,
-119,
-96,
103,
-125,
61,
-49,
-8,
-120,
46,
-37,
-113,
-121,
20,
24,
75,
75,
-74,
-100,
122,
18,
-52,
-2,
-10,
85,
95,
108,
13,
15,
-106,
-95,
-25,
96,
20,
67,
-17,
-91,
16,
113,
-50,
-58,
92,
87,
18,
-101,
7,
-12
] |
Frank Holt, Justice.
This case is a sequel to Reeves v. State, 258 Ark. 788, 528 S.W. 2d 924 (1975). There we reversed and remanded this petitioner’s conviction of possession of stolen property. Pending retrial the state charged that appellant, during the time he was released on bail, had committed two other felony offenses (theft by receiving and possession of stolen property). The municipal court found probable cause existed that petitioner had committed these two subsequent offenses. Then, in circuit court, upon the state’s motion and pursuant to Rules of Crim. Proc., Rule 9.6 (1976), the court revoked petitioner’s bail on the previous charge. Rule 9.6 provides:
If it is shown that any court has found reasonable cause to believe that a defendant has committed a felony while released pending adjudication of a prior charge, the court which initially released him may revoke his release.
This appeal results from the circuit court’s order revoking petitioner’s bail and remanding him to custody without bail. It is first contended that the requisite element of probable cause as found by the municipal court, must fail because the petitioner was not afforded his right to counsel at his preliminary hearing. We cannot agree.
In Gerstein v. Pugh, 420 U.S. 103 (1975), it is said:
Because of its limited function and its nonadversary character, the probable cause determination is not a ‘critical stage’ in the prosecution that would require appointed counsel.
Here, in our view, the hearing conducted by the examining court to determine reasonable cause in the two new cases was not a hearing of an adversary nature which required representation by counsel before the state could invoke and the circuit court apply the provision of Rule 9.6.
Petitioner next contends that the circuit court did not have jurisdiction to revoke petitioner’s bail because an appeal was pending in this court based upon the trial court overruling petitioner’s motion to dismiss Reeves v. State, supra, for lack of a speedy trial. It is true that a motion to dismiss from a denial of a speedy trial is an appealable order. Breedlove v. State, 225 Ark. 170, 280 S.W. 2d 224 (1955); and Warev. State, 159 Ark. 540, 252 S.W. 934 (1923). Therefore, petitioner argues that when his appeal was docketed here, the trial court then lost jurisdiction. State v. Adkisson, 251 Ark. 119, 471 S.W. 2d 332 (1971); and Andrews v. Lauener, 229 Ark. 894, 318 S.W. 2d 805 (1958). However, we do not construe these citations to be controlling here. Petitioner’s pending cause in this court is an interlocutory appeal from a denial of a motion to dismiss for lack of a speedy trial. We hold that the pendency of this appeal did not divest the trial court of its jurisdiction to determine if there should be a revocation of petitioner’s pretrial release previously ordered by that court. See Estes v. Masner, 244 Ark. 797, 427 S.W. 2d 161 (1968).
It is next asserted that Rule 9.6 is unconstitutional on its face and as applied to appellant. The state responds that since there was a showing of probable cause that defendant had committed two felonies (receiving and possession of stolen property) while on bail on another similar offense that his continuing criminal conduct constituted such a compelling state interest it would justify refusal of any future release of the petitioner on any bail. In response, petitioner correctly contends that he has an absolute right before conviction, except in capital cases, to a reasonable bail. Amendments 8 and 14, U.S. Constitution and Art. 2, §§ 8 and 9, Arkansas Constitution (1874). Kendrick v. State, 180 Ark. 1160, 24 S.W. 2d 859 (1930); Thomas v. State, 260 Ark. 512, 542 S.W. 2d 284 (1976); and Stack v. Boyle, 342 U.S. 1 (1951). Here, we are of the view the trial court misconstrued our Rule 9, which is entitled “The Release Decision.” The rule provides for release with or without bail and, also, the imposition of reasonable terms and conditions. Rule 9.6 provides that “the court which initially released him may revoke his release.” Significantly, the rule does not in non-capital cases, as here, preclude the setting of a new and reasonable bail with whatever terms and restrictions deemed appropriate within its provisions. We hold our Rule is constitutional; however, it was unconstitutionally applied to petitioner.
The order is affirmed as to the revocation of release and quashed with respect to a denial of a reasonable bail.
Byrd and Hickman, JJ., dissent.
Upon a writ of certiorari, we ordered petitioner’s release upon a $15,-000 security. | [
-48,
-21,
-4,
28,
75,
99,
26,
-104,
-61,
-29,
99,
51,
45,
-93,
0,
59,
123,
111,
117,
121,
-58,
-105,
87,
119,
-14,
-14,
83,
-41,
-65,
-49,
-20,
-108,
28,
-12,
-61,
-43,
70,
-118,
-43,
24,
-114,
9,
-72,
96,
-46,
88,
40,
43,
82,
11,
49,
-98,
-13,
107,
49,
-53,
-23,
40,
91,
-67,
-42,
89,
-88,
71,
-17,
22,
-95,
-90,
-68,
7,
80,
43,
-100,
113,
0,
-8,
115,
-106,
-122,
84,
73,
-101,
-84,
98,
102,
1,
93,
-20,
-72,
8,
47,
-77,
-113,
-89,
-104,
72,
75,
33,
-106,
-103,
117,
22,
38,
-2,
111,
-100,
21,
108,
0,
-50,
48,
-111,
-114,
32,
-90,
67,
-45,
1,
48,
48,
-50,
-25,
92,
7,
81,
-69,
-98,
-59
] |
Carleton Harris, Chief Justice.
On July 28, 1972, Barbara Garner, appellee herein, while employed by Ward Supply Division of National Aluminum Corporation in Little Rock, suffered injuries to her left hand, consisting of a loss of her third finger and a loss of use of the fourth and fifth fingers, when the hand was caught between the dies of a “press brake” which she and a co-employee were operating. Suit was instituted against Verson Allsteel Press Company of Dallas, Texas, manufacturer of the press brake, asserting several grounds of negligence, including allegations of failure to install or have installed in the aforementioned press an electrical control system having anti-repeat, interlocking, self-checking, and fail-safe features. After the filing of an Answer by Verson denying liability and the filing of various motions, request for admissions, interrogatories, motions, and other pleadings, the case proceeded to trial, and at the conclusion of appellee’s case, appellant moved for directed verdict, said motion being denied. Evidence was then offered by appellant, and at the conclusion of all the evidence, Verson again moved for a directed verdict, which again was denied. Following the giving of instructions, the jury retired and returned a 9 to 3 verdict for Mrs. Garner in the amount of $50,781.96 and for her husband, for loss of consortium, the sum of $2,000.00. Thereafter, motion for judgment notwithstanding the verdict, and in the alternative, a motion for a new trial was filed by appellant, and was denied by the court. From the judgment in accordance with the jury verdict, appellant brings this appeal. For reversal one point is relied upon:
“THE COURT ERRED IN NOT GRANTING THE APPELLANT’S MOTION FOR A DIRECTED VERDICT IN ITS FAVOR BECAUSE:
A. NO ACT OR OMISSION OR CONDUCT ON THE PART OF THIS APPELLANT WAS A PROXIMATE CAUSE OF ANY DAMAGES SUSTAINED BY THE APPELLEE, AND
B. THERE IS NO EVIDENCE TO ESTABLISH THAT VERSON WAS GUILTY OF NEGLIGENCE.”
It might be well to first examine the manner in which the press brake was operated. As originally manufactured by Verson, the machine was a general purpose press brake, designed to be operated by one person. The machine when shipped was equipped with a foot pedal, connected by mechanical linkage to the clutch and brake. The operator was able to control both speed and tonnage of the ram. To depress the pedal, the operator’s foot had to be lifted 6 1 /2" off the floor. With depression, the clutch was engaged and the brake disengaged. The pedal depressed 2 1 /2-3" caused the ram to operate at full force and speed.
This was not, however, the manner in which the machine was operated at the time of the accident, for it had been drastically altered. Two electrical foot switches and a pneumatic cylinder were installed, with the result that upon depression of both of the foot switches, air was allowed through a valve to a cylinder and automatically caused the press to run at full tonnage and speed. Two operators were required. Accordingly, the machine could hardly be characterized as the same machine which had been sold eight years earlier by appellant to Toll Manufacturing Company. First, the machine had been altered from a general purpose machine to a special purpose machine, and required two operators instead of one. This change meant that the concurrent operation of each station being used was required to place the ram in motion.
A most important change was the installation by National (or Ward) of the two electrical foot switches instead of the mechanical foot pedal. The operation could no longer be controlled by one person (as the machine had been designed), and the ability to vary the speed and pressure of the stroke was completely lost. Nonetheless, it is the view of appellee that Verson was negligent in originally designing, and selling, the machine without a safety device, and that this failure on appellant’s part was a proximate cause of the accident. To substantiate this argument, appellant relies upon the testimony of Mr. Marvin Salzenstein of Chicago, an engineer. Mr. Salzenstein was accepted as an expert in the field of power press and press brake accidents. The witness conducted an investigation of Mrs. Garner’s accident on April 14, 1975, which was, of course, nearly three years after the occurrence. At this time, however, the machine was not in the same condition, nor operated in the same manner, as at the time of the accident, i.e., an electric eye had been install ed across the point of operation from one end to the other where the dies would be located. Three hand buttons, any two of which would operate the ram, had been placed on the machine in lieu of the electrical foot switches. The electric eye was a safety device, it appearing that when the beam of light was interrupted, the brake came to a stop. However, Mr. Salzenstein did not consider that this change was made in accordance with established safety engineering practices, because it was adjusted too high. Salzenstein was of the view that appellant should have placed a safety device at the point of operation and that the failure to do so constituted negligence. However, on cross-examination, Salzenstein admitted that at the time the machine was manufactured in 1964, it was not customary in the industry for the manufacturer to equip it with point of operation safeguards. There was no specific safety standard for press brakes either in 1964 when the machine was built, or in 1972 when the accident happened.
The witness was questioned at length relative to standards set forth by the National Safety Council. Though a member of the National Safety Council, Salzenstein did not agree with many of its recommendations (1968). For instance, a quote from Data Sheet 419, Revision A, Press Brakes, provided:
“A foot operated machine should always be used as a single operator machine.”
Salzenstein stated that if there were only one pedal, he would agree; if more than one pedal, then the statement was incorrect. He agreed that the National Safety Council Publication provided:
“Only shop supervisors who have knowledge of the piece parts to be made and the dies to be used can determine what auxiliary handling and safety devices should be used.”
Salzenstein disagreed, stating that the manufacturer of the press could likewise make such a determination, it being his view that the manufacturer of the press knows generally what the press is going to be used for and can provide a general purpose safety device. In general, the witness disagreed with the standards which provided that the responsibility was on the employer to determine the safety device to be used. Salzenstein was asked about a pamphlet entitled “Before It’s Too Late” published by Dries and Crump Manufacturing Company, which he had sent to appellee’s counsel. Salzenstein said that he did not agree with a statement at the top of page 18 in big caps which provided:
“Providing safe and proper working conditions and point of operation devices consistent with the use and operation of the machine are determinations to be made by and the sole responsibility of the user of the machine.”
Nor did he agree with another paragraph which stated:
“The determination as to whether to use mechanical or other safety devices must be made by the user.”
Also called to the attention of the witness was pamphlet No. 11 prepared by Electrodynamics and Telecon Limited in Chicago, which provides:
“The provision of safe and proper working conditions and devices appropriate for the use and operation of the machine and protection of the operator and others are determinations to be made by and are the sole responsibility of the user of the machine.”
Salzenstein did not agree, nor did he agree entirely with .American National Standards institute B-11.1, which provides:
“It shall be the responsibility of the employer to provide and insure the usage of either a point of operation guard or-a properly applied and adjusted point of operation device on every operation performed on a mechanically powered press.”
The witness insisted that it was the responsibility of the manufacturer to provide a protective device for the point of operation. However, we find an interesting statement by Salzenstein. When asked on direct examination to list devices which could be employed on a press brake to prevent an operator’s hand from getting into the point of operation, he mentioned three, describing one as follows:
“One guard would be what we call a pull back device and pull backs operate really from the ram of the press brake, when the ram goes down, there is a cable attached to the ram that goes back overhead and behind the operator and that cable attached to a set of cables to his wrist so everytime the ram goes down the cable pulls back, when the ram goes up, he is then free to put his hand back to the point of operation to remove a part or place a part for production. That is such a device and that would work for one operator.”
He then mentioned two or three other safety devices, but when asked which would be the “safety device of choice with a manual pedal,” replied:
“With a manual pedal, the safety device would be the pull backs because those would automatically work as long as the ram comes down it would tend to pull the operator’s hand out of the point of operation.”
Let it be remembered that the press brake was originally manufactured and distributed with a manual pedal. Subsequently, when asked what would be the “safety device of choice if the press had been manufactured and sold with the retrofitted electrical system,” the witness replied:
“I would then choose the two hand push button control as being the general type of safety device that you can install on a press brake.”
In other words, according to the witness, the preferred safety device for the machine as manufactured by Verson, and the preferred safety device for the machine as changed by National (or Ward) were entirely different.
Most of the cross-examination related to the safety standards heretofore mentioned, and while we consider this evidence entirely pertinent and relative to the determination reached, such evidence is not controlling, i.e., customary methods, or accepted standards, are not at all conclusive and negligence may exist notwithstanding the fact that the method adopted was in accordance with customary procedures. However, industry adopted practices do carry weight in defining a standard of care. For instance, allegations of negligence based on improper design have not been upheld where the device is one in common and extensive use, conforming to the usual pattern. Realization after an accident that a machine might have been manufactured in a different way to possibly eliminate the accident should not bear on the determination of negligence. Poyas v. RKO Keith Orpheum, 221 N.Y.S. 2d 31.
In Getty Oil Co. v. Mills, 204 F. Supp. 179, an oil company brought an action to recover for losses sustained when a pipe inspected by an engineering company proved unsatisfactory because of leaks. The court refused to find that the losses incurred by the oil company as a result of leakage were attributable to negligence of engineering company inspection, recognizing that visual inspection within the industry was not shown to be other than the standard industrial practice. And the court held that custom or practice in a particular business is an important factor in determining the standard of due care.
Of course, usage cannot make a practice which is inherently dangerous reasonably safe. We do not consider this machine, as manufactured, inherently dangerous. Black’s Law Dictionary, p. 921 (4th Ed.), defines inherently dangerous as follows:
“Danger inhering in instrumentality or condition itself at all times, so as to require special precautions to prevent injury, not danger arising from mere casual or collateral negligence of others with respect thereto under particular circumstances.”
Be that as it may, we have reached the conclusion that there was no negligence on the part of appellant which rendered it liable to appellee. As earlier pointed out, the machine manufactured by Verson was a general purpose press brake, being equipped with a mechanical foot pedal and designed to be operated by one person; however, at the time of the accident the machine was operated by two electrical foot switches and two persons, and the operator no longer had the ability to vary the speed or the pressure applied and, in the sense of operation, the machine was no longer the same machine that Verson had manufactured. Of course, one is negligent when he does something that a person of ordinary prudence would not have done in the same or similar circumstances (or fails to do something that such a person would have done), but in addition, it must develop that the negligence was a proximate cause of the injury, and that injury was foreseeable. Appellee stated that she did not know how the accident happened, nor did any other witness know. Of course, both persons had to activate the switches before the ram would descend — and it would descend immediately! In other words, to accidentally commence the operation, it was not necessary to lift a foot 6 1/2 inches off the floor (as with the mechanical foot pedal), and furthermore, it was not necessary to depress same for 2 1/2 to 3 inches to cause the ram to operate at full force and speed. Could Verson have reasonably foreseen, eight years earlier, that its mechanical, one-foot pedal machine to be operated by one person would be changed to an operation involving two people, together with a change to operation by electrical switches? Of course, the machine was originally a general purpose press brake, but after the changes made, it became a special purpose machine. Appellee relies on the federal case of Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971), but there a special purpose machine was being operated, a 25 ton punch press. Here, however, the evidence reflects that the machine could be equipped to perform any number of tasks, including bending, creasing, punching, flaring (spreading outward), and others. So, in Rhoads the manufacturing company knew exactly what the machine would be used for — here, the machine was only a general purpose machine.
What we are saying is that the changes were drastic and the machine, the operation of which occasioned the injury, was not the same instrument which Verson manufactured.
In the case of Hanlon v. Cyril Bath Co., 541 F. 2d 343 (3rd Cir.), almost identical circumstances were present. The statement of the case presented the following facts:
“Appeal has been taken from a judgment entered upon a jury verdict that absolved Cyril Bath Co. from strict liability for an accidental injury suffered by the then 18 years old plaintiff, Robert Samuel Hanlon. He had been injured while operating a press brake that Cyril Bath had manufactured and sold some 17 years before the accident.
A press brake is a machine used to bend, form or punch metal. Essential force is supplied by a powered ram that moves vertically. At the time of this accident the activating component of the press brake in suit was a movable foot switch connected with the main structure by a long flexible cable.
During his summer vacation from school, young Hanlon was employed by the Wayne Iron Works. Newly assigned to operate the press brake, he attempted with his left hand to remove a piece of metal that had lodged in the machine. While so engaged, he accidentally moved his foot so that it pressed down upon the electrical foot switch lying on the floor. This activated the ram and caused it to descend upon and sever his fingers.
It is the theory of the complaint that the press brake, as manufactured and sold by appellee, Cyril Bath Co., was defective in that it lacked any safety device that would preclude activation while the operator’s hand was under the ram. This inadequacy of design is alleged to have been the proximate cause of the accident in suit. * * * Evidence that stands undisputed in the present record shows that the electrical starting device used by Hanlon had been substituted by the purchaser, Hanlon’s employer, for the very different starting mechanism that Cyril Bath had sold as a component of this press brake some 17 years before the accident. The original starter was a treadle attached to the front of the machine at a point some 8 inches above the floor. It was not an electrical switch. Indeed, it required an operator first to lift his foot a considerable distance and then to exert some 65 pounds of downward pressure on the treadle to release or activate the ram. In contrast the substituted starting device was a small portable electrical switch, connected with the press brake by a flexible cable. Hanlon described it as similar to a dictaphone pedal. It could conveniently be laid on the floor and no great pressure had to be exerted upon it to activate the ram. * * *
The court stated that this substitution of a significantly different and much more sensitive starting mechanism was a “substantial change in the condition in which the press brake was sold,” and then stated:
“Clearly, the substitution of the easily depressed mobile electrical foot simtch for the original fixed elevated mechanical treadle that was responsive only to some 65 pounds of downward pressure removed a safeguard against accidental activation that had been incorporated in the original structural design and would have been adequate to prevent this accident.” [Our emphasis.]
The court held that a verdict should have been directed for Cyril Bath Company, and it might be added that this case (Pa.) was one of strict liability, while in the case before us it is necessary that negligence be established.
In accord with what has been said, we hold that the Pulaski County Circuit Court should have granted the motion for a directed verdict.
Reversed and dismissed.
George Rose Smith and Hickman, JJ., dissent.
This press brake was shipped to Toll Manufacturing Corporation, Inc., on March 12, 1964. At the time of the purchase, the Toll Company did fabricating work for Ward Supply as an independent contractor. Later, Ward Supply purchased the press brake, together with other equipment, from Toll. The Ward Company merged into National Aluminum Corporatcon on December 29, 1969, thereafter operating as National Aluminum Corporation, Ward Supply Division.
The machine was described as being about 12 feet from right to left at bed and rim level and approximately 126 inches tall. From the floor to the top of the machine was approximately 10'6”, front to back close to 4 feet, and it was equipped to accept dies “that almost anybody could make.”
According to Salzenstein, the “point of operation” is the area between the dies where the work is being performed. The term is further defined by .American National Standards Institute as “the point of operation is the area of the tooling or dies where material is actually positioned and work is being performed.”
Whether foreseeability be considered in relation to proximate cause or in its relationship to negligence appears to be largely a matter of semantics. In Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S.W. 2d 117, we pointed out that the facts in a case did not show that injuries sustained were proximately caused by negligence on the part of the defendant, and further stated that we reached that conclusion whether we devoted our attention primarily to the question of negligence or to that of proximate cause. | [
-80,
-26,
72,
-52,
8,
113,
56,
-6,
96,
-123,
101,
-45,
-83,
-37,
-51,
89,
127,
77,
-43,
107,
-9,
3,
87,
-62,
-46,
27,
-8,
-43,
-79,
123,
-10,
-12,
76,
48,
-54,
13,
102,
0,
-59,
24,
-58,
36,
105,
-32,
57,
-46,
112,
58,
116,
15,
17,
-106,
-45,
42,
29,
-49,
104,
40,
-21,
45,
65,
-79,
-37,
5,
-3,
17,
49,
-105,
-98,
5,
-40,
46,
-116,
49,
32,
-8,
50,
-76,
-124,
-44,
99,
-7,
4,
98,
98,
50,
21,
77,
-116,
-88,
7,
91,
-99,
-89,
-109,
104,
67,
35,
-73,
-107,
111,
20,
4,
-2,
126,
21,
95,
45,
15,
11,
-112,
-128,
15,
114,
92,
59,
-21,
-127,
16,
113,
-50,
-70,
93,
5,
18,
19,
-10,
-102
] |
Conley Byrd, Justice.
For reversal of a manslaughter conviction, appellant Stephen M. Langley raises the issues hereinafter discussed.
The undisputed evidence shows that Danny Gossage was killed in the home of appellant with a shot gun held by appellant. The State offered proof that appellant and the decedent were arguing and that appellant to better his position in the argument was pointing the loaded shot gun at decedent. The testimony on the part of appellant was that he got the old shot gun from his bedroom to talk to decedent about how to reblue the gun. Appellant denied that he and decedent were having an argument. He testified that when he started to get up out of the chair to put the gun up, it accidently went off. The proof also shows that the shot gun had gone off on appellant once while squirrel hunting and once while quail hunting. The Criminal Investigator with the Arkansas State Police testified that the gun had a hair trigger and was not safe. Furthermore, a trace metal test showed no trace of metal on appellant’s trigger finger.
Appellant requested an instruction on the lesser included offense of negligent homicide, Ark. Stat. Ann. § 41-1505 (Ark. Grim. Code 1976), which the trial court refused. To sustain the action of the trial court the State takes the position that the evidence does not justify the giving of the instruction on negligent homicide. However, as we view the record, the evidence made a fact issue for the jury. Consequently, the trial court erred in refusing the offered instruction on negligent homicide.
Appellant also complains of an instruction given by the court in the language of Ark. Stat. Ann. § 41-2246 (Repl. 1964) which was repealed by the Arkansas Criminal Code 1976. Because of the error above pointed out, we need not determine whether the objection made was sufficient to raise the issues now argued. However, we do point out for purposes of retrial that the burden of proof in a criminal case is now controlled by Ark. Stat. Ann. § 41-110 (Ark. Crim. Code 1976).
Reversed and remanded.
We agree: Harris, C.J., and Fogleman and Hickman, JJ- | [
49,
-17,
-36,
30,
43,
-31,
-8,
-104,
-46,
-125,
101,
115,
45,
-38,
85,
107,
-29,
79,
85,
105,
-60,
-73,
115,
73,
114,
-13,
17,
-41,
50,
-18,
-18,
-97,
72,
96,
-54,
85,
98,
14,
-25,
88,
-122,
12,
-117,
112,
-21,
86,
32,
38,
118,
7,
-95,
-106,
-93,
35,
30,
-125,
41,
42,
75,
-84,
64,
57,
-118,
15,
-17,
4,
-77,
-74,
-100,
45,
88,
44,
-40,
57,
0,
-8,
113,
-92,
-126,
84,
105,
-99,
44,
102,
114,
44,
77,
-51,
-88,
-120,
47,
63,
-51,
-89,
-72,
33,
75,
12,
-105,
-99,
98,
52,
14,
116,
-27,
-4,
92,
-20,
2,
-49,
-108,
-79,
45,
40,
-106,
-6,
-21,
37,
16,
117,
-51,
-22,
92,
69,
80,
-101,
-106,
-76
] |
John A. Fogleman, Justice.
This case was submitted as a “no-merit” appeal pursuant to Rule 11 (h) and the doctrine of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). After the submission of the case, we requested that counsel submit briefs on the question whether the trial court committed reversible error in declining to answer the jury’s questions about specific testimony, in view of Ark. Stat. Ann. § 43-2139 (Repl. 1964), without inquiring as to the purpose of the jury’s request. The briefs have been submitted and the case has been considered on that point only. We find reversible error.
Appellant was sentenced to ten years in the penitentiary for the crime of sodomy. He was represented at the trial by employed counsel. The Public Defender for the Sixth Judicial District was appointed to represent appellant on appeal. After the jury had deliberated for nearly three hours, it returned into open court at 4:30 p.m. and reported that it was unable to reach a unanimous verdict. The jury was then excused with instructions to return at 9:30 a.m. the following day. At that time the record shows that the defendant was present but his attorney was not. The record discloses the following proceedings at that time:
THE COURT:
There are questions that need to be asked?
MR. THOMASON, FOREMAN:
Yes sir. One specific question is some of the jurors would like a definition of reasonable doubt and some of the other jurors have specific questions about testimony that they would like to ask.
THE COURT:
Now, the questions about the testimony, the time for hearing that has come and gone and you will recall the testimony collectively and we can’t go back and emphasize certain testimony because we can’t run it by you again in the same manner it was run by you the first time.
(At this time, Mr. Wilson entered the courtroom.)
THE COURT:
Mr. Wilson, they have asked about reasonable doubt. Would you object to my giving them the instruction again on reasonable doubt?
MR. WILSON:
No, your Honor, I wouldn’t.
THE COURT:
All right. And then I have, I don’t know whether I should give them this other instruction at this time or not.
MR. WILSON:
I would request that you do not at this time.
After giving the instruction defining reasonable doubt, the court directed the jury to continue its deliberations. The jury retired at 9:38 a.m. and returned with its verdict at 10:15 a.m. There is nothing to indicate that appellant’s attorney ever knew of the jury’s inquiry about testimony or the trial court’s ruling or that appellant had any idea of the significance of these proceedings.
The applicable statute reads as follows:
After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.
We have held that the provisions of the statute are mandatory, and that, where the facts call for an application of its provisions, unless the rulings of the court comply with the statute, they will constitute prejudicial error, but such a manifest error may be corrected by repetition of the communication in the presence of the entire jury and counsel in the court room before the verdict is received to such an extent that counsel knows what had taken place and has the opportunity to object. Rollie v. State, 236 Ark. 853, 370 S.W. 2d 188; Aydelotte v. State, 177 Ark. 595, 281 S.W. 369. The importance of the presence of counsel during such proceedings has been emphasized. See Hinson v. State, 133 Ark. 149, 201 S.W. 811. in Rollie, we said:
This statute requires in unambiguous language that the entire jury and no less a number thereof must be present before the Court and counsel for the parties, or notice given to counsel, upon any proceeding affecting the rights of the defendant or the State as defined in this statute. Its provisions are mandatory. ***
In Aydelotle, we said:
*** The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the state, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law, unless in open court and after notice to the counsel of the respective parties. ***
It is unnecessary for us to decide on this appeal whether the court’s answer to the inquiry could have been correct under the circumstances because appellant’s counsel had no opportunity to object and there is no indication that appellant had the slightest idea he had any right to make an objection. Hopkins v. State, 174 Ark. 391, 295 S.W. 361; Hinson v. State, supra; Durham v. State, 179 Ark. 507, 16 S.W. 2d 991. Furthermore, the failure to object to the procedure or ruling of the court is not a waiver except when it is clear that the erroneous proceeding is discovered in time to correct any error, especially when the court’s action is correct. Rollie v. State, supra; Wawak v. State, 170 Ark. 329, 279 S.W. 997.
It is sufficient to say that the presence of counsel was mandatory and there is no basis for holding that there was a waiver of defendant’s right to have his attorney present or to object to the ruling of the court. We need not say, in this case, whether the trial court has some latitude of discretion in the matter or whether, when there is a disagreement among the jurors, the court must allow the testimony in question to be read to the jury, because the matter is not likely to arise on a new trial. It is sufficient to say that it can be done at the request of the jury, and to that extent the statement made by the judge was incorrect on its face. Bradshaw v. State, 211 Ark. 189, 199 S.W. 2d 747; Bennefield v. State, 62 Ark. 365, 35 S.W. 790 (overruled on another point), Tallman v. State, 151 Ark. 108, 235 S.W. 389, dissenting opinion, 236 S.W. 281). We cannot say that the court, in this case, exercised any discretion in the matter, because no inquiry was made as to the specific questions the jurors had about the testimony and further inquiry by the jurors was effectively foreclosed by the court’s ruling. If counsel had been present or had known that the question had been raised, he could have at least asked the trial court to pursue the matter.
Since prejudice is to be presumed when the statute is not followed and there is nothing to indicate any waiver on the part of the defendant or his attorney, we must, with regret, reverse the judgment and remand the case for a new trial.
It should be noted that the matter of additional instructions is now covered by Rule 33.4, Rules of Criminal Procedure. Otherwise, this statute remains in full force and effect. | [
48,
-20,
45,
-65,
57,
-32,
42,
-36,
64,
-69,
-9,
51,
-19,
-34,
-60,
123,
-66,
47,
84,
107,
-36,
-73,
55,
-63,
114,
-77,
-48,
-43,
-79,
-18,
-26,
-4,
8,
-80,
-62,
-15,
-30,
-56,
-63,
82,
-50,
23,
-104,
-62,
-71,
-46,
32,
48,
82,
7,
49,
30,
-93,
40,
24,
-53,
73,
44,
75,
40,
-48,
-47,
-112,
-83,
-21,
46,
-77,
55,
-98,
5,
-8,
60,
-112,
-75,
1,
-8,
51,
-74,
-126,
116,
107,
-85,
-68,
66,
35,
1,
77,
127,
-7,
-119,
54,
47,
13,
-89,
19,
96,
75,
37,
-74,
-35,
114,
16,
46,
126,
-19,
93,
93,
100,
33,
-121,
-76,
-79,
-97,
56,
62,
-117,
-13,
17,
20,
117,
-52,
-30,
92,
101,
114,
83,
-118,
-106
] |
Darrell Hickman, Justice.
The issues in this case are the use of statements made by a party in a pre-trial deposition. The lower court refused to permit the appellants to use prior statements of a party during their case in chief, or in cross examination of the party making the statements.
The appellants, Mary Jay and her husband, Richard, sued Don Parker and Ranchette Homesites, Inc. for assault and battery. The Jays were the owners of a house trailer located in Ranchette Homesites in Saline County, Arkansas. Don Parker was the manager of Ranchette. There had been a problem regarding surface water in the trailer park and there had been a previous dispute, about the surface water, between the Jays and their neighbors, the Flemings. Mary Jay was attempting to change the flow of the water when Mr. Fleming called the manager, Don Parker. Parker approached Mrs. Jay, who had a pick in her hand. Mrs. Jay claims that Parker assaulted her and seriously injured her. Parker denied this and said that Mary Jay attacked him with a pick and brickbats and that he only defended himself. The only witnesses to the fracas were Mr. and Mrs. Fleming and they supported Don Parker’s version of the incident. The jury returned a verdict for Parker and Ranchette Homesites.
. The Jays allege on appeal that two questions and answers from Mr. Parker’s pre-trial deposition should have been admitted to the jury as evidence in their case in chief and the court should have permitted these questions and answers to be used to impeach Don Parker’s testimony.
Those questions are as follows:
Q. When Mr. Jay asked you why you attacked very brutally and beat up his wife, what was your answer?
A. 1 don’t remember.
Q. Could you have told him because she was on your property?
A. I could have.
The lawyers for the parties entered into a standard agreement at the time the deposition was taken and agreed not to object to the form of the questions. When the Jays attempted to introduce the two questions and their answers during presentation of their case in chief, the court excluded the evidence because the possible prejudice of the questions outweighed the evidentiary value of the answers. We do not disagree with the ruling of the trial court on this point. The first question does assume matters which are disputed, and the answers are evasive and not in the form of admissions. However, when Parker testified he was very positive in his memory. He was asked the question:
Q. Didn’t you tell him you attacked his wife because she was on Ranchette property?
A. No, sir, I did not.
At this point, attorney for the Jays attempted to ask Parker if he had not testified differently in his deposition. The court would not, again, permit the use of the questions and answers. We feel the trial court was wrong. The real issue before the jury was the credibility of the witnesses, and particularly the credibility of the two parties. Although the first question assumes certain facts in dispute, the answer is clearly evasive and is inconsistent with Parker’s testimony that he did not make a statement to Mr. Jay. See Wigmore on Evidence, Vol. 3, § 1037.
We feel the trial court should have perrñitted the use of the questions and answers during cross examination since credibility was a prime issue in the case and the testimony of a party was involved.
Therefore, we will reverse the decision and remand the case for a new trial with instructions to permit the use of the questions in cross examination, providing, of course, a proper foundation is laid.
Reversed and remanded.
We agree. Harris, C.J., and Fogleman and Roy, JJ. | [
113,
-18,
-79,
-115,
9,
33,
-72,
-112,
100,
-125,
-10,
87,
-19,
-49,
12,
47,
-9,
111,
85,
107,
-105,
-77,
55,
-94,
-14,
-13,
-79,
87,
-77,
77,
-67,
-11,
76,
114,
-62,
85,
-30,
74,
-9,
92,
-122,
-126,
-88,
98,
-111,
-46,
36,
107,
82,
7,
49,
-124,
-13,
44,
24,
-61,
9,
62,
79,
61,
-16,
49,
47,
13,
125,
22,
-77,
38,
-98,
33,
-8,
12,
-48,
53,
0,
-24,
115,
-74,
-54,
100,
45,
-101,
12,
38,
98,
36,
-55,
109,
109,
-103,
47,
127,
-100,
-90,
-112,
1,
75,
72,
-73,
-99,
124,
80,
38,
122,
-17,
5,
28,
108,
11,
-58,
-106,
-79,
15,
52,
-100,
114,
-21,
-105,
4,
112,
-51,
-24,
93,
7,
49,
-37,
-114,
-80
] |
Conley Byrd, Justice.
Following an explosion in Newport, Arkansas the several appellants filed an action against appellee, Arkansas Louisiana Gas Company for damages they allegedly had received. All of the appellants claimed damages in excess of the sums that their insurer Houston General Insurance Company had paid under its policies. After the passage of some time the appellee reached an agreement for settlement of all claims except those of Houston General. The order of settlement reads:
“On Motion of the parties, it appearing to the Court that this cause has been partially compromised and settled, the complaints of all the plaintiffs are hereby dismissed with prejudice EXCEPT THE COMPLAINTS OF THE FOLLOWING PLAINTIFFS WHICH ARE DISMISSED WITH PREJUDICE ONLY AS FOLLOWS:
Plaintiff Dismissal
Erwin, Inc. All claims in excess of
$260.00
The remaining claims of the above-named plaintiffs are not dismissed, but the trial thereof is continued in accordance with the ruling of this Court of July 11, 1975.”
Following the entry of the compromise order, appellee pointed out that Houston General was the real party in interest as to the remaining claims and moved that it have summary judgment on the basis that, since Houston General was not a formal party to the action, its claims were barred by the statute of limitations. The trial court in reliance upon Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W. 2d 910 (1971) granted appellee’s motion for summary judgment.
We hold that the trial court erred. Ark-Homa Foods, Inc. v. Ward, supra, involved a situation in which the insurance company had paid the total loss and brought the action in the name of the insured for the amount paid out. Here, however, Houston General paid only a portion of appellant’s losses. In that situation we held in McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W. 2d 566 (1950), that the insured was the real party in interest and stood in the relation of trustee to the insurer for the amount of the loss it had paid. Under our law, the proper commencement of an action tolls the running of the statute of limitations. King & Houston v. State Bank, 13 Ark. 269 (1853). Consequently, by agreeing to the splitting of the cause of action against it, appellee could not prevent the tolling of the statute of limitation as to Houston General.
While the record indicates that the First National Bank also sued for monies in excess of the amounts paid by Houston General, the briefs indicate that perhaps all of the First National Bank’s claims were covered by insurance. As to this claim, we also deem the affidavits of William R. Wilson and William Overton sufficient to make a factual issue before the Court as to whether there was an agreement between the parties that would estop the appellee from making the assertion here presented. Since there was a factual issue, the trial court erred in granting a motion for summary judgment because the burden was upon the movant for summary judgment to show that there were no factual issues.
Reversed and remanded.
Roy, J., not participating. | [
-16,
124,
-76,
44,
8,
96,
48,
-118,
91,
-94,
37,
83,
-3,
-22,
5,
125,
-25,
113,
-63,
-32,
-73,
-93,
5,
114,
-45,
-109,
-7,
69,
48,
-33,
108,
-33,
76,
96,
74,
-59,
-26,
-64,
-121,
28,
-18,
0,
-85,
108,
121,
6,
48,
123,
84,
7,
65,
-114,
-13,
43,
25,
79,
109,
44,
-7,
60,
-64,
32,
-54,
5,
127,
4,
33,
38,
-102,
7,
80,
30,
-112,
49,
56,
-84,
114,
38,
-126,
116,
105,
-103,
8,
32,
102,
32,
-123,
-25,
-36,
-120,
39,
-98,
-113,
-105,
-62,
104,
43,
3,
-65,
-111,
116,
0,
-121,
126,
-20,
5,
94,
40,
3,
-118,
-108,
-95,
15,
69,
-104,
3,
-17,
19,
48,
117,
-49,
-94,
93,
79,
119,
-109,
15,
-44
] |
John A. Fogleman, Justice.
Appellants Roosevelt Wilson and Johnny Dancy were found guilty, in a joint trial, of burglary and theft of property, committed on February 25, 1976, They were charged with having broken into the Victory Liquor Store in North Little Rock and having taken a quantity of bottled liquor therefrom. They were charged with being habitual offenders, and each admitted two prior felony convictions. The charges were laid under Ark. Stat. Ann. §§ 41-2202 — 2203 (Grim. Code, 1976). We find no reversible error and affirm.
Appellants rely upon three points for reversal, which we will treat in the order argued.
i
The circuit judge gave the state’s requested instruction No. 6 defining the crimes of burglary and theft of property. Appellants contend that we should reverse the judgments in this case for plain error in the giving of the last sentence of that instruction, which was designed to inform the jury when theft or property constitutes a felony. It reads thus:
Theft of property is a felony if the value of the property is less than $100.00 but more than $10,000.00.
Appellant Wilson was represented by an attorney from. the public defender’s staff. Dancy was represented by retained counsel. Wilson’s attorney made no objection to this instruction. Dancy’s attorney made only a general objection, which is insufficient basis for appellate review. Rule 13, Uniform Rules for Circuit and Chancery Courts. Appellants contend that the instruction was incorrect, ambiguous and misleading and so prejudicial to their substantial rights that this court should notice the error and reverse the judgment in spite of the fact that proper objection was not made in the trial court.
Of course, the error is obvious. Ark. Stat. Ann. § 41-2203 (2) (b) states:
Theft of property is a Class C felony if: (i) the value of the property is less than $10,000 but more than $100.
Appellants say that prejudice is clear in this case, in which they were given maximum sentences of ten years for habitual offenders. Ark. Stat. Ann. § 41-1001 (1) (c) (Grim. Code, 1976). If the value of the property stolen is $100 or less, the offense is a Class A. misdemeanor, punishable by imprisonment for not exceeding one year and/or a fine not exceeding $1,000. Ark. Stat. Ann. §§ 41-901 (2) (a), 41-1101 (2)(a). A quantity of liquor having a value of $250 to $300 was recovered from the person to whom the evidence had showed appellants had sold it. The owner of the store burglarized was able to positively identify only five bottles of this liquor, which were valued at less than $100. Appellants say that the instruction as given assured the imposition of felony liability if the state convinced the jury beyond a reasonable doubt that anything was taken.
We do not agree that the error was prejudicial. It is quite clear that the error was an inadvertent clerical misprision in the transposition of the figures $100 and $10,000 in the preparation! of the instruction. This error was so obvious and misinterpretation was so highly unlikely that we cannot overlook the failure of appellants to make proper objections. See 75 Am. Jur. 2d 595, § 627. We will take this action only when the error is so great that the trial court was under a duty to correct it immediately and no objection or admonition could have undone the damage or erased the effect of the error from the minds of the jurors. See, e.g., Bell v. State, 223 Ark. 304, 265 S.W. 2d 709; Wilson v. State, 126 Ark. 354, 190 S.W. 441. Even that is a practice which should be indulged in with great caution and invoked only to avoid a clear miscarriage of justice. See Minor v. United States, 375 F. 2d 170 (8 Cir., 1967), cert. den. 389 U.S. 882, 88 S. Ct. 131, 19 L. Ed. 2d 177. Craig v. United States, 337 F. 2d 28 (8 Cir., 1964), cert. den. 380 U.S. 909, 85 S. Ct. 891, 13 L. Ed. 2d 796. The unlikelihood that the instruction could be misinterpreted actually finds support in the failure of appellants’ attorneys to make a specific objection, which would have, beyond doubt, resulted in a prompt corrction of the ambiguous language. See Rhodes v. State, 208 Ark. 1043, 189 S.W. 2d 379. Appellants were called upon to call the court’s attention to the erroneous language. Lindsey v. State, 151 Ark. 227, 235 S.W. 782; Lockett v. State, 136 Ark. 473, 207 S.W. 55. It is also significant that neither of appellants requested a misdemeanor instruction on theft. Furthermore, the evidence that the theft was felonious is quite substantial, if the jury found, as it must have, that the principal witnesses were not accomplices of appellants.
II
Appellants contend that the trial court erred in denying their motions for mistrial after certain remarks were made by the prosecuting attorney during his opening statement to the jury. He said that the owner of the liquor store, Mrs. Leo Mabry, would say that she had been shot in a robbery and required to go to the hospital. When the motion for mistrial was made and denied, the prosecuting attorney advised the jury that the witness would say that neither of the appellants had anything to do with that robbery, but that the liquor store was boarded up at the time of the burglary because she was in the hospital.
When Mrs. Mabry testified, she remarked that she “had a couple of holdups.” When the attorney for one of the appellants moved for a mistrial, the witness spontaneously stated, “They had nothing to do with it, these on trial.” In denying this motion for mistrial, the trial judge directed the prosecuting attorney to get to the issue involved in the case, stating in effect that what had happened the preceding year might be a matter of concern at some other time or place, but not with the present facts. No admonition to the jury was requested by appellants in either instance.
We find no such prejudice to appellants as to call for the extreme and drastic step requested. A mistrial should not be declared unless the error is so prejudicial that justice cannot be served by a continuation of the trial. Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474; Hill v. State, 255 Ark. 720, 502 S.W. 2d 649. Any prejudice arising from whatever error there was in these statements was minimized, if not completely neutralized, by the prompt disavowal by the prosecuting attorney and by Mrs. Mabry of any intent to imply that either of appellants had anything to do with the robbery of her injury. There is no indication that the state prompted the apparently spontaneous remark by Mrs. Mabry. The court’s statement to the jury when it was made was, in effect, a sufficient admonition to the jury. See Ragsdale v. State, 132 Ark. 210, 200 S.W. 802.
Ill
Appellants contend that the evidence was insufficient to support their conviction, because there was no evidence tending to connect them with the burglary and theft, other than that given by two persons who were accomplices. One of these was Patricia Manning, a 17-year-old girl, who testified: she was “going with” Dancy at the time of the burglary; she was picked up by Dancy at her school on the evening of the burglary; Wilson and one Brooks were in the automobile driven by Dancy; they rode around until about 12, when Dancy took Wilson to some place on Broadway and parked the vehicle; Wilson and Brooks left the car, taking a bag with them; Wilson pulled some tin loose from the building and Brooks entered it; Brooks handed the sack out of the building to Wilson, who took bottles from it and put them in the trunk of Dancy’s car; Wilson took the empty sack back to the building and returned it to Brooks, who partially filled it and returned it to Wilson who took it to the trunk of the automobile after which Brooks came out of the building and both Brooks and Wilson got back in the car; Wilson asked Dancy to take him to a Seven-Eleven store somewhere near Burns Park, where Wilson used a telephone; that a white man named Bobby came to the store and Wilson and Brooks took liquor from Dancy’s car and put it in this man’s car; when Wilson got back in the car he said nothing except that he got $160; they took Brooks home and were stopped on the street when the police came up and arrested her, Wilson and Dancy; she did not hear anyone say anything about a burglary before they went to the building, which she identified as the liquor store that was burglarized; Wilson said nothing about this white man or what he intended to do; she did not know what was going on when they drove to this building; the officers told her they would drop the charges against her if she would tell what she knew; and she went with two police sergeants and identified the “white dude’s car.”
Bobby Banks testified that he had become acquainted with Wilson at a pool hall in North Little Rock, where he had been shooting pool with people who went to Banks’ deer camp, and learned that Wilson knew some of these people; that there was conversation about having drinks at the camp; that Wilson said that he had a cousin who had some alcohol that Banks could buy for the deer camp; that later Wilson brought some man he identified as the cousin to Banks’ house; that Wilson said his cousin was selling out his stock of liquor, in a liquor store he had, because he was going out of business; that Banks agreed to buy what he needed for the deer camp during the winter; that two days later, in response to a phone call at around 11:30 p.m., he went to a Seven-Eleven store about a block from his house and agreed with Wilson on the price of $160 for some liquor in the trunk of a car; that there were four people in the automobile; that he knew Dancy; that Wilson, Dancy and a girl were among the four people, but that he did not know the other person, a man; that he paid Wilson $160; that he and Wilson and Dan cy loaded the liquor in his car; that there were many brands and various size bottles; that he had no knowledge that he was buying liquor that came from the Victory Liquor Store; that he had no agreement that Dancy, Wilson or anyone else to steal any liquor for him; that when he was arrested by the police the next morning, he cooperated with them, opened the trunk of his car for them, and drove the car to the police station and gave them permission to search his house; that he was charged with theft by receiving, was still charged, and had made no “deal” for his testimony, but hoped that his testifying would help him; that he bought the whiskey at night at a well-lighted place of business; that he thought the liquor was worth twice what he paid for it; and that he thought he was buying legitimate whiskey from a place that was going out of business.
The court gave instructions requested by appellants defining an accomplice and the necessity for corroborating testimony, together with a correct instruction on the subject which had been requested by the state. If the jury believed these witnesses, as it apparently did, they were not accomplices. An appropriate definition of accomplice was recently quoted from Simon v. State, 149 Ark. 609, 233 S.W. 917, in Burke v. State, 242 Ark. 368, 413 S.W. 2d 646, viz:
“The test, generally applied to determine whether or not one is an accomplice, is, could the person so charged be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice.
*****
“The term ‘accomplice’ cannot be used in a loose or popular sense so as to embrace one who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related, but distinct offense. To constitute one an accomplice, he must take some part, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. Mere presence, acquiescence or silence, in the absence of a duty to act, is not enough, however reprehensible it may be, to constitute one an accomplice. The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission of a crime.”
Appellants contend that the testimony of Banks clearly showed that he was an accomplice and that he could have been convicted of theft by receiving stolen property under Ark. Stat. Ann. § 41-2206 (Crim. Code, 1976). He probably could have been. See Long v. State, 192 Ark. 1089, 97 S.W. 2d 67. But the testimony of Banks about his belief that he was the beneficiary of a bargain from a close-out sale, the circumstance of the transfer of the liquor to his vehicle in a brightly lighted location and his ready disclosures to police would have to be disregarded. The question of his status was properly submitted to the jury. The question whether a witness is an accomplice is usually a mixed question of law and fact and the findings of the jury are binding unless the evidence shows conclusively that he was an accomplice. Burke v. State, supra.
Appellants say that Miss Manning was an accomplice, as a matter of law, under the definition set out in Ark. Stat. Ann. § 41-303 (1) (c) (Crim. Code, 1976), claiming that she had a legal duty to prevent the commission of the offense and failed to make a proper effort to do so. It is true that she might have been found by the jury to be an accomplice, but her legal duty to prevent the offense is not defined by appellants, and we find little, if any, evidence to support that argument. The applicability of this portion of the section to this minor who had no official position and who was not an employee of, or otherwise connected with, the establishment burglarized is, to say the least, doubtful. It is not shown that she actively participated in the crimes charged and what she might have done to prevent them is not pointed out. Mere presence, or negative acquiescence and passive failure to disclose the crime are neither separately nor collectively suf ficient to make one an accomplice. Johnson v. United States, 195 F. 2d 673 (8 Cir., 1952); Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472.
The judgment is affirmed.
We agree. Harris, C.J., and Byrd and Hickman, JJ. | [
112,
-18,
-35,
60,
27,
-32,
42,
-100,
67,
-71,
-9,
50,
-31,
-58,
68,
105,
-16,
-19,
85,
121,
-44,
-73,
19,
35,
-110,
-77,
-39,
-59,
-67,
111,
-28,
-43,
13,
112,
-58,
93,
102,
-64,
-59,
90,
-118,
5,
58,
65,
-15,
64,
60,
46,
0,
14,
-95,
-114,
-93,
47,
18,
-55,
73,
44,
73,
57,
80,
-5,
-112,
13,
-49,
20,
-79,
39,
-102,
5,
-8,
40,
-100,
53,
1,
-8,
115,
-74,
-122,
116,
109,
27,
-84,
98,
98,
0,
21,
-49,
-80,
-120,
38,
-17,
-115,
-89,
-104,
8,
75,
5,
-65,
-99,
107,
-124,
4,
-2,
103,
-100,
93,
108,
33,
-49,
-44,
-77,
-83,
48,
-110,
-45,
-53,
37,
32,
113,
-60,
-30,
93,
23,
113,
-101,
-122,
-43
] |
John A. Fogreman, Justice.
The judgment sentencing appellant Carl Albert Collins to death by electrocution under Act 438 of 1973 (Ark. Stat. Ann., Title 41, Chap. 47, Supp. 1973) was affirmed by this court on December 22, 1975. See Collins v. Stale, 259 Ark. 9, 531 S.W. 2d 13. Thereafter, petition for writ of certiorari for review of our judgment affirming the judgment of the Circuit Court of Washington County was filed in the Supreme Court of the United States. That court, on October 4, 1976, vacated our judgment, insofar as it left undisturbed the death penalty imposed, and ordered that this cause be remanded to this court for further consideration in light of 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); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Woodson and Waxton v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976). The mandate remanding the case was issued on November 16, 1976 and filed here on November 18, 1976.
Our consideration of the imposition of the death penalty in this case (the only part of our judgment that was vacated), in the light of these decisions, leads us to the same conclusions we reached when the case was previously considered, i.e., that the statute under which the death penalty was imposed is constitutional and valid; that the pertinent issues were properly submitted to the jury, whose verdict was sustained by the evidence; and that death by electrocution is not unconstitutionally cruel. We adopt our earlier opinion in this case and reiterate all that we there said. Fundamentally, our present consideration is concerned with determining whether the death penalty statute under which appellant Collins was sentenced falls within the constitutional perimeter discernible from the 1976 quintuplet offspring of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
Our review is not simplified by the same multiplicity of opinions in these cases that we found in Furman; however, our principal consideration must of necessity be directed toward the opinions of the Stewart-Powell-Stevens plurality (hereinafter referred to as the Stewart plurality) in Gregg, Proffitt and Jfurek, because from our analysis, the participation of at least one member of this plurality was essential to the sustention of the death penalty in those three cases. In viewing the statute under which appellant was sentenced, we cannot forget, however, that these opinions are not majority opinions in any. of the three cases. It is important that we keep in mind what the Stewart plurality does not say while tracing what it does say. Let us first note, however, certain definite conclusions we find from reading all the opinions in all the five cases in the light of which we are mandated to review our holding in this case. They are:
1. The death penalty is not per se cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.
2. Imposition of a death penalty pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses constitutes cruel and unusual punishment prohibited by the Eighth Amendment.
3. Each distinct system permitting the imposition of the death penalty for a criminal offense must be examined to determine whether it violates Eighth Amendment prohibitions against cruel and unusual punishment.
4. The basic concern, expressed in Furman v. Georgia, supra, centered on defendants who were being condemned to death capriciously and arbitrarily.
5. Facially the procedures in Georgia, Florida and Texas satisfy the Eighth Amendment requirement. Those in North Carolina and Louisiana do not.
The Supreme Court of the United States did nothing more in the Furman offspring than consider each of the statutes of the five respondent states to determine whether the particular state afforded adequate safeguards against the capricious and freakish imposition of the death penalty. See State v. Bayless, 48 Ohio State 2d 73, 357 N.E. 2d 1035 (1976). Our analysis of our own procedures leads us to the conclusion that the death sentence was constitutionally imposed in this case.
We approach the consideration of the question before us mindful of the strong presumption of constitutionality appurtenant to every legislative enactment, unless it appears upon its face to be within a specific prohibition, such as one of those in the first ten amendments to the United States Constitution. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634; Williams v. State, 253 Ark. 973, 490 S.W. 2d 117; Neal v. Still, 248 Ark. 1132, 455 S.W. 2d 921; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275; San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), also, Stewart, J.,. concurring p. 59. See also, plurality opinion, Lemon v. Kurtzman, 411 U.S. 192, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973), citing Stewart, J., concurring in Rodriguezi Schlib v. Kuebel, 404 U.S. 357, 92 S. Ct. 479, 30 L. Ed. 2d 502 (1971); McDonald v. Board of Election Com., 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969); McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938); Fleming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960); New York v. O’Neill, 359 U.S. 1, 79 S. Ct. 564, 3 L. Ed. 2d 585 (1959); Alaska Packers Association v. Industrial Accident Com., 294 U.S. 532, 55 S. Ct. 518, 79 L. Ed. 1044 (1935); Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S. Ct. 187, 79 L. Ed. 281 (1933).
We need not spend a great deal of time on such features of the Arkansas statute as the definition of the crime for which the death penalty may be imposed and the bifurcated trial. Since the crime in this case was murder, we view the statute only as it pertains to homicides. It is crystal clear that insofar as homicide is concerned there are under this statute several degrees all included (or potentially so) in capital felony. They are:
Capita! felony murder.
Life felony murder.
Felony murder in the first degree. See, Ark. Stat. Ann.
§§ 41-2201, 2205 (Repl. 1964).
Felony murder in the second degree. See, Ark. Stat.
Ann. §§ 41-2201, 2206 (Repl. 1964).
Voluntary manslaughter. See Ark. Stat. Ann. §§ 41-
2207, 2208 (Repl. 1964).
Involuntary manslaughter. See Ark. Stat. Ann. §§ 41-
2207, 2209 (Repl. 1964).
Negligent homicide. See Ark. Stat. Ann. § 75-1101
(Reph 1957).
The definition of capital felony murder strictly limits the homicidal offenses for which the death penalty may be imposed. Ark. Stat. Ann. §§ 41-4701, 4702 (Supp. 1973). This limitation seems constitutionally adequate. Jurek v. Texas, supra. The imposition of the death sentence is not mandatory in any case, for the jury may find mitigating circumstances which outweigh any aggravating circumstances it finds to exist. Ark. Stat.'Ann. §§ 41-4703, 4710, 4712 (Supp. 1973). The statute provides adequate guidelines, so limiting and directing the exercise of the jury’s discretion that an arbitrary, capricious, wanton or freakish exercise of that discretion is improbable. Gregg v. Georgia, supra; Proffitt v. Florida, supra; Jurek v. Texas, supra; Collins v. State, supra. See also, Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. Cf. Woodson v. North Carolina, supra; Roberts v. Louisiana, supra. The Arkansas statutes applicable here require that the sentencing authority focus on the particularized nature of the crime, just as the law did in Georgia, Florida and Texas. Ark. Stat. Ann. §§41-4702, 41-4712 (Supp. 1973). The bifurcated trial mandated by our statutes in effect at the time of appellant’s trial |Ark. Stat. Ann. §§ 41-4710 — 41-4713 (Supp. 1973)] seems to have been approved, although not required. The aggravating and mitigating circumstances that may be considered under our statute seem to meet constitutional muster. Ark. Stat. Ann. § 41-4711, 4712 (Supp. 1973). See Gregg v. Georgia, supra; Proffit v. Florida, supra.
It is urged, however, that our system does not meet Gregg-Proffit-Jurek standards necessary to avoid Eighth and Fourteenth Amendment prohibitions for lack of a mandatory appeal of a judgment imposing the death penalty and of appellate review which compares cases in which the death penalty has been imposed.
We find nothing in any opinion, and certainly no majority, which supports a holding that there must be either a mandatory or automatic appeal of a judgment imposing the death penalty or that there must be appellate review which compares cases in which the death penalty.has been imposed. We again point out that the Supreme Court of the United States did nothing more than consider the statutes of each of five states to determine whether there were sufficient safeguards against the capricious and freakish imposition of the death penalty. It is true that the Stewart plurality found that, in addition to bifurcated trial with sentencing dependent upon a jury’s or trial judge’s findings as to aggravating or mitigating circumstances, appellate review is an important safeguard, when that review is for error and appropriateness of the sentence, and to determine whether: the sentence was imposed under the influence of passion and prejudice or any arbitrary factor; the evidence supports the jury’s or judge’s finding of statutory aggravating circumstances; the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Gregg v. Georgia, supra.
The North Carolina death penalty statute seems to have fallen because there was no way for the state judiciary, through appellate review, to check the arbitrary and capricious exercise of the power of the jury to determine who shall live or die. Woodson v. North Carolina, supra. See also, Roberts v. Louisiana, supra. It seems to us that the only actual requirement, even of the Stewart plurality, is that a meaningful appellate review is available to insure that death penalties are not arbitrarily, capriciously or freakishly imposed. The important question is whether the system creates a substantial risk of arbitrariness or caprice.
It is significant that in Jurek, some oí the federal constitutional requirements were found to have been met by a state supreme court interpretation of the Texas capital sentencing act which would permit evidence of mitigating circumstances and appellate review of the sufficiency of the evidence to support the jury’s answers to questions relating to statutory questions required in the sentencing phase of a bifurcated trial. True enough, the opinion states that Texas law provides for an expedited appeal. Nothing whatever is said about comparison of sentences.
The idea that in Gregg, Proffit, and Jurek, the United States Supreme Court has held that there must be a mandatory or automatic appeal from the imposition of the death penalty by a state trial court seems to have crumbled with the recent actions of the court in Gilmore v. State of Utah, 429 U.S. 1012, 97 S. Ct. 436, 50 L. Ed. 2d 632 (1976), in which, on December 13, 1976, that court found that Gary Mark Gilmore, who had been sentenced to death, made a knowing and intelligent waiver of any and all federal rights he might have had. In a concurring opinion by the Chief Justice and Mr. Justice Powell, it is clearly pointed out that Gilmore had waived his right of appeal under state law, and the history of that waiver is recited. True enough, the order of the United States Supreme Court (White, Brennan, Marshall and Blackmun dissenting) does not specifically refer to this waiver. It does, however, state: If the Constitution of the United States requires that a state provide a mandatory appeal in such cases, we do not see how there can be a knowing and intelligent waiver of “any and all federal rights” when there has been no appeal from the state trial court’s judgment imposing the death sentence. In any event, the Stewart plurality has said that it had no intention to suggest that the procedures approved in Gregg would be the only ones permissible under Furman or that a system constructed on these general lines would inevitably satisfy Fur-man; but that each system must be examined on an individual basis. Gregg v. Georgia, supra.
*** that the State’s determinations of his competence knowingly and intelligently to waive any and all such rights were firmly grounded.
Most of the major concerns of the United States Supreme Court can be met by a statute that insures that the sentencing authority is given adequate information relevant to imposition of sentence and provided with standards to guide its use of that information. Our statutes clearly insure the meeting of these requirements at the jury trial. But another concern of the Stewart plurality is the existence of an adequate power in the judiciary to check the arbitrary and capricious exercise of the power of the jury to impose the death penalty. Our system supplies considerable protection against the arbitrary, capricious or freakish imposition of the death sentence. It does not suffer from the deficiencies found in Furman. The Arkansas judiciary is vested with broad powers to check the arbitrary, capricious, wanton or freakish imposition of the death sentence by a jury. Those powers exist at both trial and appellate levels.
The trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it. Upon return of a verdict of guilty in any felony case, the entry of judgment may be postponed by the trial court for not more than 30 days. During this time probation reports may be sub^ mitted, and matters of mitigation, or any other matter the court or the defendant may deem appropriate to consider before the pronouncement of sentence and the entry of formal judgment may be presented. Ark. Stat. Ann. § 43-2301 (Supp. 1973, Supp. 1975). We have said that the trial judge in imposing sentence should have the benefit of all available information about the defendant, both favorable and adverse. Meyers v. State, 252 Ark. 367, 479 S.W. 2d 238. See also, Hudspeth v. State, 188 Ark. 323, 67 S.W. 2d 191. When the defendant appears for sentencing, he must be asked if he has any legal cause why sentence should not be pronounced against him. Ark. Stat. Ann. § 43-2302 (Repl. 1964). He may show for cause against the judgment any sufficient ground for new trial or for arrest of judgment. Ark. Stat. Ann. § 43-2304 (Repl. 1964). Denial of the right of allocution is error. Tate v. State, 258 Ark. 135, 524 S.W. 2d 624, 726 (opinion on rehearing). The trial court has power to modify any unexecuted sentence and its own judgment at any time during the term of court in which it was rendered. Charles v. State, 256 Ark. 690, 510 S.W. 2d 68; Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005.
The trial court has the power, in its discretion, to reduce a death sentence to life imprisonment, or to grant a new trial. Black v. State, 215 Ark. 618, 222 S.W. 2d 816, cert. den. 338 U.S. 956, 70 S. Ct. 490, 94 L. Ed. 590. See also, Ark. Stat. Ann. § 43-2310 (Repl. 1964). Ark. Stat.. Ann. § 43-2203 (Repl. 1964) is pertinent to the right of allocution, because it sets out permissible grounds for new trial where rights of a defendant have been prejudiced. Among them are cases where the verdict is against law and evidence and where from the misconduct of the jury or any other cause, the court is of the opinion that the defendant has not received a fair and impartial trial.
In considering grounds for a new trial, powers of the trial judge are great and the latitude of his discretion broad, and have always been, in this state. In Oliver v. State, 34 Ark. 632, where a verdict of manslaughter had been returned, this court spoke of the powers and duties of circuit judges in this regard:
*** They preside in the courts and take personal cognizance of all that occurrs in the progress of causes. It is their duty to see that juries do not transcend the proper limits of their authority, and that all trials are fair and in accordance with law. The circuit judge has the discretion to grant new trials in all cases where he is satisfied that the ends of justice will be best subserved thereby, and should not hesitate to exercise it where he is dissatisfied with a verdict, as having reason to believe it the result of excitement, passion, prejudice, or any other influence save a calm consideration of the facts in evidence.
The presiding circuit judge must necessarily have a wide discretion to set aside a verdict where, in his judgment, it was tainted by passion, sympathy, prejudice, corruption, or any other sinister influence, and therefore was not responsive to the law and the evidence; and his exercise of that discretion will not be interfered with on appeal unless there has been an abuse of discretion. Freels v. State, 130 Ark. 189, 196 S.W. 913.
Although the right to fix punishment is primarily a duty enjoined upon juries, we have recognized, in a case where the death penalty was imposed and sustained, that in cases where the evidence does not sustain the degree of crime expressed in the jury verdict, but does support a lower degree, a plea for partial relief by reducing the sentence to life imprisonment can be granted. Hildreth v. State, 215 Ark. 808, 223 S.W. 2d 757. Even though we spoke in that case primarily to the power of this court, what we said applies equally to the power of the trial judge to reduce a penalty of death to one of life imprisonment without parole where the evidence does not support the jury verdict on the sentencing phase of the trial. There can be no doubt about the trial court’s power in this respect. Ark. Stat. Ann. § 43-2310 (Repl. 1964) provides:
Reduction of verdict. — The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in the opinion of the court, the conviction is proper, and the punishment assessed is greater than under the circumstances of the case, ought to be inflicted, so that the punishment be not, in any case, reduced below the limit prescribed by law in such cases.
See also, Tabor v. State, 246 Ark. 983, 440 S.W. 2d 536.
In practice we have regarded this statute as giving the trial judge an opportunity to review the sentence, from his superior ability to evaluate facts, afforded by seeing and hearing the parties and witnesses and knowing the trial atmosphere, as he would weigh the evidence in considering a motion for new trial. The Missouri Supreme Court has given similar treatment to a virtually identical statute in that state. State v. Rizor, 353 Mo. 368, 182 S.W. 2d 525 (1944). Like that court, we have often treated the extent and duration of the punishment as a cognizable question on appeal where there was evidence of passion and prejudice.
If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter (and this court, in its discretion, may reduce the sentence to that prescribed for the lesser offense). Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. This rule applies in murder cases as well as for other felonies. Simpson v. State, 56 Ark. 8, 19 S.W. 99. Even when there was no distinction in different types of murder for which the death penalty, or at the discretion of the jury, life imprisonment, could be imposed, the death penalty was treated by this court as if it were a higher degree of murder in the first degree than murder in the first degree when the death penalty was not imposed. Sneed v. State, 159 Ark. 65, 255 S.W. 895. The rationale for doing so is even greater under the statutes in effect at the time appellant was sentenced. Previously, the death sentence was mandatory, unless the jury, at its discretion, decided to impose life imprisonment instead. Ark. Stat. Ann. §§ 41-2227, 43-2611, 43-2153 (Repl. 1964). Under the statute in effect when Collins was tried, there is a clear delineation of separate degrees of crime, i.e., capital felony, life felony without parole, life felony and felony. Ark. Stat. Ann. § 41-4701 (Supp. 1973). Capital felonies are clearly defined and limited. Ark. Stat. Ann. § 41- 4702 (Supp. 1973). The next lesser included offense is life felony without parole, which differs from capital felony only in that there are mitigating circumstances, which are expressly stated. Ark. Stat. Ann. §§41-4703, 4712 (Supp. 1973). The next lesser degree is life felony, which includes all crimes for which life imprisonment or the death penalty had been formerly prescribed. Ark. Stat. Ann. § 41-4704 (Supp. 1973). All other crimes were felonies. Ark. Stat. Ann. § 41-4705 (Supp. 1973).
Thus, it is quite clear that the trial judge has the power and the duty to reduce the punishment from that for capital felony to that for life felony or any of the other degrees of homicide, if he finds the evidence insufficient to support the higher degree of homicide and sufficient only to support the lesser degree. Thus, if he found there was no sufficient evidence to support the jury’s finding on any aggravating circumstance enumerated in §41-4711, and that there was not sufficient evidence to support its finding that sufficient aggravating circumstances existed or that there were not sufficient mitigating circumstances to outweigh the aggravating circumstances, but there was sufficient evidence to support the finding of guilt, he should impose a sentence of life imprisonment without parole as punishment for the lesser degree of homicide, life felony without parole. Ark. Stat. Ann. § 41-4710 (Supp. 1973).
The power of the trial court may be exercised at an even later stage in the criminal justice process. Post-conviction relief may be granted, under appropriate circumstances, by the trial court under Rule 37 of the Arkansas Rules of Criminal Procedure, which would apply today, but which existed at the time of the trial and judgment in this case in substantially identical form as Criminal Procedure Rule 1 [Vol. 3A, Ark. Stat. Ann. (Supp. 1973, Supp. 1975)]. The arbitrary, capricious, wanton or freakish imposition of the death penalty would seem to be a ground for modification of a sentence to death on the ground that it was imposed in violation of the Constitution and laws of the United States or of this state or that it was in excess of the maximum authorized by law or that it was otherwise subject to collateral attack.
Concededly, there is no mandatory appellate review in Arkansas. The likelihood that a death penalty would be executed without such an appeal, in the absence of a knowing and intelligent waiver, is highly improbable. At the time the sentence is announced and judgment is entered thereon, the trial judge must advise the defendant of his right to appeal. Ark. Stat. Ann. § 43-2301 (Supp. 1973, Supp. 1975). Defense counsel also has the responsibility for explaining to the defendant the meaning and consequences of the judgment and advising him of his right to appeal. American Bar Association Standards for Criminal Justice, The Prosecution and Defense Function, Part VIII, § 8.2. See also, American Bar Association Standards, Post Conviction Remedies, § 4.4 (b) (Approved Draft, 1968). Under present rules, defense counsel may not withdraw from the case after notice of appeal is given without permission of this court. Rule 36.26 Rules of Criminal Procedure; Rule 9, Rules of Circuit and Chancery Courts. Any person convicted of a felony in a circuit court of this state has the right of appeal to this court. Ark. Stat. Ann. § 43-2701 (Supp. 1973, Supp. 1975). Notice of appeal must be filed with the trial court within 30 days from the date of sentencing and entry of judgment, unless a motion for new trial is earlier filed in which case, the time for filing notice of appeal does not expire until 30 days after the motion has been disposed of. Ark. Stat. Ann. §§ 43-2703, 2704 (Supp. 1973, Supp. 1975). Of course, this appellant did appeal, so the question of waiver, or right to waive appeal, is significant only to the extent that it has a bearing on the question of whether an appellate review is mandated by Eighth and Fourteenth Amendment requirements.
Appeals in criminal cases take precedence over all other cases on our docket. Ark. Stat. Ann. § 43-2701 (Rep!. 1964). On appellate review, this court has the power to reduce the punishment, from that imposed by a circuit court for a higher degree of an offense than the evidence will support, to the punishment for that degree which the evidence will support. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. We have held that Ark. Stat. Ann. § 27-2144 (Repl. 1962) empowering this court to modify the judgment or order appealed from and enter such judgment as this court may, in its discretion deem just, is applicable to criminal cases. Blake v. State, 186 Ark. 77, 52 S.W. 2d 644; Webb v. State, 154 Ark. 67, 242 S.W. 380; Smith v. State, 205 Ark. 1075, 172 S.W. 2d 248. We have exercised this power in homicide cases, (see, e.g., Blake v. State, supra; Webb v. State, supra; Brown v. Stale, 34 Ark. 232) and in some instances in cases where the death penalty had been imposed. See, e.g., Blake v. State, supra; Webb v. Stale, supra. In Blake, we had this to say about our practice in the exercise of this power:
This power has frequently been exercised by this court in subsequent cases, and while the practice usually followed is to reverse the judgment on account of the excessive punishment, unless the Attorney General will consent that the trial court impose a lower sentence, that practice has not always been followed. The court, when it is thought proper to do so, has itself fixed the reduced punishment.
See also, Smith v. State, supra. We have also recently said that we might reduce the penalty unless the Attorney General elects to take a new trial. Gaskin v. State, 244 Ark. 541, 426 S.W. 2d 407. In Hadley v. State, 196 Ark. 307, 117 S.W. 2d 352, this court observed that there were numerous instances in which it had reduced the punishment of an appellant from death or life imprisonment. We lately recognized that we had the power to fix a reduced punishment where the death penalty had been imposed in Bagley v. State, 247 Ark. 113, 444 S.W. 2d 567.
The power of this court to reduce a sentence if it is deemed excessive was recognized in Ark. Stat. Ann. § 43-2725.2 (Supp. 1973, Supp. 1975). We have construed that act to preserve the distinction between executive clemency and appropriate judicial review of a sentence where there is error pertaining to the sentence. In Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733, we said:
*** Although we have previously found it unnecessary to pass directly on the constitutionality of this provision insofar as it might be construed to empower this court to reduce a sentence otherwise proper and within statutory limits in cases arising after passage of the act, it should be dear that legislative action cannot override constitutional provisions. We strongly intimated that this
act was ineffective to overrule the holding in Osborne v. State, supra, in Hurst v. State, supra, and cited the case of People v. Odle, 37 Cal. 2d 52, 230 P. 2d 345 (1951). In that case a similar statute was construed by the California court to do no more than authorize it to reduce the punishment in lieu of granting a new trial, when the only error found on appellate review related to the punishment imposed and was prejudicial. It specifically held that the statute granted no power to modify a sentence where there was no error in the proceeding. To construe the statute otherwise, said the court, speaking through Justice Traynor. would give the reviewing court clemency powers similar to those vested in the Governor by the California Constitution. That court clearly recognized that any construction of the statute extending the power of the appellate court any further would raise serious constitutional questions relating to the separation of powers. We think the construction given to the California statute by that state’s Supreme Court was correct and that the same construction should be given our statute. When given that construction, it is clearly constitutional. If construed to give this court the power to reduce a sentence in the absence of error pertaining to the sentence, the statute would be unconstitutional for violation of Art. 6, Sec. 18 and Art. 4, Sec. 2 of the Arkansas Constitution, and upon the authority of Osborne v. State, supra.
Such cases as Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518; Atwell v. State, 244 Ark. 739, 427 S.W. 2d 1; and Hooper v. State, 257 Ark. 103, 514 S.W. 2d 394 do not limit our review in death penalty cases. There is a vast difference in reviewing a sentence for error (including error resulting from insufficient evidentiary support) in the sentencing procedure and reviewing a sentence resulting from a proper and legal sentencing procedure where sufficiency of evidence is not a basis for review. There is also a great difference in reducing a sentence when thei;e is error in fixing the degree of the crime and reducing a sentence when there is not. The former has nothing to do with clemency. There is also a difference where nature of the punishment rather than the duration is at issue. See Sneed v. State, 159 Ark. 65, 255 S.W. 895. We long ago recognized that the constitutional ban of cruel and unusual punishment is directed against the character of the punishment and not its duration. Williams v. State, 125 Ark. 287, 188 S.W. 826.
We have clearly made the distinction between those cases where reduction of the sentence is clemency and when it is a matter of properjudicial review. In Rorie v. State, 215 Ark. 282, 220 S.W. 2d 421, we said:
*** When this Court finds that the evidence is insufficient to support the punishment assessed, then we have the power to modify the punishment. Our cases clearly reflect, however, that this modification is done, not on a basis of judicial clemency, but only in a case in which the evidence would not sustain the higher punishment assessed. ***
In Smith v. State, 194 Ark. 1041, 110 S.W. 2d 24, we said:
*** It may be of a character so aggravated in its nature as to call for thé severest possible penalty. If the jury thought so, then the trial court, wherein all the evidence was heard, must have determined that the verdict, severe as it was, was justified. We cannot presume otherwise. Besides, this court possesses no power inherent in the office of the chief executive, permitting us to pardon or remit penalties, although we may reduce extreme penalties when not supported by the evidence.
Allison v. State, 204 Ark. 609, 164 S.W. 2d 442, may be an aberration. It was decided when the death penalty was to be imposed for rape unless the jury, at its discretion, fixed the punishment at life imprisonment. We cannot now tell whether the court was saying, in Allison, that it had no power to reduce the sentence or that it declined to do so on the basis of the facts. If we were saying the former, the decision is not consistent with cases decided earlier. In any event, different degrees of the offense were not involved, as is the case here. Allison was cited in Nail v. State, 231 Ark. 70, 328 S.W. 2d 836, where this court had reviewed the evidence and found it sufficient to support the verdict of guilt of first degree murder. But in Nail, we said that this court has no power to change the punishment fixed by the jury unless the proof fails to sustain the charge for which the defendant is convicted. This distinction is important when life felony murder is a lesser included offense on a charge of capital felony murder. It should also be noted that in Nail, Rorie is cited as authority. It is also worthy of note that McCall v. State, 230 Ark. 425, 323 S.W. 2d 421, is also cited as authority in Nail. In McCall, it was recognized that this court could reduce the punishment for the purpose of eliminating some error committed by the trial court. Somewhat later than Allison, we considered the matter in Clark v. State, 246 Ark. 876, 440 S.W. 2d 205, saying:
Thus the trial court’s error had no bearing upon the jury’s determination of guilt or innocence. It affected only the extent of the punishment to be imposed. In that situation we have a choice among several corrective measures. We may, depending upon the facts, reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally. Several of the cases were discussed in Bailey v. State, 206 Ark. 121, 173 S.W. 2d 1010 (1943).
Thus, neither Allison nor Nail would limit the power of this court to review a sentence of death imposed under the statutes governing the trial of Collins. We have in cases decided subsequently to Allison considered the circumstances revealed by the evidence to determine whether the death penalty was greater punishment than should have been imposed. See Davis v. State, 246 Ark. 838, 440 S.W. 2d 244, cert. den. 403 U.S. 954, 91 S. Ct. 2273, 29 L. Ed. 2d 865 [where we recognized the discretion of the trial court to reduce the punishment under Ark. Stat. Ann. § 43-2310 (Repl. 1964)]; Young v. State, 230 Ark. 737, 324 S.W. 2d 524. See also, Walton v. State, 232 Ark. 86, 334 S.W. 2d 657; Hall v. State, 209 Ark. 180, 189 S.W. 2d 917.
In capital offenses, for many years all errors of the lower court prejudicial to the rights of appellant have been required to be heard and considered by this court and, if we found any prejudicial error by the trial court, this court was required to reverse and remand the cause for a new trial, or, in the discretion of this court, modify the judgment. Ark. Stat. Ann. § 43-2723 (Repl. 1964). In 1971, this particular statute was repealed but the scope of appellate review was not materially changed, except to extend this type of review to sentences for life imprisonment as well as death sentences. See Ark. Stat. Ann. § 43-2725 (Supp. 1973, Supp. 1975). The earlier statute was construed to mean that this mandated review required an examination of the trial record, even though the objectionable action which might be reversible error was not argued on appeal in any way. Rorie v. State, 215 Ark, 282, 220 S.W. 2d 421; Hays v. State, 230 Ark. 731, 324 S.W. 2d 520; Young v. State, 230 Ark. 737, 324 S.W. 2d 524. We have made the same application of the later one, citing Rorie. Robertson v. State, 256 Ark. 366, 507 S.W. 2d 513. We applied this type of review on the first appeal in this case.
Appellate review of cases in which the death penalty has been imposed has always been more comprehensive than in other cases. For, e.g., error in failure to properly instruct the jury with reference to punishments that it might impose has been held to be reversible, even though defendant did not request such an instruction. Webb v. State, 154 Ark. 67, 242 S.W. 380, 383 (opinion on rehearing); Alford v. State, 223 Ark. 330, 266 S.W. 2d 804.
We have recognized the power of this court under Ark. Stat. Ann. § 27-2144 (Repl. 1962) to reduce the punishment to that appropriate for the crime in cases in which we found error only in the sentencing procedure. Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600; Walker v. State, 91 Ark. 497, 121 S.W. 925; Williams v. State, 66 Ark. 264, 50 S.W. 517. We have exercised this power in capital cases, by reducing the punishment to life imprisonment, when error by the trial court could have affected the sentence only, holding that a new trial would not be required in such cases. Crowe v. State, 178 Ark. 1121, 13 S.W. 2d 606. In some of these cases we have reduced the penalty to life imprisonment subject to the election of the Attorney General to request a new trial. See Williams v. State, 183 Ark. 870, 39 S.W. 2d 295. We have recognized the existence of this power as recently as Bagley v. State, 247 Ark. 113, 444 S.W. 2d 567.
Unquestionably this court has the right, power and duty to reduce the punishment in any case where there is any indication that it resulted from passion and prejudice. Hadley v. State, 196 Ark. 307, 117 S.W. 2d 352; Wilkerson v. State, 209 Ark. 138, 189 S.W. 2d 800. We have done so by reducing a sentence of death on a rape charge to life imprisonment. Hogan v. State, 191 Ark. 437, 86 S.W. 2d 931. We have also carefully reviewed evidence to determine whether there was an abuse of discretion by the trial court or jury in fixing a punishment within statutory limits. Wilkerson v. State, supra; Rutledge v. State, 222 Ark. 504, 262 S.W. 2d 650.
The powers of this court to order a new trial are somewhat limited, but in cases such as the one before us, the court is not impotent. In Oliver v. State, 34 Ark. 632, where the charge was murder and the verdict manslaughter, this court ordered a new trial. The scope of review in such cases was thoroughly analyzed and articulately stated in the opinion by Justice Eakin, viz:
There is another class of cases, in which there has been evidence of some facts, from which the jury has inferred other facts necessary to sustain the verdict, in which this court has granted a new trial on the grounds that the facts shown did not warrant the inference, and that therefore the evidence was insufficient. *** These are not cases of conflict, but want of evidence. *** Of course, no positive rules can be announced of strict and unvarying application, but the general policy of the court may be fairly understood from what has been said.
It will be seen, and in view of a very common misapprehension it is worth noting, that this court has never adopted the rule of refusing a new trial in all or any cases, where there has been any evidence whatever, however weak, to support the verdict — what is called a scintilla of evidence. The following more rational rules seem to result from all the decisions:
1. Where there has been a conflict of evidence a new trial will not be granted here, merely because the preponderance of evidence, in the mind of the court, may seem to be against the verdict. That deference will be accorded to the jury whose peculiar province it is to compare, sift, and weigh the evidence; and to the circuit judge, whose duty it is to supervise the trial, and grant a new one, if, in his opinion, the verdict has resulted from improper influence, misconduct of jurors, excitement, prejudice, hasty judgment, misapprehension of the law, or any other of the recognized causes for a new trial.
2. But in all cases, even those of conflict, this court will direct a new trial, when, upon inspection of the evidence, the verdict is so clearly and palpably against the weight of it as to shock a sense of justice. The line lies between a mere preponderance within the bounds of a fair difference of opinion, and that gross preponderance which indicates an unreasoning passion or prejudice on the part of the jury, or misapprehension of the law, or disregard of the legitimate sphere of their action.
3. A new trial will be granted when there is no evidence at all to support the verdict, or where it fails in some material link. The jury will not be allowed to supply the missing link by inferences and presumptions from other facts unless they be legitimate and fair presumptions, such as naturally follow.
We come now to the delicate and responsible duty of applying these rules to the case before us. There is little conflict of evidence concerning the occurrences at the time of the killing, and nothing to affect materially the credit of any witness. Indeed they agree in an exceptional manner.
***
***Considering the character and motives of Yerby, it is so plain to us that the Olivers were in danger, and so probable that death would have resulted to one of them had Yerby not been killed, that it shocks our sense of justice, under the evidence presented, to deny him the benefit of self-defense. We think the verdict plainly and palpably contrary to the weight of evidence, and that this case falls legitimately within the exception to the rule against disturbing verdicts.
In addition, if the Attorney General feels that the evidence is insufficient to support a verdict, and this court has doubts about it, a new trial will be granted in the interest of justice. Thomas v. State, 72 Ark. 582, 82 S.W. 202; Blaylock v. State, 187 Ark. 606, 61 S.W. 2d 72. We have also reduced the punishment, even when the evidence was sufficient to support the verdict of guilt of the proper crime or degree of crime but the jury obviously failed to consider mitigating circumstances. See Traylor v. State, 80 Ark. 617, 96 S.W. 505; Petty v. State, 76 Ark. 515, 89 S.W. 465, even where the appellant had been sentenced to death. Davis v. State, 155 Ark. 245, 244 S.W. 750. We recognize that punishment is cruel and unusual when it is so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Carter v. State, 255 Ark. 225, 500 S.W. 2d 368; Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W. 2d 719.
We find that the Arkansas system of prosecuting and sentencing those found guilty of a charge of capital felony murder provides adequate safeguards against arbitrary, capricious or freakish imposition of the death penalty to successfully pass constitutional examination in the light of the Eighth and Fourteenth Amendment standards ascertainable from the Woodson-Roberts-Gregg-Proffit-Jurek quintuplet offspring of Furman.
The offense of capital felony murder is carefully defined and narrowly restricted, and the focus of the trial is on a particularized crime. The jury making the determination must first find unanimously that the accused is guilty of one of the narrowly defined categories of the crime beyond a reasonable doubt. If a guilty verdict is returned, the same jury, in the sentencing phase of a bifurcated trial may then hear testimony tending to show one or more specifically enumerated groups of aggravating circumstances plus evidence relevant to mitigating circumstances; but the death penalty cannot be imposed unless the jury unanimously finds, beyond a reasonable doubt, that one or more aggravating circumstance exist (specifying in writing which of them does) and finds that aggravating circumstances outweigh any mitigating circumstances found to exist. This procedure permits the jury in either the first or second phase of the trial to consider the nature and circumstances of the crime and to give regard to the past life and habits of the particular offender. The view taken by the Arkansas lawmakers was that all serious felonies, such as murder, are not identical, either as to the gravity of the offense or the moral culpability of the offender. Collins v. State, 259 Ark. 8, 531 S.W. 2d 13. The jury will be given adequate information relevant to imposition of sentence. It is provided with standards to guide its use of that information. Thus, the possibility that the death sentence will be imposed arbitrarily or capriciously is substantially reduced.
There is ample means for the judiciary to check the wanton, arbitrary or capricious exercise of the power and discretion of the jury to determine who shall die for the crime of murder.
In the first place there is a meaningful check at the trial court level. The trial judge, before pronouncement of the death sentence and entry of judgment, may consider appropriate matters of mitigation, and any other matters appropriate, both favorable and adverse, to the defendant. The defendant must be given the opportunity to show legal cause why sentence should not be pronounced or any of the recognized grounds for a new trial, among which are: (1) the verdict is contrary to the law or the evidence; (2) misconduct of the jury; and (3) the defendant has not, in the opinion of the judge, received a fair and impartial trial. The latitude of the trial judge’s discretion is broad. He may set aside a verdict when he is satisfied the ends of justice would be thereby served and should do so where he has reason to believe it is the result of passion, prejudice or any factor other than a calm consideration of the facts in evidence. This discretion is applicable when the jury verdict would result in the imposition of the death penalty, if the judge finds, for any reason, that the circumstances of the case do not warrant the imposition of the death penalty.
The discretion of the jury and that of the trial judge are sufficiently directed and limited to minimize the risk of wholly arbitrary and capricious action in imposing the death penalty. The trial judge must advise the defendant, at the time of sentencing, of his right to appeal, and defense counsel has obligations to see that the right is preserved.
There is a meaningful appellate review by this court of the appropriateness of the death penalty in a particular case, considering both the punishment and any errors on points raised in the trial court, including the sufficiency of the evidence to support any part of the jury verdict. This appellate review includes: (1) a determination whether the sentence was the result of passion, prejudice or any arbitrary factor; (2) whether the evidence supports the jury’s finding of any statutory aggravating circumstances; (3) whether the evidence supports the jury’s findings on the question whether mitigating circumstances outweigh aggravating ones; (4) whether the sentence is excessive. On appellate review, this court can reduce the sentence, or grant a new trial, in its discretion, if the sentence is excessive or there is error affecting the sentence only, or where there is insufficient evidentiary support for the sentence. Of course, the exercise of discretion by the trial judge is always subject to review for abuse. The “freak” or disparate death sentence would certainly warrant reversal or reduction as shocking to our sense of justice.
There is no specific requirement that this court compare sentences in other cases; however, the scope of permissible review of the sentence on appeal would necessarily require that we consult prior cases as precedent for our determining whether there was error in the sentencing procedure, whether the evidence was sufficient to support any finding made by the jury, whether any of the findings was the result of passion or prejudice or any other arbitrary factor and whether there had been an abuse of the discretion of either the jury or the trial judge in imposing the sentence. We recognized in our first consideration of this case that, since the jury’s findings with respect to the various aggravating or mitigating circumstances must be in writing, the basis for its verdict will be known and can be compared with the punishment in other cases, noting that this general approach Jo the problem had been upheld in State v. Dixon, 283 S. 2d 1 (Fla., 1973); Coley v. State, 231 Ga. 829, 204 S.E. 2d 612 (1974); Jurek v. State, supra.
These sentencing and review procedures certainly leave no substantial risk that the death sentence will be imposed randomly, arbitrarily, capriciously, wantoply or freakishly, and tend to promote evenhanded, rational and consistent imposition of the death penalty. In addition to the powers and responsibilities of the judicial system, the Arkansas system of checks and balances provides for an additional safeguard as a check against the arbitrary, capricious, freakish or wanton imposition of the death penalty in the executive branch, i.e., the power of the Governor of Arkansas to commute a sentence. Art. 6, § 18, Constitution of Arkansas. This power should not be totally ignored in reviewing a state’s system to determine whether it provides adequate safeguards against the death penalty as cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. Recognition was given to the significance of this power in the statute under which Collins was tried. Ark. Stat. Ann. § 41-4714 (Supp. 1973).
A commutation is a modification of sentence or mitigation of the punishment to be given. Whan v. State, 485 S. W. 2d 275 (Tex. Cr. App., 1972), cert. den. 411 U.S. 934, 93 S. Ct. 1906, 36 L. Ed. 2d 394; Ex parte Collins, 94 Mo. 22, 6 S. W. 345 (1887); Application of White, 166 Misc. 481, 2 N.Y.S. 2d 582 (1938). It changes the punishment imposed to a less severe one and leaves the sentence in a modified form. Williams v. Brents, 171 Ark. 367, 284 S.W. 56; Duehay v. Thompson, 223 F. 305 (9 Cir., 1915), affd. 217 F. 484; Ex parte Collins, supra; Ex parte Denton, 69 Okla. Cr. 204, 101 P. 2d 276 (1940); People v. Frost, 133 App. Div. 179, 117 N.Y.S. 524, 23 N. Y. Cr. 544 (1909); People v. Larkman, 137 Misc. 466, 244 N.Y.S. 431 (1930). A death sentence may be modified to one of life imprisonment by commutation. Biddle v. Perovich, 274 U.S. 480, 47 S. Ct. 664, 71 L. Ed. 1161, 52 ALR 832 (1927); Ex parte Denton, supra; Duehay v. Thompson, supra; People v. Frost, supra. See also, Ex parte. Wells, 59 U.S. 307, 15 L. Ed. 421 (1855); Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430 (1974). We take judicial notice that this power has been exercised by Arkansas governors. See, e.g., Governor’s Clemency Proclamations, March 29, 1967 to_ Nos. 2395-2409, Office of the Secretary of State. The act applicable here provided procedures which would tend to prevent the arbitrary exercise of this power. It should be presumed that in the exercise of the power, the Governor would necessarily compare a sentence with other sentences which had been commuted as well as with sentences on which commutation had not been granted. He might well make comparisons with cases where this court had either affirmed death sentences or reduced them.
Comparative review of the sentence in this case is difficult because this is the first case to reach us for review since the repeal of the statute giving juries virtually unlimited discretion in deciding which of those found guilty of murder in the first degree should live or die. The affirmance of cases when that discretion was considered to be so broad furnishes no basis for comparison. This was a vicious murder of an elderly employer for pecuniary gain, which followed a brutal assault upon the employer’s elderly wife (who miraculously survived), apparently for the purpose of obtaining the weapon with which the mortal wound was inflicted. An inference that, after the vicious robbery-murder was committed, this once-convicted robber was bent upon the pursuit of other such crimes is justifiable from evidence of his theft of an automobile in Madison County and his alteration of the death weapon stolen from Welch to convert it into a sawed-off, double-barrelled shotgun, which he immediately took to the most populous area of the state. There was certainly sufficient evidence to support the jury’s finding of aggravating circumstances outweighing the mitigating circumstances of appellant’s youth. There was no substantial evidence which would support a finding of any other mitigating circumstance, and appellant’s youth in this case deserves little weight, in the circumstances. To say the least, we are unable to find any case in which this court has reduced a death penalty where there was such a dearth of mitigating circumstance and such seriously aggravating circumstances.
We adhere to the views we expressed on the former appeal and since we find that the iihposition of the death penalty was not in violation of the Eighth and Fourteenth Amendments to the United States Constitution, we reinstate the judgment and it is accordingly
Affirmed.
George Rose Smith, Holt and Hickman, JJ., dissent.
APPENDIX
Ark. Stat. Ann. § 41-1501 (Criminal Code 1976) changed the felony murder rule [formerly Ark. Stat. Ann. § 41-4702 (Supp. 1973)] by eliminating mass transit piracy and treason and adding escape in the first degree to the list of felonies to which the rule is applicable; and by including provisions creating accomplice liability (and affirmative defenses for an accomplice); by extending the rule to include a killing committed in immediate flight from an included felony; and by providing that the death be caused “under circumstances manifesting extreme indifference to the value of human life.”
It also changed the focus of an unlawful killing involving a public official from (E) the unlawful killing of a public official resulting from a premeditated design to kill anyone, to (d) the unlawful killing of anyone resulting from a premeditated design to kill a public official. It added murder pursuant to agreement as a capital murder.
Ark. Stat. Ann. § 41-1304 (Criminal Code 1976) is different from § 41-4712 (Supp. 1973) in that it states that mitigating circumstances are not limited to those provided in the statute and by adding as mitigation the fact that the defendant has no significant history of prior criminal activity.
Mitigating circumstances are no longer limited to those provided in the statute and now include the circumstance that the defendant has no significant history of prior criminal activity. Ark. Stat. Ann. § 41-1304 (Criminal Code, 1976) § 41-4712 (Supp. 1973).
Aggravating circumstances were changed somewhat as they relate to a person who has a prior record of commission of a felony. Ark. Stat. Ann. § 41-1303 (Criminal Code, 1976), § 41-4711 (Supp. 1973).
Substantive changes in trial procedure, § 41-1301 (Criminal Code, 1976), formerly § 41-4710 (Supp. 1973), include a provision that evidence of mitigating circumstances may be presented regardless of whether the evidence is admissible under the rules of evidence; and for waiver of the death penalty by the prosecutor, expressly or by stipulation as to the facts of mitigating and aggravating circumstances, after trial. § 41-1302 (Criminal Code, 1976) allocates the burden of proof during the sentencing phase of a capital trial.
George Rose Smith, Justice, dissenting. On July 2, 1976, the Supreme Court of the United States sustained newly enacted death-penalty statutes in Georgia, Florida and Texas. In all three cases Justice Stewart’s opinion stressed a provision for mandatory appellate review as a safeguard against arbitrary action in the trial court. In the Georgia case, for example, he pointed out that “[i]n addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case.”
In the present case the majority state: “Concededly, there is no mandatory appellate review in Arkansas.” An effort is then made to show that our present laws in fact assure an appellate review in every case. As the majority observe, however, the review depends upon the trial judge and defense counsel’s performance of duties imposed upon them by law or by professional obligation. In view of all the delays, oversights, and errors that can occur in any voluntary system of appellate review, I cannot agree that our procedure is fully as expeditious and effective as those which were sustained in the Georgia, Florida, and Texas cases.
As to the Gilmore opinions, I cannot read into them such a sweeping statement of law as the majority are able to find there. Any constitutional right can be waived. For instance, a jury trial is mandatory in criminal cases, but that right may be waived. Similarly, a person condemned to death could waive the benefit of a mandatory appellate review, but, as I understand the Supreme Court’s position in the three cases upholding the death-penalty statutes, the mandatory review ought to be provided in the first place, leaving the accused the option of affirmatively declining it if he so desired.
Of course Í concede the substantial possibility that in this case the majority will prove to be right and I to be wrong. Yet the opposite possibility also exists. In the circumstances an immediate revision of our statutes, to conform to those upheld in Georgia, Florida, or Texas, might in the long run prove to have been a wise precautionary measure.
Holt, J., joints in this dissent.
This statute was substantially incorporated into the Arkansas Criminal Code of 1976. We point out some differences in an Appendix to this opinion. Although we find no significance in them, our evaluation in that respect is based upon a superficial examination, as the statute in its present state is not under review here.
For the purposes of this opinion, it is unnecessary to consider other homicides characterized as murder. See, e.g., §§ 41-2211, 2213, 2214, 2215, 2216, 2217, 2218, 2219, 2220, 2221, 2222, 2223, 2224, 2225, 2226 (Repl. 1964).
The Texas Court had pointed out that the Texas statute provided for automatic, swift and mandatory appellate review. Jurek v. State, Tex. Cr. App., 522 S.W. 2d 934 (1975).
A statement by the Nebraska Supreme Court might well be applied here. “No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex.” State v. Stewart, 197 Neb. 497, 250 N.W. 2d 849 (1977).
A motion for new trial is not a requisite for appellate review, but it is still permitted at any time prior to the time fixed for filing notice of appeal and has the effect of extending the time allowed for filing notice of appeal. Ark. Stat. Ann. §§ 43-2703, 43-2704 (Supp. 1973, Supp. 1975). We have also held that a motion for new trial may be heard and granted by a trial court after notice of appeal has been given and before the record has been filed in this court. State v. Adkisson, 251 Ark. 119, 471 S.W. 2d 332.
Perhaps the mitigating circumstances were not limited to those stated. Cf. Ark. Stat. Ann. §§ 41-4712 and 41-4711 (Supp. 1973). | [
-80,
-18,
-43,
-66,
43,
-32,
26,
26,
-10,
-78,
-28,
113,
41,
-109,
5,
107,
-5,
45,
85,
41,
85,
-77,
55,
-63,
59,
-13,
-55,
-42,
-77,
108,
-26,
-43,
76,
-32,
-6,
85,
102,
42,
-43,
82,
-82,
32,
-39,
-31,
91,
-110,
49,
111,
82,
-113,
-107,
-114,
-29,
-86,
26,
-61,
105,
44,
91,
111,
65,
-71,
-104,
7,
-35,
21,
-77,
-89,
-100,
-121,
124,
46,
-100,
57,
2,
-8,
115,
-122,
-126,
116,
33,
-23,
12,
98,
35,
-127,
93,
77,
-96,
-119,
54,
-18,
-99,
-90,
30,
89,
67,
5,
-106,
125,
124,
84,
15,
-2,
-9,
-59,
93,
44,
77,
-114,
-100,
-73,
111,
124,
-110,
98,
-21,
-91,
16,
101,
-52,
-2,
86,
71,
124,
-109,
-122,
-108
] |
Darrell Hickman, Justice.
The Chancery Court of Sharp County dismissed the complaint of Tom Cone, Jr., doing business as Stone Lumber Company, because of a failure to comply with a requirement of the Arkansas Materialmen’s law.
The lumber company supplied materials used in the construction of a house owned by Eugene A. Jurczyk and his wife, Phyllis, which is located in Sharp County, Arkansas. The company claimed over $5,000.00 was due and gave notice to the Jurczyks that a lien would be filed against their property within ten days from the date of the notice. However, the statement of account or the lien for material was recorded in another county, Fulton County. Within fifteen months after the statement was filed in Fulton County, a lawsuit was filed in Sharp County, Arkansas to foreclose the lien. A demurrer was filed asking for a dismissal because the statement of account or lien had been filed in the wrong county. The chancellor sustained the demurrer and dismissed the lawsuit.
Stone Lumber Company argues on appeal that the Jurczyks had notice and the recording of the statement in the wrong county was an inadvertent error which should not result in dismissal of the lawsuit.
We have held that a materialmen’s lien is an extraordinary remedy that is not available to most merchants, and there must be substantial compliance with the technicalities of the lien law. Christy v. Nabholz, 261 Ark. 127 (1977), Rasmussen v. Horner Co., Inc., 255 Ark. 1030, 505 S.W. 2d 225 (1974). The lien law clearly states the account and claim will be filed in the county where the property is located. Ark. Stat. Ann. § 51-613 (Repl. 1971). In this case, the notice stated a claim would be made against the real estate of the Jurczyks, but the claim itself was filed in another county. Therefore, the owner of the real property, or anyone who holds a mortgage on the property, or is interested for any reason, would not have any notice that a claim was being made against the property. It follows that filing the statement of account in another county is not substantial compliance with the lien law. This doesn’t mean the materialman has no remedy; it means the land cannot be sold to satisfy the claim. The remedy is a suit against the person or company, or both, who purchased the material.
Affirmed.
We agree. Harris, C.J., and Fogleman and Roy, JJ. | [
116,
-20,
-67,
28,
-120,
-32,
58,
-88,
81,
-123,
101,
83,
-17,
-62,
4,
41,
-93,
91,
117,
104,
69,
-73,
99,
106,
-62,
-77,
-125,
-43,
-72,
73,
-83,
-116,
77,
52,
74,
-43,
-60,
2,
-51,
92,
14,
3,
25,
108,
-39,
64,
48,
-81,
84,
11,
49,
-90,
115,
46,
52,
-53,
11,
44,
-23,
-85,
88,
-112,
-37,
29,
127,
4,
51,
53,
-104,
37,
88,
12,
-128,
49,
0,
-24,
115,
54,
-42,
116,
41,
-103,
40,
102,
98,
35,
9,
-17,
-84,
-104,
14,
-14,
29,
-90,
-112,
40,
11,
47,
-74,
-99,
93,
16,
66,
-2,
-18,
4,
29,
104,
6,
-18,
-42,
-77,
13,
112,
28,
3,
-57,
-121,
-76,
113,
-57,
-62,
93,
7,
49,
59,
-114,
-5
] |
George Rose Smith, Justice.
On August 9, 1976 Harold Woolverton reported the theft of a welding set, con sisting of an electric welder, a converter for the welder, anc two welder’s helmets. After a prompt recovery of the property the appellant Brewer was charged with theft by receiving Ark. Stat. Ann. § 41-2206 (Crim. Code 1976). Upon tria without a jury he was found guilty and was sentenced to fiv years’ imprisonment, three being suspended. For reversal h argues that the verdict cannot be sustained without th testimony of J. H. Wells, an accomplice as a matter of law and that the chain of custody of the welding set did not es elude the possibility of tampering.
We reject the first contention, because Wells was not an accomplice as a matter of law. Officer Epperson testified that before this particular theft he had information that Brewer had previously brought stolen items to Wells, a mechanic and garageman. The officer asked Wells to buy anything that Brewer brought to him and promised to reimburse Wells for his outlay.
Woolverton, who had seen the welding set on Sunday afternoon, reported its theft on Monday. On that same Monday morning Brewer offered such a welding set to Wells, who bought it in the belief that it had been stolen. Wells reported the purchase to Officer Epperson, who picked up the set on Tuesday. It is now argued that Wells, in purchasing stolen property, became an accomplice as a matter of law. McCabe and Willhite v. State, 245 Ark. 769, 434 S.W. 2d 277 (1968).
The principle of that case is not controlling, because Wells was, or could be found to have been, acting in cooperation with the police. Such a paid informer is not an accomplice as a matter of law. As Underhill points out, “one who is given money by an officer, or by a city, to make a purchase of intoxicating liquors in order to obtain evidence of a violation of the law is not an accomplice.” Underhill, Criminal Evidence, § 175 (5th ed., 1956). The reason for the exception is that such a decoy does not have the true accomplice’s motive for seeking to shift the blame to someone else. When Wells’s testimony is considered along with that of Officer Epperson, there was an issue of fact with regard to Wells’s being an accomplice.
Upon the second point, when an object is subject to positive identification, proof of the chain of custody need not be as conclusive as it should be with respect to interchangeable items, such as blood samples or drugs. Casenote, 30 Ark. L. Rev. 344 (1976). Woolverton, the owner of the welding set, positively identified the welder by a decal which he had put on it and which was included in the description he gave to the sheriff’s department. He identified the converter by a piece of tape that had a screw under one corner and that had been partially removed, taking some paint off. He identified one of the helmets by an attached magnifying glass and the other by some rust on it. His identification, which the court must have accepted, was so positive and detailed as to be virtually conclusive. In the circumstances the minor discrepancies in the chain of custody which the appellant complains of did not affect the admissibility of the welding set, the effect of the discrepancies being for the court. Rogers v. State, 258 Ark. 314, 524 S.W. 2d 227 (1975).
Affirmed.
We agree. Harris, C.J., and Holt and Roy, JJ. | [
16,
106,
104,
-67,
26,
100,
58,
-104,
96,
-17,
101,
-78,
-87,
-60,
1,
121,
-29,
117,
84,
43,
-44,
-77,
87,
11,
-14,
-45,
123,
-59,
-79,
79,
-76,
-44,
76,
48,
-126,
-35,
-26,
-120,
-59,
88,
-114,
0,
42,
98,
82,
-48,
32,
46,
52,
11,
97,
-98,
-29,
42,
16,
-51,
-19,
46,
107,
-67,
80,
-15,
-104,
77,
-49,
20,
-77,
6,
-68,
5,
-8,
30,
-104,
57,
1,
40,
123,
-74,
-126,
-12,
79,
-117,
-116,
98,
98,
48,
-75,
33,
-84,
-120,
-66,
-6,
-113,
-81,
28,
72,
11,
45,
-98,
-97,
107,
16,
36,
-24,
-29,
29,
127,
104,
1,
-113,
-10,
-111,
77,
38,
-50,
-104,
-17,
33,
32,
97,
-51,
98,
85,
101,
122,
-37,
-114,
-15
] |
Frank Holt, Justice.
This appeal involves the scope of our Freedom of Information Act. Ark. Stat. Ann. §§ 12-2801 — 12-2807 (Repl. 1968). Appellants are the North Central Association of Colleges and Schools (NCA), the Arkansas State Committee and its individual members. The State Committee, following its investigation, held a meeting with the board members of Jonesboro School District No. 1 regarding the possibility of loss of the accreditation of Jonesboro High School. Appellee Michael R. Overall, a reporter for the appellee newspaper, attempted to attend the meeting but was excluded. The appellees filed suit against appellants alleging violation of the Freedom of Information Act. Appellants Filed a motion to quash alleging that the NCA and its state committee were not subject to the provisions of the Act. The trial court overruled the motion to quash and entered judgment for appellees, specifically Finding that appellants are supported by and expend public funds and are, therefore, subject to the Act with respect to “any meeting of such defendants [appellants] concerning in any manner the Jonesboro School District and must allow the news media to attend such meeting.” For reversal appellants assert that “the trial court erred in overruling appellant’s motion to quash and in entering judgment against appellants because the Freedom of Information Act does not apply to private corporatioris.”
The NCA is a voluntary association of colleges and secondary schools with over 5,000 members in 19 states and is registered in Arkansas. Its dedicated purpose is to achieve and maintain high educational standards. By accreditation, a school is recognized as having met the policies and educational standards set by the NCA. Annual dues for its member schools (200 in Arkansas) range from $75 to $125. The membership of the Arkansas State Committee is composed of individual educators who serve voluntarily and without compensation. The State Committee collects data on Arkansas schools and makes recommendations to the NCA as to membership, accreditation or loss of accreditation. In the case at bar, the meeting between the State Committee and Jonesboro School Board members was for the purpose of resolving certain problems faced by the school (a member of the Association) which possibly could result in a loss of its accreditation. Appellants argue that since NCA is a private, nonprofit corporation, not authorized or created by state statute, and with no official status in the state, the Freedom of Information Act does not apply. We cannot agree.
§ 12-2803 provides:
‘Public meetings’ are the meetings of any bureau, commission or agency of the state, or any political subdivision of the state, including municipalities and counties, Boards of Education, and all other boards, bureaus, commissions or organizations in the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds.
§ 12-2805 provides:
Except as otherwise specifically provided by law, all meetings formal or informal special or regular, of the governing bodies of all municipalities, counties, townships, and school districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.
§ 12-2806 provides, in pertinent part, that any party aggrieved by denial of the rights granted by the Freedom of Information Act has the right of appeal “when an agency of a county, municipality, township or school district, or a private organization supported by or expending public funds is involved.”
It is well settled that the Freedom of Information Act was enacted wholly in the public interest and is to be liberally interpreted to achieve its purposes. Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W. 2d 350 (1975); and Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753 (1968). Here it is true that the NCA is a private, nonprofit organization. Further, all ten members of the State Committee of the NCA are educators serving voluntarily and without compensation. However, the chairman of the State Committee is an employee of the Arkansas Department of Education who uses his state owned office in performing his duties for the NCA. His office secretary works for and is paid by the state. She, also, performs certain functions for the NCA for which the State Committee pays her. Over 90% of the money contributed by Arkansas Schools is public money. Dues paid by the member schools in Arkansas support the NCA’s functions. The State Committee receives operating funds from the NCA (Commission on Schools). The State Committee makes recommendations to the parent organization if a school should be accredited and, also, if a member should suffer a loss of accreditation. Acceptance by a member school of a student’s credits from another school is influenced by whether that school is a member of the NCA. Obviously, the NCA’s policies and decisions, which are most laudable, have a great impact upon students and parents and are a matter of great public concern.
In summary, the NCA affects public schools in Arkansas to the extent of the standards required for accreditation and its continuance. The State Committee is composed of public servants with its official situs and operation in a public owned institution. The NCA and its Arkansas State Committee are supported wholly or in part by public funds. In the circumstances, we are of the view, as indicated, that the Freedom of Information Act is applicable; If the legislature had intended otherwise, it could have easily made an exception.
Affirmed.
The Jonesboro School District was made a defendant; however, it does not appeal. | [
20,
-20,
-27,
60,
8,
-63,
122,
-98,
67,
-93,
-27,
83,
109,
76,
5,
75,
-29,
45,
-48,
105,
-60,
-75,
115,
-30,
-126,
-14,
-6,
-57,
-77,
-17,
-28,
-3,
72,
49,
-54,
-43,
70,
-54,
-49,
84,
-118,
10,
-117,
79,
93,
-59,
60,
97,
26,
15,
49,
-68,
-29,
60,
24,
-61,
109,
44,
-39,
-82,
67,
17,
24,
15,
-49,
6,
17,
117,
-102,
5,
-16,
44,
88,
49,
9,
-24,
115,
-90,
30,
-91,
11,
-39,
9,
104,
99,
-126,
-80,
-25,
-76,
-115,
39,
58,
-83,
-122,
-110,
73,
66,
13,
-105,
28,
121,
16,
13,
-2,
-93,
-59,
90,
44,
-115,
-50,
-44,
-77,
29,
109,
24,
3,
-21,
54,
16,
117,
-59,
-10,
89,
78,
23,
-37,
-50,
-108
] |
George Rose Smith, Justice.
In this dispute between two casualty insurance companies, the. narrow issue is whether an exclusion in the appellee’s policy deprived an unnamed insured of liability coverage for bodily injury sustained by an employee of the named insured. The decision turns upon the meaning of the word “insured” in the policy. This appeal is from a summary judgment holding that the unnamed insured was excluded from liability protection. We cannot agree with that interpretation of the policy.
All the facts are stipulated, the parties having agreed that there is no factual question to be decided, the sole issue being the meaning of the exclusion just mentioned.
Farm Mutual issued the policy to be interpreted, a policy of automobile liability insurance covering trucks owned by the named insured, Jim Dixon. The policy provided, in a paragraph entitled “Definition of Insured,” that “the unqualified word ‘insured’ means the named insured and, if the named insured is an individual, his spouse, and also any person while using the automobile . . . , provided the actual use of the automobile is by the named insured or spouse or with permission of either.” The pivotal exclusion provides that the coverage now involved does not apply to “bodily injury to any employee of the insured.” (Our italics.) The decision turns upon whether the reference to the insured is restricted to the named insured, Dixon.
The facts are really not important. The insured vehicle, Dixon’s truck, had been driven by Dixon’s employee, W. D. Kissire, to Arkansas Kraft’s plant at Morrilton. Arkansas Kraft’s employee, T. C. Lee, admittedly with Dixon’s permission, was “using” the truck in the process of unloading it. In that process Dixon’s employee, Kissire, was injured. Farm Mutual denied liability, on the ground that the exclusion means that there was no coverage for bodily injury to an employee of Dixon, the named insured. Arkansas Kraft’s excess insurer, the appellant, contended that there was coverage for Arkansas Kraft, because Kissire was not its employee, so that Arkansas Kraft was protected against liability for Kissire’s injury. The appellant settled with Kissire and brought this suit against Farm Mutual for reimbursement.
The decisions elsewhere are of scant assistance, for as an A.L.R. annotation points out: “On this question the courts appear to be in hopeless conflict, with some holding the exclusion inapplicable where the injured person was an employee of the named insured and an additional insured was the party seeking protection under the policy, and other courts taking a contrary position.” Annotation, 48 A.L.R. 3d 13, 25 (1973). Courts that apply the exclusion to injuries to the named insured’s employees often do so on the ground that the exclusion is apparently meant to apply to injuries already covered by the insured’s workmen’s compensation insurance, which is not the situation when an additional insured, such as Arkansas Kraft, is concerned.
In aligning ourselves with those courts which hold that coverage is provided for an unnamed insured when the injured person is the named insured’s employee, we need not look beyond the basic rule that an insurance policy is to be construed strictly against the insurer. Here Farm Mutual’s policy flatly states in its definition that the unqualified word “insured” means not only the named insured but also any person using the vehicle with his permission. The pivotal exclusion uses the unqualified word “insured”; so Arkansas Kraft is presumably included. In drafting the policy Farm Mutual was certainly on notice, from conflicting judicial interpretations, that the limited reference was so ambiguous as to be open to contradictory interpretations. Elsewhere in the policy Farm Mutual referred to the “named insured” no fewer than 28 times, with the evident intention of excluding persons who would otherwise fall within its broad definition of “the insured.” It would have been so simple for the draftsman of the policy to use the phrase “named insured” a 29th time, had that been his intention, that we are unwilling to say that he accomplished the same result by his bare reference to “the insured.”
Reversed and remanded for the entry of judgment in favor of the appellant.
Holt and Roy, JJ., not participating.
Hickman, J., and Special Justices George Howard and James C. Luker, dissent. | [
-78,
124,
-40,
-116,
9,
-96,
34,
122,
125,
-88,
37,
-45,
-49,
-59,
21,
33,
-1,
57,
65,
10,
-11,
-93,
21,
-30,
-10,
91,
-5,
-59,
-99,
75,
110,
124,
77,
32,
-118,
-43,
-25,
-120,
-51,
-100,
-18,
4,
-88,
-23,
-103,
-128,
40,
126,
84,
95,
65,
-105,
-93,
62,
25,
67,
41,
42,
105,
-91,
-31,
112,
-118,
15,
127,
0,
51,
4,
-104,
35,
-40,
10,
-108,
17,
40,
-24,
114,
-90,
-110,
-12,
43,
-103,
9,
38,
99,
8,
17,
-57,
-52,
-72,
38,
-22,
31,
-122,
-108,
57,
49,
10,
-97,
-99,
123,
1,
-122,
126,
-4,
69,
94,
40,
7,
-117,
-108,
-79,
-51,
-16,
-100,
-81,
-17,
-105,
34,
113,
-54,
-70,
93,
-59,
119,
-105,
7,
-50
] |
Hardy W. Croxton, Special Justice.
This is a taxpayer’s action challenging the constitutionality of Act 101 Oof the General Assembly, 1976, because it is contrary to the terms of Article 5, Section 30 of the Constitution of the State of Arkansas. Article 5, Section 30 provides:
“General and Special Appropriations. The General Appropriation Bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state; all other appropriations shall be made by separate bills, each embracing but one subject.”
The parties have stipulated that Act 1010 is not an amendment to the General Appropriations Bill and, therefore, the only question before this Court is whether or not Act 1010 contravenes that portion of Section 30 of Article 5 of the Constitution, which requires that all appropriations other than the General Appropriations Bill, shall be made by separate bills embracing but one subject.
The question of bills embracing but one subject has been considered in prior cases. In State v. Sloan, 66 Ark. 575, 53 S.W. 37 (1899), the Court remarked reviewing the con stitutional provision that:
“Similar questions have arisen under a clause of the constitutions of many states which declared that no act should relate to more than one subject, and that should be expressed in its title. Under this clause, the courts have uniformly held that the unity of the subject of an act was preserved, and there was no violation of the constitution, so long as the different parts of the act relate, directly or indirectly, to the same general object fairly indicated by its title; and that the unity of object must be looked for in the ultimate end, and not in the details or steps leading to the end; for it is within the province of the legislature to determine and provide what means will contribute to the accomplishment of the general object of an act, and it may include under its title every means convenient or necessary or that might tend to carry into effect the main design, without regard to the secondary objects thereby accomplished.”
The Court went on to say in this case that, “The unity of the subject of an appropriation is not broken by appropriating several sums for its several specific objects, which are necessary or convenient or tend to the accomplishment of one general design, notwithstanding other purposes than the main design may be thereby subserved.”
In the case of Cottrell v. Faubus, 233 Ark. 721, 347 S.W. 2d 52 (1961), this Court struck down an appropriation measure as a contravention of Section 30, Article 5, of the State Constitution. In that case, the appropriation bill in question appropriated the total of $800,000.00 for municipal aid fund making 16 appropriations for construction, improvement and repairs of state agency; another appropriation for District and County livestock shows; another appropriation for salaries of classroom teachers; and five additional appropriations for the construction and improvement of certain state agencies and institutions. The purposes embraced by the act in the Cottrell case, the court remarked, were so disconnected that the Appellees did not even argue that their appropriations were related to the single subject matter, but instead, argued that the act disposed of surplus funds and, therefore, the funds could be the only subject of the bill satisfying a constitutional requirement. Obviously, the Court was correct in that case in holding that the subject matters were not related and that the only consistency was their inconsistency.
It is clear that Act 1010 seeks to defray the necessary expenses of the General Assembly for the 1973 session and for the 1976 extended session of the 70th General Assembly and, as such, is embraced within the unity of the bill and the subject matter to defray the expenses of the members of the General Assembly. The lower court further found that expenses and compensation to attorneys for representing certain Senators in a collateral proceeding and the expenses and compensation to attorneys representing the taxpayers in a collateral proceeding, do not come within the unity of the subject matter of Act 1010 and, therefore, are in contravention of Section 30 of Article 5 of the Constitution of the State of Arkansas. This Court will in no way disturb this finding of the lower court, since the Appellees and Cross-Appellants herein failed to file their Notice of Appeal.
We agree that the separability clause of Act 1010 is valid. Such clauses are treated as evidencing a legislative intent that an express provision found to be unconstitutional should be disregarded without disturbing the remainder of the statute. (Cromwell v. Benson, 285 U.S. 22, 77 L. Ed. 598, 592 S. Ct. 285 [1931]).
Assuming, therefore, that the trial court was correct in holding the aforementioned portion of the act invalid, the remaining portions are complete in themselves and capable of execution.
Affirmed.
Chief Justice Harris, Justice Byrd and Special Justice Hamilton concur.
Holt and Hickman, JJ., not participating. | [
22,
122,
-44,
124,
10,
34,
70,
2,
-45,
-87,
101,
83,
111,
-38,
-108,
117,
-13,
107,
121,
75,
-59,
-73,
47,
82,
114,
-109,
-103,
-41,
50,
67,
-18,
63,
12,
33,
-53,
-47,
71,
98,
37,
-100,
-86,
-120,
42,
65,
-15,
-64,
48,
76,
26,
15,
117,
-41,
-29,
40,
26,
-61,
13,
42,
89,
4,
-47,
-70,
-98,
-97,
125,
19,
-95,
37,
-119,
3,
-120,
56,
16,
25,
25,
-24,
120,
-90,
18,
84,
5,
-39,
9,
98,
102,
-127,
-20,
-9,
24,
8,
54,
-49,
-83,
-122,
-110,
25,
107,
13,
-73,
31,
127,
-44,
15,
114,
-32,
-43,
95,
124,
-123,
-82,
-42,
-77,
-51,
104,
16,
99,
-53,
99,
48,
113,
-59,
-42,
93,
71,
91,
19,
-114,
-60
] |
Elsijane T. Roy, Justice.
Appellant David Barnes was convicted of the offense of defrauding an innkeeper in violation of Ark. Stat. Ann. § 41-1908 (Repl. 1964), which reads as follows:
Any person who shall obtain food, lodging or other accommodation at any hotel, inn, motel, motor court, motor lodge, resort, boarding or eating place with intent to defraud the owner or keeper thereof, shall be punished in the manner provided by law for the offense of larceny.
On appeal appellant first alleges error in one of the court’s instructions. The objection was to the following comment in Instruction No. 5:
* * *
If you find that the defendant absconded without paying or offering to pay for such accommodation, or that he surreptitiously removed or attempted to remove his baggage, it is not necessarily conclusive as to the defendant’s intent to defraud, but may be considered by you along with all the other facts and circumstances in the case.
* * *
Appellant contends this instruction constitutes an improper inference of intent to defraud. This type of instruction, which leaves guilt or innocence solely to the jury and permits it to draw an inference allowable by statute, has been upheld by this Court. See Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490 (1976); Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968). Such instructions are unlike the one disapproved in French v. State, 257 Ark. 298, 506 S.W. 2d 820 (1974), in which the jury was told that proof of one fact raised a presumption that one of the elements of the offense existed.
Appellant next contends it was error for the trial court to tell the jury (which had returned to ask some questions), after deliberation of one hour and fifty minutes, that on a retrial there would probably be no different evidence and that the court did not anticipate a more knowledgeable jury would be called to serve. After this statement appellant’s attorney moved for a mistrial but the motion was denied. Thereafter, the jury, after deliberating only a short time, returned a guilty verdict.
In Evans v. State, 252 Ark. 335, 478 S.W. 2d 874 (1972), this Court held:
* * * An admonition to the jury as to its duty to return a verdict, without any expression of the court’s opinion as to the weight of the evidence, or any change in instruc tions previously given, or suggestion that any juror yiéld his individual convictions to reach a verdict is not improper. (Citing case.) * * *
In the present case the issues were relatively simple, and it cannot be said, as a matter of law, that a jury deliberation of one hour and fifty minutes under these circumstances was not sufficiently “prolonged” to justify the giving of the instruction here.
We see nothing in the record to indicate the charge was improper or coerced the jury into returning a guilty verdict. See Webb v. United States, 398 F. 2d 727 (5th Cir. 1968).
Affirmed.
We agree. Harris, C.J., and Fogleman and Hickman, JJ- | [
16,
-8,
-51,
61,
9,
-64,
42,
-104,
67,
-59,
51,
83,
99,
70,
16,
59,
-77,
-17,
-43,
113,
-64,
39,
7,
99,
-10,
-69,
-61,
-91,
-67,
75,
-4,
-36,
8,
32,
-58,
-111,
70,
74,
-31,
-40,
-114,
5,
10,
97,
-15,
-104,
32,
-86,
12,
11,
49,
-98,
-5,
42,
58,
67,
9,
44,
75,
-67,
120,
-15,
-70,
15,
107,
20,
-77,
38,
-85,
1,
-8,
108,
-100,
49,
33,
-8,
115,
-74,
6,
84,
111,
27,
13,
106,
98,
0,
69,
-17,
-96,
-123,
-66,
111,
-99,
-89,
-48,
65,
75,
79,
-106,
-35,
62,
20,
12,
-8,
-12,
-107,
121,
104,
-125,
-49,
-44,
-79,
-83,
45,
-108,
-37,
-5,
39,
-80,
113,
-114,
-58,
92,
82,
48,
-101,
-114,
-105
] |
Darrell Hickman, Justice.
On the afternoon of January the 17th, 1976, Clermon Eugene Acklin was drinking gin with some of his friends and betting on a pool game at the Pine Street Recreation Center in Little Rock. Acklin felt that some of the players had teamed up on him to cheat him. He had words with Isaac Milton Shelton and some of the other players and bettors. He left the pool hall, returned shortly thereafter and said something like, “Are you ready to use your forty-five? I am ready now”. Apparently he said this to no particular individual. He left the pool hall again and went to his four-door Cadillac parked outside, got a rifle and started back in. One of his friends, Odell “Blackjack” Hatchett, talked him out of using the gun; Acklin put the gun back in the car and walked back in the pool room. Shelton killed him when he opened the door.
In the meantime, inside the pool room, after Acklin left to go to his car, somebody said, “Here he comes back in the door with a shotgun”, or words to that effect. Shelton looked out a window, saw Acklin getting a gun out of his car, went to the counter of the pool hall where he had left his .22 pistol, and got it. As soon as Acklin opened the door, Shelton killed him with one shot. It is not disputed that Acklin did not have a gun as he entered the pool hall.
Shelton was charged with second degree murder, convicted of manslaughter and sentenced to five years in the penitentiary apd a ten thousand dollar fine. On appeal from the Pulaski Circuit Court, he alleges two errors: the trial court refused to instruct the jury on the lesser included offenses; and the jury’s verdict was contrary to the instruc tions of the court and should have been set aside.
We find that the evidence in this case did not warrant an instruction on negligent homicide or any lesser charge than what the court gave. The court gave an instruction to the jury that it could return a finding on manslaughter. Counsel for the appellant was apparently under the impression that all included offenses to second degree murder must be given by the court. Shelton’s defense was self defense. He testified he knew that Acklin was upset, talking about guns, had been drinking, and heard that he was coming back in the pool room with a shot gun. He looked out the window, saw Acklin with a gun and immediately got his gun. Obviously he did not know that Acklin had put the gun up, and, apparently, he did not wait for anything before he shot his pistol. When the door opened, he fired. There was no testimony on which Shelton might have been found guilty of negligent homicide or a lesser charge than manslaughter. Therefore, the court did not improperly instruct the jury. See Caton and Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972).
Shelton’s second argument has merit. The trial court did not instruct the jury that it could levy a fine against the appellant if he was found guilty of either second degree murder or manslaughter. The court only instructed the jury that a prison sentence could be imposed. However, a verdict form given to the jury had a blank space for a prison term followed by the phrase “ . . . and/or a fine of_ dollars”. At the side of the form, in print running vertical to the jury findings, were references to a prison sentence and/or a fine. For example, if a finding were returned on manslaughter, the vertical language read:
(One yr. to five yrs., and/or a fine not exceeding ten thousand dollars)
The jury in this case returned a verdict finding Shelton guilty of manslaughter and fixed his punishment at five years in prison and a ten thousand dollar fine. We cannot say from the record, in view of a conflict in the written instructions authorizing only a prison sentence and the printed verdict form referring to a fine, the jury acted according to the law. See Brown v. State, May 23, 1977. Under these circumstances, it was error for the jury to impose a fine, and an error is presumed to be prejudicial unless the contrary affirmatively appears. Osborne v. State, 237 Ark. 170, 371 S.W. 2d 518 (1963). There is no evidence in this case that overcomes that presumption. Therefore, we will modify the judgment to reduce the sentence to five years imprisonment only.
We feel it necessary to elaborate on the better practice of using a verdict form so as to avoid error. The use of “and/or” can be misleading. A jury could decide that a sentence to a prison term and a fine could only be in the alternative. The better practice is to use a form, together with consistent instructions, which would read, in the case of manslaughter, for example, as follows:
We, the jury, find the defendant, John Doe, guilty of manslaughter and fix his punishment as follows:
(1) A sentence of_years imprisonment in the (one year to five years) state penitentiary,
OR
(2) A fine of_dollars (A fine not to exceed $10,000)
OR
(3) BOTH a sentence of__years imprisonment (one year to five years)
in the state penitentiary, and a fine of-dollars (A fine not to exceed $10,000)
Foreman
We, the jury, find the defendant, John Doe, not guilty.
Foreman
Affirmed as modified.
We agree: Harris, C.J., and Fogleman and Byrd, JJ. | [
112,
-29,
-100,
30,
25,
-32,
24,
-72,
66,
-82,
-31,
51,
41,
-18,
69,
121,
83,
79,
84,
97,
-100,
-81,
23,
97,
-6,
-13,
-71,
-45,
50,
105,
-4,
-3,
8,
112,
-18,
89,
102,
10,
-29,
-40,
-114,
0,
-69,
112,
-6,
0,
32,
46,
68,
-113,
33,
-114,
-29,
43,
26,
-113,
105,
44,
75,
62,
64,
57,
-62,
-123,
-19,
20,
-93,
-114,
-99,
33,
-16,
44,
-36,
49,
0,
-8,
115,
-90,
-112,
84,
109,
-119,
-116,
96,
98,
44,
13,
-49,
-96,
-87,
63,
47,
-99,
-82,
-104,
65,
65,
13,
-42,
-33,
122,
20,
15,
-10,
125,
-34,
81,
104,
21,
-98,
-108,
-79,
-19,
62,
-106,
-70,
-53,
39,
36,
101,
-117,
-26,
76,
84,
120,
-101,
-121,
-16
] |
John A. Fogleman, Justice.
We are confronted here with a difficult problem arising from the ago-old necessity for “dealing” with people involved in crimes in order to successfully prosecute their confederates. See Camron v. Texas, 32 Tex. Crim. 180, 22 S.W. 682 and accompanying Annot, 40 ASR 767 (1893). Pamela Hammers, appellant herein, and James E. Stephens, were jointly charged with the murder of Cynthia Walker, by choking, beating and drowning her. They were also charged with manslaughter for causing the death of Ms. Walker’s unborn child. Apparently, the prosecutor felt it was necessary, as it often is, to obtain the testimony of one of them against the other, if anyone was to be punished for the heinous crime committed by them. It eventually turned out, as is so often the case, both exhibited that extreme generosity about sharing the blame that makes accomplice testimony suspect. Each also seemed extremely reluctant to claim an equal share of the responsibility.
In spite of a “deal” made by appellant with the prosecuting attorney, she was put to trial, found guilty upon the testimony of Stephens, and some corroborating evidence tending to connect her with the crime, and sentenced to eight years’ imprisonment. Prior to trial, she had moved to stay and enjoin the prosecution, alleging that she had waived her privilege against self-incrimination upon the offer and promise of the prosecuting attorney to request immunity for her and to nolle prosequi the charge against her. She alleged that, in accordance with this offer, she made an oral statement in which she divulged completely and totally all facts concerning the crimes with which she and Stephens were charged. The denial of this motion is her first and principal ground for reversal of the judgment against her. A reversal would mean that a participant, perhaps the principal one, in a cruel, useless killing escapes punishment. Of course, this should not be the basis for our decision on the important questions raised, and the ultimate disposition of this case must not be dictated by that possibility.
The difficulties with which the treatment of such a troublesome problem as this is fraught are exace rbated by the potential for disagreement and misunderstanding inherent in the failure to put in the record a written memorandum of the agreement or to obtain a court approval, as required by statute, by the very disorganized presentation of this matter to the trial court and by the manner of the abstracting of the record by appellant which shows little regard for our rules. Although we are considerably handicapped in doing so, we will endeavor to glean enough facts from appellant’s unsatisfactory abstract and the state’s effort to supply the deficiencies to treat the basic problem. Our effort to state facts may not be totally successful, because very little, if any, evidence was presented to the trial court at the hearings on this motion. These hearings consisted for the most part of discourses by the opposing attorneys, which seem to have been part stipulation and part argument, and we have experienced considerable difficulty in distinguishing a statement of fact from an argument. The record discloses that a memorandum of the agreement was prepared, or was to have been prepared, but it is apparently not in the record, perhaps because the parties endeavored to stipulate the facts.
It was charged that the crimes were committed on July 27, 1975. The information charging the crime of murder was originally filed August 4, 1975, and an amended information, on August 6, 1975. On September 23, 1975, appellant filed a motion for severance, alleging that she would be prejudiced by a joint trial because the issues were different and separate as to the respective codefendants, because Stephens had previously been convicted of felonies on two occasions, because she anticipated that statements of both co-defendants, which were inconsistent with each other, would be offered in evidence, and because she anticipated that statements made to a witness by the defendants would be offered in evidence, some of which would not be applicable to her. This motion, which made no claim of immunity, was granted. As a matter of fact, there had been no negotiations of any sort between appellant and the state at that time.
At some time prior to November 4, 1975, appellant, acting upon the advice of her attorney, entered into plea bargaining with the prosecuting attorney and his deputy. It is conceded that some agreement, the exact terms of which we are unable to discern, was entered into between the prosecuting attorney and appellant. It did require appellant to waive her privilege against self-incrimination and to testify against Stephens. The prosecuting attorney agreed, in return, to move the court to enter a nolle prosequi and grant her total immunity against the charges against her. It was on November 3, 1975, the eve of the trial of Stephens, set for November 4, 1975, that appellant agreed to the terms and made a statement about the crime. She was present in court on November 4, 1975, ready, willing and able to testify, but the case was continued on motion of the state, because of the strange overnight disappearance of Thomas Griffin, a resident of California, who could have given and eventually did give, testimony about incriminating statements of the codefendants in the presence of each other, tending to connect them with the crime. An inquiry of the prosecuting attorney by appellant’s attorneys on that day confirmed the fact that they still had a “deal.”
Subsequently, upon a motion for discovery by the attorney for Stephens, filed about February 4, 1976, appellant’s statement was supplied to this attorney. Thereafter, Stephens submitted to a polygraph test and on March 8, 1976, made a complete and detailed statement about the crime to the prosecuting attorney, and changed his plea from one of not guilty to one of guilty to the charges of murder in the second degree and of possession of marijuana and agreed to testify against appellant. Appellant was then notified that the prosecuting attorney was withdrawing from the agreement and would prosecute her on the charges of murder and manslaughter. The prosecuting attorney took the position that the agreement was binding only if and when appellant took the witness stand and testified against Stephens, but that when Stephens pleaded guilty the agreement did not require him to grant immunity or to nolle prosequi the charges. He returned the statement of appellant to her, and erased the tape on which it had been recorded. No reference to the statement was made during the trial. The prosecuting attorney also contended that the agreement was tentative, not binding because it had not been approved by the court, and void because the statement given by appellant was not made in good faith.
Appellant was, on November 4, represented by two attorneys, both of whom made affidavits in support of her mo tion. One of them stated that appellant’s total immunity was not dependent upon Stephens going to trial. The other stated that she was granted immunity in exchange for her statement given and testimony to be given under oath, in the case of State of Arkansas v. James Eddie Stephens, and that on November 4, 1975, the guarantee of total immunity was affirmed and unconditionally promised by the prosecuting attorney and his deputy. The latter affiant stated that he was led to believe and did believe that all charges would be dismissed against appellant and that it would not be necessary that she stand trial. The prosecuting attorney contended that the agreement required “complete testimony” and that the prosecution should be permitted to continue because he had not moved and the court had not granted a nolle prosequi. In the state’s response to appellant’s motion it was alleged that the state had altered its position after further investigation revealed that the statement given by appellant was not made in good faith.
We cannot give great weight to the state’s contention that appellant did not act in good faith, because that charge was not sustained by evidence. We could speculate that the state’s attorneys had concluded that she had not made a full disclosure or that she had not stated the truth, but there was no showing, when the motions were heard, on which the trial court could have found that appellant had not made a complete and detailed statement of the occurrence or that she was untruthful. Furthermore, there was nothing to show that appellant was not, at all times, ready, willing and able to testify against Stephens had she been called as a witness, in spite of the fact that the prosecutors had some apprehension about the matter. We should add that we find no basis for holding that any of the attorneys had not acted in good faith in the matter.
It should be noted that the state has never moved for a nolle prosequi or for an order granting immunity to appellant, and, of course, no such order has been entered. It is clear that appellant’s attorney was fully aware of the fact that immunity could only be granted by the court and that a nolle prosequi could not be entered without the approval of the court. As a matter of fact, one of them stated at the hear ing that he fully understood that the trial court had the authority “not to honor the prosecuting attorney’s request for immunity and a nolle pros” at the time of the hearing. The trial judge was aware when the Stephens trial was first set that appellant was going to testify and that she would give a statement or reduce her statement to writing, but no motion for the grant of immunity, even conditionally, was presented to him.
Since the parties attempted to stipulate the facts, we set out certain facts in addition to those previously stated upon which there appears to be no dispute. As a result of the plea bargaining, appellant made a written statement about the crime, and agreed that her testimony against Stephens would be based upon the content of that statement. When the Stephens case was continued, Mr. Hanks, one of appellant’s attorneys, in the presence of Mr. Wilson, her other attorney, asked Mr. Banks, the deputy prosecuting attorney, if they did have a* deal for her testimony and for her immunity. There was some agreement to the effect that the agreement would be nullified if appellant did not testify, but the terms of that agreement are the subject of vigorous dispute. The prosecuting attorneys contend that the agreement was not binding if she did not testify for any reason, regardless of the cause and regardless of her being ready, willing and able to do so. On the other hand, appellant’s position is that the agreement was to become void, only if she refused to testify against Stephens or if her testimony was not substantially in accord with her statement. Appellant’s attorney, Hanks, was under the impression that there was a specific understanding that the agreement guaranteed appellant immunity if Stephens pleaded guilty. It was agreed that the state’s attorneys were very apprehensive about appellant’s actually carrying out her agreement to give testimony incriminating Stephens. The prosecuting attorney admitted that, in the negotiations, he may well have said that he had no reason to believe that, if he requested immunity for appellant, the court would not grant it.
Of course, there has long been a universal practice of granting immunity, or sentencing consideration, to an accomplice who testifies fully, fairly and clearly, when called as a witness by the prosecution at the trial of an associate in crime. See (Whiskey Cases) United States v. Ford, 99 U.S. 594, 25 L. Ed. 399 (1879); State v. Crow, 367 S.W. 2d 601 (Mo., 1963); Camron v. State, 32 Tex. Crim. 180, 22 S.W. 682, 40 Am. St. Rep. 767; People v. Bryant, 409 Ill. 467, 100 N.E. 2d 598 (1951); Annot, 40 Am. St. Rep. 767, 768. In the absence of statute, the testifying accomplice has only an equitable, not legal, right to immunity or mercy. U.S. v. Ford, supra; People v. Bryant, supra; Lowe v. State, 111 Md. 1, 73 A. 637 (1909); State v. Guild, 149 Mo. 370, 50 S.W. 909 (1899); State v. Graham, 41 NJL 15 (1879); Commonwealth v. St. John, 173 Mass. 566, 54 N.E. 254 (1899); Wight v. Rindskopf, 43 Wis. 344 (1877). See also, Annot. 13 ALR 2d 1439; State v. Crow, supra.
It is only appropriate that an accomplice who, under an agreement with the prosecuting attorney, approved by or made known to the court, that he should be immune from prosecution, testifies fully and truthfully as to the whole matter charged, be vested with an equitable right to the entry of a nolle prosequi or appropriate clemency. Lowe v. State, supra; Scribner v. State, 9 Okla. Cr. 465, 132 P. 933 (1913). Cf. U.S. v. Carter, 454 F. 2d 426 (4 Cir., 1972), cert. den. 417 U.S. 933, 94 S. Ct. 2646, 41 L. Ed. 2d 237.
Clearly a promise of immunity approved by, or with the consent of, the court, should be upheld. See State v. Ward, 112 W. Va. 552, 165 S.E. 803, 85 ALR 1175 (1932); Lowe v. State, supra. Transactional immunity, i.e., full immunity from prosecution for the offense to which the testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege against self-incrimination, since immunity from use of the testimony, and evidence derived from it, affords Fifth Amendment protection. Kastigar v. U.S., 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972); State v. Quarles, 13 Ark. 307. Ordinarily, in the absence of statute, the public prosecutor is not authorized to grant immunity and it can be granted only with the approval of the court pursuant to express statutory authority. U.S. v. Ford, supra; U.S. v. Carter, supra; Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898); Messenger v. State, 81 Tex. Cr. 465, 198 S.W. 330 (1917); Apodaca v. Viramontes, 53 N.M. 514, 212 P. 2d 425, 13 ALR 2d 1427 (1949) and accompanying Annot, p. 1439. See also, Temple v. Commonwealth, 75 Va. 892 (1881); Ex parte Werner, 46 R.I. 1, 124 A. 195 (1924); U.S. v. Levy, 153 F. 2d 995 (3 Cir., 1946); Scribner v. State, supra. But even when the agreement is unauthorized, an accomplice who actually testified against a confederate voluntarily and made a full, true and candid disclosure of all the circumstances attending the transaction in question, in good faith, incriminating both the confederate and himself, has been held to have an equitable claim or right to mercy in some form. People v. Bryant, supra, 409 Ill. 467; State v. Davis, 188 S. 2d 24 (Fla., 1966), cert. den. 194 S. 2d 621; Commonwealth v. St. John, supra; Application of Parham, 6 Ariz. App. 191, 431 P. 2d 86 (1967); Annot, 13 ALR 2d 1439 (1949). See also, U.S. v. Ford, supra; Lowe v. State, supra; State v. Guild, supra; State v. Graham, supra; Wight v. Rindskopf, supra; People v. Brunner, 32 Cal. App. 3d 908, 108 Cal. Rptr. 501 (1973). Cf. U.S. v. Carter, supra; U.S. v. Levy, supra. It has been recognized that when all parties concerned acted in good faith and an honest effort to dispose of the charges in the manner that would best serve the public welfare, equity requires that a prosecutor’s compact be enforced, when he is willing. State v. Ashby, 43 N.J. 273, 204 A. 2d 1 (1964); Young v. State, 45 Tex. Cr. 202, 75 S.W. 23 (1903). It has also been widely held that an agreement for immunity which a prosecuting attorney made without consent or advice of the trial court is unenforceable. Annot, 40 Am. St. Rep. 767, 768.
This court has said, when there was no statute on the subject, that it is within the exclusive discretion of the prosecuting attorney to determine whether an accomplice be permitted to become “state’s evidence” and whether, if he does, he is entitled to be no further prosecuted by reason of what he has done. Runnels v. State, 28 Ark. 121. The determination whether the accomplice be called as a witness and permitted to testify so as to gain an exemption on the basis of an implied condition of exemption from punishment for turning informer and declaring the whole truth is within the discretion of the prosecuting attorney and the sound judicial discretion of the court. Annot, 40 Am. St. Rep. 767, 768. See also, State v. Reed, 127 Vt. 532, 253 A. 2d 227 (1969).
There is a wide divergence of authority as to the relief to be granted and the means of obtaining the relief, where there has been no court approval of a promise of immunity made by the public prosecutor. In at least one jurisdiction, it has been held that such an agreement affords no protection if the confessing accomplice is later placed on trial in violation of the agreement. Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898). In many others, the agreement cannot be raised as a plea in bar or as a defense. U.S. v. Ford, supra, 99 U.S. 594; Lowe v. State, supra, 111 Md. 1; State v. Guild, supra, 149 Mo. 370; State v. Graham, supra, 41 NJL 15; Commonwealth v. St. John, supra, 173 Mass. 566. See also, Wight v. Rindskopf, supra, 43 Wis. 344; State v. Davis, supra, (Fla.) 188 S. 2d 24. In one of these jurisdictions, the immunity agreement may affect the right of the court to enforce or impose a sentence. State v. Davis, supra. A plea in bar is proper in Texas and Oklahoma if all prerequisites to grant of immunity ¿lave been met. See Camron v. State, supra, 32 Tex. Cr. 180; Scribner v. State, supra, 9 Okla. Cr. 465, 132 P. 933; Annot, 40 Am. St. Rep. 767, 768. In some cases it has been said that the only relief available is a continuance to enable the claimant of the right to immunity to apply for a pardon. U.S. v. Ford, supra; Lowe v. State, supra; State v. Guild, supra; State v. Graham, supra; Commonwealth v. St. John, supra; Wight v. Rindskopf, supra.
Of course, where immunity is granted pursuant to statute, the statutory provisions usually provide for relief by a bar of prosecution, where the claimant of right to immunity shows that he comes within the statute. See State v. Smith, 12 Wash. App. 514, 530 P. 2d 354 (1975). But appellant does not come within the terms of any Arkansas statute governing immunity from prosecution. Ark. Stat. Ann. § 43-915 (Repl. 1964) only provides use immunity for an accomplice who actually testifies before a grand jury. Rhea v. State, 226 Ark. 581, 291 S.W. 2d 505. It does not apply where a written statement has been given to the prosecuting attorney. Horner v. State, 255 Ark. 426, 501 S.W. 2d 217. A use immunity is granted a defendant in a suit to recover money lost by gaming or betting who answers interrogatories propounded by the plaintiff. Ark. Stat. Ann. §§ 34-1607, 1608 (Repl. 1962). The only statute which could possibly apply is Act 561 of 1973, appearing as Ark. Stat. Ann. § 28-531 et seq (Supp. 1975). That statute was passed for the very purpose of establishing guidelines to facilitate prosecutions and to clarify the authority of the prosecuting attorney to grant immunity in cases such as this. See preamble. But it prohibits the grant of immunity from prosecution without prior court approval. Ark. Stat. Ann. § 28-534 (Supp. 1975). And appellant was certainly not compelled to testify in spite of a claim of privilege . against self-incrimination, which would be essential to a claim of immunity under Ark. Stat. Ann. § 28-532 (Supp. 1975). Such a statute is not self-executing [see U.S. v. Seavers, 472 F. 2d 607 (6 Cir., 1973)] and its purpose is only to preserve the constitutional privilege of self-incrimination to one compelled to testify. State v. Smith, 12 Wash. App. 354, 530 P. 2d 354 (1975). See also, Scribner v. State, supra, 9 Okla. Cr. 465; State v. Davidson, 242 Wis. 406, 8 N.W. 2d 275, 145 ALR 1411 (1943).
Since appellant had no statutory right to immunity and the agreement was not authorized by the court, her claim must be viewed as one to relief on equitable principles. In doing so, it seems that leaving her to beseech mercy at the hands of the Governor is as antiquated as the doctrine of approvement from which it springs. The Texas and Oklahoma preference for permitting a plea in bar seems highly superior to other procedures, even though contrary to the weight of authority. See, Annot, 40 Am. St. Rep. 767, 768; Whitney v. State, supra, 53 Neb. 287. The trial court certainly has no power to enter a nolle prosequi over the objection of the prosecuting attorney. Ark. Stat. Ann. §§ 43-806, 1230 (Repl. 1964). State v. Anderson, 119 Tex. 110, 26 S.W. 2d 174, 69 ALR 233 (1930) and accompanying Annot p. 240; Commonwealth v. Hughes, 153 Ky. 34, 154 S.W. 399 (1913); Commonwealth v. Shields, 89 Pa. Super. 266 (1926). Neither the trial court nor the appellate court may compel a nolle prosequi; they can only suggest it. Annot, 35 LRA 701 (1895). And the power of the court to grant immunity is statutory, not constitutional. Ferrantello v. State, 158 Tex. Cr. 471, 256 S.W. 2d 587 (1953). In the absence of statute, it has no such power. People v. English, 31 Ill. 2d 301, 201 N.E. 2d 455 (1964). There is no statute empowering the trial court to do so, except for Ark. Stat. Ann. § 28-531 et seq. In our view, the court’s hearing appellant’s motion was proper and appellant should not be denied relief on the basis that her motion was in substance a plea in bar.
But determination of a claimant’s equitable entitlement to immunity, when opposed by the prosecuting attorney, should lie within the sound judicial discretion of the trial court, which should see that the public faith pledged by the public prosecutor, in the furtherance of justice, is kept by giving due regard to promises and inducements made and held out by him, when the claimant has fulfilled his agreement in good faith. State v. Sceresse, 84 N.M. 312, 502 P. 2d 1002 (1972) ; State v. Reed, supra, 127 Vt. 532; People v. Brunner, supra, 32 Cal. App. 3d 908; Commonwealth v. St. John, supra, 173 Mass. 566; Camron v. State, supra, 32 Tex. Crim. 180. See also, Wight v. Rindskopf, supra, 43 Wis. 344 (1877); People v. Johnson, 372 Ill. 18, 22 N.E. 2d 683 (1939); People v. English, 31 Ill. 2d 301, 201 N.E. 2d 455 (1964); U.S. v. Carter, supra. It is appropriate to consider the extent of the claimant’s performance of the bargain. People v. Brunner, supra. In doing so, it should be remembered that the primary purpose of the exchange is to facilitate the prosecution of crime, not to grant immunity. State v. Smith, supra, 12 Wash. App. 514. See Act 561 of 1973, preamble.
Although the state is not estopped by the unauthorized act of its agent, (State v. Smith, supra, 12 Wash. App. 514; cf. Pulaski County v. State, 42 Ark. 118; Terry v. Little Rock Civil Service Commission, 216 Ark. 322, 225 S.W. 2d 13), appellant should be equitably entitled to have her agreement with the prosecutor enforced if she complied with its terms in good faith and made a full, fair, free and candid disclosure of all facts pertaining to the crimes charged, even though that requires barring her prosecution for the crimes. There does not seem to be any doubt about her being ready, willing and able, but not called upon, to testify. The burden of proving the agreement and appellant’s compliance with it rested upon her. Turney v. State, 40 Tex. Cr. 561, 51 S.W. 243 (1899); State v. Moody, 69 N.C. 529 (1873). See also, People v. Johnson, 255 Ill. App. 288 (1929). In spite of the very unsatisfactory record, we might endeavor to determine whether that burden had been met if the trial court had ruled upon the matter. From our examination of the record, it is clear that the trial judge simply ruled that appellant was not entitled to immunity because no agreement for it had been approved by the court and the state had not sought approval or moved for a nolle prosequi.
It almost goes without saying that, whatever the agreement may have been, the statement given by her could not be considered voluntary. See Annot, 7 ALR 419; Sullivan v. State, 66 Ark. 506, 51 S.W. 828, 11 Am. Crim. Rep. 280. But appellant’s privilege against self-incrimination was fully protected by the return of the transcription of the tape on which it was recorded, and the tape itself, and the non-use of the statement or its content as evidence or in cross-examination, just as effectively as it would have been upon suppression of a confession as involuntary upon any other ground, unless the state discovered other evidence through it, either directly or indirectly. But this is the basis of another asserted ground for reversal, i.e., that the testimony of Stephens should have been suppressed as fruit of the poisonous tree. The trial court held that it was not. We must affirm that holding, because it was not clearly against the preponderance of the evidence.
It is appellant’s contention that Stephens’ plea of guilty and his agreement to testify against her was the result of her giving her statement. But there is evidence to the contrary (even though appellant failed to abstract it), and some of the facts are undisputed. Stephens testified substantially as follows:
The first or second time I saw my attorney, Bill Ross, I advised my attorney that I wanted to enter into negotiations with the prosecuting attorney’s office for a negotiated plea. I believe this was in the month of August. These negotiations were continued up until the November term of court with my approval. On November 5, I assumed, because I know Pamela Hammers, that she had made a statement involving me in this crime. I continued to approve my attorney’s efforts to negotiate a plea and repeatedly asked for a polygraph test. I had not made a complete statement to my attorney. I took the polygraph test on March 7, 1976. I entered a plea of guilty on March 8. I had never talked to either of the prosecutors about this crime. A day or two after I was sentenced, I made a statement.
Ross testified substantially as follows:
I was appointed as counsel for Stephens on August 6 and had the initial interview with him on August 8. I had his custodial statement August 7. I had the custodial statement made by Pamela Hammers. I took a statement from Stephens who told me the same thing he had stated previously. He told me that he did not kill the girl, but that Hammers did. He was going to testify that she did the actual killing, but he helped her dispose of the body. In his custodial statement all he said was, “Talk to Pamela first.” I negotiated with the prosecuting attorney on the basis of time only, beginning in August, up until I convinced the prosecuting attorney to give him a lie detector test. As early as October, up to the time he ultimately plead guilty and agreed to testify, the only difference in the negotiations was roughly 15 years. Stephens first indicated his willingness to testify in October or November. At one time I was negotiating for time and that was one of the elements on which I was negotiating with the prosecuting attorney. At one time, I was negotiating for a plea of murder two and testimony in November. I can’t say for sure that we ever discussed the fact that he would testify before the November term. It had to be before the case was set for trial in the November term of court. Prior to the November term, he had been offered a term of 45 or 50 years and I had offered to take murder two and testify at that time. Before Pamela’s statement was taken, we started negotiating for a reduced sentence, based upon his prosecuting testimony. That offer was rejected at that time. We tried to negotiate, after the witness left and the trial broke down, in exchange for testimony, but the prosecution rejected that.
Pamela Hammers’ statement was given in early November. During the November term, I learned that Hammers was going to testify against him. Hanks had told me that she was not going to testify at all. Then I heard he was talking to the prosecuting attorney. Stephens advised me she was going to testify. I think he surmised it. He asked me about it and asked me if they would be willing to give him a murder two for prosecution at that time. They were talking to the prosecuting attorney and we were talking to him. Nobody had reached a “negotiation.” We were both trying to get to the same place at the same time and we didn’t make it.
In November Stephens was only aware that she had implicated him. We were informed during the November term of court that a statement was given and that she was going to testify. I obtained a copy of her statement February 8, only for the purpose of preparing for trial. He read the statement right after February 8. The statement had no relationship to any negotiations. The only thing we were doing from August 1 on was negotiating for time, until I convinced the prosecuting attorney he should let Stephens take a lie detector test. That was the turning point. After he took and passed the lie detector test, I was able to negotiate the time down to a certain time of 31 years, after the prosecuting attorney read the results of the lie detector test. There was no agreement to reduce the charge to murder two. When we went to Harrisburg on March 8 to enter the plea, the prosecuting attorney had some skepticism about pleading to a term of years, rather than life for murder one, so the plea was to murder two and on the other charge. Stephens did not make a statement until after he took the polygraph test. It was after he was sentenced on March 8.
The burden was on the state to show that it had an independent, legitimate source for Stephens’testimony. Murphy v. Waterfront Commission of New York, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964); Kastigar v. U.S., supra, 406 U.S. 441. The trial court found that it could hardly be said that the existence of the testimony of, or evidence known to, Stephens was discoveied or made known by reason of any statement obtained from Pamela Hammers, that the facts and circumstances disclosed did not bring the case under the “fruit of the poisonous tree doctrine,” and that the state would not be deprived of his testimony in a prosecution of appellant. This finding of fact should be reviewed in the same manner as we review the finding that a confession is voluntary, i.e., it should not be reversed unless it is clearly against the preponderance of the evidence. See Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. We cannot say that the court’s finding was clearly against the preponderance of the evidence.
Appellant also contends that the corroboration of the accomplice was not sufficient to sustain the jury verdict. The corroborating testimony given by Thomas Griffin and Mae Holcott was not fully abstracted by appellant. Griffin had known Stephens and his mother, Mae Holcott, since 1961. He was also acquainted with appellant. He was visiting in the residence of Mrs. Holcott on July 26 and 27-, 1975, where appellant and Stephens were also staying. On the evening of the murder, after dinner they borrowed Griffin’s car and left about 7:00 or 7:30 p.m. Griffin saw them around 7:30 or 8:00 a.m. the following day. The three left for California about 5:00 or 5:30 p.m. on that day which was Sunday. They arrived in California on Tuesday night or Wednesday morning and checked into a motel in Santa Anna. They all went to visit Ms. Kay Areman the next day and, on their return trip, Griffin was stopped at about 10:30 p.m. for running a red light. While the police officer was checking identification, Hammers and Stephens disappeared. The policeman then held the car and Griffin had to take a cab. When he returned to the motei, appellant and Stephens were there. When Griffin asked why they ran, Stephens said, in the presence of appellant, that they had killed a girl in Blytheville, strangled her and thrown her in a ditch. According to Griffin, appellant said, when he asked her, “Yes, that is true.” Griffin had two telephone conversations with Mrs. Holcott, Stephens’ mother. When appellant and Stephens rejected Griffin’s suggestion that they surrender, he reported the matter to the officers. Griffin said that he had noticed something on the floor of his car that appeared to be blood with “vomit” in it the morning after he loaned the car to Stephens and Hammers. When he asked about this, Pamela explained that Stephens had ulcers and he had vomited in the car and she would clean it up.
Mae Holcott testified that she had visited appellant in the Mississippi County jail every Sunday and, on one occasion, had asked her if Stephens had done “thfs thing” and appellant responded, “You can die knowing that Eddie Stephens hurt no one, that I strangled her,” and then put her hand over her mouth and said she was sorry, she couldn’t tell me more. Mrs. Holcott said she reported this to the sheriff, who advised her to tell her son to tell the truth.
This testimony was sufficient for corroboration. Corroborating evidence need only tend to connect the defendant with the crime. Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202. This it did.
We find it impossible to affirm the judgment in this case on the record before us, at least partially because of the trial judge’s holding that lack of court approval of the agreement barred relief to appellant. The situation here is somewhat similar to that in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), where the United States Supreme Court held that a hearing as to the voluntariness of a confession might be held in a separate post-trial hearing. Appellant is entitled to have a resolution of the factual issues and a determination whether the agreement made, even though unauthorized, should be enforced on equitable principles. Consequently, we vacate the judgment and remand the case to the circuit court with directions to that court to conduct a hearing from which it shall determine from evidence there presented the terms of the agreement and whether appellant is entitled to relief from her prosecution on equitable principles. If the circuit court finds she is entitled to relief, it shall set aside the jury verdict and dismiss the charge against appellant. If the court finds that appellant is not entitled to relief, it shall reinstate its judgment. Of course, the action of the trial court is subject to appellate review, as in other cases.
The judgment is vacated and the cause remanded for further proceedings consistent with this opinion.
This defendant was charged as “James E. Stevens. ” When he testified at the trial his name was “Stephens.” We will use the latter spelling throughout this opinion.
According to the statements of the attorneys a memorandum or document evidencing the agreement was to have been prepared. Appellant’s attorney stated that he and his co-counsel understood that they could prepare such a memorandum and that the deputy prosecuting attorney would file it on the morning of Stephens’ trial. Such a memorandum does not appear in the record and this is regrettable. Excellent guidelines for procedures in cases of this sort appear in U.S. v. Ford, 99 U.S. 594, 25 L. Ed. 399 (1879) and People v. Brunner, 32 Cal. App. 3d 908, 108 Cal. Rptr. 501 (1973); People v. Bryant, 409 Ill. 467, 100 N.E. 2d 598 (1951).
Under this doctrine, one charged with a capital offense could confess the charge and accuse another as his accomplice in order to obtain a pardon. If the one charged as accomplice was found guilty, the approver was entitled to his pardon, but if the alleged accomplice was acquitted, judgment went against the approver. See U.S. v. Ford, supra.
In a sequel to this case, we learn that Plant, the defendant who benefited from the unauthorized promises of the prosecuting attorney, was tried for aggravated burglary connected with the murder on which the New Mexico Supreme Court held that Plant was entitled to immunity. State v. Plant, 86 N.M. 2, 518 P. 2d 961 (1974). | [
-80,
-20,
-60,
125,
43,
96,
56,
-8,
-126,
-93,
117,
119,
41,
-33,
65,
53,
59,
117,
85,
41,
-64,
-89,
55,
65,
-13,
-45,
-16,
-41,
51,
74,
-25,
-35,
76,
114,
-56,
113,
-30,
-118,
-27,
18,
-114,
-103,
-88,
-32,
-46,
-110,
32,
119,
86,
15,
49,
-82,
-77,
42,
30,
-25,
105,
46,
78,
45,
-60,
33,
30,
-115,
-1,
0,
-77,
-26,
-100,
5,
-16,
60,
24,
49,
1,
-24,
51,
-106,
-122,
84,
77,
-119,
-116,
98,
98,
33,
-51,
-51,
-96,
-104,
111,
110,
-99,
-122,
24,
65,
75,
73,
-73,
-43,
90,
80,
39,
122,
-2,
-51,
124,
100,
9,
-49,
-106,
-79,
-81,
54,
86,
51,
-21,
5,
48,
117,
-51,
114,
85,
37,
90,
-109,
-118,
-108
] |
Conley Byrd, Justice.
Pursuant to an ordinance establishing the Central Little Rock Plan for zoning, the Board of Adjustment approved the application of Arkansas Waffles, Inc. for a conditional use permit authorizing the operation of a restaurant on the property located immediately south of the Texaco Station at 9th St. and the Interstate 30 service road subject to certain conditions — i.e. that the property be oriented toward the Interstate service road and that certain screening and set backs be agreed to by the appellees. The appellants, Quapaw Quarter Association, Inc. and Mart Vehik, appealed to the circuit court. Between the time of the determination by the Board of Adjustment and the hearing in the circuit court, the City of Little Rock passed a resolution requesting the Board of Adjustment to refuse permits for uses of property not allowed in the “E-l ” Quiet Business Zoning District in the area adjacent to McArthur Park.
Upon a trial de novo, the circuit court granted the conditional use of the property subject to the same conditions and restrictions placed thereon by the Board of Adjustment. From that order, the appellants appeal contending that the decision of the trial court is unreasonable, arbitrary and capricious and that the circuit court erred in failing to give effect to the resolution of the City of Little Rock.
The record shows that the Central Little Rock Zoning Ordinance, hereinafter referred to as CLR Plan, established six zoning classifications within the downtown area. One of these classifications is HR, High Density Residential. Under the terms of the CLR Plan the property in question was zoned HR which expressly stipulated four categories of use groups: (1) Community Facilities — Group B; (2) Single family dwellings; (3) Multi-family dwellings; and (4) Townhouses. Additionally, the CLR Plan conferred upon the municipal Board of Zoning Adjustment the authority to grant “conditional use permits” in areas zoned HR for the following:
Community Facilities: Group A T—
Community Facilities: Group C
Apartment hotel cn
Professional offices and related facilities Tt-
Hotel, motel and amusement iri
Convenience goods and services SO
Eating place, other than drive-in. r-
The authority of the Board of Adjustment with regard to granting conditional use permits is set forth in Section 43-37 of the CLR Plan as follows:
“Sec. 43-37 Conditional Use Permit.
A conditional use permit may be granted by the board of adjustment of the city of Little Rock upon written application from the property owner or his authorized agent and after submission of a site development plan. In granting a conditional use permit the board of adjustment shall impose such requirements and conditions, including bulk and area requirements, in addition to those expressly stipulated in this article for the particular use, as the board may deem necessary for the protection of adjacent properties and the public interest. The board should be cognizant of the intent of Section 43-45 ‘Historic and Architectural Preservation,’ of this article. On each application for a conditional use permit the housing authority will submit a recommendation upon request by the board of adjustment.”
Section 43-45 of the ordinance, referred to above, reads as follows:
“Section 43-45 Historic and Architectural Preservation.
Owners and developers of properties which are recognized as historically or architecturally significant, should endeavor to preserve and enhance the architectural and historic qualities of these properties.”
Anderson, American Law of Zoning, Vol. 3, § 15.01
(1968) explains the purpose of Conditional Use Permits in zoning and planning as follows:
“Nearly all zoning ordinances make some use of special-permit procedures. Most ordinances impose a broad division of land uses and, in addition, provide that specified uses may be established or maintained in named districts, only pursuant to a special permit issued with the approval of the board of adjustment. These regulations empower the boards to issue permits after notice, hearing, and specified findings. They detail certain standards which must be met before a permit may be issued; commonly, they authorize or require the board to impose conditions designed to protect abutting landowners and preserve the character of the neighborhood. The special-permit technique is employed to control uses which are regarded as especially troublesome, and to soften the impact of certain uses upon areas where they will be incompatible unless conditioned in a manner suitable to a particular location.”
While it is true that the circuit court hears appeals from the Board of Adjustment de novo, our review of the decision of the circuit court is only to see if the circuit court committed an error prejudicial to the complaining party — i.e. we must sustain the findings of the circuit court if they are supported by any substantial evidence, Arkansas Power & Light Co. v. City of Little Rock, 243 Ark. 290, 420 S.W. 2d 85 (1967).
Several of the witnesses described in their testimony the location of the property for which the conditional use permit is sought. It is bounded immediately by a Texaco station on the north, an access road to Interstate 30 on the east, a vacant lot on the south, and McAlmont Street on the west. There was also testimony by Mr. William Putnam that approximately 77,093 cars per day pass by the subject property on Interstate 30, while 11,413 automobiles per day pass on the access road immediately east of the property. This totals 88,506 cars per day within 350 feet of the property.
Several witnesses testified that 911 McAlmont is a vacant lot and that there is nothing of architectural or historical significance on the property which could be preserved or enhanced.
Furthermore, witnesses testified that some of the single family residences which are bounded by McAlmont, the Interstate 30 frontage road, Ninth Street, and Tenth Street, are coming down rather than being maintained, that there is no renovation or restoration of dwellings going on on any part of the land, and that there are no structures with redeeming esthetic value or architectural significance on the land.
Some of appellant’s witnesses went so far as to say that while they objected to the proposal of Arkansas Waffles, Inc., they would not object to the restoration of a former residence, architecturally significant, into a restaurant at that location.
Consequently, when we consider the conditions imposed upon the granting of the conditional use for the protection of the adjacent properties, we cannot say that the findings of the trial court are not supported by any substantial evidence.
In Meyer v. Seifert, 216 Ark. 293, 225 S.W. 2d 4 (1949), we pointed out that an ordinance of a city cannot be repealed, amended or suspended by resolution. Consequently, we find no merit in appellants’ contention that the trial court should have considered the tardy resolution by the city.
Affirmed.
We agree: Harris, C.J., and Holt and Hickman, JJ. | [
113,
-5,
-44,
-20,
90,
65,
24,
-76,
99,
-85,
-25,
83,
103,
-8,
28,
41,
-21,
91,
116,
121,
-127,
-74,
67,
98,
-48,
-45,
-61,
71,
-6,
93,
100,
-121,
-52,
33,
-54,
85,
68,
-56,
-59,
92,
14,
5,
27,
65,
-47,
65,
52,
106,
88,
15,
17,
-97,
-77,
44,
24,
-63,
-84,
44,
89,
45,
81,
-6,
90,
-99,
-38,
7,
1,
116,
-104,
7,
-16,
72,
-104,
49,
44,
-88,
115,
54,
-106,
52,
79,
-101,
12,
41,
98,
10,
9,
-1,
-24,
13,
4,
-70,
-115,
-90,
-78,
25,
43,
2,
-106,
-108,
125,
6,
72,
126,
110,
-59,
91,
108,
-113,
-50,
-76,
-79,
-123,
121,
-122,
3,
-49,
71,
48,
100,
-50,
-26,
94,
-62,
21,
-37,
-42,
-48
] |
George Rose Smith, Justice.
Upon this second appeal, still without a trial on the merits, the facts and, essentially, the issues of law are substantially the same as they were on the first appeal. Journey v. State, 257 Ark. 1007, 521 S.W. 2d 210 (1975), cert. den., 423 U.S. 866 (1975). We again affirm the trial court’s denial of the appellant’s plea of double jeopardy, for much the same reasons that were stated in our first opinion.
In 1973 Journey was acquitted in a federal court at St. Louis upon a charge of transporting stolen jewelry in interstate commerce (from St. Louis to Little Rock). He was then charged in Pulaski County, Arkansas, with having knowingly possessed the same stolen property in Little Rock. He pleaded double jeopardy as a defense. Under the statutes then in force, Ark. Stat. Ann. §§ 43-1224.1 et seq. (Supp. 1975), we held that the plea was correctly denied, because the two charges did not involve the same offense within the legislative intent.
The pertinent statutes were then replaced by § 41-108 of the Criminal Code of 1976. Ark. Stat. Ann. § 41-108 (Grim. Code 1976). Journey renewed his plea of former jeopardy, on the ground that the Criminal Code provision greatly expanded the earlier statutory protection against double jeopardy. We agree that there are some differences in the two statutes, but we find no substantive change that entitles Journey to a dismissal of the charge now pending in the state court.
Section 41-108 of the Criminal Code consists of two subsections. Subsection (1), as the Commentary explains, closely approximates the substantive coverage of §§ 43-1224.1 and 43-1224.2, which we considered in the first opinion. Both the older statute and the newer one recognize the defense of former jeopardy when the two offenses arise from the same course of conduct and fall within a legislative purpose to prevent substantially the same harm or evil. Upon the first afjpeal we found no merit in Journey’s reliance upon the older statute as a basis for a claim of double jeopardy. The differences in the wording and in the apparent intent of the two acts are so slight that our earlier opinion is controlling with regard to Subsection (1) of § 41-108 of the Criminal Code.
Subsection (2), however, is new in that, as indicated in the Commentary, its enactment stemmed from the notions of fairness and finality that underlay the decision in Ashe v. Swenson, 397 U.S. 436 (1969). The test, however, under Subsection (2) is whether the first judgment — here the acquittal in the federal court — required “a determination inconsistent with a fact which must be established for the conviction” in the second prosecution. Journey argues that an essential fact — his possession of the jewelry in Little Rock with the knowledge that it was stolen — was necessarily found not to exist in the St. Louis case. That precise argument, however, was considered and rejected on the first appeal, w'hen we said: “It would appear, moreover, that one might ‘cause to be transported’ in interstate commerce, stolen goods he had never possessed or even seen. ” That pronouncement is still a correct statement and answers the argument that is made under Subsection (2).
Affirmed.
We agree. Harris, C.J., and Fogleman and Hickman, IJ- | [
112,
-22,
-3,
62,
8,
-32,
42,
60,
115,
-22,
101,
-45,
-91,
74,
4,
57,
-9,
-5,
84,
-23,
-44,
-105,
87,
97,
-14,
-69,
91,
-43,
-70,
-49,
-84,
-4,
76,
112,
-50,
-43,
102,
72,
-59,
90,
-18,
8,
56,
101,
120,
82,
52,
111,
86,
15,
-15,
-98,
-93,
43,
26,
76,
105,
44,
11,
-68,
80,
-104,
-110,
79,
-19,
4,
-93,
4,
-72,
4,
-12,
46,
-100,
49,
1,
120,
115,
-74,
-110,
-44,
105,
-103,
-116,
98,
98,
4,
21,
-57,
-72,
-120,
38,
115,
-99,
-89,
-48,
72,
65,
79,
-98,
-3,
122,
52,
32,
-8,
-17,
84,
17,
108,
5,
-50,
-108,
-93,
-95,
105,
-50,
115,
-29,
-95,
48,
117,
-52,
-30,
94,
87,
113,
-101,
-121,
-44
] |
Darrell Hickman, Justice.
This is an appeal from decisions of the Columbia Chancery and Probate Courts on three cases consolidated for trial.
Leona Dumas, former wife of Wray Dumas, filed a lawsuit to cancel a deed from Wray to his brother, Austin, alleging fraud; Wray’s daughter, Cecil Ray Dumas Acker, con tested the probate of his will as being a product of an insane delusion; and she also filed a suit to set aside the deed from her father to his brother alleging it was a product of an insane delusion.
The lower court tried all three cases at one time. The chancellor held Wray Dumas did sign the deed to defraud his wife, and the deed and will were the products of Wray’s insane delusion. Wray’s brother, Austin, appeals the decision and alleges four errors: (1) The court erroneously found Wray Dumas suffered from delusions; (2) The will was not a product of an insane delusion; (3) The deed was not a product of an insane delusion; and (4) The lawsuit filed by Leona to cancel the deed is now moot.
The only real issues are did Wray Dumas suffer from an insane delusion and were the legal instruments products of that delusion?
This is a tragic family matter and some background is necessary to understand the legal problem. When Wray died in October, 1975, he was 67 years old. He and his wife, Leona, were married in 1928 and they had only one child, a daughter, Cecil Ray. Leona testified their trouble started in about 1957 when Wray had an affair with another woman. She forgave him, but noticed he could not get out of his mind the idea that their friends in church knew about his affair and were watching him. She testified in great detail about the general deterioration of his conduct; his drinking, cursing and violent nature.
In 1969 his daughter initiated proceedings to have him committed to the Arkansas State Hospital. Dr. Joe Rushton, his family doctor, stated Wray had a complete change of personality in 1969. He diagnosed Wray’s illness as paranoid schizophrenia. Dr. Ruston stated he saw Wray after he was released from the hospital, and although he was improved, he soon reverted to his former mental condition.
The state hospital psychiatrist testified Wray was in an involutional paranoid state. He said Wray was unable to separate the real from the unreal and suffered from delusions of persecution.
In 1972 Leona left Wray and Filed for divorce. The divorce was granted in April of 1974 and she was awarded $17,000.00 cash and $100 a month alimony. The will was signed in March, a month before the divorce; the deed was signed in September, after the divorce. Wray’s will left all his property to his nephew and brother. The deed for 37 acres, to his brother, had “gift” handwritten on it. Wray did not pay Leona alimony and she obtained a judgment against him for $1,400 on April 16, 1975.
Leona did not collect the judgment in full and Filed suit in May of 1975 to set the deed aside, alleging he was trying to defraud her. Wray died in October before the lawsuit could be tried.
Austin Dumas argues on appeal that there was no insane delusion, and even if there was, the documents were not a product of the delusion. Normally, a case involving a will or deed turns on the mental incapacity of the maker or the undue influence of a friend or relative. However, Arkansas does recognize the principle that a legal instrument may be set aside if it is the product of an insane delusion. An insane delusion is one which has no basis in fact; the conception of a fact which in reality does not exist. If there is any basis in fact for the delusion, then it is not such a delusion to warrant setting aside a legal instrument. Furthermore, the instrument must be the product of the delusion. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908).
Wray Dumas was a sick man. The doctors testified he suffered from a persecution complex, had hallucinations and was a paranoid schizophrenic. He became obsessed with the idea that the people in his church were against him. His friends from church, one after the other, testiFied there was no truth to his idea that everyone in church watched him. He tried to get his family to leave the church. His wife of many, years stated she had to leave him because she couldn’t stand his conduct any longer. His daughter, apparently very devoted to him, tried to get him medical help, and he turned on her. Even his grandson, by his only child, testiFied about his deteriorating mental condition.
The appellant argues that since the church did have a meeting to apologize to Wray, there is proof that the delusion had some basis in fact. The members all stated Wray demanded a meeting and an apology. There was a meeting of the church. members and they apologized to Wray for whatever it was they were accused of doing; however, not a single witness felt that there was any basis for Wray’s accusations nor any real reason to apologize. Shortly after the meeting, Wray quit attending church.
The doctor from the state hospital testified at length about Wray’s delusion. Some of his testimony is particularly relevant.
Q. Insofar as his ability to function outside this delusional area, would you explain how this operates and if in fact it does operate on that basis?
A. With exceptions of delusional symptoms, in that he would not go to-ehurch because he felt they owed him an apology and he would not comment or expound on the difficulty he was having with his daughter and son-in-law and marriage, outside of that he was able to work and carry on business and transact business. Tr. 171.
Q. Wray Dumas was able to function in society, was he not?
A. Outside of his delusional system, yes. Tr. 173.
MR. CHANDLER: If in fact Wray Dumas was operating with delusions that related to his daughter, could those delusions tend to play any part in his decision at the time he executed a Will?
A. I think it would. Tr. 174.
In summary, the doctor testified that the delusional system involved his church and his family and that to Wray, the trouble he was having at church and with his family was very real. However, the record does not reveal any basis in fact for his feelings against his family and the members of his church and, therefore, the finding of the chancellor that there was a delusion is supported by a preponderance of the evidence.
It should be emphasized, this is not a case involving merely an eccentric person, who out of simple resentment or revenge, leaves his property to someone other than his immediate family. Wray tried to get his family to quit going to church and after his commitment to the state hospital and the divorce, became convinced that they were all against him. His will was changed in March before the divorce to leave his daughter nothing; the deed was signed after the divorce, after his former wife tried to collect alimony from him. The finding of fact that Wray signed the legal instruments because of a delusion is not against the preponderance of the evidence.
We have held many times that in matters regarding credibility of witnesses and findings of fact, we will affirm the chancellor if the findings are not against the preponderance of the evidence. Simpson v. Martin, 174 Ark. 956, 298 S.W. 861 (1927).
It is difficult to understand the appellant’s argument the deed question is moot. The lower court found, as a fact, the deed was made to defeat Leona’s claim for alimony. This finding, together with the other findings, will insure an orderly disposition of the probate of Wray’s estate. Any cause of action or claim any party may have as a result of this litigation is a separate matter. We find the chancellor acted correctly when he made separate findings for all three lawsuits.
Affirmed.
We agree. Harris, C.J., and Fogleman and Roy, JJ. | [
48,
-19,
-36,
46,
26,
96,
72,
-102,
114,
-61,
53,
123,
-17,
-6,
80,
45,
-78,
105,
100,
107,
-43,
-73,
7,
32,
-14,
-13,
122,
-43,
49,
89,
-12,
23,
76,
104,
-2,
-107,
-30,
66,
-27,
88,
-126,
19,
-119,
100,
-35,
-45,
48,
43,
12,
15,
85,
-66,
-41,
46,
31,
78,
104,
110,
91,
0,
88,
-96,
-99,
13,
-19,
22,
-95,
6,
-68,
9,
-22,
28,
-104,
48,
1,
-84,
51,
-74,
-122,
100,
66,
-119,
12,
98,
102,
0,
-55,
-25,
-40,
-120,
-113,
-10,
-108,
-121,
-122,
33,
73,
109,
-74,
-39,
122,
92,
43,
-16,
-24,
93,
44,
104,
8,
-53,
-106,
-95,
-92,
48,
-100,
25,
-13,
61,
52,
113,
-53,
-30,
85,
66,
113,
-101,
15,
-73
] |
Elsijane T. Roy, Justice.
This action involves an alleged easement running from a county road approximately one mile across appellants’ farmland. The trial court found that appellees, whose farm properties lie to the south of appellants’ land, had established an easement by prescriptive right and permanently enjoined appellants from restricting appellees’ use of the roadway. Appeal was brought from this decree.
The testimony established that a roadway had existed over appellants’ land for a number of years but public use had been abandoned for more than the statutory period. Appellees had continued their use under claim of right, contending the use was not permissive, while appellants’ position was that no use of the roadway was made except permissive.
About 1969 or 1970, appellants’ predecessor in title, Charles Duff, put a locked gate across the entrance of the roadway claiming damage to his pastures by misuse of the road. There was testimony that Elton Robinson, predecessor in title to appellee Yvonne Workman, and appellees Toney Robinson and Warren G. Southard reached an agreement with Duff under which the existing roadway would be moved to an old roadbed still evident but grown up with trees and vines and covered with trash. The old roadway was bulldozed to make it passable and a new gate complete with chain and lock was installed. Expenses for the work were shared, and the Robinson brothers and Southard were each given a key to the lock. Elton Robinson testified that the improvements were made in June, 1970.
In August, 1970, Duff executed a contract of sale with appellants for his farm property. Appellant Chester Warren testified he was unaware at that time of any easement across the property. In February, 1971, Duff sent a letter to appellants, who were living in Michigan, explaining the use of the road and enclosed a key to one of the locks on what he termed a “partnership” gate. Appellants claimed they did not see the road until July, 1971, and that they would not' have bought Duff’s farm had they known of the partnership gate.
After appellants took possession in December, 1971, Warren testified difficulty was experienced in keeping the gate closed and several of their cattle were lost. Early in 1976, appellants removed the gate and fenced off the road, refusing to permit further use of it by appellees.
Appellees thereafter filed this action on March 18, 1976, claiming the road was a public roadway and they had established their right to use it by adverse claim to that of the owner.
The trial court found the public’s right of access to the road was estopped in 1969 or prior thereto but that all of the appellees had acquired a right by prescription. The decree stated appellees have an easement described as “the present and existing roadway” across appellants’ property. The court refused to impose any other conditions on the use of the road.
Appellants contend the use of the road was permissive and did not ripen into an easement by prescription.
The case before us is much like that of Chaney v. Martin, 205 Ark. 962, 171 S.W. 2d 961 (1943). There Chaney plowed a roadway that ran across his land which had been used for some time by Martin without permission. The parties then agreed upon a new route which was used for several months until another dispute arose and gates were placed across the access point. The Court found that Chaney recognized Martin’s entitlement to a right of way by providing him with a new route which Martin had accepted. The Court stated:
We do not deem it necessary to decide whether the proof in this case justified the finding that appellee had acquired by prescription an easement along the old route used by him in crossing appellant’s land. Regardless of whether appellee had acquired such right, it is shown by the evidence that appellant recognized this right to the extent that he provided for appellee a new right-of-way across his land, .... * * *
This exchange of routes, accompanied by surrender of the old route and acceptance and continued use of the new route by appellee, as was shown by the evidence in this case, was effective, even in the absence of any writing to evidence the agreement. “An oral grant (of an easement) will be upheld where it is accompanied by consideration, action and reliance on the grant, and by the grantees being permitted the granted use.” 28 C.J.S., p. 678. Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190; Kellums v. Richardson, 21 Ark. 137; Neil v. Neil, 172 Ark. 381, 288 S.W. 890.
An oral grant of an easement will be upheld where the grantee has made valuable improvements in the right of way without objection from his grantor. See Wynn v. Garland, 19 Ark. 23 (1857).
Appellants’ predecessor in title, Duff, allowed Elton Robinson and appellees Toney Robinson and Southard to share the cost of the new roadway and gate and acquiesced in their use of the road. It therefore was not error to find that these appellees have a right to use the road in question.
However, it was error to find that appellee Elmer Cudd may share in the use of the road. Cudd testified he had not traveled the road for seven years or more and not since the route was changed, and that he never had a key to the gate installed by Toney Robinson. He was not a party to the agreement with Duff and contributed in no way to relocating the road.
Appellee Yvonne Workman is a party to this actipn by virtue of purchasing the property owned by her father, Elton Robinson, by deed dated April 7, 1975. Since we have recognized Elton Robinson’s right to the easement as established by oral agreement, we find appellee Workman has a right to use of the road by virtue of the deed from her father.
In 28 C.J.S. Easements § 46 (1941) it is stated:
Easements appurtenant to land may be conveyed with a conveyance of the land. Where an easement is annexed as an appurtenance to land by an express or implied grant or reservation, or by prescription, it passes with a transfer of the land although not specifically mentioned in the instrument of transfer.
Appellants’ allegation that no mention is made of the easement in the conveyance to Mrs. Workman does not preclude her right thereto. “ * * * No mention of the easement in the transaction or instrument of transfer is necessary, as it accompanies the dominant tenement as an appurtenance thereof, if not specifically excluded. * * * ” See 3 Powell, The Law of Real Property par. 418, at 526.1 (Rev. ed. 1977).
Appellants also contend that if an easement is found to exist, the trial court erred in not imposing any conditions or limitations on its use. The preponderance of the evidence reflects that appellees’ use of the road was subject to the conditions imposed by Duff at the time of the mutual agreement of the parties. The conditions were that the gate would be locked, the public would be kept out and only the rebuilt roadway would be used.
Accordingly we find the easement is subject to the same conditions that existed at the time the agreement was entered into by the parties.
Affirmed as modified.
We agree. Harris, C.J., and George Rose Smith and Holt, JJ. | [
-12,
-20,
-100,
13,
75,
98,
24,
-104,
67,
-93,
-28,
83,
-81,
82,
4,
35,
-11,
109,
101,
123,
-59,
-78,
119,
-125,
-14,
-13,
-45,
-35,
-78,
73,
-82,
87,
76,
48,
-54,
93,
102,
-128,
-83,
26,
-34,
15,
-101,
101,
-39,
80,
60,
43,
84,
79,
113,
31,
-14,
46,
49,
-53,
41,
44,
79,
45,
88,
-8,
-67,
13,
122,
6,
48,
70,
-72,
1,
122,
43,
-104,
57,
1,
-8,
115,
-94,
-105,
124,
11,
-101,
8,
6,
98,
17,
100,
-49,
-20,
24,
14,
114,
13,
-122,
-64,
24,
83,
-94,
-65,
-99,
112,
48,
100,
-2,
-28,
77,
29,
104,
4,
-49,
-110,
-79,
-123,
-72,
-124,
1,
-29,
45,
48,
113,
-57,
-26,
93,
65,
113,
-101,
-122,
-125
] |
Elsijane T. Roy, Justice.
We have before us the second chapter of this litigation. Appellants as minority stockholders of Ballman-Cummings sued that corporation and Fort Smith Chair Company, seeking to enjoin a proposed partnership between the two corporations or, alternatively, seeking appraisal and payment of the fair value of their stock pursuant to the provisions of Ark. Stat. Ann. § 64-707 (Repl. 1966). After a hearing on the issue of appraisal only, the trial court held there was “insufficient evidence to establish a cause of action.”
On appeal to this Court from the dismissal of the action, we remanded the proceeding in 254 Ark. 570, 495 S.W. 2d 509 (1973). In the opinion we stated the law recognizes “de facto mergers — an association under the guise of a partnership whereby one of the corporations loses its identity as such and is actually controlled by the management of the partnership.” If this occurs the dissenting shareholders are entitled to an appraisement and cash payment for their shares. We held that whether there had been such a merger was to be determined by the trial court based upon a complete hearing, and since appellant-stockholders had made a prima facie showing of a de facto merger or consolidation it was error to sustain a challenge to the sufficiency of their evidence.
Over the objections of the minority stockholders Ballman-Cummings amended its charier to permit it to enter into partnership agreements, and Ayers Furniture Industries was established, consisting of two partners, BallmanCummings Furniture Company and Fort Smith Chair Company. Appellants formally notified Ballman-Cummings that they were demanding the “fair value” of their stock pursuant to the provisions of Ark. Stat. Ann. §§ 64-707 and 64-804 (Repl. 1966). When the company refused to make such payments appellants instituted action to enforce their rights as dissenting stockholders. The members of the Ayers family of Fort Smith, by virtue of their stockholdings, controlled both corporations and the corporations had interlocking directors. John Ayers is the chief officer of BallmanCummings, of Fort Smith Chair and the general manager of the partnership.
The partnership agreement provides, in Article II, § 5: “The partners shall designate one individual as a General Manager of the partnership who will be fully authorized to conduct the business and affairs of the partnership.”
Article III of the agreement provides:
Section 1. The partnership shall purchase from each partner, f.o.b. the respective manufacturing plants, all furniture produced by either partner.
Section 2. The partnership shall pay for said furniture ninety (90) per cent of the listed sales price of the furniture, which amount shall be credited to the account of the partner on the books of the partnership at the time of delivery.
Section 3. Either partner may, at any time after delivery of furniture to the partnership, upon demand receive payment of the purchase price of furniture sold to the partnership.
Section 4. The partnership shall establish necessary warehouses in Fort Smith and elsewhere, as required, to store furniture purchased from the partners. Risk of loss is on the partnership after the furniture leaves the shipping dock of either partner.
Section 5. The partnership shall maintain a sales organization, prepare and distribute appropriate catalogs and other advertising material, and pay salesmen’s commissions. The partnership shall be responsible for all merchandising functions in connection with the promotion and sale of furniture.
Section 6. The partnership will be responsible for the billing of its customers and the collections of its accounts with such customers. The partnership, as owner of such accounts receivable, may pledge or sell such accounts as it may deem necessary or desirable. Risk of loss on accounts receivable shall be on the partnership.
Section 7. The partnership shall be responsible for the distribution of furniture to its customers, and for the return of furniture when for any reason it is not accepted by the customer. In the event furniture is returned for reasons of defective manufacture, the partnership shall be entitled to return the same to the partner who produced it, and shall be entitled to credit on its account with such partner.
Section 8. Each partner agrees to provide for the use of the partnership and at its own expense, certain executive, administrative and clerical employees, as may be mutually agreed upon by the partners.
Prior to formation of the partnership, BallmanCummings had shown a net operating profit in all years except one since the early 1950’s. However, beginning with establishment of the partnership in 1967, the operations of Ballman-Cummings showed a net loss each year thereafter, leaving the company with a total capital deficit of $767,590 by December 31, 1970. The record shows assets are now being liquidated.
The only witnesses who testified were John Ayers, general manager of both corporations and the partnership, and Eugene Rapley, now employed by Riverside Furniture and formerly vice president and sales manager of BallmanCummings.
Ayers’ testimony reflected that all sales of furniture were made by employees of Ayers Furniture Industries; that purchasing for both operations was handled by the partnership with one comptroller. Before the partnership both companies had separate methods of invoicing and selling furniture. After the partnership was formed, all invoices were issued under the name of Ayers Furniture Industries. Ayers Furniture would also receive the payment for the invoices. All advertising and marketing were done under the name of Ayers Furniture Industries. Sales lists, invoices, etc. for both companies were published under the name of Ayers Furniture Industries, with the individual corporate names also being shown.
Ayers also testified that he and Tom Condren, former sales manager of Fort Smith Chair, and design and development manager of the partnership, and Gene Rapley were responsible for the decisions as to what prices were put on the price list issued by Ayers Furniture. When quizzed about Ballman-Cummings’ losses after the formation of the partnership, Ayers stated they were apparently caused by “loss cycles” and the loss of the “top production manager.” No explanation was given as to why some corrective measures were not taken after the initial big loss.
The partnership was dissolved and Ballman-Cummings still exists as a corporation but has no operations for manufacturing furniture. It has a “negative net worth position of . . . around $700,000.” The Board recommended liquidation to the stockholders of Ballman-Cummings. Fort Smith Chair is still in the manufacturing business and continues to market under the name of Ayers Furniture Industries and did make a profit in 1971, 1972 and 1973.
Rapley testified: The name Ballman-Cummings had good recognition with the dealers during his tenure there. Most of the dealers they sold to had dealt with BallmanCummings for a considerable period of time. Prior to the formation of the partnership the offices of Ballman-Cummings and the offices of Fort Smith Chair were at different locations, and the management of both companies was completely separate except for Ayers who performed common duties for both corporations. Thereafter the offices were at the same location and management functions were consolidated. Each company decided on its own designs, production schedules and credit policies. Each had its own comptroller and sales manager. After the formation of the partnership Rapley was sales manager of both Ballman-Cummings and Fort Smith Chair, as well as for the partnership; all sales were conducted through the partnership, there being no separate sales department in either Fort Smith Chair or BallmanCummings. Condren, formerly vice president and sales manager for Fort Smith Chair, became vice president and merchandise manager for the partnership. No furniture was manufactured without the approval of Ayers, Condren and Rapley, who decided jointly what type of merchandise would be manufactured and in what quantity. After formation of the partnership one person was in charge of making decisions concerning transportation and shipping for both companies.
Appellees argue forcefully that there has been no merger or consolidation — either de facto or de jure. Many factors which have remained the same in both Fort Smith Chair and Ballman-Cummings since the organization of the partnership have been called to our attention by appellees. One of the factors upon which appellees place special emphasis is that board meetings continued to be held by Ballman-Cummings and Fort Smith Chair. However, a review of the minutes reflects that almost no matters of any substance were taken up at the board meetings. All decisions of major importance were made by the partnership.
Appellees in support of their position rely heavily upon the case of Good v. Lackawanna Leather Company, 96 N.J. Super. 439, 233 A. 2d 201 (1967), and cases cited therein, including Applestein v. United Board & Carton Corp., 60 N. J. Super. 333, 159 A. 2d 146 (1960). Both cases set up key elements which should be considered by the courts in determining whether a merger has taken place. Appellees contend none of the factors indicating a merger are present in the case at bar. However, these are not the only factors to be considered, and this Court is required to look to substance not form in determining whether a de facto merger has occurred. The record indicates almost all the viable functions of Ballman-Cummings were taken over by the partnership.
In Rath v. Rath Packing Company, 257 Iowa 1277, 136 N.W. 2d 410 (1965), the court stated:
If, as we hold, this agreement provides for what amounts to a merger of Rath and Needham, calling it a Plan and Agreement of Reorganization does not change its essential character. A fundamental maxim of equity, frequently applied, is that equity regards substance rather than form. (Citing cases.)
It is our duty to look behind the form to the substance of the challenged transaction. Kurtz v. Humboldt Trust & Savings Bank, 231 Iowa 1347, 4 N.W. 2d 363. See also Gibson v. American Railway Express Co., 195 Iowa 1126, 1132, 193 N.W. 274; Metropolitan Edison Co. v. Commissioner of Internal Revenue, Third Cir., Pa., 98 F. 2d 807, 809; Chicago, S.F. & C.R. Co. v. Ashling, 160 Ill. 373, 43 N.E. 373, 375 (“There is no magic in words. Merely calling the transaction a purchase and sale would not prevent it from being a consolidation.”); 19 C.J.S. Corporation § 1604, page 1367.
* * * A shareholder who dissents to a merger may obtain the value of his stock if the right thereto is provided by statute, if procedure is established therefor and is followed by him. * * *
Applestein, supra, held that:
If, in truth and in substance the proposed plan in this case is a “merger,” why should the interested parties not frankly and honestly recognize it as such and pursue the statutory procedure . . . ? It is a fundamental maxim of equity that “Equity looks to the substance rather than the form.” For example, a deed absolute on its face, if in truth a mortgage, will be treated in equity as a mortgage. This court of conscience never pays homage to the mere form of an instrument or transaction, if to do so would frustrate the law or place justice in chains. The courts of equity in New Jersey, and elsewhere, have never hesitated to look behind the form of a particular corporate transaction and find that it constituted a corporate merger, if in fact and in substance it was a merger, regardless of its deceptive outward appearance. (Italics supplied.)
Without active participation in purchasing, pricing, customer sales, invoicing, collecting and with no effective control over management personnel, and with all important decisions made by the partnership, the Ballman-Cummings corporate image and goodwill were dissipated. Certainly all these factors constitute a fundamental change in operations causing Ballman-Cummings to become nothing but a shell of a corporation without substance, and a de facto merger has indeed taken place.
We do not mean that any and all partnership arrangements by corporations would constitute a de facto merger or consolidation. There are many combinations which would not lead to such a conclusion, but each case must be determined upon its own particular facts. Nevertheless, where the partnership arrangement results, as here, in an almost complete cessation of the operating functions of the corporation, such a de facto merger entitles the dissenting shareholders to the right of appraisal of their stock.
Reversed and remanded with directions to proceed in a manner not inconsistent with this opinion.
We agree. Harris, C.J., and Fogleman and Hickman, lb
Entries were made on the books to reflect credits due each corporation.
The exhibits reflect the corporate names were rather inconspicuously printed thereon.
Ballman-Cummings formerly sold to hundreds of customers, now only to the partnership. | [
112,
-1,
-4,
76,
8,
-32,
42,
-70,
90,
-86,
103,
83,
-23,
-8,
16,
127,
-30,
29,
81,
106,
-41,
-77,
7,
106,
-46,
-109,
-39,
-47,
-71,
79,
-74,
-34,
77,
48,
74,
-107,
-62,
-128,
-51,
28,
-50,
0,
10,
100,
-7,
-96,
52,
42,
20,
79,
113,
22,
-78,
45,
24,
-57,
76,
46,
111,
41,
80,
-7,
10,
-59,
95,
22,
49,
36,
-104,
37,
-40,
62,
-104,
48,
56,
-24,
18,
-74,
-126,
116,
41,
-39,
12,
42,
99,
2,
-127,
-25,
24,
-104,
46,
-66,
-99,
-89,
-13,
88,
3,
73,
-65,
28,
120,
19,
-117,
126,
-18,
13,
25,
108,
-125,
-114,
-42,
-95,
5,
118,
28,
23,
-21,
-121,
16,
117,
-52,
-30,
92,
71,
26,
-69,
-50,
-112
] |
Frank Holt, Justice.
Appellants sought an injunction to restrain appellees from interfering with their possession of leased property. The chancellor dismissed the suit and ordered the lease cancelled, in view of a zoning ordinance, for failure of appellants to comply with the use and occupancy provision of the lease. For reversal appellants assert that the court erred in finding that the lease placed an affirmative duty upon the appellants to operate a grocery store in the leased premises. We cannot agree.
Appellee Bell leased his grocery store to appellants in October, 1974, for a five year term. In January, 1976, Mr. Childs closed the store and continued to pay rent after he moved his stock to a nearby location. In March, 1976, Bell deeded the property to appellee G.H.W., Inc., (Goode, Henderson and Watson). Shortly thereafter, G.H.W., Inc., removed from the closed grocery store certain fixtures and equipment left by Childs. This resulted in appellants bringing an action to enjoin appellees’ interference and to compel the return of the removed articles. Appellees invoked Paragraph A-4 of the lease which provides:
To use and occupy the premises for retail grocery store outlet purposes only and for no other object or purpose without the written consent of the lessor. . . .
The property is located in a residential area and its nonconforming use as a grocery store was permitted by a grandfather clause inasmuch as it was used as a grocery store preceding the enactment of the zoning ordinance. The ordinance provides that the privileged status of the property would be lost if the “nonconforming building . . . becomes vacant” and “unoccupied” for a period of 18 months. There is a provision to toll this restriction if the vacant building is reoccupied within the 18 months’ limitation. Thus, a continuation of the grocery business was necessary, as expressly recited in the lease, to meet the requirements of the ordinance. In other words a vacant building, even though appellants continued to pay the rent, was not in conformity with the intentions of the parties as expressed in the lease. See Kahn v. Wilheim, 118 Ark. 239, 177 S.W. 403 (1915); and Amon v. Cummings, 67 Atl. 2d 687 (1949). Here the terms of the lease were clear and unambiguous.
In a subordinate argument, appellants assert that the closing of the store was consented to by the lessor Bell and, therefore, the lessor is estopped from requiring continuous operation of the store since he accepted rent payments for two months after the closing of the store. Suffice it to say that Childs wanted out of the lease and was aware of the negotiations to sell the building to appellee purchasers pending successful resolution of their efforts for permission from the city to remove the building, rebuild and then continue the nonconforming use. This was accomplished within two months after appellants closed the building and moved their grocery business to another location.
Appellants next argue that the appellee purchasers cannot complain of a breach of covenant which occurred before their purchase. The purchasers acquired the property subject to the restrictive covenant in the lease. Therefore, a sufficient answer to appellants’ contention is that the covenant by appellants to operate a grocery store was breached after appellee purchasers bought the property.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ. | [
-15,
-2,
-44,
12,
26,
-24,
18,
-98,
75,
-94,
39,
19,
-19,
-13,
84,
105,
-9,
77,
81,
121,
-125,
-77,
2,
96,
-44,
-5,
-45,
-43,
-79,
-49,
119,
79,
12,
33,
-62,
-41,
-58,
-126,
-55,
-34,
10,
5,
24,
96,
125,
4,
52,
123,
80,
15,
17,
-107,
-77,
44,
25,
-49,
104,
44,
73,
57,
-16,
-8,
-117,
13,
79,
23,
17,
53,
-112,
-57,
120,
74,
-112,
21,
9,
-24,
115,
52,
-122,
116,
15,
-101,
40,
98,
98,
-110,
9,
-5,
-20,
29,
46,
-39,
61,
-90,
-128,
24,
3,
34,
-66,
-100,
124,
4,
-44,
-2,
-26,
-124,
27,
124,
3,
-50,
-44,
-79,
7,
-8,
-106,
9,
-1,
3,
-79,
113,
-49,
-19,
92,
-57,
86,
-101,
-114,
-48
] |
John A. Fogleman, Justice.
This case is an appeal from a revocation of the suspension of a sentence imposed on a plea of guilty, entered on March 7, 1975, to a charge of possession of stolen property. The sentence was for five years less credit for 29 days’ pretrial incarceration. Four and one-half years of the sentence were suspended. On March 26, 1976, appellant was charged with burglary and theft of three chain saws and a gasoline can from the Molnaird Tie Mill. One John L. Green was also charged with this burglary and theft. On May 20, 1976, the prosecuting attorney filed a petition for revocation of the suspension. It was alleged in the petition that the suspension was conditioned upon appellant’s good behavior and that the “facts and circumstances surrounding the charges [of burglary and theft] constitute violations of the conditions of the defendant’s suspended sentence.”
Jack Molnaird, owner o'.' the tie mill and a deputy sheriff, testified that he discovered the burglary and found three Model T-40 chain saws and one gas can were missing and that he later identified the chain saws in the sheriff’s office. He said that he was able to identify them because of his familiarity with them through seeing them every day during the operation of his tie mill; and that he bought 12 of these saws, at least once a year, from a distributor and that he was considered a dealer in them. He had no serial numbers and admitted that it would be difficult to distinguish between two saws subjected to approximately the same use over a period of three to five months. He did point out that one of the saws had a new side piece and a new pull cord. Molnaird said that John L. Green had been employed by him for approximately three or four months on March 23, and 24, and that he questioned Green about the burglary on the morning he discovered it. He testified on cross examination that he first met John Lee Clemons when he sat in on a conversation between Clemons and Deputy Sheriff Camp Middlebrook, in the sheriff’s office the day after the burglary. The conversation concerned Jesse Ellerson and the burglary at the mill. He stated that Clemons had said that he had heard Ellerson and Green talking about some chain saws. Molnaird had heard that Clemons had been an informer for the sheriff’s office and said that a deal was made with Clemons to pay him $50 if he obtained information concerning Jesse Ellerson and the taking of the chain saws. Molnaird left $50 with the detective division and knew that it had been later paid to Clemons.
Green testified that, after he and Ellerson had drunk and gambled at different places in El Dorado, they went to Molnaird’s mill and took the three chain saws and a five gallon gas can, after having pried the lock off the door of the building in which they were kept. He said they put the saws and can in the trunk of his car, took them to Morningstar Road, and hid them in an old camper, refueling the car with the gasoline.
Green said that he had at first taken all the blame, but had been influenced to tell the truth by the remarks of a preacher. Green admitted a previous convictic n of burglary. He also admitted that he had previously said that Ellerson was not involved in this burglary and theft, because Ellerson was afraid that he would get more time than Green. He denied that John Lee Clemons had been with him when the saws were stolen and that he had talked with Clemons about them. He heard a recording of his saying that the saws were hidden on the Southfield road, but did not remember having said that. Green also testified that before the robbery he and Ellerson had played dice or craps at a local club, and that Ellerson had gambled with money.
Middlebrook investigated the burglary after it and the absence of Green from the mill had been reported by Molnaird. Clemons reported to this officer that he had some information about Green and Ellerson, and after Middlebrook arranged for a $50 “tip” for information, Clemons called the deputy and told him to pick up his car, that he had the chain saws in the trunk. When the officer stopped the car it was being driven by Clemons and Ellerson was a passenger. The car was taken to the police station with Clemons driving it. Clemons gave the officers permission to search the vehicle. They did and found the saws later identified by Molnaird. Ellerson was then arrested. Subsequently Green was arrested, but Clemons was not. Green made a confession implicating Ellerson, but exculpating Clemons. Clemons had not previously given information to Middlebrook.
Appellant first argues that he was denied due process of law in that the allegations of the petition for revocation gave inadequate written notice of the claimed violation of the suspension. The language in question is quoted as follows:
“That the facts and circumstances surrounding the above charges are violations of the conditions of Jesse Ellerson, Jr.’s suspended sentence. That based on these violations, the suspended sentence should be revoked, and Jesse Ellerson should be sentenced accordingly.”
This statement was preceded by an allegation that appellant had been charged on March 26, 1976 with the crimes of burglary and theft, by Information No. CR 76-66. We deem the petition sufficient to comply with the requirements of Ark. Stat. Ann. § 41-1209 (2) (Crim. Code, 1976) to meet due process requirements, and to support the trial court’s finding that appellant had committed the burglary and theft as charged by the state. We also note that appellant made no objection to the form and content of the petition for revocation at the time of the hearing, so these arguments are made for the first time on appeal.
Appellant argues that it was error to permit evidence about appellant’s participation in a dice game and that the petition did not specify this ground for revocation of the suspension. We would agree that the petition did not give appellant notice that revocation was sought on this ground. No objection was made to this testimony when it was offered, so appellant can hardly say that he was taken by surprise. Appellant also cross-examined Green about the dice game; and appellant admitted in his own testimony that he had been shooting dice on the evening before the burglary and theft were committed.
The court’s order of revocation constituted a clear and unequivocal finding that it had been established by a preponderance of the evidence that appellant committed the crimes and that the prosecution witnesses were more credible than appellant; but it further included a statement that, from appellant’s own testimony, he had violated the laws of the state by entering into a dice game in a public place and had thereby violated the good behavior terms of his probation. We do not consider that the revocation was based upon the conduct relating to the dice game but that the court merely called attention to the uncontradicted evidence on this score.
Appellant also argues that the court abused its discretion in revoking the suspension. The behavior of the defendant, in such cases as this, is regarded as a question of law for the trial court, and the exercise of its broad discretion in the matter cannot be reviewed in the absence of gross abuse of discretion. Fortner v. State, 255 Ark. 38, 498 S.W. 2d 671; Calloway v. State, 201 Ark. 542, 145 S.W. 2d 353; Jones v. State, 252 Ark. 477, 479 S.W. 2d 548. Of course, it would be an abuse of discretion to revoke a suspension of a sentence arbitrarily without any foundation in fact. Spears v. State, 194 Ark. 836, 109 S.W. 2d 926. Where the decision turns, as it does here, upon the credibility of the witnesses, this court cannot say that there was an abuse of the circuit court’s discretion. The trial court specifically found that the state’s witnesses were the more credible.
We do not agree with appellant that revocation of a suspension for a subsequent crime prior to conviction of that crime is an abuse of discretion in all circumstances. Under the circumstances prevailing, there was not an abuse of discretion. It is true that we have, as appellant points out, referred by way of dictum in Hawkins v. State, 251 Ark. 955, 475 S.W. 2d 887, to the American Bar Association “Standards Relating to Probation” in which it is said that a revocation proceeding based solely on another crime ordinarily should not be initiated prior to the disposition of that charge. It is significant, however, that this standard has not been adopted in Arkansas, in spite of the fact that it was specifically pointed out in 1971 that Arkansas law, as expounded in Gross v. State, 240 Ark. 926, 403 S.W. 2d 75 was contrary to the standard. See, Criminal Procedure: A Survey of Arkansas Law and the American Bar Association Standards, 26 Ark. Law Rev. 169. The decision in Gross, which stated many policy reasons for the Arkansas position remains the law in Arkansas.
Neither the same quality or degree of proof is required for the exercise of the court’s discretion to revoke the suspension of a sentence as is required for a finding of guilt beyond a reasonable doubt. Smith v. State, 241 Ark. 958, 411 S.W. 2d 510. Only a preponderance of the evidence was required for a revocation in this case [see Ark. Stat. Ann. § 41-1208 (4) (Crim. Code, 1976)], but a conviction would have required a finding of guilt beyond a reasonable doubt. The evidence incriminating appellant in a trial on the information charging him would have been based to a great extent upon the testimony of an accomplice and that of an informer, who might have also been an accomplice. (The latter was not a witness at the revocation hearing.)
Failure to corroborate the testimony of these two witnesses might have been fatal in a trial. Appellant asserts, however, that there was an abuse of discretion in that the testimony of the accomplice was not sufficiently corroborated at the revocation hearing. The requirement of corroboration is purely statutory [see Ark. Stat. Ann. § 43-2116 (Repl. 1964)], and it prohibits a felony conviction of an accused upon the uncorroborated testimony of an accomplice. 3 Wharton’s Criminal Evidence, 351, § 645 n. 53; 30 Am. Jur. 2d 327, Evidence § 1151; 23 CJS 82, Criminal Law § 810 (1) a. The statute does not relate to or govern the revocation of a previous suspension of sentence. Moreno v. State, 476 S.W. 2d 684 (Tex. Cr. App., 1972), 51 ALR 3d 684; Dunn v. State, 159 Tex. Cr. R. 520 (1954), 265 S.W. 2d 589. So, the uncor roborated testimony of an accomplice is sufficient basis for the revocation of a suspension of sentence. Hulsey v. State, 447 S.W. 2d 165 (Tex. Cr. App., 1969); Frick v. State, 509 P. 2d 135 (Okia. Cr., 1973). Furthermore, the circumstances surrounding the recovery of the stolen property might be taken as sufficient corroboration.
Otherwise, appellant’s principal attack is on the credibility of Green and is based upon Green’s having made prior conflicting statements and upon Green’s being accorded leniency. These facts were disclosed to the trial judge, and we cannot say that his holding on the question of credibility was erroneous.
We find no error on the points asserted by appellant, so the judgment is affirmed.
We agree. Harris, C.J., and Roy and Hickman, JJ. | [
16,
-32,
-40,
-100,
10,
-31,
42,
-68,
99,
-68,
119,
87,
-63,
-42,
73,
105,
-66,
127,
85,
121,
-55,
-78,
115,
-9,
-109,
-77,
-39,
-43,
48,
107,
-18,
-43,
26,
112,
-54,
121,
98,
-128,
-59,
92,
-114,
33,
58,
-30,
-39,
16,
48,
47,
4,
-117,
49,
14,
-93,
47,
20,
-118,
73,
40,
75,
41,
80,
121,
-78,
45,
-17,
50,
-109,
-122,
-120,
5,
-8,
61,
-112,
57,
18,
-6,
123,
-110,
-122,
-11,
5,
-115,
-116,
102,
34,
35,
-51,
-25,
-20,
-24,
-98,
122,
-99,
39,
-103,
104,
107,
8,
-78,
-35,
114,
48,
36,
126,
102,
-123,
22,
104,
36,
-57,
-74,
-109,
-87,
48,
-108,
-77,
-22,
39,
54,
113,
-51,
-18,
92,
36,
113,
27,
70,
-111
] |
John A. Fogleman, Justice.
Appellant is the trustee in bankruptcy for C. E. “Red” Higginbotham, Inc. who ex ecuted a document entitled “SUBCONTRACT AGREEMENT” with appellees, Pan Western Corporation, as “Contractor,” for heating and air conditioning of Phase I of Raintree Apartments in Little Rock. After the Higginbotham corporation had, from its viewpoint, completed the job, it filed a voluntary petition in bankruptcy. Appellant then served notice of intent to file a materialman’s and laborer’s lien for $12,300, the alleged balance due on the $123,000 contract with Pan Western, and thereafter filed a foreclosure suit. Appellees denied the debt, alleged improper performance of the contract and asserted that appellant was barred from recovery by Ark. Stat. Ann. § 71-701 et seq (Supp. 1975) because C. E. “Red” Higginbotham, Inc. was not licensed by the Contractors Licensing Board. Summary judgment was granted on appellees’ motion on the ground that the claim was barred by the provisions of Ark. Stat. Ann. § 71-713 (Supp. 1975).
Appellant admits that his corporation was not licensed, but contends that recovery was not barred by § 71-713. The basis of his argument is that this corporation was not a contractor as defined by § 71-701. The gist of it is that one is not a contractor, as defined by the act, unless he undertakes to supply labor and materials under a contract with the owner of the improvement. Thus, he asserts, his bankrupt, a subcontractor, did not come within the purview of the act.
The chancellor was right. Sec. 71-701 defines a “contractor” to be “any . .. corporation . . ., who for a fixed price, commission, fee or wage attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, of the construction, erection, alteration or repair, or has or have constructed, erected, altered or repaired, under ... its direction, any building, highway, sewer, grading or other improvement or structure, except single family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor including but not limited to labor and materials is twenty thousand dolllars ($20,000.00) or more. It is the intention of this definition to include all improvements or structures, excepting only single family residences.” Sec. 71-713 provides, in pertinent part, that “[a]ny contractor who for a fixed price, commission, fee or wage, attempts to or submits a bid or bids to construct, or contracts to construct or undertakes to construct, or assumes charge in a supervisory capacity or otherwise, of the construction, erection, alteration or repair, of any building, highway, sewer, grading or any other improvement or structure, when the cost of the work to be done by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more, without first having procured a license to engage in the business of contracting in this state . . . shall be liable to a fine .... No action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this act.”
Appellant first seizes upon language in our opinions which he argues indicates that a contractor, as defined by the statute, is one who undertakes to supply labor and materials for a specific improvement under a contract with the owner, citing Arkansas State Licensing Board for General Contractors v. Lane, 214 Ark. 312, 215 S.W. 2d 707 and Davidson v. Smith, 258 Ark. 969, 530 S.W. 2d 356. He takes this to mean that a subcontractor who enters into a contract with a contractor rather than the owner does not come within the purview of the act. He reads too much into these opinions. In the first case, the statute, by its own language, then applied only to general contractors, and required licenses of those engaged in “general contracting” only. The appellee-defendant in that case was not engaged in the contracting business. He was an engineer employed to supervise the construction of an outdoor drive-in theater. The language relied upon by appellant simply appeared in a definition of the word contractor taken from a footnote in a California case. It was used to support other definitions quoted in the Lane opinion. Those definitions did not use the phrase “with the owner,” and the decision does not consider the question raised here. In the second case the agreement was between the contractor and the owner and we merely recited the definitions and distinctions set out in the earlier case. In both cases the issue was whether the appellee was a contractor or employee. Nothing in either case can be taken to mean that we have construed the latest expression of the legislative intent to mean that only those who contract with the owner come within the scope of the statute in its present form.
The ordinary and generally accepted meaning of words used in a statute must yield to the meaning intended by the General Assembly when it is clear from the context of the act that a different meaning is intended. City of Fort Smith v. Hairston, 196 Ark. 1005, 120 S.W. 2d 689. Thus, in construing an act, the courts are bound by specific definitions of a word by the legislature in that act, regardless of the usual and ordinary meaning of that word; unless the definition is arbitrary, creates obvious incongruities in the statute, defeats a major purpose of the legislation or is so discordant to common usage as to generate confusion. 1A Sutherland, Statutory Construction (4th Etd.) pp. 59, 310, 81; §§ 20.08, 27.02, 47.07. We have no reason to apply anything other than the statutory definition in this case.
Following the decision in Lane, the General Assembly amended § 71-701 by Act 153 of 1951. Some of the legislative history is set out in the compiler’s note following § 71-701 (Repl. 1957) as follows:
The 1951 amendment substituted the word “contractor” for “general contractor”; inserted the words “or contracts” following the words “or bids to construct”; substituted the words “assumes” for “assume”; inserted the words “in a supervisory capacity or otherwise” following the word “charge”; inserted the words “or has or have constructed, erected, altered or repaired” before the words “under his, their or its discretion”; and substituted the words “work to be done, or done, in the State of Arkansas by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more” for the words “undertaking is ten thousand dollars (S10,000.00) or more, and one who shall engage in the construction or superintending the construction of any structure or any undertaking or improvements, as above mentioned, in the State of Arkansas, costing ten thousand dollars ($10,000.00) or more, shall be deemed to have engaged in the business of general contracting in the State of Arkansas, provided that this definition shall not include architects or engineers, whose only financial interests in the projects shall be the architectural or engineering fees for preparing plans and specifications, surveys and supervision”; . . .
It is also pointed out in the note that, in this amendment, the General Assembly added the following paragraph:
Wherever the term “general contractor” shall appear in this act it shall mean “contractor,” as hereinbefore defined, and wherever the term “general contracting” shall appear in this act it shall mean “contracting. ”
The section was further altered by Act 150 of 1965, Act 142 of 1967 and Act 397 of 1971, but the only change relevant to the case at bar is the deletion of the quoted paragraph which had been added in 1951. Clearly, this leaves the statutory definition as the controlling one and eliminates therefrom any reference to general contractors as such.
Appellant suggests that i strict construction favoring his bankrupt should be given the act, because: the definition of “contractor” lends itself to some confusion; and licensing statutes are construed strictly in favor of the citizen and against the government, especially where penalties are provided for violation. Even so, we find nothing in the act to indicate that the General Assembly intended that to be a “contractor” under the Act, one must contract with the owner.
Tiie contract in issue was an undertaking to furnish all labor, materials, equipment, services and supplies required for a complete job of heati .g and air conditioning of Phase I of Raintree Apartments in Little Rock, Arkansas in accordance with the plans and specifications prepared by the architects.” It container this paragraph:
It is understood that this job is for the construction of Phase I of the Raintree Apartments.
The contract was to be “completed ... to the complete satisfaction of the owner.” This subcontractor agreed that it should, at its expense, “to Owner’s satisfaction” make good any defect or deficiency in the work and would indemnify “Owner and Contractor from any and all claims, loss, damage, expense arising from any such defect or deficiency.” As each partial payment under the contract was made to the subcontractor, the materials and work covered by that payment became the property of the contractor.
In addition, the subcontractor was obligated to perform in accordance with the plans and specifications, and had sole responsibility for all materials and work (even after payment), and the restoration of damaged work. It was required to complete the work expeditiously, according to construction requirements, at the convenience of the contractor, and to its satisfaction; to deliver the whole of the work in a clean and proper state ready for everyday service and use. It agreed to coordinate its work with the work of the contractor and the work of other subcontractors on the premises; to comply with requests of the contractor to put additional manpower on the job and to employ only such labor as would work in harmony with other trades on the project.
Under these circumstances C. E. “Red” Higginbotham, Inc., for a fixed price, contracted to construct, or assumed charge, in a supervisory capacity or otherwise, of the construction, erection, or alteration or had constructed, erected or altered, under its direction a building, improvement or other structure and the cost of the work to be done was in excess of $20,000.
The cases cited by appellant cannot be read to support the position that subcontracting for construction of a portion of a building or of an integral part thereof is not included in the general term “construction” as used in the act. Neither can the statute be so construed. The obvious purpose of the act is to require contractors who desire to engage in certain types of construction work to meet certain standards of responsibility, such as experience, ability, financial condition, etc. Ark. Stat. Ann. § 71-709. These purposes are no less valid for a subcontractor than for a general contractor. The appellant’s version of the act would result in an inconsistent application in the licensing requirements in that a corporation or individual or other, v/ho contracted to install heating and air conditioning in an existing building would be engaging in the “alteration or repair” of that building, therefore would be required to obtain a license; but one who subcontracted to do the same work on a building under construction would not be so required. Webster’s Third New international Dictionary defines “construct:” “To put together so as to form, make, or create something.”
Appellant argues, however, that his position is reinforced by the fact that, in the statute the words “assumes charge” are modified by the subsequent phrase “in a supervisory capacity or otherwise.” But we think the use of the latter phrase including the words “or otherwise,” emphasized above, is indicative of a legislative intent to broaden, rather than narrow, the application of the statute, so that assuming charge could be in a capacity other than supervisory. It seems clear that, in the context used in the statute and in view of the simultaneous changes in its wording “or otherwise” must be construed to mean “in a different manner, or in any other way.” There is a striking parallel in construing the words in a statute in Townley v. Hartsfield, 113 Ark. 253, 168 S.W. 140. There we said:
*** The words “or otherwise” in law, when used as a general phrase following an enumeration of particulars, are commonly interpreted in a restricted sense as referring to such other matters as are kindred to the classes before mentioned. Century Dictionary. The author says the phrase “or otherwise,” when following an enumeration, should receive an ejusdem generis interpretation. Otherwise is also defined by Century Dictionary, the Standard Dictionary and by Webster, as meaning, “In a different manner; in any other way.” We think the phrase “or otherwise” in the act under consideration was intended to be used in its broadest and most comprehensive sense. The phrase “or otherwise” is not used in the statute as a general phrase following an enumeration of particulars; but it follows the words “upon failure to elect by tie vote” and is placed in juxtaposition to these words. When the whole clause “upon failure to elect by tie vote or otherwise,” is considered together with reference to the purpose and object of the act, it is evident that the Legislature intended to give the county judge the power to appoint where no one was elected or where the person elected failed for any reason to qualify when the time for entering upon the new term arrived. ***
The words “in a supervisory capacity or otherwise” were added at the same time that the word “contractor” was substituted for “general contractor.” We think that the legislative intent was to broaden the application of the act so that its application would not necessarily be limited to one who contracted with the owner.
The decree is affirmed.
We agree. Harris, C.J., and Holt and Roy, JJ. | [
16,
104,
-48,
-84,
-118,
64,
26,
-102,
-1,
-117,
-27,
85,
-17,
-114,
-116,
121,
-31,
121,
-11,
124,
5,
-78,
3,
107,
-45,
-109,
-79,
-59,
-80,
79,
-16,
-108,
76,
17,
-62,
-123,
-90,
-126,
-43,
28,
10,
-128,
9,
108,
-7,
67,
48,
-21,
20,
15,
1,
-108,
-77,
42,
17,
-50,
77,
62,
121,
45,
88,
-80,
-126,
-99,
127,
5,
33,
100,
-112,
71,
104,
28,
-104,
-80,
9,
-88,
83,
54,
-42,
-28,
35,
-71,
8,
116,
98,
34,
-127,
-29,
-36,
-104,
30,
-2,
-115,
-90,
-111,
57,
27,
75,
-65,
-100,
104,
16,
22,
-2,
-18,
-124,
31,
76,
3,
-114,
-42,
-25,
12,
117,
-35,
-109,
-18,
36,
48,
116,
-52,
-30,
89,
39,
59,
-101,
14,
-112
] |
Conley Byrd, Justice.
Appellee Whitehurst Bros., Inc. was the General Contractor for the construction of the Central Fire Station for the City of Little Rock. At the time of letting the bids, appellant Prepakt Concrete Co. had submitted a proposal for a subcontract “To furnish equipment, material and labor to install 231 — 14 [inch] Diameter Cast-in-Place augered pile in accordance with plans and specifications by Wilkins, Griffin, Sims, Architects.” After appellant had been approved by the owner and architect, appellee accepted appellant’s subcontract proposal in Arkansas. Appellant subsequently caused the contract to be marked “Accepted by Prepakt: F. B. Akers, Jr., Executive Vice-President” at its home office in Ohio. The work has been performed in Arkansas. The issue now between the parties arises over wheher the parties shall arbitrate the dispute in question in Ohio as contended by appellant or in Arkansas as contended by appellee. Appellee denies any liability to appellant but in the alternative makes demands against the City of Little Rock.
The arbitration agreement in the subcontract proposal submitted to appellee at the time of its bids on the General Contract provides:
“Any controversy or claim arising out of or relating to this agreement, or any alleged breach thereof shall be settled by arbitration under the rules and regulations of the American Arbitration Association. Any arbitration shall be held, and any award shall be made and judgment upon any such award may be entered in the county of the State wherein this agreement is finally consummated. Upon mutual agreement, arbitration may be held, award made and judgment entered elsewhere.”
The plans and specifications submitted by the architects provided for the settlement of claims and disputes “by arbitration in accordance with the Uniform Arbitration Act of Arkansas.”
The trial court restrained appellant from demanding that the arbitration be held in Ohio and concluded “that the parties hereto must proceed in accordance with the Uniform Arbitration Act of Arkansas. . . .” We agree with the trial court but not necessarily for the same reasons.
In the first place, appellant has shown no prejudice because it has not shown that the arbitration procedure under the rules and regulations of the American Arbitration Association is any different than the procedure outlined in the Uniform Arbitration Act of Arkansas (assuming that the Uniform Arbitration Act of Arkansas would permit a different procedure). In the next place, we cannot agree with appellant that the subcontract arising out of a proposal submitted in Arkansus, accepted by the General Contractor in Arkansas and performed in Arkansas should be construed as “an agreement . . . finally consummated” at any place other than Arkansas. Since appellant prepared the language upon which it relies to take the arbitration proceedings to Ohio, we must apply the well-known rule of contract construction that if there is any ambiguity in the contract, it must be construed most strongly against the preparer. Leslie v. Bell, 73 Ark. 338, 84 S.W. 491 (1904).
Affirmed.
We agree: Harris, C.J., and Fogleman and Hickman, lb | [
-80,
120,
-12,
92,
-120,
64,
56,
-72,
120,
-89,
101,
83,
-19,
78,
29,
81,
-93,
125,
64,
107,
69,
-78,
83,
90,
-62,
-13,
-79,
69,
-72,
111,
-28,
-98,
-52,
97,
-54,
-35,
102,
-62,
-49,
92,
-30,
12,
75,
104,
-3,
65,
48,
-2,
48,
15,
5,
-116,
-13,
32,
25,
-53,
109,
44,
105,
45,
67,
49,
66,
5,
127,
5,
35,
36,
-102,
7,
84,
88,
-112,
49,
60,
-24,
115,
-74,
-42,
100,
67,
-39,
8,
96,
102,
2,
-127,
-57,
-4,
-108,
14,
-2,
-99,
-90,
-109,
89,
107,
11,
-74,
-108,
120,
18,
4,
126,
-1,
5,
91,
124,
-125,
-122,
-44,
-79,
-113,
84,
-99,
3,
-21,
-125,
50,
84,
-54,
-14,
95,
83,
48,
-37,
-98,
-8
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.