text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
George Rose Smith, Justice.
Edward Butler and Larry Hutcherson were jointly charged with a capital felony in the shooting of Ron Brooks, a state policeman acting in the line of duty. The offense occurred on February 27, 1975; so the in formation was filed under § 2 (C) of Act 438 of 1973 rather than under § 41-1501 (1) (b) of the Criminal Code, which did not become effective until January 1, 1976. Butler elected, however, to assert defenses under the new Code, which it permits. § 41-102 (4) (Crim. Code 1976). Butler was tried separately, found guilty, and sentenced to life imprisonment without parole, the State having waived the death penalty. The first five points for reversal overlap to such an extent that we shall not try to discuss each one separately.
At the outset we make it clear that the fallacy in the appellant’s first five points lies in his attempt to break down into separate steps the continuous course of criminal conduct that must be considered as a whole in passing upon the sufficiency of the State’s proof and the admissibility of its evidence. When the entire sequence of events is considered as one continuous criminal occurrence, the five points for reversal are seen to be without merit.
On the morning of the crime the two men jointly charged, Butler and Hutcherson, were prisoners in the county jail at Clarendon. They and a third prisoner escaped together. The jailer, whose living quarters were in the jail, was away at the time. He testified that after the escape two pistols were missing fron his quarters. The first was a .22-caliber pistol which the jailer had converted to a toy for his children by filing down the firing pin, but one could not tell by looking at the weapon that it wouldn’t fire. The other was the .357-magnum pistol that was used by Hutcherson to kill Officer Brooks. Butler displayed the .22 in effecting the escape. Since both pistols were taken from the jailer’s living quarters and used in the brief period of escape, the jury was justified in concluding that Butler and Hutcherson each knew that the other was armed. It is not necessary that an unlawful concert of action to commit an illegal act be shown by direct testimony; it may be inferred from the circumstances. Griffin v. State, 248 Ark. 1223, 455 S.W. 2d 882 (1970). Furthermore, proof of the escape was not inadmissible under the rule excluding evidence of other offenses, for the entire sequence of events was such an inseparable whole that the State was entitled to prove the entire criminal episode. Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972).
The escape was reported within seconds by another prisoner, a trusty, who was forced to accompany the escaping group for a few moments. Officer Brooks was at the jail and immediately chased the fugitives to a nearby alley. When he ordered them to halt and fired a warning shot, Butler and Hutcherson fell to the ground. The third prisoner kept on running.
Officer Brooks handcuffed the two men to each other and searched them as they lay on the ground. He took the .22 from Butler, but he did not find the magnum pistol that Hutcherson had taken. As Butler was backing away after the search, the two handcuffed men got to their feet. Several eyewitness accounts differ slightly in details, but the jury could have found that Butler touched the officer or ran into him. Hutcherson picked up the magnum pistol from the ground and shot Officer Brooks twice, killing him. Butler searched the officer’s prostrate body and evidently took the officer’s pistol. Butler and Hutcherson, still handcuffed, then fled. They were apprehended almost at once, trying to get into a car. The magnum pistol and Officer Brooks’s pistol were in that car. Tests for traces of metal upon the hands of the two men indicated that Hutcherson had handled the magnum pistol and Butler had handled Officer Brooks’s gun.
Counsel for Butler, in arguing that the State did not prove Butler’s implication in the actual shooting, fails to recognize the jury’s right to weigh the entire episode as one continuous course of criminal conduct. The two men, each knowing that the other was armed, escaped from the jail. In their pursuit of a common plan to effect an unlawful escape, each was liable for the consequences, even though the particular result may not have been intended. Griffin v. State, supra; Dorsey v. State, 219 Ark. 101, 240 S.W. 2d 30 (1951). The possibility of homicide could be found by the jury to have been part of the planned escape; for otherwise, why did the men equip themselves with pistols? Butler’s continued active participation in the attempted escape, as evidenced by his taking Officer Brooks’s gun, rebuts the suggestion that he had a change of heart while he lay on the ground. The evidence, to be sure, is to some extent circumstantial, but whether it excluded all other reasonable hypotheses was an issue for the jury, not for this court. Brown v. State, 258 Ark. 360, 524 S.W. 2d 616 (1975).
Next, the other points for reversal. It is argued that the trial court erred in not instructing the jury, in the language of the new Criminal Code, that it would be an affirmative defense to the prosecution if Butler terminated his complicity prior to Hutcherson’s commission of the offense (§ 41-305) or if Butler did not commit the homicide or in any way aid its commission (§ 41-1501 [2]).
The court was not required to give those instructions, because the same points had been covered in a defense instruction that was given, with modifications. In that instruction the court told the jury that Butler would be liable as an accessory if he aided Hutcherson in committing the offense. The instruction went on to explain that before the jury could find that Butler was aiding in the killing, “you must find that he was acting in concert with Larry Hutcherson for the purpose of killing Ron Brooks and that he actually aided in the killing.” Further, that if Butler was not present for the purpose of aiding, abetting or assisting Hutcherson in killing Brooks, “then the defendant would not be responsible for the murder of the decedent and you must acquit him.” Still further, that the State must prove beyond a reasonable doubt that Butler and Hutcherson, acting in concert and in furtherance of a common objective or purpose, intended to kill Brooks; that Butler aided Hutcherson in killing Brooks, pursuant to a common objective; that Butler in fact aided or attempted to aid Hutcherson in killing Brooks; that Butler’s actions were the result of premeditation and deliberation; and that by his acts he specifically intended to effectuate the death of Brooks.
In Dorsey v. State, supra, we made two statements pertinent to the point now at issue: First, “The court is not required to give a multiplicity of instructions stating the law in various ways.” Second, “There is no distinction between one who aids, abets or assists and the one who actually fired the shots.” Here the court told the jury in unmistakable terms that Butler could not be found guilty unless he actually aided Hutcherson in killing Brooks, unless the two intended to kill Brooks, and unless their actions were the result of premeditation and deliberation. By its verdict the jury found all those conditions to be true. That finding necessarily rejected the possibility that Butler terminated his complicity prior to the commission of the offense and did not aid in its commission. The court was not required to make a positive statement of the law, as it did, and then say the same thing in the negative. As a matter of fact, the course chosen by the court was the more favorable of the two, with respect to the defense, because it emphasized the State’s burden of proving the points at issue, beyond a reasonable doubt.
We cannot sustain the appellant’s argument that the State’s waiver of the death penalty precluded the jury from sentencing him to life imprisonment without parole. It is true that Act 124 of 1971, in authorizing the prosecuting attorney to waive the death penalty, added that in such cases the punishment “cannot be fixed at more than life imprisonment.” But when that act was adopted, the intermediate punishment of life imprisonment without parole did not exist, that alternative being later provided by Act 438 of 1973. Hence Act 124 simply meant that when the prosecutor waived the death penalty, the jury could not disregard that waiver by condemning the accused to death.
We certainly cannot say that the legislature, by later creating the alternative punishment of life imprisonment without parole, meant to read that penalty also into the prosecutor’s waiver of the death penalty. Quite the opposite, § 3 of Act 438 of 1973 provided only two alternative punishments for the offense charged in the case at bar — death or life imprisonment without parole. Hence the appellant’s argument would provide yet a third alternative, contrary to the explicit language of Act 438.
Finally, the court reporter’s tape recording of the testimony was destroyed by fire before it was transcribed. The reporter prepared a transcript of the testimony from his shorthand notes, but admittedly there were omissions. The trial court settled the record at a hearing at which Butler’s attorney was present, but Butler’s request that he be allowed to be present in person was denied.
Butler was constitutionally entitled to be personally present at every substantive step in the proceedings. Davidson v. State, 108 Ark. 191, 158 S.W. 1103, Ann. Cas. 1915B, 436 (1913). Hence he should have been present when the record was settled, for he might have remembered some error or omission that no one else noticed. Even so, his absence does not in itself entitle him to a new trial. People v. Chessman, 35 Cal. 2d 455, 218 P. 2d 769, 19 A.L.R. 2d 1084 (1950). The situation is comparable to that in Jackson v. Denno, 378 U.S. 368 (1964), where the court ruled that the required hearing with regard to the voluntariness of Jackson’s confession might be held in a separate post-trial proceeding. So here, we direct that Butler be given an opportunity to examine the court reporter’s transcript of the testimony and to personally present to the court any objections he may have. Subject to the outcome of that proceeding, we find no error in the record. As we are required to do, we have examined all objections made at the trial and find none to be meritorious.
Affirmed and remanded. | [
49,
-30,
-39,
126,
25,
97,
-120,
-72,
-14,
-37,
-30,
-5,
45,
-51,
1,
121,
89,
105,
85,
105,
-124,
-121,
115,
51,
-78,
-77,
-39,
-43,
51,
71,
46,
-43,
8,
112,
-62,
89,
38,
14,
-19,
84,
-118,
-124,
-96,
114,
-78,
80,
53,
46,
92,
31,
49,
-116,
-93,
42,
26,
-49,
104,
40,
10,
-83,
80,
59,
-118,
-115,
-49,
22,
-93,
-89,
-98,
7,
-8,
62,
28,
61,
0,
120,
115,
-76,
66,
92,
77,
25,
-84,
98,
102,
4,
-103,
77,
-88,
-119,
-18,
-17,
-113,
-89,
-104,
64,
67,
45,
-105,
-97,
99,
116,
38,
-14,
-13,
124,
93,
124,
5,
-114,
-36,
-111,
-49,
106,
-46,
-70,
-21,
33,
48,
112,
-50,
-30,
93,
101,
120,
-101,
-116,
-44
] |
George Rose Smith, Justice.
For a number of years before 1971 the two plaintiffs, Morrow and Goslee, collected coins, individually and as partners. In 1971 a substantial part of the collection was kept at Morrow’s home in Hot Springs. On September 4 of that year someone broke into the house and stole coins valued at $32,155.17. Almost three years later the plaintiffs brought this action against the defendant bank to recover the value of the stolen coins. The complaint alleges a breach of contract, in that the bank failed to notify the plaintiffs of the availability, on August 30, 1971, of safety-deposit boxes in a new bank building. This appeal is from a summary judgment in favor of the bank.
We state the facts most favorably to the plaintiffs. Morrow collected coins for many years. In about 1964 he had metal cabinets built in a closet in his house, so arranged that a burglar would have to go through eleven sets of locks to reach the coins. In about 1969, as insurance rates were becoming prohibitive, the two plaintiffs began to look for large safety-deposit boxes in which to keep their coins. No boxes were available in Hot Springs. From time to time Morrow discussed the problem with one or more employees of the defendant bank, where he was a regular customer.
In the summer of 1971 the bank was planning to move into its new building. Safety-deposit boxes were advertised. On June 25 the plaintiffs reserved three large boxes in the new building, paying $25 for each box. It was expected that the boxes would be available in from 30 to 60 days. Morrow explained his need for the boxes, adding that he particularly wanted them by September 1, when his husky teenage son would leave for college. The bank was perhaps on notice, through a loan application to a different department, that the coins were worth at least $12,000.
One or two employees of the bank promised to notify Morrow as soon as the boxes were available. The burglary occurred on the evening of Saturday, September 4, while Morrow and his wife were out to dinner. When Morrow inquired about the safety-deposit boxes on the following Tuesday, after Labor Day, he learned that the boxes had become available on August 30. An employee of the bank explained that “we just didn’t have time” to notify Morrow that the boxes were ready. The plaintiffs immediately moved the rest of their coins into the safety-deposit boxes. We do not reach the bank’s argument that the plaintiffs’ acceptance of the rental contract was a waiver of their right to claim a breach.
We consider this case to be controlled by our holding in Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, 79 S.W. 1052 (1904). There we adopted what is now known as the “tacit agreement test” for the recovery of consequential damages for a breach of contract. By that test the plaintiff must prove more than the defendant’s mere knowledge that a breach of contract will entail special damages to the plaintiff. It must also appear that the defendant at least tacitly agreed to assume responsibility. Justice Riddick’s entire opinion in Hooks is enlightening, but we emphasize this particular language:
It seems then that mere notice is not always suf ficient to impose on the party who breaks a contract damages arising by reason of special circumstances, and the reason why this is so was referred to in a recent decision by the supreme court of the United States. In that case Mr. Justice Holmes, who delivered the opinion of the court, after remarking that one who makes a contract usually contemplates performance, not a breach, of his contract, said: “The extent of liability in such cases is likely to be within his contemplation, and whether it is or not, should be worked out on terms which it fairly may be presumed he would have assented to if they had been presented to his mind.” Globe Refining Co. v. Landa Oil Co., 190 U.S. 540.
Now, where the damages arise from special circumstances, and are so large as to be out of proportion to the consideration agreed to be paid for the services to be rendered under the contract, it raises a doubt at once as to whether the party would have assented to such a liability had it been called to his attention at the making of‘the contract unless the consideration to be paid was also raised so as to correspond in some respect to the liability assumed. To make him liable for the special damages in such a case, there mus, not only be knowledge of the special circumstarK :s, but such knowledge “must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it.” In other words, where there is no express contract to pay such special damages, the facts and circumstances in proof must be such as to make it reasonable for the judge or jury trying the case to believe that the party at the time of the contract tacitly consented to be bound to more than ordinary damages in case of default on his part. Wills, J., in British Columbia Sawmill Co. v. Nettleship, L. R. 3 C.P. 235; Globe Refining Co. v. Landa Oil Co., 190 U.S. 540; McKinnon v. McEwan, 48 Mich. 106, 11 N.W. 828; Snell v. Cottingham, 72 Ill. 161; Horne v. Midland R. Co., L. R. 8 C. P. 131; Booth v. Mill Co., 60 N. Y. 487; Wood’s Mayne on Damages (1st Am. Ed.), p. 50; 1 Sutherland on Damages, § 52; 8 Am. & Eng. Enc. Law (2d Ed.), 593. that the bank, in return for box rentals of $75, agreed in effect to issue a burglary insurance policy to the plaintiffs in the amount of at least $32,155.17 and probably much more, as the actual loss was only partial. The bank’s bare promise to notify the plaintiffs as soon as the boxes were available did not amount to a tacit agreement that the bank, for no consideration in addition to its regular rental for the boxes, would be liable for as much as $32,000 if the promised notice was not given.
The tacit agreement rule is a minority rule, but we think it to be sound. We did not lightly adopt it. To the contrary, we relied upon three textbooks and a number of decisions, including one written by Justice Holmes. This language from the Hooks opinion expresses what Holmes described as “common sense”:
Suppose, for instance, that a large manufacturing establishment is driven by power from a single engine, and that, by reason of an accident to some small but important part of the engine or machinery, it becomes necessary to stop the operation of the whole plant until a new part can be made or the old one repaired. If thereupon a blacksmith or machinist is called in, and, for the price of a few dollars, undertakes to make the repairs, but through some mistake or unskillfulness the part supplied by him should fail to fit, requiring it to be remade and entailing still further delay, would any court hold that the blacksmith or machinist could be held liable for all the damages entailed by the delay when they were large, in the absence of a contract on his part to be thus liable, unless the notice and the circumstances under which he made the contract were such that he ought reasonably to have known that in the event of his failure to perform his contract the other party would look to him to make good the loss?
The tacit agreement test, to be sure, has been questioned and was rejected by the draftsmen of the Uniform Commercial Code. Ark. Stat. Ann. § 85-2-715 and Comment 2 (Add. 1961); Williston, Contracts, § 1357 (3d ed., 1968); Casenote, 18 Ark. L. Rev. 169 (1964). We do not attach great impor tance to the Commercial Code provision, simply because the legislature, in adopting a uniform act containing hundreds of sections, certainly did not specifically and consciously decide that the rule of the Hooks case should be changed in all situations. We adhere to that decision.
Alternatively, the plaintiffs argue that the bank’s breach of its contract should be treated as a tort, for which liability may be imposed without regard to the tacit agreement test. As Prosser points out, a breach of contract is not treated as a tort if it consists merely of a failure to act (nonfeasance) as distinguished from an affirmatively wrongful act (misfeasance). Prosser, Torts, § 92 (4th ed., 1971). Prosser notes that there is an exception with regard to a person such as an innkeeper or public warehouseman, who is under a duty to serve all comers. A bank, however, may do business with whom it pleases. Michie, Banks and Banking, Ch. 9, § 13 (rev. ed., 1973).
Affirmed.
We agree. Harris, C.J., and Holt and Roy, JJ. | [
113,
124,
-56,
126,
26,
96,
42,
-70,
99,
-95,
-93,
19,
-87,
68,
20,
96,
-9,
111,
-44,
96,
-42,
-77,
23,
38,
-38,
-13,
-15,
-59,
-80,
95,
-76,
-44,
78,
52,
-62,
85,
98,
-86,
-57,
84,
94,
17,
40,
97,
-11,
64,
40,
47,
48,
11,
-15,
-97,
-25,
45,
20,
79,
73,
46,
-53,
61,
-15,
-7,
-93,
69,
125,
20,
-127,
7,
-102,
5,
-64,
14,
-100,
-79,
0,
-87,
112,
-90,
-126,
116,
101,
-97,
-115,
106,
98,
-128,
37,
-59,
-76,
-96,
-89,
-10,
-113,
-90,
-106,
72,
3,
47,
-66,
-99,
122,
0,
37,
-4,
-29,
93,
89,
44,
31,
-50,
-42,
-125,
-83,
123,
-116,
-101,
-1,
-77,
32,
113,
-53,
-86,
92,
71,
121,
-109,
-113,
-31
] |
John A. Fogleman, Justice.
Appellant was found guilty of sale and possession for sale of marijuana. The only point for reversal in this case is the assertion that the court erred in excluding as hearsay appellant’s testimony concerning an alleged conversation between Jerry Hood, a confidential police informer, and appellant. This testimony of appellant was offered as evidence of entrapment. It was stricken when it was shown that the police officer, a narcotics investigator, with whom Hood had called on appellant in an effort to buy drugs, and on whose testimony appellant was found guilty, was probably not close enough to Hood and the appellant at the time of the alleged sale to hear the conversation. Jerry Hood did not testify at the trial.
The state does not really defend this erroneous application of the hearsay rule, but attempts to justify the affirmance on the grounds that no proffer of the testimony was offered, that the testimony was hearsay because appellant was seeking to prove the truth of the matter stated and that, before appellant could testify, he must have first shown that Hood was unavailable to testify. We cannot agree with these ingenious arguments.
Appellant’s defense was, in principal part, entrapment, but we know of no rule of law, and the state has cited no authority, which prevents one accused of this sort of crime from relating any statements of any persons participating in any attempt to purchase controlled substances from the accused when the statements are used as a basis of showing accused’s intent to sell or deliver such a substance in his possession. All such conversations are material and relevant to a principal issue in the case. This is because the defendant’s motive and state of mind are relevant to the question of intent. Whiting v. U.S., 296 F. 2d 512 (1 Cir., 1961); U.S. v. Hayes, 477 F. 2d 868 (10 Cir., 1973). We note that similar evidence has been received in other cases, without objection. See, e.g., Peters v. State, 248 Ark. 134, 450 S.W. 2d 276; Washington v. State, 248 Ark. 318, 451 S.W. 2d 449.
Official solicitation, importunity, persuasion, deceitful representation and inducement constitute the very foundation of the defense of entrapment. Peters v. State, supra. We are readily aware of the fact that, in many cases, the only evidence available to establish the defense of entrapment is the defendant’s own testimony. See Bailey & Rathblatt, Handling Narcotic and Drug Cases, § 263 p. 212. That Hood was assisting the police officer in the matter is conceded. The defendant’s testimony about any conversation relevant to the transaction which the state’s evidence tended to prove which would tend to show why he did what he did, was admissible.
The argument as to proffer is not well taken, because the testimony as to the conversation had been thoroughly covered before the court granted the state’s motion to strike it, after cross-examination revealed that the police officer probably did not hear the conversation.
Whenever a conversation constitutes a part of, or is introductory to, a transaction which is material and relevant to the principal issue, it is not hearsay. Rollins v. State, 125 Ark. 217, 188 S.W. 560; Hinkle v. Lassiter, 142 Ark. 223, 218 S.W. 825; Cox v. State, 160 Ark. 283, 254 S.W. 542. The question here was whether the statements were made, not whether they were true. When that is the case, the evidence is not hearsay, if otherwise relevant. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320.
For error in striking the testimony of Wilson about Hood’s statements, the judgment is reversed and the cause remanded.
We agree. Harris, C.J., and Roy and Hickman, JJ. | [
17,
-20,
-35,
-65,
42,
96,
106,
-72,
65,
-93,
100,
115,
-23,
86,
5,
57,
-69,
31,
84,
72,
-44,
-73,
3,
-30,
-42,
-41,
42,
-43,
55,
78,
-25,
-44,
12,
48,
-62,
53,
103,
72,
-3,
90,
-114,
1,
-112,
66,
27,
-110,
48,
29,
20,
31,
113,
-74,
-29,
46,
21,
-53,
105,
40,
107,
41,
72,
88,
56,
-107,
-1,
38,
-77,
98,
-101,
-89,
-4,
76,
-104,
49,
1,
-88,
123,
-92,
-110,
-12,
73,
-103,
-116,
98,
102,
33,
-59,
-83,
-76,
-24,
46,
43,
-115,
-90,
88,
72,
11,
77,
-97,
29,
127,
80,
14,
-30,
-6,
93,
93,
108,
3,
-97,
-106,
-77,
9,
116,
22,
19,
-21,
53,
20,
65,
-49,
-22,
84,
68,
114,
-101,
-118,
-107
] |
John A. Fogleman, Justice.
Mary Bousquet has appealed from her conviction of disorderly conduct and of interference with a law enforcement officer. She asserts one ground for reversal on each conviction. She contends that Árk. Stat. Ann. § 41-2908 (Grim. Code, 1976) defining dis orderly conduct is unconstitutional as applied to her and that there is no factual support for finding her guilty of interference with a law enforcement officer. We disagree on both points and affirm.
Appellant was found guilty of violation of Ark. Stat. Ann. § 41-2908 (l)(c). The pertinent part of the statute defining the crime of disorderly conduct reads as follows:
(1) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(c) in a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response;
Appellant first argues that the words she was said to have used were not “fighting words” in themselves and certainly were not under the circumstances. In considering the matter we must of course view the evidence in the light most favorable to the state.
Officer Keathley of the Little Rock Police Department was employed, while off duty, as a security watchman at a Dillard department store on March 8, 1976, when he observed appellant, who appeared to him to be watching for someone. Later she started going up on an escalator and, addressing him, said:
Are you going to follow me upstairs? ... I’m talking to you you mother f-pig!
Keathley testified that he then dee ded to arrest her, but she continued her tirade, saying:
Follow me outside you mother f_and son-of-a-bitch.
Keathley followed her outside the store, exhibited his badge, identified himself as a police officer, informed appellant she was under arrest, grabbed her right arm, and was slapped by her. While he was taking her back into the store, according to the officer, she continued her epithets. Keathley said that he asked a saleslady to call the police station and, when she placed the call and handed him the telephone, he advised someone there that he needed a car. He said that he informed appellant she could use the telephone, but before he did so, she had grabbed him by the shirt, pushed him “against the collar” and again addressed him profanely. Keathley said that, after he told her that he would handcuff her unless she behaved, she “settled down” but had made other obscene statements and a crowd had begun to gather. A clerk in the store heard appellant curse the officer and saw that when the officer brought appellant through the store, his shirt was torn and he had a red print on his chest.
The words spoken were not materially different from those considered by us in Lucas v. State, 254 Ark. 584, 494 S.W. 2d 705, vacated 416 U.S. 919, 94 S. Ct. 1917, 40 L. Ed. 2d 227 (1974), reaffirmed when viewed in the light of Lewis v. City of New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974), as Lucas v. State, 257 Ark. 726, 520 S.W. 2d 224, appeal dismissed 423 U.S. 807, 96 S. Ct. 17, 46 L. Ed. 2d 28 (1975). We held that this language met the “fighting words” test of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), and that the statute there in question, Ark. Stat. Ann. § 41-1412 (Repl. 1964), was constitutional in the light of Lewis v. City of New Orleans, supra. Again, in Hammond v. State, 255 Ark. 56, 498 S.W. 2d 652, we held similar language met the Chaplinsky standard, saying that these words were likely to provoke an average person to retaliate and cause a breach of the peace. Cf. Hammond v. Adkisson, 536 F. 237 (1976).
We take appellant’s arguments to be addressed toward application of the theory expressed by the U.S. Court of Appeals for the Eighth Circuit in Hammond v. Adkisson, supra, that there must be a specific finding of fact that, under the circumstances existing, the words spoken by the accused were likely to incite violent retaliation from the person to whom the words were spoken. Although we do not completely agree with the position of the Eighth Circuit, (cf. Hammond v State, supra) we do not find any basis for reversal in this case, even applying that theory.
The pertinent circumstances she states are her pregnancy of three months duration, her moving away from the officer, the person addressed was a police officer, and he was not aroused to immediate, violent anger. The alleged deficiency in the factfinding process is the failure of the trial court to instruct the jury that it was to take the circumstances of the utterance into consideration. As we view the law, it is not necessary that the person addressed must have reacted violently. Be that as it may, appellant is in no position to complain. Hits question was not raised in the trial court in any manner. The court defined the offense of disorderly conduct in the pertinent language of the statute. No objection was made to that instruction. The usual instructions on the burden of proof and reasonable doubt were given, without objection. The trial judge instructed the jury as follows:
if you find the T-femdani guilty of Disorderly Conduct, you v/iO say: “We, the Jury, find the defendant guilty of Disorderly Conduct, and fix the defendant’s punishment at a specific period of time not exceeding 30 days imprisonment in the county jail and/or a fine of n<ri exceeding one hundred dollars.”
If you find the defendant not guilty of Disorderly Conduct or, if you have a reasonable doubt as to her guilt, you v/iii say: "We, the jury, find the defendant not guilty. ”
In either case your vote must be unanimous and signed by one of your members as foreman.
No objection was offered to this instruction. After all instructions were given, the trial judge specifically asked appellant’s counsel if there were any objections to the instructions as read and received a negative answer. If appellant sought a specific finding of fact on the particular question whether, under the existing circumstances the words uttered by appellant were likely to incite violent reaction by the person to whom they were addressed, she should have requested that the jury be instructed that such a finding was necessary to a finding of guilt, or that the court’s instruction defining the crime be modified or that a specific interrogatory on the question be submiti.reed to the iurv. Brooks v. State, 256 Ark. 1059, 511 S.W. 2d 654; Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463; Taylor v. State, 255 Ark. 65, 498 S.W. 2d 876; Griffin v. State, 248 Ark. 1223, 455 S.W. 2d 882; Gibson v. State, 252 Ark. 988, 482 S.W. 2d 98. Not having made any of these requests, the question is presented for the first time on appeal and cannot be considered by us. French v. State, 260 Ark. 473, 541 S.W. 2d 680 (1976).
We find no merit in appellant’s contention that the facts do not support her conviction of interference with a police officer. In advancing her arguments on this point, she views the evidence in the light most favorable to her and ignores the testimony of the officer. Officer Keathley testified that he was dressed in plain clothes, but before the arrest, he pulled his badge out of his pocket, held it up, identified himself as a police officer and told appellant that she was under arrest, returned the badge to his pocket and walked up to appellant and reached for her, whereupon she immediately commenced an assault upon him. He said that when he held his badge up, appellant turned around and looked at him. He also stated that, after he had called the police station and had given her permission to use the telephone, appellant again assaulted him. This was substantial evidence to support the verdict.
The judgment is affirmed.
We agree. Harris, C.J., and Roy and Hickman, JJ. | [
16,
-6,
-40,
124,
11,
97,
50,
-116,
83,
-101,
-3,
51,
-83,
-39,
20,
49,
-5,
-5,
81,
105,
-43,
-78,
85,
65,
-6,
-13,
-102,
69,
-77,
79,
-12,
-36,
95,
48,
-58,
-47,
102,
72,
-19,
-36,
-118,
6,
-86,
-7,
112,
-62,
36,
59,
16,
15,
117,
-98,
-29,
42,
16,
-37,
-23,
108,
74,
52,
120,
114,
-98,
13,
111,
6,
-77,
4,
-65,
-91,
-44,
28,
24,
49,
0,
122,
115,
-92,
-110,
116,
111,
-101,
-116,
98,
114,
-127,
-83,
-25,
-120,
-88,
46,
126,
-107,
-90,
-104,
105,
11,
12,
-73,
-105,
46,
0,
15,
-24,
115,
92,
87,
108,
9,
79,
-108,
-95,
77,
124,
-106,
-16,
-21,
35,
80,
81,
-51,
-30,
85,
81,
114,
-101,
-114,
-44
] |
George Rose Smith, Justice.
On Christmas Day, 1973, Connie Lynn Strange, 13, left her home in Stamps to visit her grandparents, who lived next door. On the way the child was attacked and bitten by Blue John, a large dog owned by the appellees, Connie’s uncle and aunt, who had been visiting Connie’s grandparents and were about to leave. This action for personal injuries was brought by Connie’s father, the appellant, as her natural guardian and next friend. There was evidence, sufficient to go to the jury, that the Stovalls knew that Blue John was vicious, Stovall having admitted to two witnesses that the animal was mean and had bitten him several times. The dog had also bitten Mrs. Stovall.
At the close of the case counsel for the plaintiffs asked that the case be submitted to the jury on the theory of strict liability; that is, as set out originally in AMI 1602, that one who keeps a vicious domestic animal with knowledge of its dangerous tendencies does so at his own risk and is liable for injuries caused by the animal without proof that the owner was otherwise at fault. AMI Civil, 1602 (1965).
The trial judge, relying upon the amended version of AMI 1602, as it appears in the pocket supplement to the first edition and in AMI Civil 2d (1974), ruled that strict liability is no longer the law in Arkansas. Finding no negligence on the part of the Stovalls, who had merely tethered the dog near the back door, the court ruled that they were entitled to judgment. Nevertheless, to prevent a retrial, the court submitted the case to the jury upon instructions which included AMI 1602, as amended, and AMI 2102, on comparative negligence. The jury returned a $2,500 verdict in favor of Connie’s father alone, whose recoverable damages are conceded to be only $1,601.50.
We do not agree with the view that with regard to an animal known to be vicious, strict liability is no longer the law in Arkansas. Our cases applying that rule have not been overruled. The revision of AMI 1602, as explained in the 1969 pocket supplement, was based in part upon our holding in Finley v. Smith, 240 Ark. 323, 399 S.W. 2d 271 (1966). That case, however, merely held that an animal’s propensity to injure people may stem from playfulness as well as from savagery. The rule of strict liability was not impaired; if anything, it was broadened.
The Comment in the pocket supplement went on to say that AMI 1602, as originally drafted, was erroneous in barring a recovery if the injured person had done something which a reasonably careful person would have known to be likely to provoke the animal to attack. That proviso, according to the Comment, incorporated contributory negligence as a complete defense, contrary to our comparative negligence statute. Upon that reasoning the instruction was revised to impose a duty on the part of the owner only to use ordinary care to prevent a vicious animal from injuring others.
Doubtless AMI 1602 did need surgery, but the operation went too far. The rule of strict liability still obtains. To illustrate, let it be assumed that the owner of a dog known to be vicious keeps the animal in a steel cage, exercising extreme care to prevent its escape. The animal, however, does escape, through no fault of the owner, and attacks an innocent passerby. In that situation, AMI 1602, as revised, states the law incorrectly, because the dog’s owner is strictly liable regardless of any precáutions he may have taken to avoid the dog’s escape. See Ivester’s lucid casenote, 24 Ark. L. Rev. 593 (1971). We do not imply that an issue of comparative fault might not arise in some situations under Act 367 of 1975, Ark. Stat. Ann. §§ 27-1763 el seq. (Supp. 1975). That problem is not before us now, because neither side asks for a new trial if the lower court was in error.
The judgment is reversed and the cause remanded for the entry of a Si ,601.50 judgment in favor of Charles Strange.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
-16,
-10,
-44,
111,
8,
97,
26,
26,
71,
-55,
-28,
-45,
107,
-64,
69,
111,
-25,
-67,
81,
97,
-9,
-77,
23,
-62,
-46,
-37,
-103,
-43,
-71,
111,
100,
22,
8,
112,
-54,
85,
-26,
10,
-55,
-112,
70,
20,
-86,
-27,
-6,
-110,
48,
107,
16,
14,
53,
-81,
-93,
46,
53,
79,
44,
62,
123,
37,
-40,
113,
-101,
23,
109,
2,
-109,
118,
29,
37,
84,
62,
-48,
49,
8,
-24,
114,
-90,
-94,
116,
109,
-103,
12,
-30,
98,
33,
9,
-49,
-28,
-120,
47,
110,
-119,
-90,
-108,
9,
26,
11,
-65,
-107,
11,
16,
29,
88,
-10,
-52,
-99,
32,
53,
-49,
20,
-85,
-51,
96,
-36,
33,
-29,
-73,
32,
117,
-36,
-30,
84,
64,
118,
27,
-121,
-74
] |
Harry F. Barnes, Special Judge.
On the night of September 25, 1974, Fern Rodgers was shot and killed at her home in Searcy. Approximately two weeks later Mrs. Rodgers’ husband, Porter R. Rodgers, Sr., the appellant herein, was charged in her death with capital felony murder. The appellant entered pleas of not guilty and not guilty by reason of insanity.
Both the deceased and the appellant were very prominent, longtime residents of White County. Dr. Rodgers was a seventy year old physician actively engaged in a profitable medical practice in Searcy. He was estranged from his wife and had lived in a local hotel for the five or six months preceding his wife’s death. The appellant had served on the State Racing Commission, was actively engaged in a farming enterprise, and was active in the breeding and showing of walking horses.
The State alleged that Peggy Hale, an employee and paramour of Dr. Rodgers, and the appellant had hired one Barry Kimbrell to “rob, rape, and kill” Fern Rodgers. The appellant was tried alone for his alleged part in this conspiracy. After a lengthy jury trial the appellant was convicted of first degree murder and sentenced to life imprisonment. The appellant now brings to this Court eight points on which he relies for reversal.
I.
Prior to being arrested and charged with his wife’s murder, the appellant signed what amounted to a confession, the truth of which he subsequently denied. The appellant here contends that the introduction into evidence of that signed confession violated appellant’s rights to counsel and to refrain from incriminating himself.
No question is raised in this appeal relative to the procedures followed by the trial court in determining the admissibility of the confession. Appellant’s only argument is that the conduct of the police in obtainihg the confession, considered in light of all the other circumstances, was such as to compel exclusion of the confession for the stated, reasons.
The facts and circumstances surrounding the confession will now be set forth in some detail. The so-called confession consisted of admissions by the appellant that he had, with the assistance of Peggy Hale, hired Barry Kimbrell to kill Fern Rodgers. During the course of the police investigation of this crime the appellant was interviewed some five or six times. The confession was the product of the last such interview. To establish the totality of the circumstances surrounding the confession, it is necessary to review that particular interview, as well as the two interviews immediately preceding it.
Peggy Hale was arrested in connection with Mrs. Rodgers’ murder at about noon on November 8. Shortly thereafter, the appellant appeared at the White County Courthouse and sought to arrange a bond for her release. Appellant was immediately informed by the police that he was a suspect in the murder of his wife. Appellant was given a Miranda warning and promptly signed a written waiver of those rights. Appellant had also been given Miranda warnings on two prior occasions. This conversation between the appellant and the officers was electronically recorded. It contained no statements which would tend to incriminate the appellant. During the course of the interview, the appellant told the officers that he wanted to talk to his lawyer before he made any definite statement relative to his wife’s death. The transcript of the interview reveals that one of the police officers told the appellant that he had, indeed, better spend some of his money on a good lawyer. The interview was terminated without further interrogation and without the appellant being arrested. The entire interview lasted approximately one hour.
The next police interview with the appellant occurred during the early morning hours of November 9. Prior to that interview the police investigators had obtained statements from both Hale and Kimbrell which implicated them, together with the appellant, in the murder of Mrs. Rodgers.
The appellant was asked by the police if he would agree to come to the prosecuting attorney’s office for the purpose of discussing some new developments in the case. The appellant agreed. A police car went to the appellant’s hotel and transported him to the prosecuting attorney’s office. This occurred at approximately 3:00 A. M. the morning of November 9.
Upon arriving, the appellant was informed by Officer W. A. Tudor that he was a suspect in the capital felony murder investigation of his wife’s death. The appellant was again informed of his rights, specifically that he had the right to remain silent and the right to have an attorney present during the interview. At 3:21 A. M. the appellant signed a written waiver of these rights. Dr. Rodgers was then confronted with statements of Hale and Kimbrell, which had been recorded electronically and transcribed. At the request of the appellant he was also permitted to personally confront Miss Hale, who confirmed to the appellant that she had made the statement to the police.
This second interview with the appellant was also recorded. The appellant made a tacit admission of his involvement in the murder, as well as a specific request for the assistance of an attorney.
I only admit that Peggy Hale has always been truthful with me and I do not deny that what she said in the tape recording was true but I want to consult with my attorney, Leon Catlett, before I make any further statements. ■
Miss Hale, who was also present, recalled the appellant stating to the officers that “. . . he would contact his lawyer and get back in touch with them. . .”
The second interview was terminated, again without the appellant being placed in custody or his freedom otherwise restricted. A police officer, James Lester, drove the appellant back to his hotel at approximately 4:45 A.M.
Lester testified that he did not attempt to interrogate the appellant during the trip to the hotel. However, Dr. Rodgers did, according to Lester, state that he had several things on his mind that he wanted to talk to Lester about, but that the appellant did not feel like talking then. Lester stated that he would be glad to talk to the appellant and they agreed to meet at noon that day in Room 124 of the Kings Inn Motel. That was the motel where the State Police personnel were staying while in Searcy and Room 124 was the room occupied by Lester.
Dr. Rodgers’ confession occurred during his next, or third, interview with the police. While there is substantial conflict between the appellant’s and the police version of this interview, several facts related to it are not in dispute. These facts, which are either admitted or uncontradicted, include the following. The appellant met Lester between 12:30 P.M. and 12:45 P.M. on November 9 in Room 124 at the Kings Inn Motel. While there the appellant ordered lunch from the motel room service, which he and Lester ate in the room. The appellant and Lester were alone in Room 124 most of the time. However, three other policemen and a motel waitress were in and out of the room during the afternoon for periods of a few minutes each. Lester and the appellant stayed in Room 124 until 2:45 or 3:00 P.M. They then drove together in Lester’s vehicle to the prosecuting attorney’s office. Since no one was in the office, Lester requested that another policeman, Doug Stevens, be present during the interview with the appellant. Stevens was present during the entire interview. At about 3:10 P. M. the appellant executed a written waiver of his Miranda rights. The appellant then apparently, although he denies any recollection of it, made a statement to Lester which was incorporated in the confession. The appellant then affixed his signature to each page of the confession. The interview was concluded at about 4:40 P.M., whereupon Lester immediately placed the appellant under arrest for the murder of Fern Rodgers.
The appellant’s version of the interview contains the following facts which are at odds with the police version. Officer Lester, not the appellant, initiated the interview. Lester first phoned the appellant at about 10:00 A.M. stating that he wanted to talk to the appellant. The appellant readily agreed, but Lester said he was busy then and would have to phone back later. Lester telephoned again about 11:00 A.M. and told the appellant to meet him at the appellant’s room in Noble’s Motel. The appellant again readily agreed. Lester phoned again a third time at about 11:45 A. M., and, according to the appellant, said, “We’ll meet at the motel.” Finally, the appellant testified that Lester called less than ten minutes later and told the appellant to meet him at Room 124 at the Kings Inn.
The appellant describes the interview or interrogation itself in the following terms:
I arrived at Room 124 of the Kings Inn at about 12:30 and Lester let me in. He said he meant business. He showed me his pistol and said, “I hope we don’t have to use this pistol but I can sure use it.” His face was red. I was afraid of the man and I was tired so I sat down on the bed. He told me, “We are going to bring this thing to a head today. ” There was no one else in the room but on occasion he would leave the room and go into the adjoining room and talk to someone. Once when he came out of the adjoining room I saw what looked like a whiskey bottle in his hand. I could tell he was mad and he showed me his pistol twice. Stevens and the other man came by the room and talked to Lester. I was in the room over two hours and was hungry so I ordered some food. Lester kept trying to get me to talk and I told him two or three times that I would have to talk with Leon Catlett, my lawyer. He said, “To hell with the damn lawyer. I am tired of hearing that.” Around 2:45 we left the Kings Inn. I asked Lester to let me take my car to the County Office Building, but he wouldn’t listen to me and told me to get in the car. On the way down to the building, I saw he was mad at me. I told him that I was going to have to have a lawyer before I could make any further statement. Along about that time I began to have one of my weak spells. I don’t remember anything else until something was said by Lester about signing. I remember distinctly he made me sign on the bottom and over on the side. So then the next thing I remember, I was walking to the jail. I deny what’s in the statement but it is my signature.
The record reveals the following testimony by Officers Lester and/or Stevens contradictory to the Rodgers’ version. After dropping the appellant at Noble’s Motel at about 4:45 A. M., Lester had no contact with the appellant until 12:30 P.M. At that time the appellant phoned Lester and stated, apparently referring to their 12:00 noon appointment, that he had been delayed and was just leaving to meet Lester. The appellant arrived at Room 124 a few minutes later. Lester and the appellant ate lunch in the room, at the suggestion of the appellant, and watched a football game on television. Lester was not drinking and the mood of the conversation was always cordial. Lester finally asked the appellant if he was ready to talk to him. The appellant said he was. Lester then asked that the appellant accompany him to the prosecuting attorney’s office for a formal interview. The appellant readily agreed. Lester did not interrogate the appellant, or even discuss the case, at any time at the motel or during the ride to the prosecuting attorney’s office.
When Lester and the appellant arrived at the prosecuting attorney’s office no one was there. Lester summoned Officer Doug Stevens to be present during the interview. Stevens remained with Lester and the appellant until the statement was completed. The appellant expressly confirmed to Stevens that he had been informed of his rights by Lester and had agreed to waive them.
The three men engaged in idle conversation for a few minutes before the appellant stated, “Let’s get on with the business.” Lester then asked the appellant to tell him what had happened from the beginning, whereupon the appellant related the circumstances of his wife’s murder. Lester transcribed this confession in longhand. At its conclusion the statement was given to the appellant, who appeared to read it in its entirety. Stevens then suggested that Lester read it aloud to the appellant. Lester did this and the appellant then signed the statement.
There was no electronic recordation of the conversation at the Kings Inn or the interview at the prosecuting attorney’s office. However, as stated, there were four other persons present in Room 124 with Lester and the appellant for various short periods of time. One of these, the motel waitress, was a disinterested witness. The appellant concedes that these witnesses’ testimony is without dispute or conflict relative to the following facts: Food was ordered to the room; there was no evidence that Lester was drinking; no ohe heard the Rodgers’ murder case even mentioned; no one heard or observed any indication that Lester threatened or otherwise abused the appellant.
There is also no evidence that Leon Catlett, or any other attorney, was actually employed by appellant to represent him relative to the police investigation of Mrs. Rodgers’ murder. It is undisputed that the appellant did not consult with any attorney during the period of November 8 and 9.
In summary, Dr. Rodgers testified that he was threatened, mistreated, and abused by Officer Lester and that he does not remember making the statements that went into his confession. Lester expressly denies this and claims that the appellant’s confession was completely voluntary. In addition, at all times the appellant was alert, responsive, and appeared to fully comprehend what was going on about him. Finally, all other evidence tending to support one of the above conflicting versions over the other is on the side of Officer Lester. In fact, we find not a shred of evidence in the record which tends to corroborate Dr. Rodgers’ testimony relative to the third interview and his confession.
At the Denno hearing below, both the State and the appellant introduced expert opinion evidence relative to the appellant’s mental capacity at the time of the events described above. Dr. Douglas Stevens, a clinical psychologist, testified for the appellant by stipulation that the appellant’s waiver of rights signed at 3:10 P. M. on November 9, “. . . Would have been the product of confusion, it would not have been the product of intelligence and understanding.” Likewise, Dr. James M. Sims testified that the appellant’s waiver, “. . . Would have been the product of confusion.”
A psychologist and a psychiatrist, Dr. John Althoff and Dr. Oscar Kozberg, also testified by stipulation for the State. Each gave the opposite opinion from that of the defense experts. The State’s witnesses stated that Dr. Rodgers’ waiver of his rights was “. . . the product of intelligence and understanding.”
We have reviewed the record relative to the confession according to the standard established in Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). There we held that the State had the burden of proving by a preponderance of the evidence each element essential to the admissibility of a confession. Further, we stated that this Court on appeal would review the totality of the circumstances surrounding the con fession to determine whether the trial court’s decision on admissibility was clearly against the preponderance of the evidence. In the instant case, we find each of the following to be established by an overwhelming preponderance of the evidence. The confession was given freely and voluntarily. The appellant knew that he had the right to remain silent and that he had the right to counsel during questioning. The appellant also knew that by requesting counsel he could terminate the questioning. However, the appellant knowingly and intelligently waived his right to remain, silent and his right to counsel prior to making his confession. Therefore, the trial court did not err in admitting the appellant’s confession into evidence.
As stated, we have applied the standards set forth in Degler v. State, supra, in reviewing this confession and have held the confession to be admissible under those standards. However, we do not hold that Degler is necessarily the correct rule where, as here, the person making the confession was not in custody. Certainly many elements present in a custodial interrogation and confession are absent when the confession is the product of a voluntary interview with the police.
For instance, the appellant argues here that this confession is inadmissible under our rule in Pierce v. State, 248 Ark. 204, 451 S.W. 2d 219 1970). In other words, once Dr. Rodgers had stated an intention to consult an attorney, the appellant argues that the State was effectively barred from further interrogation until the consultation with an attorney had in fact taken place. We hold that is not the rule in a noncustodial interrogation.
Here, on two prior occasions police interviews were terminated as soon as Dr. Rodgers indicated a desire to consult an attorney. Thereafter, his freedom was not restricted in any manner and the police did not seek to again interview him for several hours. In short, the appellant, after indicating a desire to consult an attorney, was always given an adequate time in which to carry out that desire before he was again asked to submit to an interview. And further, before any such subsequent interview was commenced, Dr. Rodgers was again advised of his rights and willingly signed a written waiver of those rights. Under those circumstances we hold that Dr. Rodgers’ rights received more than adequate protection at the hands of the police.
The appellant’s testimony contained allegations of police misconduct which at first glance seem to raise questions related to a coerced confession. As stated above, we believe that the preponderance of all the evidence supports Policeman Lester’s version of that third interview. However, we would point out that Dr. Rodgers’ version does not, in fact, place the confession within the framework of the classic coerced confession cases. This is for the simple reason that Dr. Rodgers does not attribute his confession to the allegedly coercive behavior of Lester. Rather, the appellant simply denies any recollection of making the statement. In other words, this confession is not alleged to have been made because of fear of police mistreatment. Instead it is alleged that the confession was not the product of a conscious mind and was, therefore, involuntary. However, there is simply no evidence, other than the appellant’s testimony, to support this allegation. Indeed, all of the other evidence is to the effect that Dr. Rodgers was coherent, appeared to be alert, and seemed well aware of all that was going on about him before, during, and after his confession.
The expert psychological and psychiatric evidence is in the same category. To be sure, if the appellant did not know what he was doing when he waived his constitutional rights and confessed, the waiver would not be effective and the confession inadmissible. However, the most that can be said for the defense evidence on this point is that Dr. Rodgers was “confused”. That is not enough to overcome all of the other evidence, including contrary expert opinions, to the effect that the appellant’s waiver and his confession were voluntary acts of a conscious, intelligent mind.
II.
The appellant contends that the trial court erred by not granting a new trial because of newly discovered evidence consisting of a psychological report of Dr. Daniel Taub and the testimony of Dr. Taub. The appellant was sent to the Arkansas State Hospital for a mental examination and the results of that examination ultimately were introduced into evidence.
The evidence on the question of the appellant’s mental capacity consisted of expert testimony from both sides, plus the written report from the State Hospital required by Ark. Slat. Amo. §43-1301. The substance of the appellant’s evidence was that while he was legally responsible for his conduct, he suffered from diminished capacity under stress, both with respect to the ability to tell right from wrong and to knowingly and intelligently waive his constitutional rights. The State’s evidence was to the effect that the defendant was legally sane and that he was competent to understand and intelligently waive his rights.
A subpoena duces tecum for all records relevant to the appellant’s examination at the State Hospital was served on the State Hospital. In response, the State Hospital furnished its file on Dr. Rodgers. After the triai, it was discovered that the reports of Dr. Daniel Taub relative to his examination and tests of the appellant had been omitted from the State Hospital file. The appellant filed a motion for a new trial because of this newly discovered evidence.
A hearing was held on that motion at which Dr. Taub testified. The substance of Dr. Taub’s testimony is as follows. The appellant had organic brain syndrome which reduced his mental capacity, particularly when he was fatigued or under stress. The appellant’s condition was not different than that which would be expected in a person of his age. In fact, the appellant was better off than would be expected because of an above average I.Q. That is, the appellant was intellectually superior to the average seventy year old person. The appellant knew the difference between right and wrong. The appellant was not mentally defective. The appellant’s “level of functioning” at the time he was examined was the equivalent of an I.Q. of 105 to 110. The appellant’s organic brain syndrome was mild to moderate, and was certainly not severe.
The explanation of the missing State Hospital report was simply that Taub’s report was not considered to be part of the file at the time the subpoena was served. Dr. Taub conducted the initial psychological examination and testing of the appellant. Dr. Taub did not administer a complete battery of tests. However, Dr. Taub left his employment with the State in November of 1974 and went to work for the federal government. Dr. Oscar Kozberg was a staff psychiatrist at the State Hospital and was the State’s primary witness on this issue. Dr. Kozberg testified that when he first reviewed the appellant’s file, it was his opinion that Dr. Taub’s psychological testing was incomplete. At the time of his initial review, Dr. Kozberg was aware that a defense psychologist was expected to testify. Dr. Kozberg felt that a complete battery of tests should be done. Therefore, Dr. Kozberg removed the report of Dr. Taub and directed Dr. John G. Althoff, a staff psychologist, to perform a complete battery of tests on the defendant. This was done. Dr. Kozberg also stated his opinion that the test results obtained by Dr. Althoff were not inconsistent with the results of Dr. Taub’s tests. The trial court denied the appellant’s motion for a new trial without specifying the reasons therefor.
A preliminary question deserves mention, to-wit, that of suppression of relevant evidence by the prosecution. That is not an issue here because it is admitted that no one connected with the investigation or the prosecution of the appellant was ever aware of the existence of Dr. Taub or his report until after completion of the trial herein. The omission of that report was strictly on an internal decision of the State Hospital staff which was never revealed to the prosecution.
Hence, the issue now before the Court is whether this was newly discovered evidence which would entitle the defendant to a new trial. Assuming that the Taub report was newly discovered evidence, that is not enough. New evidence, in order to justify a new trial, must be such as to render a different result in such new trial “probable.” Gross v. State, 242 Ark. 142, 412 S.W. 2d 279 (1967).
That is not the case here. Dr. Taub’s test results and his opinions were merely cumulative and in no way inconsistent with the tests and opinions expressed by other evidence presented by the State at the trial. As such, we perceive no way that this evidence, had it been available to the defense at the time of the trial, would have been likely to affect the ul tímate outcome of the trial. Even if we assume that appellant was not aware of the identity of all those who had examined and tested him, we do not know why a timely direct inquiry as to their identity, independent of the subpoena duces tecutn, would not have led to the informatipn ultimately discovered after trial. Cf. Townsend v. City of Helena, 244 Ark. 228, 424 S.W. 2d 856, cert. den. 393 U.S. 917, 89 S. Ct. 244, 21 L. Ed. 2d 203. In any event, on this little favored ground for new trial, the trial judge had a considerable latitude of discretion. Treat v. State, 253 Ark. 367, 486 S.W. 2d 16; Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810; Cooper v. State, 246 Ark. 368, 438 S.W. 2d 681. We cannot say that it was abused.
III.
The appellant next contends that the trial court erred in admitting into evidence the State Hospital report on the ultimate issue of insanity. Here, the mandate of the statue is quite clear. Ark. Stat. Anno. § 43-1301 provides that:
“. . . A written report prepared by the physician or physicians employed by the State Hospital shall indicate separately the defendant’s mental condition during the period of the examination and his probable mental condition at the time of the alleged offense.”
The report which was admitted into evidence conformed to the requirement of the statute. The admissibility of such a report has been established by this Court in Nail v. State, 231 Ark. 70, 328 S.W. 2d 836 (1959). In Downs v. State, 231 Ark. 466, 330 S.W. 2d 281 (1959), this court addressed the issue of the right of confrontation. There we held, citing the Nail case, that the right to confront witnesses is not impaired unless the defendant is denied the right to question the doctors who examined him. Nail v. State, supra. Here, the appellant in fact did have an opportunity to question those who examined him. And the appellant was free to, and in fact did, present contradictory evidence and rebuttal witnesses on the questions of his sanity and mental capacity.
We, therefore, conclude that the appellant’s contention is without merit and the State Hospital report was properly admitted into evidence.
The appellant next contends that the trial court erred in denying him the right to have a daily copy of the trial proceedings. The appellant requested that he be furnished with the official court reporter’s copy of the daily proceedings. The court reporter stated that it would be impossible to comply with such a request and the trial court rightfully refused it. The appellant next requested that he be permitted to employ his own court reporter. This request was also refused by the trial court. The appellant asked what he could do to obtain this information. The trial court stated that the appellant could either have a stenographer take notes, those notes not to constitute an unofficial verbatim transcript, or that the appellant could use an electronic recorder to be operated by counsel for the appellant. The appellant’s counsel took advantage of neither alternative.
We need not here delineate the bounds of any right a criminal defendant might have to obtain a daily copy of the transcript of the proceedings. We have concluded that the trial court did not here abuse its discretion because the alternatives it provided appellant’s counsel were reasonable under the circumstances, and we are unable to say that appellant suffered any prejudice.
V.
The appellant contends that he should have been permitted to discover the personnel file of Policeman Lester because it contained information which would tend to impeach Lester’s credibility as a witness. It was alleged that the State Police had taken disciplinary action against Lester twice, once shortly before and one shortly after Lester obtained the appellant’s confession herein. It is undisputed that the disciplinary action was in another case and was totally unrelated to the Rodgers’ murder investigation. The trial court examined Lester’s personnel file in camera and determined that nothing therein was material to the Rodgers’ case. Accordingly, the trial court refused appellant’s request for discovery and also refused to seal Lester’s personnel file and make it a part of the record herein. The appellant contends that this was reversible error.
The record herein is clear that the appellant’s counsel was already aware of the facts surrounding Policeman Lester’s discipline by his employer. The trial court permitted the appellant to cross-examine Lester in detail about the facts surrounding his discipline. Lester admitted on cross-examination all aspects of the occurrence, including having given deceptive responses in a polygraph examination.
There is no contention in this appeal that Lester’s testimony on cross-examination was in any way inconsistent with the information contained in his personnel file. The appellant does not contend that the personnel file itself, or any part of it, was admissible in evidence. Rather, it is argued that the information it would have revealed would have been useful in cross-examining Lester. However, this information was already known to appellant’s counsel. Furthermore, it was, in fact, used by him in his cross-examination of Lester. The common law recognized no right of discovery in criminal cases. Shores v. U.S., 174 F. 2d 838, 11 ALR 2d 635 (8th Cir., 1949). The right to discovery in such cases is generally governed by statute. At the time of appellant’s trial there was such a statute in Arkansas. Ark. Stat. Ann. § 43-2011.2 et seq (Supp. 1975). This statute would not have required that appellant’s attorney be permitted to inspect Lester’s personnel file. There are valid policy reasons for maintaining confidentiality of such files. People v. Coleman, 75 Misc. 2d 1090, 349 N.Y.S. 2d 298 (1973). Still, the trial court has some discretion in the matter of discovery when impeaching matter is concerned. Shores v. U.S., supra; Graves v. State, 489 S.W. 2d 74 (Tenn. Cr. App. 1972). But, in the exercise of discretion the necessity for a defendant’s searching confidential matter must be weighed against the public policy of confidentiality of secrecy. People v. Coleman, 75 Misc. 2d 1090, supra; Commonwealth v. Dominico, 306 N.E. 2d 835 (Mass. App. 1973); U.S. v. lozia, 13 F.R.D. 335 (1952). Cf. Arnold v. State, 179 Ark. 1066, 20 S.W. 2d 189. This, the trial court may do by an in camera inspection of the material sought. See, U.S. v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 Commonwealth v. Dominico, supra; People v. Bottom, 76 Misc. 2d 525; 351 N.Y.S. 2d 328 (1974). U.S. v. Olin Mathieson Chemical Corporation, 36 F.R.D. 18 (1964). Since defense counsel was permitted a wide latitude in cross-examination and had drawn admissions from the witness which could be taken as damaging to his credibility, we are unable to say that the trial court erred to the prejudice of appellant. See Turner v. State, 258 Ark. 425, 527 S.W. 2d 580; State v. Miller, 35 Wis. 2d 454, 151 N.W. 2d 157 (1967).
VI.
The appellant contends that the trial court erred by admitting into evidence photographs of the deceased. The appellant had agreed to admit and/or stipulate all relevant facts shown by those photographs. It is argued that the appellant’s willingness to stipulate, coupled with the fact that the photographs were by their nature inflammatory, rendered these exhibits inadmissible.
The admissibility of photographs is a matter within the discretion of the trial court. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973). Lee v. State, 229 Ark. 354, 315 S.W. 2d 916 (1958). The photographs in question were color shots of the deceased’s remains as discovered at the crime scene. To be sure, the subject matter of the photographs would alone tend to justify their characterization as gory and, at least to some extent, inflammatory. However, the photographs were material, relevant and accurate. And in no way did they seek to exaggerate or even emphasize blood and gore.
In Perry v. State, supra, we noted that the inflammatory nature of a photograph would not alone render it inadmissible. The same thing is true of the opposing party’s willingness to admit or stipulate certain facts shown by the photograph; e.g., the fact, cause, and place of death. The test should always be whether any necessarily inflammatory tendency of a photograph is outweighed by its probative value. If a photograph sheds light on any issue; or if it assists witnesses to better describe a crime scene; or if it in some other way materially helps the jury to understand the testimofty; then its admissibility into evidence is within the sound discretion of the trial court. We find that these principles were applied here. Therefore, the trial court’s ruling on the admissibility of the photographs was not an abuse of its discretion.
VII.
The appellant argues that the prosecution knew in advance of jury selection and trial that its evidence would not support a capital felony murder conviction. The State, it is argued, used this charge to allow it to qualify a death penalty jury. The appellant was, of course, convicted of a lesser charge, murder in the first degree. The appellant contends that filing the more serious charge is reversible error unless there is evidence in the record which would have sustained a jury verdict of guilty to the charge of capital felony murder. There is no contention by the appellant that the death penalty jury was improperly qualified under the guidelines established in Witherspoon v. Illinois, 391 U.S. 510 (1968). The appellant merely argues that the jury so qualified would be prosecution oriented to the extent that it could not fairly pass on the issue of guilt or innocence. This argument is without merit.
The appellant’s argument is neither factually nor legally sound. In the first place, a thorough review of the record convinces us that there was evidence from which the jury could have concluded that the appellant was guilty of capital felony murder. In substance, there was evidence to the effect that it was intended that Kimbrell rob Mrs. Rodgers in addition to killing her. In any event, we do not accept as valid the proposition that a jury qualified to return a death penalty is necessarily prejudiced on the question of guilt or innocence. On this point we agree with the following statement of Mr. Justice Stewart in the Witherspoon case.
We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. Witherspoon v. Illinois, 391 U.S. 510 (1968).
VIII.
The appellant contends that the trial court erred in instructing the jury on the issues of confession and insanity. The trial court gave four instructions related to the jury’s consideration of the appellant’s confession. It gave five instructions related to insanity and reduced mental capacity. There is no need to further lengthen this opinion by repeating these instructions. We have reviewed each instruction individually, as well as reviewing the instructions on each issue collectively. We have concluded that the trial court’s instructions were correct statements of the applicable law which fully and completely instructed the jury on the issues in question. Further, we have reviewed the instructions offered by the appellant and refused by the trial court. We find that each of the instructions so refused was either repetitious, argumentative, or contained an incorrect statement of the law. Accordingly, we hold that no error was committed by the trial court in instructing the jury. We have reviewed other objections made in the trial court and find none which merit reversal or further discussion.
For the reasons stated above, the judgment of the lower court should be, and the same hereby is, affirmed.
Holt and Hickman, JJ., not participating. | [
112,
-22,
-64,
63,
25,
-96,
42,
56,
114,
-21,
113,
115,
-91,
77,
93,
121,
59,
47,
85,
105,
-75,
-78,
83,
97,
-77,
-13,
-21,
-57,
-77,
-55,
-12,
-43,
77,
32,
-54,
85,
-30,
-118,
-59,
88,
-114,
0,
-117,
-48,
18,
-64,
48,
122,
84,
11,
113,
30,
-93,
34,
54,
-49,
41,
46,
91,
-84,
-64,
48,
26,
15,
-17,
22,
-77,
-90,
-66,
-93,
-8,
62,
-104,
49,
0,
120,
115,
-108,
2,
84,
77,
-117,
-116,
102,
-30,
33,
93,
-51,
-96,
-119,
-113,
126,
-99,
-89,
-72,
65,
67,
38,
-98,
-99,
66,
-16,
26,
-24,
-7,
94,
29,
96,
13,
-50,
-74,
-111,
-49,
44,
-112,
82,
-21,
37,
0,
117,
-33,
98,
93,
36,
112,
-101,
-125,
-108
] |
Bradley D. Jesson, Special Justice.
This appeal involves two separate lawsuits, one by Glenn R. Schultz and one by C. Murrelle Watkins, each filed in separate divisions of the Pulaski Chancery Court on the same date, for the recovery of $47,000.00 each, against the sellers of alleged unregistered securities. The sellers of the alleged securities were the Defendants and Appellees, Rector-Phillips-Morse, Inc., W. F. Rector and Byron R. Morse. The $47,000.00 amount represents the purchase price of joint venture interests which the Appellants purchased in an apartment complex. The Appellants contend that these interests constitute unregistered securities. In the suit they seek recovery of the amount of the purchase price, together with interest from the date of the purchase, less amounts received as dividends therefrom, plus attorneys’ fees, all in accordance with Ark. Stat. Ann. § 67-1256 (Repl. 1966).
The two lawsuits arose out of basically the same transaction. The Appellants each purchased an interest in a joint venture, promulgated by Rector-Phillips-Morse, Inc., to construct a garden-type apartment complex at Stuttgart, Arkansas. The project was referred to as “Stuttgart 221 ”, the “221 ” being the designation assigned this type of project pursuant to the Federal Housing Administration Act. The general scheme of the operation was that the sponsor of the project would raise the equity capital, and the Federal Housing Administration would guarantee a loan to supplement that equity toward financing the entire project. The plan of this operation was set forth by Rector-Phillips-Morse, in a “confidential information”, which constituted an offer to certain individuals interested in taking advantage of defined tax losses under what is commonly referred to as a “tax shelter” investment. This particular project was severed into 10% interest “units”.
Rector-Phillips-Morse was a substantial real estate con cern headed by the late Billy Rector. Rector and Byron Morse, principals in Rector-Phillips-Morse, Inc., and its affiliated companies, through their employees, delivered the “confidential information” which was in the nature of an offer to sell the 10% units to certain individuals. The Appellants herein were informed of the offer to sell by Vernon Giss, who had received a “confidential information”. The Appellants indicated interest in the investment and they contacted representatives of Rector-Phillips-Morse. The Appellant Watkins met with representatives of Rector-Phillips-Morse, and the nature of the project was discussed with him. Watkins, in turn, conveyed this information to Schultz. Thereafter, each of the Appellants subscribed to two units, being 20% participation each in the project. A 50% participation was sold to Central Distribution Centers, Inc. and a 10% interest, or one unit, was sold to E. DeMatt Henderson. All of the percentage ownerships were subject to a 1% ownership interest retained by a Rector-Phillips-Morse subsidiary, and a 1% interest retained by a Pickens-Bond Construction Company subsidiary, known as Apartment Developers Corporation. The cost of the two units to each of the Appellants was $47,000.00.
In the “confidential information” there was a computation provided by Rector-Phillips-Morse which showed the approximate loss deductions each one of the investors might anticipate taking for the next 40 years. The “confidential information” also stated that the books of the joint venture would be audited by an independent certified public accountant who would furnish annually a partnership income tax return showing the amounts which each investor was entitled to take as a deduction from his income for tax purposes.
Both of the Appellants are Vice-Presidents of Stephens, Inc., an investment firm headquartered in Little Rock. Both are licensed as stockbrokers by the National Association of Securities Dealers, and have long experience in the brokerage of securities. They sought this investment primarily as a tax shelter, because each was in a high, personal income tax bracket.
The “Stuttgart 221 ” project initially was to be a joint ven ture between a subsidiary of Rector-Phillips-Morse and a subsidiary of Pickens-Bond Construction Company. However, after the arrangements for the construction were made, and some time after the project was under way, Phillips-Morse Construction Company, a subsidiary of Rector-Phillips-Morse, withdrew from the active construction of the project, and Apartment Developers Corporation, the Pickens-Bond Subsidiary, completed the project.
In November of 1972, the four investors, Schultz, Watkins, Central Distribution and Henderson, together with Apartment Developers Corporation, the Pickens-Bond subsidiary, and Phillips-Morse Construction Company, executed a “joint venture” agreement, undertaking this project and outlining the rights, duties and obligations of all of the owners of it. The corporation known as Stuttgart Apartments, Inc. had been formed in August of 1972, for the purpose of taking title to the apartment project. Stuttgart Apartments, Inc. still own title to the land, but has executed a trust agreement acknowledging that it holds title as trustee for the benefit of the four investors and Apartment Developers Corporation and Phillips-Morse Construction Company. The Board of Directors of Stuttgart Apartments, Inc. consists entirely of employees of Rector-Phillips-Morse, with the exception of one representative who was an officer of Pickens-Bond. Under the terms of the Trust Agreement, Stuttgart Apartments, Inc., as Trustee, was given full power to develop, manage, mortgage or sell the property of the joint venture and to enter into contracts with third parties upon such terms as the Trustee deemed reasonable. In this connection, Stuttgart Apartments, Inc. executed the mortgage to the Federal Housing Administration and received all of the draws from the company temporarily financing the project, and in turn, disbursed all of such funds. The Trustee also contracted to manage the apartments, which, when fully rented, would pay to the Trustee a management fee of $1200.00 per month.
After the Appellants and the other two “investors” had paid the full amount of their investment, Rector-Phillips paid to itself from the investment funds a “consultation fee” of approximately $28,000.00. In addition it was to receive an an nual consultation fee of $100.00. Other remunerations were received by Rector-Phillips-Morse indirectly through commissions paid to Rector-Means and Roland, an insurance agency having overlapping ownership with Rector-Phillips-Morse.
After the first year’s operation of the apartments, the Appellants were furnished a partnership return in accordance with the “confidential information”, which showed that each of them was entitled to take some $15,000.00 loss deduction. They took this loss on their individual tax returns and the Internal Revenue Service, on audit, disallowed a substantial amount of the claimed loss. While it is not clear in the record, it appears that the Appellants and the IRS are still in a dispute concerning the validity and amount of the claimed loss. In any event, the IRS did make a deficiency assessment against both of the Appellants, and it again appears from the record that this was based largely upon the IRS contention that many of the “start up” expenses should have been capitalized and deducted over a period of years, rather than taken the first year. The Appellants have likewise taken tax deductions based on their ownership interest in the apartment complex for each of the tax years thereafter. They have each received income from the investment, including some $3,100.00 in income from the operation of the apartments during the pendency of this action. The apartment complex has had a successful operation and has a ninety-seven percent (97%) occupancy rate.
After learning of the deficiency assessments by the Internal Revenue Service, the Appellants tendered their interest in the joint venture back to the Appellees as provided by statute, and asked for a rescission of the sale, which was refused. These actions were then commenced.
The Appellants contend that the interest in the joint venture in the Stuttgart 221 project is a security within the meaning of the Arkansas Securities Act, and that these securities were not registered and were not exempt from registration. There is no allegation of any fraud or misrepresentation in connection with the Appellants’ purchase of the joint venture interest.
In the trial below, the learned Chancellor held that the interest in the joint venture purchased by the Appellants constituted securities. He found, however, that the private offering exemption, Ark. Stat. Ann. § 67-1248(b)(9) (Supp. 1975) and Rule 8, F(3) of the Arkansas Securities Division, were applicable to the transaction, and that, therefore, there was no violation of the Securities Act. The Chancellor further found that the Appellants were trained, knowledgeable and experienced in the field of securities, and that their claims for rescission were, in any event, barred by laches and waiver. In determining the outcome of this case on appeal, this Court must review each of these findings.
I. DID THE JOINT VENTURE INTERESTS PURCHASED BY APPELLANTS CONSTITUTE SECURITIES WITHIN THE MEANING OF THE ARKANSAS SECURITIES ACT?
The term “security” is defined in the Arkansas Securities Act, Ark. Stat. Ann. § 67-1247(1), (Repl. 1966) as:
“ ‘Security’ means any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract; variable annuity contract; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; or, in general, any interest or instrument commonly known as a ‘security’ or any certificate of interest or participation in, temporary or interim certificate for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. ‘Security’ does not include any insurance or endowment policy or annuity contract or variable annuity contract issued by any insurance company.”
The Appellants’ contention is that the joint venture interest which they purchase constituted an “investment contract” or a “certificate of interest or participation in a profit-sharing agreement” within the definition quoted above.
This Court recognizes that regardless of labels, the Arkansas Securities Act was designed to protect both investors in common stock and those persons who in substance are the investors in the disguised business venture of another. This investor protection is accomplished through the definition of security. The definition should be flexible enough to encompass the endless succession of new and innovative or old and tried promotional schemes, where the promoters, by design, seek to risk the money or property of others in their venture. Recent stock market trends, coupled with the existing income tax structure, and other elements, including inflation, have had a material effect on the attitude of Arkansas citizens as to where to place their investment capital. As is graphically illustrated in the facts of the case before us, tax consequences of any investment have become, in the eyes of many, the predominant factor for gauging the success or failure of any venture. Investment schemes are now promoted perhaps more on what the tax losses to be generated by an investment will be rather than the income derived from the investment. It is paradoxical that because of the income tax structure, an investment which generates profit can be a bad investment, while a venture which generates a substantial paper loss becomes a good investment. With such shifting attitudes, there has been a rise in what initially appear to be new and innovative financing methods, for the creation of “tax sheltered” investments. Co-partnerships with public investors have recently been revitalized as a vehicle of conducting a business venture. The sale of limited partnership units in ventures ranging from oil and gas leases to herds of cattle, has come into vogue. Accordingly, if the Arkansas Securities Act is to protect the citizens of this state, then our definition of what constitutes a security must necessarily depend upon an analysis of all of the factors involved in any given transaction.
The “investment contract” and “certificate of interest or participation in any profit-sharing agreement” security, frequently encompasses those unconventional means used by promoters to finance their ventures. This Court has not previously defined these terms. Arkansas adopted essentially the Uniform Securities Act as the Arkansas Securities Act in 1959, Ark. Stat. Ann. § 67-1235, (Repl. 1966) et seq. Thirty- three other states have likewise adopted, in essence, the Uniform Securities Act. The Arkansas Securities Act of 1959 is remedial, and remedial legislation should be liberally construed. Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803 (1958).
The federal view of what constitutes an investment contract was first cited by the United States Supreme Court in Securities and Exchange Commission v. C. M. Joiner Leasing Corporation, 320 U.S. 344, 64 S. Ct. 120, 88 L. Ed. 88 (1943). There the promoters engaged in a campaign to sell assignments of oil leases covering some 4,700 acres. Leasehold subdivisions offered never exceeded 28 acres, and all buyers were given an opportunity to pay for their leasehold interest in installments. The driller agreed to drill a test well, financed primarily from the resale to the public of small parcels of lease acreage. The United States Supreme Court held that this scheme did not constitute simply sales and assignments of legal and legitimate oil and gas leases, which were only sales of interests in land. The Court noted that it was an economic interest in the well-drilling undertaking that produced the instruments that the promoters were selling, and gave to them most of their value and all of their lure. In reversing the case, the Supreme Court of the United States stated:
“Nor can we agree with the court below that defendants’ offerings were beyond the scope of the Act because they offered leases and assignments which under Texas law conveyed interests in real estate. In applying acts of this general purpose, the courts have not been guided by the nature of the assets back of a particular document or offering. The test rather is what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect. In the enforcement of an act such as that it is not inappropriate that promoters’ offerings be judged as being what they tvere represented to be. [Emphasis added].”
The next United States Supreme Court case defining an unconventional security as an investment contract, evolved from Securities and Exchange Commission v. Howey Co., 328 U.S. 293, 66 S. Ct. 1100, 90 L. Ed. 1244 (1946). In that case the promoter owned large tracts of citrus acreage in Florida. The prospective customer was offered both a land sales contract and a service contract, after having been told that it was not feasible for the prospective customer to invest in a grove unless service arrangements were made. The purchases were usually made in narrow strips of land, so that an acre consisted of one row of 48 trees. The service contract was generally of a ten year duration, without the option of cancellation, and gave the service company full and complete possession of the acreage, with full direction over what crops to plant, etc. In the finding of the term “investment contract” in the Howey case, the United States Supreme Court said:
“. . . an investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the . physical assets employed in the enterprise. ...”
In the years following Howey, some courts have placed a literal emphasis on the Howey formula, while others recognized the remedial purpose of the Federal Securities Laws, and refused to give a mechanical value to Howey. For example, the Ninth Circuit Court of Appeals, in SEC v. Glenn W. Turner Enterprises, Inc., 474 F. 2d 476 (9th Cir. 1973), found an investment contract to exist even though the investors were contributing some effort in a pyramiding investment program.
The Hawaiian View
Hawaii, like Arkansas, has adopted the Uniform Securities Act. In State of Hawaii v. Hawaii Market Center, Inc., 52 Hawaii 642, 485 P. 2d 105 (1971), the Supreme Court of Hawaii was called upon to define the term “investment contract”. In so doing, the Hawaiian court went further than the United States Supreme Court in interpreting its Act, as follows:
“The salient feature of securities sales is the public solicitation of venture capital to be used in a business enterprise. . . . This subjection of the investor’s money to the risks of an enterprise over which he exercises no managerial control is the basic economic reality of a security transaction. . . . Any formula which purports to guide courts in determining whether a security exists should recognize this essential reality and be broad enough to fulfill the remedial purposes of the Securities Act. Those purposes are (1) to prevent fraud, and (2) to protect the public against the imposition of unsubstantial schemes by regulating the transactions by which promoters go to the public for risk capital. HRS § 485-10(3). Therefore, we hold that for the purposes of the Hawaii Uniform Securities Act (Modified) an investment contract is created whenever:
“(1) An offeree furnishes initial value to an offer- or, and
“(2) a portion of this initial value is subjected to the risks of the enterprise, and
“(3) the furnishing of the initial value is induced by the offeror’s promises or representations which give rise to a reasonable understanding that a valuable benefit of some kind, over and above the initial value, will accrue to the offeree as a result of the operation of the enterprise, and
“(4) the offeree does not receive the right to exercise practical and actual control over the managerial decision of the enterprise.
“The above test provides, we believe, the necessary broad coverage to protect the public from the novel as well as the conventional forms of financing enterprises. Its utility is best demonstrated by its application to the facts in the instant case.”
The Minnesota View
The Supreme Court of Minnesota recently declined to adopt the Federal view set forth in Howey, as being exclusive under its securities laws. See State of Minnesota v. Investors Security Corporation, 297 Minn. 1, 209 N.W. 2d 405 (1973). Perhaps the pioneer case of what constitutes an investment contract is set forth in State v. Gopher Tire & Rubber Co., 146 Minn. 52, 177 N.W. 937 (1920). There the Minnesota Supreme Court stated:
“The purpose of the statute is to protect the public against imposition. It is a new form of regulatory law which, in the course of a few years, has swept over 33 states. It has been said that its popular name indicates the evil at which it is aimed, that is, speculative schemes having no more basis than so many feet of blue sky, . . . and that it is intended to put a stop to the sales of shares in visionary oil wells, non-existent gold mines, and other ‘get-rich-quick’ schemes, calculated to despoil credulous individuals of their savings. It is a proper and needful exercise of the police power of the state and should not be given a narrow construction; for it was the evident purpose of the Legislature to bring within the statute the sale of all securities not specifically exempted.”
The Minnesota Court then went on to say:
“It is better to determine in each instance whether a security is in fact of such a character as fairly to fall within the scope of the statute. ...”
We agree with the general approach taken by the Minnesota Supreme Court that the definition of a security within the meaning of the Arkansas Securities Act should not be given a narrow construction, and that it is better to determine in each instance from a review of all of the facts, whether an investment scheme or plan constitutes an investment contract, or a certificate of interest or participation in a profit-sharing agreement, within the scope of the statute.
In applying these principles to the facts in the case at bar, we are convinced that the so-called joint venture interests purchased by the Appellants constituted securities within the meaning of the Arkansas Securities Act. This transaction simply cannot be characterized as the sale of an interest in real estate. The entire scheme for marketing and managing the apartment complex was put together in one single package by Rector-Phillips-Morse. That corporation and its affiliates organized, constructed, managed and controlled the properties of the joint venture. The “units” were sold to investors as a “tax shelter” and upon the basis that the entire project would be constructed, managed and controlled by Rector-Phillips-Morse or its affiliated companies. However, the risk of loss of money actually invested was placed squarely on the investors, not only for their capital contributions, but also for any additional cash that would be required to make the payments to keep the property from going into foreclosure. In no sense was this a partnership in which a number of person s expected to pool their talents and capital and reap the benefits from their own expertise and abilities. The Stuttgart 221 investors were mere passive contributors of risk capital who placed their money in an investment program labeled a “joint venture”. However, the wording of the Trust Agreement and the Joint Venture Agreement, set forth a clear wall of difference between the promoters and the investors.
Legal scholars whose expertise is in security matters have opined that certain general partnership and joint venture units may be securities. See 1 LOSS, SECURITIES REGULATIONS 503-506 (2d ed. 1961); Soward, Fed. Sec. Act in 11 BUSINESS ORGANIZATIONS-SECURITIES REGULATION § 2.01 [12] (1971), and Long, Partnership, Limited Partnership, and Joint Venture Interests as Securities, 37 Mo. L. Rev. 581 (1972).
By this holding, we hasten to add that by no means are all general partnerships or joint venture units securities within the meaning of the Arkansas Securities Act. It is not the label that determines whether these units are securities, but the economic substance of the financing of the venture. Here, Rector-Phillips-Morse put the entire transaction together in a package. That package included the FHA commitment, the land, the construction of the apartments, the management of the apartments, the collecting of the rent, the making of the payment, and even granting to the trustee the authority to sell the entire complex. The investors were strict ly passive investors who were buying an interest in a tax shelter with apparently a long-term hope of realizing capital gains on their investments. In short, when the transaction is examined as a whole, it constitutes the sale of securities within the meaning of the Arkansas Securities Act.
II. DID THE SECURITIES QUALIFY FOR AN EXEMPTION FROM REGISTRATION PURSUANT TO THE ARKANSAS SECURITIES ACT?
Section 7 of the Arkansas Securities Act, Ark. Stat. Ann. § 67-1241 (Repl. 1966) provides that it is unlawful for any person to offer or sell any security in this state unless (1) it is registered under the Act, or (2) the security or transaction is exempted pursuant to Section 14 of the Act, Ark. Stat. Ann. § 67-1248 (Supp. 1975). It is admitted by all concerned that the Stuttgart 221 joint venture investment program was not registered under the Act, and it is likewise admitted that the Appellees did not file for an exemption from registration as required by Section 14(f), Ark. Stat. Ann. § 67-1248(f) (Supp. 1975).
The Appellees contend that the transactions involving the Stuttgart 221 units were exempt from registration requirements as being one involving a private offering. Ark. Stat. Ann. § 67-1248(b)(9) describes this exemption as follows:
“(9) any transaction pursuant to an offer directed by the offeror to not more than twenty-five (25) persons (other than those designated in paragraph (8) of this State during any period of twelve (12) consecutive months, whether or not the offeror or any of the offerees is then present in this State, if (A) the seller reasonably believes that all the buyers in this State are purchasing for investment, and (B) no commission or other remuneration is paid or given directly or indirectly for soliciting any prospective buyer in this State; ...”
Ark. Stat. Ann. § 67-1248(f) provides:
“(f) Before any transaction shall be executed as an exempted transaction under Section 14(b)(9), (10) or (11) a proof of exemption must be filed with the Commissioner. The proof of exemption shall contain a statement of the grounds upon which the exemptidn is claimed and a declaration of which subsection of Section 14 [this section] the exemption is claimed under. For every such proof of exemption filed with the Commissioner there shall be paid to the Commissioner a filing fee of ten dollars ($10.00).”
As heretofore stated, no proof of exemption was filed by Rector-Phillips-Morse, and therefore, the Appellees rely upon Rule 8(f)(3) of the Securities Commissioner of the State of Arkansas, effective September 1, 1972, which provides:
“The filing requirements of Section 14(f) [§ 67-1248(f)] are not applicable where five persons or less form a corporation or limited partnership, or enter into a trust agreement and receive the securities which are issued pursuant to the incorporation, where the requirements of Section 14(b)(9) are otherwise complied with.”
If this Rule is to apply here, the Appellees must first prove that they did not receive any commission or other remuneration for soliciting prospective buyers of the joint venture units which we have determined to be securities. Admittedly, Rector-Phillips-Morse put together the package which comprised the Stuttgart 221 project. It then contacted individuals by means of the “confidential information” and solicited the purchase by those individuals of units in this project. In the “confidential information” it was stated that Rector-Phillips-Morse intended to receive a profit of approximately $48,000.00. Because of cost overruns, it appears that the actual amount received was approximately $28,-000.00. This includes a fee in the sum of $20,306.00 for “consulting services” received from the proceeds of the joint venture units sold to the investors. In addition, provisions were made for an additional payment of $100.00 per year for “consulting relationship”. It was admitted that $20,000.00 of the “consulting” fee was paid when liquid assets in the form of payment for these “units” first became available.
Upon the showing of a sale of a security, the burden of proof shifts to the seller to show that the security was either registered, or was not required to be registered under the terms of the Arkansas Securities Act. A necessary ingredient in this showing is that no commission was paid, either directly or indirectly, for the solicitation for the sale of the security. We find from the evidence that the Appellees have not met this burden. Indeed, the record is silent as to whether or not any employees of Rector-Phillips-Morse actually received commissions based solely upon the sale of these joint venture units, but the record is clear that Rector-Phillips-Morse itself did receive over $20,000.00 in cash for “consulting fees”. When all of the evidence is viewed even in a light most favorable to the Appellees, we cannot escape the conclusion that Rector-Phillips-Morse did, in fact, receive remuneration, both direct and indirect, for the solicitation and sale of the joint venture units. Therefore, the Appellees’ contention that the securities were exempt from registration pursuant to Rule 8(f)(3) of the Arkansas Secur ities Commissioner must fail.
Because of the finding that such remuneration was paid, the question of whether or not more than five persons received securities becomes moot. Moreover, in this connection we would note that Rule 8(f)(3) is designed to permit the formation of small numbers of investors into their own designed business venture, such as a family store, without the filing of other documents to perfect an exemption under the Arkansas Securities Act. Rule 8(f)(3) was not designed for use by a promoter to create a venture in which the promoter was to receive direct or indirect commissions, fees, or other remunerations in connection with the organization, development and operation of the enterprise.
III. WERE THE KNOWLEDGE AND BACKGROUND OF THE APPELLANTS AND THEIR ACTIONS AND INACTIONS SUFFICIENT TO CONSTITUTE LACHES, WAIVER OR ESTOPPEL SO AS TO BAR THEIR RIGHT OF RESCISSION?
The Appellants are knowledgeable, experienced businessmen, and are registered stock brokers. Both are college graduates, and have maintained personal investments in securities of up to $100,000.00. The Appellees did not contact the Appellants to sell them joint venture interests in the Stuttgart 221 project. Rather, both were seeking “income tax shelters” and upon hearing of this project, they took the initiative and contacted the Appellees. The Appellants do not seek rescission of the purchase based upon any fraud or misrepresentations. In fact, they candidly admit that the project is doing extremely well. Their primary reason for seeking rescission is apparently that the Internal Revenue Service has not granted them the income tax deductions which they claimed. However, the Appellants have taken personal tax deductions during the years they have owned an interest in this project, in an amount in excess of their capital contribution. After enjoying the benefits of such income tax deductions, they now seek a court of equity to refund their purchase price and pay them interest and attorneys’ fees, not because of any fraud or misrepresentation, but rather because of noncompliance with technical registration requirements. In Lane v. Midwest Bank Shares Corp., 337 F. Supp. 1200 (E.D. Ark. 1972) District Judge, and now Circuit Judge, Henley held that the sophistication and relative knowledge of the buyer were relevant considerations in determining his reliance upon representations. Judge Henley found it difficult, even unrealistic, to apply conventional “blue sky laws” concepts to the aggressive investor in the Lane litigation. He concluded the Federal Rule 10b-5 and the Arkansas Securities Act should not be applied to rescue the buyer from the results of his own improvidence. Security laws are aimed at qualifying “the doctrine of caveat emptor — not to establish a scheme of investors’ insurance.” List v. Fashion Park, Inc., 340 F. 2d 457, 463 (2nd Cir. 1965).
Certainly it is not the intention of the Arkansas Securities Act to grant knowledgeable buyers of securities an undue advantage over sellers who are substantially less informed in the field. It was never intended that the securities laws be used as a tool of sophisticated investors to invest in projects or promotional schemes and reap the tax benefits accruing from such ownership, and then have the option several years later to determine whether they want to retain the investment or get their money back with interest while presumably retaining the tax benefits.
Likewise, a party to a contract for the purchase of stock may, of course, be barred from maintenance of an action for rescission by laches, unless he acts promptly to repudiate the contract within a reasonable time after discovery of the facts entitling him to rescind. 12A FLETCHER CYC. CORP § 5610.
When a statute of limitations applies to equitable as well as legal actions, it is clear that laches may still bar a plaintiff in equity before the expiration of the state statute — at least where the state statute does not provide otherwise — and perhaps (since laches is a matter of equity jurisprudence) even when it does. Ill LOSS, SECURITIES REGULATIONS 1777.
Here the Appellants purchased their interest in November of 1972. At the time of the purchase, the Appellant Schultz considered that the interest he was purchasing could be subject to securities registration requirements, but did not discuss this with the seller. No one ever represented to the Appellants either personally or in the “confidential information” that the interests were securities, either registered or exempt from registration. In fact, according to the testimony of the Appellees’ officers, the possibility that the interests which they were selling might be securities or might need to be registered had not occurred to them. Each of the Appellants deducted a total of $30,000.00 on their 1972 and 1973 personal income tax returns. Even after suit was filed in January 1975, the Appellants reported an additional tax deduction of $21,400.00 on each of their 1974 returns. Likewise, after the filing of the suit, they each accepted $3,-100.00 in income from the project during 1975.
In applying the doctrine of laches, delay is measured from date of constructive knowledge, not just actual knowledge of the facts entitling the plaintiffs to bring suit. It is well settled that when the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence. Johnston v. Standard Mining Co., 148 U.S. 360, 13 S. Ct. 585, 37 L. Ed. 480 (1897); Smith v. Olin In dustries, Inc., 224 Ark. 606, 612, 275 S.W. 2d 439 (1955). If this doctrine fails upon men of ordinary intelligence, it certainly would apply a fortiori in this situation, where two well-educated and highly experienced and knowledgeable stock brokers are concerned. A simple inquiry to Rector-Phillips-Morse would have revealed this information at the time of the sale in 1972.
The delay of the Appellants in bringing this matter to the attention of the Appellees, worked to the prejudice of the Appellees, not only in that had it been brought to their attention before the sale, then for a payment of a $10.00 filing fee an exemption presumably could have been obtained, but also prejudiced the present marketability of the Schultz and Watkins interest. In “tax shelter investments” the attractiveness of the investment is based in large measure upon the front-end tax deductions which can be taken during the first few years after construction. These front-end deductions of over $100,000.00 for the interests owned by the Appellants have now been exhausted.
When all of these factors are considered, we agree with the Chancellor below that the conduct of the Appellants, particularly in light of their training and experience, did not constitute the exercise of good faith and reasonable diligence, and that based upon the doctrines of laches and estoppel the doors of the equity court were justifiably closed to them.
In making this finding of estoppel and laches, we are not in any way opening the door to schemes of promoters of unregistered and non-exempt securities whereby they can trap investors into waiving their rights by receiving dividends or taking tax benefits from their investments. Rather, it should be emphasized that these findings are made solely on the basis of the particular circumstances presented by this case.
The judgment of the Chancery Court is affirmed.
George Rose Smith and Byrd, JJ., dissent.
Fogleman, J., not participating.
Conley Byrd, Justice, dissenting. I would reverse the judgment.
The civil liability contained in the Arkansas Securities Act, Ark. Stat. Ann. § 67-1256 (Repl. 1966), provides:
“(a) Any person who (1) offers or sells a security in violation of Section 3, 7, or 17(b), or of any rule or order under Section 15 which requires the affirmative approval of sales literature before it is used, or of any condition imposed under Section 10(d), 11(g), or 11(h) .. . is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at six per cent [6%] per year from the date of payment, costs, and reasonable attorneys’ fees, less the amount of any income received on the security ... .”
The record shows, and the proof is not controverted, that appellants did not receive the income tax deductions represented to them in the prospectus that appellees put out. The record also shows that appellants were not versed in real estate investments and that this information was conveyed to appellees, who were experts in real estate investments. The record also shows that appellants ceased their inquiries into the legal and business ramifications of the tax shelters after appellees told appellants that the law firm of Smith, Williams, Friday and Bowen would handle the legal work and Russell Brown and Company would handle the accounting. The same law firm and accounting firm also handled the legal work and accounting work for appellants’ employer, Stephens, Inc. The record also shows that appellants did not know that the Trust Agreement had not been registered with the Securities Commissioner until August of 1974. Appellants in October, 1974 had a formal meeting with appellees, with counsel present, and demanded a return of their money. This suit was commenced in January, 1975.
Appellants, as registered security dealers under the Arkansas Securities Act, are now in the peculiar position of having to eat and devour their investment. The Arkansas Security Act prohibits appellants from selling or assigning the security for value. A violation thereof is a felony and in addition would result in the revocation of their security license. Consequently, appellants, each with an investment of $47,000 in the Trust Agreement, cannot even pledge their interests to a bank for security. Yet appellees who violated the Arkansas Securities Act are permitted to enjoy the fees and profits received from their violation of the law.
Thus the majority permits appellees to enjoy the fruits of their illegal gains while telling the appellants that as registered and experienced security dealers they have no protection under the Arkansas Securities Act. Of course, as I have pointed out, the Securities Act applies alike to everyone who violates it, however, this Court has decided to make an exception in this case. In doing so the majority ignores the fact that the tax shelter did not live up to the prospectus by which the securities were sold.
For the reasons stated, I respectfully dissent. | [
116,
108,
-76,
44,
24,
-32,
58,
-93,
91,
-89,
102,
83,
-83,
-2,
21,
125,
-25,
125,
-28,
107,
-43,
-78,
99,
34,
-46,
-77,
115,
-59,
-79,
77,
-12,
-41,
-56,
37,
-54,
21,
-126,
-94,
-51,
28,
14,
1,
10,
100,
-3,
65,
20,
27,
16,
75,
49,
-100,
-14,
37,
61,
75,
73,
46,
73,
-67,
-47,
-7,
-103,
5,
-33,
23,
32,
69,
-104,
65,
-6,
10,
-110,
-75,
32,
-88,
115,
-90,
-106,
-12,
75,
107,
44,
34,
98,
0,
-127,
-25,
-16,
-120,
38,
-1,
-123,
-91,
-48,
72,
3,
1,
-65,
28,
90,
22,
5,
-2,
-10,
-100,
25,
109,
-123,
-50,
-42,
-93,
55,
104,
-97,
19,
-9,
23,
48,
116,
-50,
-26,
93,
87,
58,
-101,
-114,
-9
] |
Frank Holt, Justice.
The appellant was charged with violation of Ark. Stat. Ann. §§ 75-901 and 75-903 (Repl. 1957), commonly known as the “hit and run” statutes. Upon a jury trial he was found guilty and his punishment assessed at one year imprisonment in the county jail and a $500 fine. From the judgment on that verdict comes this appeal. Appellant’s present counsel did not represent him in the trial of the case.
The appellant contends that the trial court erred in not granting his motion for a directed verdict at the close of the appellee’s case; in refusing his renewed motion at the close of appellant’s case; and that the verdict is contrary to both the law and the evidence. Thus, appellant asserts that the evidence is insufficient to support the verdict.
It is a well established rule that upon appeal we must review the evidence in the light most favorable to the appellee and if there is any substantial evidence to support the jury’s verdict, then it must be sustained. Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374 (1945); Finley v. State, 233 Ark. 232, 343 S. W. 2d 787 (1961). We review the evidence in accordance with this governing principle of law.
There was evidence that the appellant was the driver of a vehicle which ran a stop sign at a street intersection and collided with another vehicle. A witness found Mrs. Robinson, driver of the other vehicle, groping alongside her car in a dazed condition. Appellant was observed sitting in his car which was stopped a short distance from the scene. During the time that witnesses were rendering aid to Mrs. Robinson, the appellant, who was recognized by these witnesses, continued to sit in his car with his head leaning forward. He was asked not to leave the scene. However, before Mrs. Robinson was removed from the scene, the appellant left at a “fast clip” with his tires making a “squalling” noise and turned a street corner at a fast rate of speed. His car was found unoccupied and stuck in the mud a few blocks from the scene. Before he left he did not offer any aid or assistance to Mrs. Robinson or to her benefactors. He did not in any manner offer his identification. Mrs. Robinson was taken to the hospital and her injuries were such that she remained in the hospital for approximately one month. A short time preceding the accident the appellant was observed driving in such a manner that a motorist’s car was forced from the road. Appellant stopped his car on the side of the road and then proceeded in his original direction which was a short distance from the intersection accident. There was evidence that a short time following the accident and also about an hour or hour and a half thereafter when appellant was arrested at his home, his behavior and appearance indicated that he was under the influence of drugs or intoxicating liquor and that he did not appear to be “at his-self” and “didn’t remember much about” being involved in an accident.
In our view we think there is substantial evidence to support the jury’s verdict that the appellant did not comply with the pertinent traffic statutes {% 75-901 and § 75-903) which require that the driver involved in an accident resulting in injury to any person shall stop his vehicle and in every event shall remain at the scene until he has identified himself and his vehicle. Further, that he shall render to any injured person in such accident reasonable assistance, including hospital and medical attention if nécessary. Although his identity was known and others were rendering aid, there is evidence that appellant hurriedly left the scene of the accident before Mrs. Robinson was removed and after being requested not to leave.
Appellant next asserts that the trial court erred in refusing to grant him a new trial for the reason that his court appointed counsel was inadequate because of illness or inexperience. We cannot agree with appellant. Based upon this assertion in Ms motion for a new trial, the court conducted an evidentiary hearing. According to appellant, his attorney was suffering from the flu, had a Mgh fever and was physically unable to properly represent him on the day of the trial. Appellant testified that Ms counsel did not call two witnesses which appellant requested; that he did not propound certain questions that he wanted witnesses to be asked; that he did not offer in evidence certain pictures and voiced insufficient objections. The appointed counsel testified that he was 26 years of age, a 1967 graduate of the University of Arkansas Law School and had practiced law for approximately 17 months. He described his condition on the day of the trial as being “ill” rather than “sick” from the flu. He testified that Ms illness did not physically or mentally incapacitate him in such a manner that he could not adequately represent the appellant; that he was not aware of any evidence that he failed to present because of his illness; that he had discussed the case with the appellant on occasions for about a year previous to the trial; that it was appellant’s decision not to take the stand in his own behalf, that one witness, a physician, was not called to testify on behalf of appellant because the appellant did not want to subpoena Mm; that he had not refused to present any witnesses or evidence requested by the appellant and that he had conducted the defense according to Ms best judgment; that he had consulted with the appellant about trial strategy and .appellant was made aware that as a witness he was subject to cross-examination about past conduct and perhaps it would not be to appellant’s advantage. This and other aspects of trial strategy were discussed with appellant in conference with other counsel. Appellant himself testified that during these conferences he was advised that he might be asked questions that he “wouldn’t want to answer.” Further, that his counsel did not refuse him the right to testify and .asked Mm if he could add anything to the evidence. Ap pellant said he declined because he couldn’t remember anything about the accident. The court noted that if appellant’s counsel had appeared to be incapable of defending appellant, it would have, on its own motion, continued the case.
We agree with the trial court’s refusal to grant a new trial based upon appellant’s contention of inadequacy of trial counsel. We cannot agree with appellant’s assertion that his counsel, because of inexperience or illness, conducted his defense in such a manner that his trial was a farce and a mockery of justice which denied him a fair trial. The appellant’s court appointed counsel had worked on his case for approximately a year and preceding his trial had successfully quashed one jury panel. Appellant’s complaint about his counsel’s conduct of the case primarily relates to trial strategy or tactics which involve the elements of discretion, and judgment upon which competent counsel might honestly disagree, especially after the event. Therefore, the conduct of appellant’s defense did not constitute the denial to him of a fair trial. Thomas Linville Coleman v. State, 242 Ark. 751, 415 S. W. 2d 549 (1967). See, also, 24 A. L. R. 1025; 64 A. L. R. 436; 74 A. L. R. 2d 1390. The appellant has not demonstrated that he did not have effective assistance of counsel in the trial of his case. To the contrary, it .appears that appellant was provided competent and diligent representation.
Affirmed.
Fogleman, J., not participating. | [
112,
-22,
-76,
-66,
73,
64,
50,
26,
115,
-45,
-16,
-45,
-83,
-63,
5,
51,
-6,
61,
-43,
97,
-41,
-73,
7,
115,
-30,
-77,
107,
-57,
-73,
-53,
-20,
-36,
78,
48,
-54,
-43,
38,
72,
-59,
120,
-114,
-118,
-87,
96,
88,
18,
40,
62,
96,
15,
-15,
-98,
-22,
46,
30,
-49,
109,
108,
75,
-84,
-40,
49,
-64,
7,
95,
20,
-79,
-122,
-65,
5,
88,
58,
-104,
49,
0,
-8,
115,
-94,
-126,
84,
105,
-103,
12,
98,
98,
49,
29,
-27,
-88,
-120,
46,
126,
15,
-89,
-104,
97,
73,
9,
-105,
-97,
123,
18,
14,
-2,
-7,
93,
81,
44,
6,
-49,
-80,
-71,
-121,
37,
22,
104,
-29,
45,
52,
117,
-51,
-9,
93,
69,
83,
-101,
-98,
-106
] |
Conley Byrd, Justice.
Appellee Grace Goodsell brought this action against appellant Continental Southern Lines, Inc., alleging that she was injured on the appellant’s bus in Jackson, Mississippi. She alleges that her injuries were proximately caused by the negligence of appellant in failing to supervise the unloading of the bus, in failing to help plaintiff unload her baggage, and in failing to exercise ordinary care under the existing circumstances. The trial court found that the bus drivers’ failure to help plaintiff disembark was negligence which was the proximate cause of her injuries, that the passengers were unruly in disembarking and that the. failure of the driver to take any action was negligence which too was a proximate cause of appellee’s injuries. From a judgment for $2,750.00 the bus company appeals contending among other things that there is no evidence to sustain the trial court’s findings.
The record shows that Mrs. Goodsell was 68 years of age and weighed about 195 pounds. In the fall of the year before the accident on October 20, 1967, Mrs. Good-sell had earned $150.00 picking cotton. She testified that she pulled up to 400 pounds a day. She purchased her ticket from the bus company in Conway for a trip to Panama City and return. That on her way back from Panama City, when the bus reached Jackson, Mississippi, the passengers were informed that they would have to change buses. She was sitting on the left hand side in the second seat back of the driver. Her testimony is that the passengers all rushed to get off. The bus driver was standing outside the door in a position to help folks disembark. She had testified that the aisle of the bus was lower than that portion where the passengers sit. After she thought all the passengers had gone, she got up, reached above her head to the rack where she had a brown bag and that as she was turning to step down, to the aisle, she was bumped by one of the passengers to such an extent that it caused her to fall. The only description in the record with reference to the package is Mrs. Goodsell’s description — i. e., “I just had a light package to carry.” Other testimony of Mrs. Goodsell shows that she was helped on the bus by the bus driver when she boarded in Panama City and again at Mobile.
The general rule is that a carrier will not be held liable for injuries to passengers caused by the negligent or meddlesome conduct of other passengers, unless the carrier has notice of such conduct and reason to anticipate that injury may result therefrom. See Chicago Rock Island and Pacific Railway Company v. Brown, 111 Ark. 288, 163 S. W. 525 (1914) and annotation, 140 A. L. R. 1194. Under the foregoing rule there is no evidence to sustain the findings of the trial court for there is obviously no testimony to show, that the carrier had notice of such conduct or reason to anticipate that one passenger would bump against another so severely as to cause the injuries here involved.
Appellee, to support the finding of the trial court, relies upon Payne v. Thurston, 148 Ark. 456, 230 S. W. 561 (1921). There the gravamen-of the carrier’s negligence was in starting the train before the passenger had time to disembark. Here the testimony shows without contradiction that the bus was stopped and that the bus driver was standing in a position to assist the passengers in disembarking. Furthermore, the gravamen of the offense here is the negligent or meddlesome conduct of another passenger without which no injury would have occurred.
Reversed and dismissed. | [
48,
104,
-28,
-65,
24,
99,
10,
-102,
-41,
-109,
-91,
83,
-93,
-59,
13,
107,
-1,
61,
-11,
111,
-73,
19,
19,
-94,
-46,
-41,
113,
69,
-79,
106,
100,
-9,
77,
113,
-54,
85,
70,
75,
-57,
24,
-50,
2,
-3,
-28,
121,
18,
112,
122,
20,
71,
113,
-115,
-126,
42,
24,
66,
45,
47,
105,
33,
-54,
112,
-114,
7,
103,
2,
-96,
36,
-98,
35,
-36,
24,
-120,
-80,
32,
-72,
112,
-74,
-126,
-44,
97,
-103,
12,
36,
98,
33,
12,
69,
-100,
-88,
38,
118,
-81,
-122,
46,
56,
89,
0,
-65,
29,
86,
84,
29,
-40,
-40,
77,
93,
100,
-49,
-114,
-108,
-79,
-83,
-95,
-98,
47,
-29,
7,
53,
117,
-52,
-30,
92,
5,
59,
-109,
-41,
-102
] |
John A. Fogleman, Justice.
Appellant asks us to reverse a judgment of the. circuit court in an automobile collision case for want of substantial evidence to support the findings of the trial judge sitting without a jury. Appellee filed suit against appellant for property damage of $175.78, and double damages and attorneys’ fees under Ark. Stat. Ann. § 75-918 (Repl. 1957). He alleged that his automobile was damaged when it was struck by an overtaking vehicle operated by appellant. The negligence .alleged as the proximate cause was appellant’s failure to keep a proper lookout, failure to keep his auto-bile under proper control and failure to yield the right-of-way to appellee. Appellant denied the negligence charged against him and alleged identical acts of negligence on the part of appellee with the additional charge that appellee failed to give a proper signal to make a left turn. The trial court found that the proximate cause of the collision between the two vehicles was attributable entirely to the negligence of appellant.
The sole argument made by appellant is lack of adequate support for the court’s finding that no negligence on the part of appellee constituted a proximate cause of appellee’s damage.
The collision occurred when appellee Reed made a left turn from Highway 25 into Warren’s Welding Shop, a service station in the community of Ida. Both vehicles were proceeding along the highway in the same direction. Appellant was overtaking the vehicle driven by Reed just prior to the time that the turn was made. Reed admitted that he had not noticed the car following him until his partner and passenger, C. E. Blackburn, warned him that a car following them was going to hit them. Reed testified that as he approached the service station driveway he had turned on his blinker signal at a distance some 40 or 50 steps back of the point at which he made his turn. When his front wheels were already off the highway into the drive and the rear wheels .almost off, he looked back over his shoulder and saw that the Downs vehicle was going to strike his. Appellant contends that appellee’s failure to ascertain whether any following vehicle had already pulled out into the passing lane constituted negligence which was a proximate cause of his damage. If we agreed, we would have to say that this omission on the part of appellee constituted negligence as a matter of law. Under the circumstances of this case we cannot do so.
Appellant relies on the requirements of Ark. Stat. Ann. % 75-618(a) (Repl. 1957) to sustain his position. Violation of this statute, requiring that no one turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and only after giving an appropriate signal, is only evidence of negligence and not negligence per se. Was son v. Warren, 245 Ark. 719, 434 S. W. 2d 51. See also Young v. Dodson, 239 Ark. 143, 388 S. W. 2d 94. Thus, there existed a question of fact as to whether Reed’s actions in the circumstances constituted negligence.
Appellant argues that his testimony as to the relative positions of the vehicles was uncontradicted and required a finding of negligence on the part of Reed. We do not agree. Reed testified that he was traveling only 35 or 40 miles per hour in approaching the turn, having adjusted his speed for the purpose of making the turn. His estimate of the distance at which the signal was commenced would have tended to show that statutory requirements were met in that regard. He stated that in the quarter of a mile he traveled before making the turn, there were ten intersecting roads and eighteen buildings. C. E. Blackburn testified that he looked back and saw Downs’ vehicle as Reed was finishing his turn. According to this Avitness that vehicle was then over on the passing side, obviously trying to stop. He testified that DoAvns started bloAving his horn Avhen the front Avheels of Reed’s car Avere at the edge of the driveway or possibly slightly into the driveAvay. He estimated that DoAvns Avas then about 100 feet aA\T.ay and that the horn Avas sounded for the length of time it took him to travel this distance and the Reed vehicle half .a car length.
Downs testified that he Avas driving his vehicle at approximately 35 or 40 miles an hour when he pulled to his left to pass Reed’s A7ehicle and that he had already pulled onto the lefthand side of the highAvay Avhen he saAv the brake light on Reed’s vehicle come on. According to him, he then applied his brakes and bleAV his horn after which Reed turned on his signal light just before making the left turn. Downs stated that, at this time, his vehicle was traveling at about 50 to 60 miles per hour and that he had already started to swing it around Reed’s car. Arkansas Statutes Annotated § 75-609(b) (Repl. 1957) inquires a vehicle being overtaken and passed to remain on its right and proper side of the highway when proper signal is given by the overtaking vehicle. We have held, however, that this statute does not apply if the overtaken vehicle is making a lawful turn, i. e., if the proper signals have been given. Nelson v. Underwood, 244 Ark. 1065, 429 S. W. 2d 102. The forward vehicle has the superior right to the use of the highway for the purpose of leaving it to enter an intersecting road or passageway. Arkansas Best Freight System v. Hillis, 244 Ark. 791, 427 S. W. 2d 166; Wasson v. Warren, 245 Ark. 719, 434 S. W. 2d 51. It was the duty of appellant to handle his automobile in recognition of this superior right. Cohen v. Ramey, 201 Ark. 713, 147 S. W. 2d 338.
From the evidence the court might well have found that Reed gave a proper and timely signal and that his failure to be more alert for a following vehicle did not constitute negligence. On the other hand, it may well have found that the acts of appellant, in increasing his speed and in failing to give an audible signal more promptly in an area described as the middle of Ida where there were numerous intersecting roads and driveways, constituted negligence and that appellant failed to recognize Reed’s superior right to the use of the highway.
Even if we could say that the omission of Reed constituted negligence, as a matter of law, there remained a question as to the proximate cause of the collision. The evidence recited made this a question for the trier of the facts and his findings would conclude the issue. See Jones v. King, 211 Ark. 1084, 204 S. W. 2d 548.
Since we find that there was substantial evidence to support the findings of the circuit court, the judgment is affirmed.
Appellee’s attorney is allowed a fee of $250 for services on this appeal. | [
-112,
-24,
-64,
-84,
-53,
64,
18,
-118,
-12,
3,
117,
-45,
-89,
-51,
20,
55,
-18,
89,
-11,
43,
85,
-93,
22,
-29,
-46,
-105,
-13,
-60,
-124,
-22,
118,
-13,
76,
56,
-53,
-43,
70,
74,
-59,
94,
-50,
-122,
-85,
104,
-103,
-126,
120,
56,
80,
13,
49,
-98,
-61,
46,
27,
-53,
105,
108,
91,
57,
-15,
112,
-124,
13,
115,
2,
-79,
20,
-100,
5,
92,
24,
-112,
57,
25,
-72,
114,
-90,
-112,
-44,
105,
-103,
12,
96,
103,
33,
21,
-23,
-67,
-120,
38,
122,
13,
-92,
58,
40,
-53,
45,
-73,
29,
123,
52,
14,
122,
-4,
77,
93,
104,
3,
-117,
-108,
-7,
-19,
52,
-106,
19,
-21,
-125,
52,
113,
-51,
-60,
93,
5,
23,
-101,
-33,
-106
] |
George Bose Smith, Justice.
Among several issues .argued in the briefs a single question is decisive of this litigation: Under § 4 of Act 148 of 1929 may the Governor appoint as a member of the Arkansas Real Estate Commission a person who has not been nominated for the office by the Arkansas Real Estate Association? The trial court answered that question in the affirmative and accordingly upheld the appointment of the appellee Orr, although he had not been recommended for the office by the Association. We agree with that view.
The Arkansas Real Estate Commission was created by Act 148 of 1929. The Arkansas Real Estate Association is an organization composed of those real estate brokers and salesmen who voluntarily join the Association. We quote that part of Act 148 which must he construed in the determination of this case:
There is hereby created the Arkansas Real Estate Commission, hereinafter called the Commission. The Governor shall appoint from a list of twelve nominees submitted by the Arkansas Real Estate Association three persons whose vocation for a period of at least five years prior to the date of their appointment shall have been that of ,a real estate broker or a real estate salesman; no two of whom shall be from the same congressional district. One member shall be appointed for a term of one year; one member shall be appointed for a term of two years; one member shall be appointed for a term of three years; and until their successors are appointed and qualified; thereafter the term of the members of said Commission shall be for three years and until their successors are appointed and qualify. The Governor shall appoint members to fill vacancies whose qualifications shall be the same as hereinbefore provided in this section. [Ark. Stat. Ann. § 71-1303 (Repl. 1957).]
According to the proof, from 1929 through 1950 all the appointments were made from nominees of the Association, but it is not shown how many nominees were submitted each year. From 1951 through 1966 the Association, by agreement with each Governor, annually submitted only a single nominee, who was invariably appointed. Some sort of dispute arose in 1967, but eventually Governor Rockefeller appointed a person nominated by the Association.
In 1968 the Association submitted a slate of four nominees, but the Governor appointed the appellee Orr, whose name was not among the four. This usurpation action was then brought by the appellant, who had been appointed to a three-year term in 1965. He insists that Orr’s appointment was invalid and that therefore Mc-Carley should remain in office as a holdover until a qualified successor has been appointed in conformity with the statute.
We will briefly state the reasons for our conclusion that the trial court was right, without quoting various rules of statutory construction that are apt to be little more than platitudes in a case of this kind. First, we do not consider nomination by the Association to be a qualification for the office within the meaning of the last sentence that we have quoted from the statute. The act provides that the Governor “shall appoint from a list of twelve nominees submitted by the Arkansas Real Estate Association three persons whose vocation” for at least five years shall have been that of a real estate broker or salesman, no two of whom shall be from the same Congressional district. In studying this sentence we are inclined to think that the qualifications are the two matters that follow the reference to “three per sons.” In that view the qualifications are to be binding both upon the Association and upon the Governor. Undoubtedly the appellant’s construction of the act would have been greatly strengthened had the sentence been arranged differently, such as a declaration that the Governor should appoint three persons who had been nominated by the Association, who had been real estate brokers or salesmen for at least five years, and who all resided in different Congressional districts. But the sentence does not so read.
Secondly, even if the legislature intended for nomination by the Association to be a qualification for the office, the act is deficient in failing to state the number of nominees that must be submitted by the Association each year. It is net likely that the submission of only one name was intended, for in that view the .appointment would be made by the Association rather than by the Governor. Arguments might be made in favor of a slate of either four names or twelve names, but in fact the statute simply contains no provision on the subject. We do not feel justified in reading into the .act our own guess at what the legislative intention would have been if the draftsman of the act had actually considered the point.
Finally, we are not persuaded that the statutory deficiency has been supplied by the practical construction given to the act by the executive department through the years. It goes without saying that such a practical construction is not binding upon the courts. Walnut Grove Sch. Dist. No. 6 v. County Bd. of Education, 204 Ark. 354, 162 S. W. 2d 64 (1942). Here the only practical construction shown by the proof involved the submission of just one name to the Governor each year. That, as we have indicated, is the least acceptable of any of the suggested solutions to the problem. It is our conclusion that while the legislature may have intended for the annual vacancies to be filled upon the recommendation of the Association, it failed to include in the act appropriate language to carry such an intention into effect. We are not at liberty to supply by judicial interpretation a procedure which the lawmakers themselves failed to embody in the law.
Affirmed. | [
53,
-21,
-12,
124,
8,
66,
62,
-72,
123,
-23,
-89,
83,
-19,
26,
20,
125,
-45,
-19,
-64,
107,
-59,
-78,
87,
72,
66,
-45,
-5,
-59,
-75,
111,
-12,
-34,
72,
48,
-54,
-43,
-58,
-20,
79,
92,
98,
11,
8,
77,
-55,
-64,
56,
111,
82,
-113,
85,
-97,
-13,
-84,
17,
67,
-19,
42,
89,
-67,
-48,
-71,
26,
-99,
-3,
4,
51,
101,
-102,
-125,
120,
46,
-44,
53,
-128,
-8,
83,
-90,
-122,
100,
15,
-103,
12,
34,
98,
42,
-79,
-75,
-24,
-128,
23,
-70,
-115,
-90,
-110,
24,
98,
72,
-74,
-100,
123,
16,
2,
-2,
-25,
-43,
91,
44,
47,
-114,
-42,
-93,
85,
-32,
-126,
11,
-21,
-61,
16,
112,
-51,
-10,
93,
69,
18,
27,
-122,
-112
] |
Donald L. Corbin, Justice.
Appellant Patrick Levern Romes was convicted in the Pulaski County Circuit Court of capital murder and aggravated robbery and sentenced to concurrent terms of life imprisonment without parole and twenty years’ imprisonment. He raises three points for reversal: (1) there was insufficient evidence to convict him of capital murder; (2) the trial court erred in denying his motion to dismiss for lack of speedy trial; and (3) the trial court erred in denying his motion to suppress his custodial statement. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(2). We find no error and affirm.
The record reflects that on the night of September 26, 2000, Dwain Brown and Art Catón were staying at the Sportsman’s Inn in North Little Rock. Catón was in town waiting on a bus. When Brown got off work around 8:30 or 9:00 p.m., the two men spent the evening drinking beer and cognac in Brown’s room. Around 1:00 or 2:00 a.m. the next morning, Catón left the room to get a soda from the machine at the front of the building. After he got the soda, he ran back to Brown’s room and began beating on the door. When Brown opened the door, Catón ran inside and told Brown that somebody was behind him. A little while later, a knock came at the door, and Brown opened it and saw a man with a gun. The man said it was a “stick-up.” Catón ran into the bathroom, and Brown gave the gunman the money he had in his pocket. The gunman then told Brown to tell his friend to come out of the bathroom, or he would shoot Brown. Brown did as he was told. When Catón came out, the two men started to get money out of Caton’s room, which adjoined Brown’s. While they were doing this, the gunman looked out the door, and Brown took the opportunity to push him out of the room. He then locked the door, and he and Catón went into the bathroom to hide.
At this point, according to Brown, Catón was screaming and going berserk. Brown attempted to calm him by reassuring him that the front door was locked. Catón started to go out of the bathroom, but Brown warned him not to go. Catón did not heed the warning; instead, he opened up the bathroom door and walked out, in a hunched or squatted-down manner. As soon as Catón went out of the bathroom, Brown heard a shot, and when he opened the bathroom door, he saw Catón lying on the floor. Brown then went and told the motel manager to call an ambulance. Catón subsequently died.
When officers from the North Little Rock Police Department arrived on the scene, Brown gave them a description of the gunman. He said the gunman was a black male in his mid-twenties and approximately five feet, nine inches tall, and was wearing a burgundy windbreaker, a black V-neck sweater, beige pants, and a red toboggan-style cap. Brown described the gun as a nickel- plated semiautomatic handgun. Brown subsequently identified Appellant’s photograph out of a police lineup. He also identified Appellant as the perpetrator in court.
At the scene, police discovered a fingerprint and a palm print on a plexiglass window that had been busted out of Brown’s room. Later that day, they transported the window to the Arkansas State Crime Laboratory, where a latent-print examiner ran the prints through the Automated Fingerprint Identification System (AFIS) and received a positive match for Appellant. Also on that same date, police went to Appellant’s home to look for clothing that Appellant was wearing during the crimes. While there, they obtained consent to search the home from Appellant’s father, and they found a sweater and a pair of pants matching Brown’s description. t
Appellant was subsequently arrested on September 27, 2000, on a theft warrant involving an unrelated report previously filed with the North Little-Rock Police. He was brought to the police station, read his Miranda rights, and questioned about the theft. At some point during the interview, one of the detectives began questioning Appellant about the murder at the Sportsman’s Inn. Appellant told the detective that he had gone to the Sportsman’s Inn to collect twenty dollars from someone who owed it to him. While there, he said he was approached by Catón, who asked Appellant if he knew where he could get some drugs. Appellant sold Catón the drugs, and Catón paid for them with a hundred-dollar bill. Appellant figured that Catón must have had more money, so he went and got his friend Martin “Bo” Jacobs. Appellant andjacobs then made a plan to “hit the lick,” or commit a robbery. The plan was to rob Catón of both his money and the drugs that Appellant had just sold him.
According to Appellant, he approached Brown’s room alone and knocked on the door. Once Brown opened the door, Appellant stepped inside and started asking Catón for his money. Jacobs then came in and proceeded to “draw down” on the victims. Brown dropped his money, ten dollars, but Catón would not drop his. Instead, Catón ran into the bathroom saying that he did not want to be shot. Appellant then told Catón to come out of the bathroom with the money. He then attempted to reassure Catón by telling him that, “Dude is not gonna shoot you dude just want the money.” Catón told him his money was in his room. Appellant told Catón to come out and they would get the money from his room. Catón opened the bathroom door and threw his room key on the bed. Appellant then left the room and told Jacobs to “handle his business.” At this point, either Brown or Catón shut the door, leaving Appellant and Jacobs outside. Appellant then began beating on the plexiglass window, trying to scare them. He stated that he beat on the window two or three times with the back of his fist. On the last hit, the window fell out. Jacobs then reached through the window. Appellant stated that he heard Catón hollering, “You little son-of-a-bitch” and then heard a gunshot. After that, Appellant fled the scene.
Based on the foregoing, Appellant was charged with capital murder, aggravated robbery, and theft of property. Prior to trial, the State waived the death penalty. Appellant was tried by a jury on May 22, 2002, and he was convicted of all three offenses. Appellant was automatically sentenced to life imprisonment without parole for the capital murder. The theft charged was then merged with the aggravated robbery, for which he was sentenced to twenty years’ imprisonment. This appeal followed.
I. Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to convict him of capital murder, because it was circumstantial and did not exclude every reasonable hypothesis other than his guilt. We do not reach the merits of this point, because Appellant failed to preserve his argument below. This court has repeatedly held that Ark. R. Crim. P. Rule 33.1 requires that a motion for directed verdict be made at the close of the State’s case and again at the close of all of the evidence. See, e.g., Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003); Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). This renewal is more than a matter of mere form; it goes to the substance of the evidence arrayed against the criminal defendant. Cathey v. State, 351 Ark. 464, 95 S.W.3d 753 (2003); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Accordingly, the failure to challenge the sufficiency of the evidence at both the close of the State’s case and the close of all of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence on appeal. See Doss, 351 Ark. 667, 97 S.W.3d 413; Cathey, 351 Ark. 464, 95 S.W.3d 753; Grady, 350 Ark. 160, 85 S.W.3d 531.
Here, the record reflects that after the State presented its case in chief, defense counsel made the following motion:
I’d move for a directed verdict, Your Honor, on the charge of capital murder. Testimony so far the key witness didn’t see who shot who. There was testimony that he observed a gun in the hand of defendant but he never testified that he saw the defendant shoot anybody. And the defendant says he didn’t shoot anybody through the statement he gave.
The trial court denied the motion, and instructed defense counsel to call his first witness. Thereafter, the defense presented testimony from Marilyn Larry and Appellant. Following Appellant’s testimony, the defense rested, and the State announced that it had no rebuttal. The trial court then recessed the jury and went into chambers to discuss jury instructions with the attorneys. Defense counsel never renewed the directed-verdict motion. As such, Appellant’s challenge to the sufficiency of the evidence is not preserved for our review.
II. Speedy Trial
Appellant argues that the trial court erred in denying his motion to dismiss for .lack of a speedy trial. Pursuant to Ark. R. Crim. P. 28.1, the State is required to try a criminal defendant within twelve months, excluding any periods of delay authorized by Ark. R. Crim. P. 28.3. Moody v. Arkansas County Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002); Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002). This means that the accused must be tried within twelve months of the date the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Id. See also Ark. R. Crim. P. 28.2.
If a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1 provides that the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that offense. Moody, 350 Ark. 176, 85 S.W.3d 534; Turner, 349 Ark. 715, 80 S.W.3d 382. Once the defendant presents a. prima facie case of a speedy-trial violation, i.e., that the trial is or will be held outside the applicable speedy-trial period, the State has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Id.; Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).
Here, the record reflects that Appellant was arrested on September 27, 2000, but he was not tried until May 22, 2002, 602 days after his arrest. Based on these dates, Appellant made a prima facie case of a speedy-trial violation, as he was tried 237 days beyond the one-year period. The State contends that there are in excess of 350 days that were properly excluded from the one-year period for speedy trial. Therefore, the State asserts that the trial court was correct in denying Appellant’s motion to dismiss.
Before addressing each of the excludable time periods, we note that Appellant’s argument on appeal is less of a challenge to the existence of the excludable periods, and more of a challenge to the proof of the existence of those excludable periods. In other words, Appellant’s chief complaint on appeal is that the periods of delay were not sufficiently proven by the State through contemporaneous docket entries or written orders. There is no merit to this complaint, as our review of the record reveals that the reasons for each of the delays in this case were memorialized in proceedings on the record. This court has held that it will uphold excluded periods without a written order or docket entry where the record clearly demonstrates that the delays were attributable to the defendant or legally justified and where the reasons for the delays were memorialized in the proceedings at the time of the occurrence. See Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002); Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002); Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). With this principle in mind, we address the periods of delay.
January 30, 2001, to May 21, 2001 (111 days)
This period actually contains two, overlapping periods that are both excludable under Rule 28.3. The first period is that from January 30, 2001, to March 27, 2001. The record reflects that during Appellant’s arraignment, on December 4, 2000, the trial court appointed the public defender’s office to represent Appellant and enter his plea of not guilty. Thereafter, the trial court asked the case coordinator for a trial date. The case coordinator gave the date of January 30, 2001. Counsel appearing on behalf of the public defender informed the court that because this was a capital-murder case, the attorney who would likely be assigned to Appellant’s case would need more time to prepare. The trial court then set the trial for March 27, 2001. The State asked that speedy trial be tolled from January 30 to March 27. The trial court declined to rule on the issue, noting that “we got plenty of time.” The trial court then observed that the issue could be taken up at a later date.
Eventually, the trial court took up the issue of the excludability of this time period at a hearing on February 11, 2002. At that hearing, the State argued that the time was excludable because the delay was attributable to the defense, who had asked for more time to prepare the case. The trial court agreed with the state and excluded the time. Defense counsel did not object to the prosecutor’s motion; however, he did ask whether this excludable period was reflected on the docket itself. The trial judge responded that his notes reflected as much. Defense counsel made no further inquiry.
This court has repeatedly held that delays resulting from continuances requested by the defendant or defense counsel are excluded from the calculation of the speedy-trial period. See, e.g., Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002); Miles, 348 Ark. 544, 75 S.W.3d 677; Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). Appellant contests whether this period may actually be called a “continuance.” He suggests that the first trial date, January 30, 2001, would not have given defense counsel time to prepare for the capital-murder trial, as he claims it was only one month from the date that the public defender’s office was appointed. We are not persuaded by this argument for two reasons. First, Appellant is wrong in suggesting that the date of January 30 would only have given the defense one month to prepare. The date was set at the December 4 arraignment, which would have given counsel almost two months to prepare.
Second, Appellant is wrong to suggest that just because the word “continuance” was not used by the public defender, we should not consider this period as a delay requested by the defendant. Were we to accept this argument, we would be placing form over substance.' The record reflects that the public defender informed the trial court that because it was a capital case, the attorney likely to be assigned the case was “probably going to need more time to prepare.” Clearly, this is a request by defense counsel to continue the trial date. Accordingly, we affirm the trial court’s ruling that this period, from January 30 to March 27, is excluded from the calculation of speedy trial.
The next period of delay overlaps the previous period, as it runs from March 1, 2001, to May 21, 2001. The record reflects that on February 12, Appellant changed his plea from not guilty to not guilty by reason of mental disease or defect. On March 1, the trial court entered an order that Appellant be evaluated by the Arkansas State Hospital. The state hospital’s evaluation report was filed of record on May 21.
This court has consistently held that the time necessary to complete a mental examination requested by a defendant, pursuant to Ark. Code Ann. § 5-2-305 (Repl. 1997), is excluded from the one-year period for speedy trial. See Rule 28.3(a); Camargo, 346 Ark. 118, 55 S.W.3d 255; Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999). The excludable period resulting from a defendant’s request for a mental examination runs from the date the exam is ordered to the date the report is filed with the trial court. Id. Here, the order for evaluation was entered on March 1, and the report was filed with the trial court on May 21. Accordingly, this period was properly excluded from the calculation of speedy trial. We thus affirm the trial court’s exclusion of the combined time of these two periods, which ran from January 30, 2001, to May 21, 2001.
May 29, 2001, to July 6, 2001 (38 days)
The record reflects that on May 29, 2001, defense counsel asked the trial court to set a competency hearing, based on some of the information contained in Appellant’s mental evaluation. The trial court granted the request and set the hearing for July 6, 2001. Pursuant to the prosecutor’s request, the trial court ruled that the period from May 29 to July 6 would be excluded from the speedy-trial calculation. Defense counsel agreed that under Rule 28.3(a), the time is tolled.
Appellant does not challenge the substance of the trial court’s ruling on this period. Rather, he argues that it should not be excluded because the docket entry is insufficient. We reject this argument. As stated above, the transcript of the hearing, where defense counsel requested the competency hearing and conceded the excludability of the time period, is a record sufficient to satisfy Rule 28.3. Accordingly, we affirm the trial court’s exclusion of this period.
July 23, 2001, to August 6, 2001 (14 days)
The record reflects that defense counsel filed four pretrial motions on July 23, 2001. The trial court set a hearing for those motions on August 6, 2001. On that date, the State indicated that one of its necessary witnesses was out of town and unavailable. The trial court continued the matter for one week. Thereafter, on August 13, 2001, the motions were heard and ruled upon by the trial court. Periods of time attributable to delays from pretrial motions filed by the defendant may be excluded from the speedy-trial period under Rule 28.3. Turner, 349 Ark. 715, 80 S.W.3d 382; Ferguson, 343 Ark. 159, 33 S.W.3d 115; Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). The excludable period contemplated by the rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard by the court and not more than thirty days thereafter. Id.
Here, the pretrial motions were made when they were filed on July 23, 2001. They were set for hearing on August 6. The State sought and received a one-week continuance of the hearing, and the motions were heard and ruled upon on August 13. The continuance requested by the State is not excluded from the period for speedy trial. Accordingly, the excludable time for pretrial motions is from July 23 to August 6.
September 18, 2001, to January 23, 2002 (127 days)
The next excludable period resulted from Appellant’s decision to have new counsel appointed, after it was disclosed to him that his counsel, Bret Qualls, had a possible conflict of interest. The matter was brought to the trial court’s attention at a hearing on September 13, 2001, five days before the trial was scheduled to start. Mr. Qualls explained that he had recently discovered that another attorney in the public defender’s office had previously represented Dwain Brown, one of the prosecution’s key witnesses, on a felony non-support charge. The trial judge explained the possible conflict to Appellant. He also stated that he, frankly, did not believe there was an actual conflict. He then told Appellant that he could elect to go with his current counsel and go to trial as scheduled, or he could choose to have new counsel appointed and have his trial postponed. Appellant chose the latter option.
Following Appellant’s decision, the trial court ruled that speedy trial would be tolled until a new trial date is set and a new lawyer appointed. The trial court reasoned that the delay was not at all the fault of the State. The docket sheet reflects that on September 24, 2001, new counsel, William McLean, was appointed, and the trial was set for January 23, 2002. This court has held that when the defendant is scheduled for trial within the time for speedy trial, and the trial is postponed due to the need for the appointment of new counsel, such delay is excludable for good cause, pursuant to Rule 28.3(h). See Blackwell v. State, 338 Ark. 671, 1 S.W.3d 399 (1999); Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993).
Appellant does not specifically contest the exclusion of this time period from the calculation of speedy trial. Instead, he again argues that the trial court was wrong to exclude the delay because there is no contemporaneous written order or docket entry. We again reject this argument, as the delaying act and the reasons therefore have been memorialized by the transcript of the proceedings.
January 23, 2002, to April 10, 2002 (11 days)
The final excludable period is that resulting from the prosecution’s motion to continue the trial scheduled for January 23, 2002, because a key witness, Dwain Brown, was not available. .In its motion, the State asserted that Brown’s testimony was material to its case and that it had exercised due diligence in obtaining his testimony from trial. The State issued a subpoena for Brown on September 24, 2001, and had maintained contact with him for the past year through an investigator who worked for the prosecuting attorney’s office. In addition, the State averred that there was a reasonable basis to believe that they would obtain Brown’s testimony because they now had knowledge of Brown’s whereabouts.
The trial court held a hearing on the State’s motion on January 22, 2002. At that hearing, defense counsel stated that he did not object to the grant of a continuance, but questioned whether the continuance would be an excludable period of time if an issue arose with regard to speedy trial. The trial court granted the continuance, but reserved any ruling on the issue of-the excludability of the continuance, as a speedy-trial violation had not yet been implicated. The trial was then scheduled for April 10.
Thereafter, on February 11, the State requested that the trial court issue a ruling with regard to whether the continuance granted at the State’s behest would be excluded under the speedy-trial rule. At that time, defense counsel objected to the time being excluded, arguing that the State could have procured the witness and had failed to show that it exercised due diligence in that regard. The trial court disagreed and ruled that the period from January 22 to April 10 would be excluded.
Pursuant to Rule 28.3(d)(1), a continuance granted at the request of the prosecuting attorney shall be excluded in computing the time for trial where the continuance is granted because of the unavailability of evidence material to the State’s case when due diligence has been exercised to obtain such evidence and there are reasonable grounds to believe it will be available at a later date. See Miles, 348 Ark. 544, 75 S.W.3d 677; Chenowith, 341 Ark. 722, 19 S.W.3d 612. The State presented evidence that Brown, as a witness to the murder, was material to its case and that it had exercised due diligence in obtaining Brown’s presence for trial. The State also averred that it had information regarding Brown’s whereabouts and, thus, it was likely that he would be available to testify at a later date. Accordingly, the period from January 22, 2002, to April 10, 2002, was properly excluded.
In sum, the foregoing periods make up a total of 367 days that are excludable from the calculation of the one-year period for speedy trial. This is more than sufficient to overcome the 237 days beyond the one-year period in which Appellant was tried. We thus affirm the trial court’s denial of Appellant’s motion to dismiss.
III. Motion to Suppress
For his final point on appeal, Appellant argues that the trial court erred in denying his motion to suppress his custodial statement for two reasons. First, he asserts that his arrest on a theft warrant was a pretext to get him into custody so police could interrogate him about the murder at the Sportsman’s Inn. To support this argument, Appellant relies on State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002). Second, he asserts that the State failed to promptly bring him before a judicial officer for an arraignment and a probable-cause determination, pursuant to Ark. R. Crim. P. 4.1 and 8.1. In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give'rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court and proper deference to the trial court’s findings. See Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003); Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). With this standard in mind, we turn to Appellant’s arguments.
A. Pretextual Arrest
Appellant argues that his statement to police should have been suppressed because it was the product of a pretextual arrest on a warrant for theft of property. He contends that the proof shows that the theft warrant was procured by the police after they had developed him as a suspect in the aggravated robbery and murder for the sole purpose of questioning him about those crimes. He contends further that the police admitted as much during the suppression hearing. He therefore asserts that his arrest was in violation of this court’s precedents and that, accordingly, his statement should have been suppressed as fruit of the poisonous tree.
The State does not dispute that the police officers in this case obtained the theft warrant for the purpose of questioning Appellant about the aggravated robbery and murder. However, the State contends that Appellant’s arrest did no.t violate our holding in Sullivan, 348 Ark. 647, 74 S.W.3d 215, because the officers had probable cause to arrest Appellant for these crimes. We agree.
In Sullivan, this court stated that where there is probable cause to arrest for the greater, more serious offense, the need for a pretext analysis is obviated. To support this conclusion, this court relied on the holding in Ray v. State, 304 Ark. 489, 803 S.W.2d 894, cert. denied, 501 U.S. 1222 (1991), wherein this court held that “where the intent of the officer is to make an arrest as an excuse for making a search for evidence of a different and more serious offense for which no probable cause to arrest exists, there is a pretextual arrest.” Id. at 495-96, 803 S.W.2d at 897 (emphasis added) (citing Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986)). See also Johnson v. State, 299 Ark. 223, 772 S.W.2d 322 (1989) (rejecting the appellant’s contention that his being stopped for a traffic violation was a pretext, because the record reflected that the police had probable cause to stop and detain the appellant for the offense of rape). Thus, where the record reflects that there was probable cause to arrest the defendant on the greater offense for which he or she was convicted, there is no need to determine whether the defendant’s arrest on a lesser offense was a pretext.
In the present case, there was probable cause to arrest Appellant for aggravated robbery and capital murder at the time that he was arrested on the theft warrant and subsequently questioned about the homicide. Dwain Brown was an eyewitness to the robbery committed by Appellant and an “ear” witness to the actual shooting of Catón. Immediately after the murder, Brown gave police a description of the gunman. He said that the perpetrator was a black male, somewhere in his mid-twenties, and approximately five feet, nine inches tall. The record reveals that Appellant is a black male, who was twenty years old at the time and is approximately five feet, seven inches tall. Brown later identified Appellant as the perpetrator in a photographic lineup and at trial.
Brown also described Appellant as wearing a burgundy windbreaker, a black V-neck sweater, beige pants, and a red toboggan-style cap. The record reveals that police went to Appellant’s home on the date of the murder and obtained consent to search from Appellant’s father. There, they found a black V-neck sweater and a pair of beige pants belonging to Appellant. In addition to Brown’s statements, police recovered part of a broken-out plexiglass window from the 'murder scene, on which they found a fingerprint and, a palm print. This evidence was then immediately taken to the State Crime Lab, and the print examiner identified both prints as matching those on file for Appellant.
It is well settled that a police officer may arrest a person without a warrant if the officer has reasonable or probable cause to believe that the person committed a felony. Ark. R. Crim. P. 4.1(a)(i). Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Martinez v. State, 352 Ark. 135, 98 S.W.3d 827 (2003); Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). Probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Id. In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440, cert. denied, 522 U.S. 898 (1997); Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996). All presumptions are favorable to the trial court’s ruling on the legality of an arrest, and the burden of demonstrating error is on the appellant. Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999); Humphrey, 327 Ark. 753, 940 S.W.2d 860.
Based on the foregoing, we conclude that there was probable cause to arrest Appellant without a warrant for aggravated robbery and capital murder. As such, the need to conduct a pretext analysis is obviated. We thus affirm the trial court’s denial of Appellant’s motion to suppress his custodial statement.
B. Failure to Promptly Bring Appellant Before a Judicial Officer
Appellant contends that he was arrested on September 27, 2000, but he was not brought for an initial appearance before a judicial officer until December 4, 2000. He argues that this lengthy delay violates Rules 4.1 and 8.1, as well as case law from this court and the United States Supreme Court. Based on this violation, Appellant argues that his custodial statement should have been suppressed. We do not reach the merits of this argument, as it was not fully developed below and was not specifically ruled on by the trial court.
The record reflects that Appellant filed a written motion to suppress on July 23, 2001. The motion sought suppression of his custodial statement for a variety of reasons. One of those reasons was that the “arrest of Mr. Romes violated reasonable cause restrictions of Rule 4.1 of the Arkansas Rule of Criminal Procedure.” Another reason was that because Appellant was initially arrested on a theft warrant, his arrest was a “pretext” to question him about the murder. Rule 8.1 was not cited in Appellant’s suppression motion; however, the following related argument was made:
Contrary to the requirements of Rule 7.2 [of the Arkansas Rules of Criminal Procedure], the defendant endured prolonged interrogation at the North Little Rock Police Department and was then transferred to two different jails before he was arraigned. Such delay in bringing defendant before a judicial officer should not be sanctioned, nor should leaving the required 7.2(a) (vi) language out of the warrant be sanctioned.
On August 13, 2001, a hearing was held on the motion to suppress, as well as on other pretrial motions filed by Appellant. During the testimony, the only evidence developed concerning Appellant’s statement was the issue of pretextual arrest. There was no evidence presented as to the “delay” in bringing Appellant before a judicial officer or as to the lack of a reasonable-cause determination under .Rule 4.1. At the conclusion of the hearing, the trial court simply ruled: “Defendant’s motion to suppress the statement is denied[.]”
This court will not address an argument on appeal where the record is “barren of proof’ as to the allegation made. Munnerlyn v. State, 292 Ark. 467, 470, 730 S.W.2d 895, 897 (1987). It is the appellant’s burden to present a case before the trial court that fully and completely develops all the issues. See Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003); Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993). Moreover, it is the appellant’s burden to obtain a clear ruling on an issue from the trial court. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898 (1996); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226 (1996). In both Misskelley and Bowen, the appellants raised multiple arguments in their motions to suppress. This court refused to reach the merits of those arguments that were not specifically ruled upon by the trial court in denying the motions.
Here, the issues regarding the delay in being brought before a judicial officer were raised by Appellant in his written motion to suppress. However, they were not developed, either factually or legally, during the hearing on the motion. To the contrary, the record of the hearing demonstrates that Appellant abandoned these arguments in favor of pursuing the issue of his alleged pretextual arrest. Moreover, the record demonstrates that Appellant did not obtain clear rulings on these issues. Accordingly, the issues he now raises on appeal, regarding Rules 4.1 and 8.1, are not preserved for our review.
IVRule 4-3 (h)
Because Appellant received a sentence of life imprisonment without parole, the record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) for adverse rulings objected to by Appellant but not argued on appeal. No such reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.
The State asserts that this period began running on February 12, the date that the trial court orally granted Appellant’s request for evaluation. However, this court has held that the relevant date is the date that the order for evaluation is entered, which, in this case, is March 1. See Turner, 349 Ark. 715, 80 S.W.3d 382; Scott, 337 Ark. 320, 989 S.W.2d 891. In any event, the beginning date is largely irrelevant, as this period overlaps the previous one. | [
113,
-22,
-7,
-66,
24,
96,
42,
56,
114,
-93,
117,
115,
-31,
-50,
81,
41,
-29,
109,
93,
121,
84,
-73,
23,
96,
-5,
-69,
48,
-59,
-79,
79,
-20,
-11,
9,
112,
-118,
81,
70,
74,
-27,
86,
-86,
5,
56,
112,
82,
64,
32,
42,
70,
11,
53,
-116,
-29,
46,
18,
-51,
73,
44,
75,
41,
82,
121,
-64,
-59,
-19,
21,
-95,
-90,
-104,
1,
112,
28,
-112,
49,
0,
-88,
115,
-90,
-126,
84,
109,
-119,
45,
98,
99,
2,
17,
-55,
-88,
-119,
13,
-50,
-123,
-89,
-104,
65,
75,
101,
-106,
-97,
58,
-107,
6,
-8,
97,
92,
-7,
108,
-92,
-34,
52,
-77,
109,
41,
22,
-7,
-7,
37,
112,
113,
-49,
-26,
92,
69,
112,
-101,
-114,
-11
] |
Tom Glaze, Justice.
Brandon Hardman appeals the capital murder conviction and life sentence he received for killing Antwan Jones. Hardman does not challenge the sufficiency of the evidence, so we recite the facts only briefly; Police officers responded to a call-at 28th and Battery Streets in Little Rock on March 20, 2000. Upon arriving at the scene, they found a young man, Jones, lying on the ground with a bullet wound to the back of his neck. The area in which the shooting occurred was part of the “Vice Lords” gang territory. Hardman was a member of the “Folk” or “Gangster Disciple” gang. Hardman was eventually charged with and convicted of capital murder pursuant to Ark. Code Ann. § 5-10-101(a)(l) (Repl. 1997).
On appeal, Hardman raises three points for reversal: 1) throughout the trial, the State continuously referred to him by his gang name, “Little G,” which he argues was unduly prejudicial; 2) the trial court erred in failing to instruct the jury on the lesser offenses of first-degree murder, second-degree murder, and manslaughter; and 3) the court erred by preventing Hardman from arguing to the jury that intent was required to commit the homicidal act in the unlawful discharge capital murder offense.
We first address Hardman’s argument that the State’s use of his gang name, “Little G,” was unduly prejudicial. He points to numerous instances wherein either the prosecutor or witnesses referred to him as Little G. However, though he claims that the prosecutor referred to him by this moniker eight times during opening arguments, he did not object once during the State’s opening arguments. Because he failed to make a timely objection in the trial court, he has waived this argument on appeal. See, e.g., Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001).
Next, Hardman complains that the State’s expert witness on gangs, Todd Hurd, told the jury that “Little G” stood for “Little Gangster.” However, again, Hardman failed to object to this testimony. The law, of course, is well settled that to preserve an issue for appeal, a defendant must object at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Hardman’s failure to make a contemporaneous objection to this testimony prevents him from asserting on appeal any error on the part of the trial court for admitting the evidence. Ferguson, supra; Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001).
Hardman takes further issue with the State’s questioning of witness Natasha Davis, contending that the prosecutor consistently called him Little G during direct examination. Hard-man eventually objected to these references, saying he thought it was “more proper they use [Hardman’s] real given name.” The trial court responded, “Yeah, I think so”; when the prosecutor replied that some of the witnesses only knew Hardman as Little G, and not as Brandon, the court said, “[I]f they need referring to it, you can, but you’ve gone beyond that.” In this instance, then, Hardman received the relief that he requested.- It is a basic principle of law that where the appellant received the only relief he requested, he has no basis upon which to raise the issue on appeal. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993).
Finally, Hardman argues that, despite his objection and the court’s comments, the State continued to refer to him as Little G during the questioning of other witnesses. However, Hardman again failed to obj ect to this kind of questioning until another three witnesses — all of whom referred to him as Little G — had testified. When he finally objected, the following transpired:
Defense: I’m still kind of concerned about continuing to call him Little G. It doesn’t seem like it’s really stopped.
State: I’m trying not to, but if they do it, I can’t help it.
Court: I don’t have any problem with the way she’s doing it, because some of these people — I think you need to first ask if they know who he is, but that’s what they call him.
Defense: Can’t she ... say, “You know him as Little G, but his name is Brandon Hardman”?
Court: I think she can cut down some of that; but if that’s the way they know him, that’s what they’re going to call him.
Clearly, by waiting to object until this point in the trial, Hardman failed to raise an objection at the first opportunity. His failure to do so results in the objection not being preserved for appeal. See Berger, supra; Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). Further, when a party objects to a question when it is asked, but fails to object when it is repeated, the matter is not preserved for appeal. Marshall, supra; Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999).
For his second point on appeal, Hardman argues that the trial court erred in refusing his proffered jury instructions on first-degree murder, second-degree murder, and manslaughter. The proffered first-degree murder instruction provided that, “with the purpose of causing the death of Antwan Jones, Brandon Hardman caused his death.” The proffered second-degree murder instruction stated that “Brandon Hardman knowingly caused the death of Antwan Jones under circumstances manifesting extreme indifference to the value of human life.” The proffered manslaughter instruction provided that Hardman “recklessly caused the death of Antwan Jones.”
Declining to give Hardman’s proffered instructions, the trial court instead gave the jury the capital murder instruction based on § 5-10-101 (a)(10), which provides that a person commits capital murder if he “purposely discharges a firearm from a vehicle at a . person . . . and thereby causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” The trial court also instructed the jury pursuant to Ark. Code Ann. § 5-74-107(a) (Repl. 1997) — first-degree unlawful discharge of a firearm from a vehicle. This instruction informed the jury that it could find Hardman guilty of this offense if the State proved that Hardman knowingly discharged a firearm from a vehicle and thereby caused Jones’s death.
The statute governing lesser-included instructions is Ark. Code Ann. § 5-1-110 (Repl. 1997). In particular, the statute provides that a defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
§5-1-110(b).
This court made it clear in McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), that “the determination of when an offense is included in another offense depends on whether it meets one of the three tests set out in section 5-1-110(b).” On appeal, Hardman argues that he was entitled to his proffered first-degree instruction because, “in order to prove the offense of unlawful discharge capital murder, the State must prove that the conduct causing the death of a person must be done with a purposeful mental state.” This is so, he claims, because § 5-10-101(a)(10) requires that the victim’s death be caused under circumstances manifesting extreme indifference to human life, which itself requires proof of intent. Therefore, he contends, his requested instruction on first degree murder (“with the purpose of causing the death of another person, he causes the death of another person”) should have been a lesser-included offense of capital murder under § 5-10-101(a)(10), because they both have a purposeful mental state element.
A close reading of § 5-10-101 (a) (10) reveals the error of Hardman’s logic. In this statute, the act requiring the “purposeful” mental state is the act of discharging a firearm from a vehicle at a person. It is true that the end result of this purposeful act is “caus[ing] the death of another person under circumstances manifesting extreme indifference to the value of human life,” which requirement this court has held “goes to the perpetrator’s intent.” McCoy, 347 Ark. at 923 (also stating that we have “consistently viewed that phrase as part of the proof of the actor’s mental state”). Here, however, the proffered first-degree murder instruction contained an element not found in § 5-10-101(a)(10). That is, under the proffered instruction, the jury was required to find that Hardman acted “with the purpose of causing the death of another person.” See also Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). In other words, Hardman’s first-degree murder instruction required the purposeful intent to be directed at the act of causing the death. Section 5-10-101(a)(10), on the other hand, requires the purposeful intent to be directed at the act of discharging a firearm from a vehicle; causing the death need only be done under circumstances manifesting extreme indifference to the value of human life, which this court has said means that the defendant “must act with deliberate conduct that culminates in the death of a person.” McCoy, 347 Ark. at 923; Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001).
In McCoy, this court stated that the definition of “purposely” “encompasses the culpable mental state of acting knowingly with extreme indifference, which requires deliberate conduct with a knowledge or awareness that one’s actions are practically certain to bring about the prohibited result.” McCoy, 347 Ark. at 924. However, we have never held the inverse to be true — that is, that “acting with extreme indifference,” as is required in § 5-10-101(a)(10), encompasses “purposely.” Therefore, as the State argues, the proffered instruction •— “with the purpose of causing the death” — actually contains a higher culpable mental state, with respect to the homicidal act, than the capital murder offense, § 5-10-101(a)(10), charged in the information. Because the proffered instruction does not differ from the offense charged only in the respect that a lesser kind of culpable mental state suffices to establish its commission, the trial court did not err in declining to give Hardman’s proffered first-degree murder instruction.
Likewise, the trial court did not err in refusing to give Hardman’s proffered second-degree murder instruction. Hardman contends that the trial court’s refusal to give his proffered instruction was error, because the second-degree murder instruction adds no element not contained in the unlawful discharge instruction. Again, however, the “knowing” element in the requested second-degree murder instruction references the causing of another’s death; in the unlawful-discharge capital murder charge, the intent element goes to the discharge of the firearm. Thus, as with the rejected first-degree instruction, the second-degree murder instruction also would have required proof of an element — the intent attendant to the killing — not present in the unlawful-discharge capital murder instruction.
Hardman’s third and final point on appeal is related to his second point. Here, he argues that the trial court erred in cutting him off when he began to argue, during closing arguments, that the State was required to prove that Hardman intended to kill Jones. During his close, defense counsel made the following statements:
This shooting, in order to be capital murder, they must show beyond a reasonable doubt that Brandon Hardman did this shooting exhibiting extreme indifference to human life. It can’t just be that he shot out a window at somebody, and that automatically makes it capital murder, the worst homicide offense we have in this state. It can’t be that. The legislature didn’t make it that easy for the State to prove capital murder. They put on that it had to be exhibiting an extreme indifference to human life, and what that means is an intent to cause that murder.
The State objected at that point, arguing that counsel’s statements were not the law, and that the State did not have to prove the intent with respect to the death. The prosecutor stated, “You just have to cause the death, you don’t have to have any intent as to the death. . . . [W]e do not have to prove that he intended to kill anyone. We don’t have to show that he had the purpose to kill someone. We don’t have to show that he knowingly killed someone. All we have to show is he purposely shot out [of] that car and caused the death under [circumstances showing] extreme [indifference].” Relying on the language in the unlawful-discharge capital murder statute, the trial court agreed with the State, saying that “intent [to kill] does not appear in that instruction.”
The trial court is given broad discretion to control counsel in closing arguments, and we will not interfere with that discretion absent a manifest abuse of discretion. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003); Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996)). It is the trial court’s duty to maintain control of the trial and to prohibit counsel from making improper arguments. Smith v. State, supra.
On appeal, Hardman argues that the court’s statement that “intent does not appear in that instruction” was in error. However, as discussed above, “unlawful discharge” capital murder only requires an intent with respect to the discharging of the firearm. While it is true that the death must occur under circumstances manifesting extreme indifference to the value of human life, this court has held that the phrase “circumstances manifesting extreme indifference to the value of human life” is “akin to intent.” McCoy, 347 Ark. at 922. The requirement of extreme indifference “indicatefs] that the perpetrator of capital murder must act with deliberate conduct that culminates in the death of some person.” Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). However, while these cases say that “extreme indifference” is “akin to intent,” none of them hold that the phrase is the functional equivalent of “purposely.” The requirement that an act be done “purposely” in the statute refers only to the act of discharging a firearm; therefore, the trial court did not abuse its discretion in preventing Hardman from arguing that the State was required to prove a purposeful intent to kill.
For the foregoing reasons, Hardman’s conviction and sentence are affirmed. The record has been reviewed for other reversible error, as required by Ark. Sup. Ct. R. 4-3(h), and none has been found.
Although Hardman mentions manslaughter in his point heading, he makes no specific argument with reference to this instruction in the text of his brief.
Prior to the McCoy holding, our caselaw required that an offense must meet three criteria to be considered a lesser-included offense: (1) it must be established by proof of the same or less than all the elements of the greater offense; (2) it must be of the same generic class as the greater offense; and (3) it must differ from the greater offense based upon the degree of risk to persons or property or upon grades of intent or culpability. See Goodwin v. State, 342 Ark. 161, 27 S.W.3d 397 (2000); Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). | [
112,
-5,
-20,
28,
8,
69,
26,
60,
64,
-53,
-27,
-13,
13,
-49,
13,
109,
-21,
127,
125,
105,
16,
-97,
21,
96,
-78,
-109,
115,
-41,
49,
-19,
-4,
-68,
14,
64,
10,
69,
70,
-82,
-21,
82,
-114,
1,
-69,
68,
0,
65,
32,
38,
6,
15,
37,
-98,
-21,
47,
18,
-64,
41,
44,
25,
-84,
80,
91,
-119,
-51,
-17,
16,
-93,
-84,
-65,
-95,
112,
28,
16,
49,
1,
-24,
19,
-122,
-126,
116,
105,
-103,
-116,
34,
118,
-118,
29,
-53,
-88,
-127,
31,
46,
-115,
-89,
-104,
49,
3,
101,
-42,
-2,
-22,
21,
10,
94,
111,
13,
60,
108,
33,
-50,
16,
-95,
-83,
-87,
-100,
-69,
-21,
5,
116,
117,
-49,
98,
124,
4,
112,
-33,
-113,
-12
] |
Per Curiam.
On May 5, 2003, judgment was entered reflecting that Steven Evans had been found guilty by a jury of murder in the second degree and sentenced to 180 months’ imprisonment. Evans also entered a plea of guilty to the offense of failure to appear and was sentenced by a jury to thirty-six months’ imprisonment to be served consecutively to the 180-month term.
Counsel for Evans filed a timely motion for new trial, which was denied on May 23, 2003. On June 6, 2003, an order was entered by the court relieving Evans’s attorney.
On July 3, 2003, Evans filed an untimely pro se notice of appeal from the judgment. He subsequently sought to proceed with a belated appeal pursuant to Rule 2(e) of the Rules of Appellate Procedure — Criminal, which permits a belated appeal in a criminal case in some instances. We denied the motion. Evans v. State, CR 03-1145 (Ark. December 18, 2003) (per curiam). Petitioner now asks that we reconsider the motion for belated appeal.
We denied the motion for belated appeal because petitioner knew that counsel had been relieved and yet took no action to inform the court of his desire to appeal and request appointment of counsel. In the motion for reconsideration petitioner points out that the trial court appointed counsel in an albeit invalid order entered after the pro se notice of appeal was filed. He contends that this clearly illustrates that the court was aware that he desired to appeal and further desired appointment of counsel to represent him. As we accept petitioner’s argument that he had made known to the court his desire to appeal as evidenced by the trial court’s invalid order appointing counsel, the motion to proceed with a belated appeal is granted.
It is not clear why the circuit court did not appoint an attorney when it relieved counsel. In failing to appoint counsel after the motion for new trial was denied, the court violated Arkansas Rule of Criminal Procedure 16(b) (2000). See Wrenn v. State, 355 Ark. 558, 141 S.W.3d 362 (2004) (per curiam).
Rule 16(b) provides in pertinent part:
If court appointed counsel is permitted to withdraw in the interest of justice or for other sufficient cause in a direct appeal of a conviction...new counsel shall be appointed promptly by the court exercising jurisdiction over the matter of counsel’s withdrawal, (emphasis added).
Here, appointed counsel was allowed to withdraw while the court had jurisdiction of the case, leaving a convicted defendant to fend for himself within the time allowed for a notice of appeal to be filed. It must be stressed that when the trial court relieves counsel within the thirty-day period allowed to file a notice of appeal, the court has the obligation to appoint other counsel promptly so that the convicted defendant will be represented by an attorney if he elects to proceed with a direct appeal of the judgment of conviction. If counsel is not appointed, the defendant’s right to proceed with a first appeal as a matter of right is impermissibly curtailed in that the defendant has no attorney to whom he may communicate his desire to appeal so that a timely notice can be filed. The direct appeal of a conviction is a matter of right, and a criminal defendant is entitled to representation by counsel on his or her first appeal of right if he desires to appeal. Douglas v. California, 372 U.S. 353 (1963). This right applies to indigent defendants on direct appeal of a judgment of conviction. Ross v. Moffitt, 417 U.S. 600 (1974)
Attorney Scott A. Scholl is appointed to represent the appellant. A writ of certiorari is issued to bring up the record on appeal.
Motion for reconsideration granted; motion for belated appeal granted.
The trial court subsequently vacated its order. Pursuant to Ark. R. App. P. — Crim. 16, once a notice of appeal is filed, this court has exclusive jurisdiction to reheve or appoint counsel. | [
16,
-22,
-52,
30,
8,
98,
58,
60,
80,
-21,
101,
83,
-81,
-49,
17,
123,
115,
-17,
117,
123,
92,
-73,
119,
97,
98,
-13,
33,
-43,
-11,
108,
-11,
-4,
78,
112,
-22,
-107,
70,
-55,
-55,
-48,
-114,
-127,
25,
-19,
112,
9,
48,
35,
86,
23,
113,
30,
-93,
-22,
21,
-62,
-24,
104,
91,
-67,
80,
-103,
-111,
15,
-3,
52,
-127,
-76,
-101,
6,
120,
62,
-100,
-71,
0,
-24,
114,
22,
-122,
84,
79,
-103,
44,
66,
96,
0,
5,
-9,
-96,
-96,
20,
62,
29,
-90,
-103,
24,
75,
111,
-106,
-1,
50,
52,
39,
124,
-17,
-51,
125,
44,
-128,
-50,
-44,
-77,
94,
33,
-100,
75,
-14,
1,
16,
116,
-52,
-30,
92,
70,
51,
-33,
-52,
-108
] |
ROBERT J. GLADWIN, Judge.
Ii This appeal follows the March 4, 2009 decision of the Workers’ Compensation Commission that reversed the portion of the April 10, 2008 opinion of the Administrative Law Judge that found that appellee had failed to prove that he suffered a compensable injury to his left and right shoulders. The Commission instead found that appellee proved that he had sustained a compensable injury to his left shoulder and that he was entitled to reasonably necessary medical treatment and related temporary-total-disability benefits. Appellants’ sole argument on appeal is that the Commission’s decision is not supported by substantial evidence. We affirm the Commission’s finding regarding compensability, but remand for further consideration regarding appellant-employer’s entitlement to an offset for temporary-total-disability benefits received by appellee related to the left-shoulder injury.
^Appellee is sixty-four years of age (DOB June 29, 1945). He attended secondary school through the tenth grade and subsequently obtained his GED while working for appellant-employer Potlatch Corporation. He began working there in 1978 and worked for appellant-employer for approximately twenty-nine years. At the time of his injury, appellee was working as a maintenance worker.
On either July 29, 2005, or August 11, 2005, appellee allegedly injured his shoulders when a door-hanging mechanism to a kiln fell as he and his co-workers were attempting to put the door back on track. The incident was witnessed by three coworkers and immediately reported to ap-pellee’s supervisor. Subsequently, a written report of the incident was completed, but appellee did not report any continuing problems with his shoulders to appellant-employer. After the incident, appellee continued to work until his scheduled vacation on or about November 2, 2005, although testimony indicated' that he did so with some difficulty.
Appellee initially sought medical treatment for his left shoulder with his family physician, Dr. James Marsh, on November 15, 2005, utilizing his personal medical insurance. He was subsequently referred to Dr. Jason Stewart, an orthopedic surgeon. Dr. Stewart saw appellee on November 23, 2005, at which time he recommended an MRI of the left shoulder. The MRI scan revealed a rotator-cuff tear and acromio-clavicular arthritis with l3subacromial-im-pingement syndrome. Dr. Stewart performed rotator-cuff surgery on appellee’s left shoulder on December 13, 2005.
Appellee returned for a post-operative evaluation on December 30, 2005. At that time, appellee reported elbow problems, although he acknowledged they had preexisted the surgery. He was given anti-inflammatory medication for arthritis in his elbow and directed to return in one month. Appellee returned in February and March with reports that he was doing well, and he was released to return to full- duty work with no restrictions on March 15, 2006. Appellee returned to work performing his regular duties.
On October 25, 2006, appellee sought additional medical treatment from Dr. Stewart with complaints of right-shoulder pain similar to the symptoms and problems he previously had with his left shoulder. He was referred for an MRI, which revealed a massive rotator-cuff tear with gleneral-humeral-arthritic change, AC joint arthritis, and impingement. On December 27, 2006, appellee underwent a right-shoulder hemiarthroplasty for rota-tor-cuff arthropathy.
Appellee returned for post-operative evaluations on January 10, 2007, and on February 14, 2007, and both times reported doing very well. Dr. Stewart assigned appellee a five-percent whole-person-impairment rating based on his loss of range-of-motion in the upper extremity. He was prescribed six additional weeks of physical therapy.
In his deposition and at the hearing before the ALJ, appellee testified that he had not returned to work. He drew six months of short-term disability from appellant-employer until 14June 2007. He testified that he retired in June of 2007, at the age of sixty-two, and began drawing retirement benefits from appellant-employer. He further testified that he had been notified that he was approved for Social Security disability benefits in August 2007.
Appellee testified that he did not seek medical treatment immediately because he thought his shoulders would get better. He testified that he did not report the injury as work related because he did not want to ruin his crew’s safety record and believed his claim would be denied due to his delay based on statements made to him by a co-worker.
On cross-examination, appellee admitted that he had gone deer hunting on November 12, 2005, and had shot a deer using his left shoulder. He admitted that he had sought medical treatment for other problems on four separate visits between August 2005 and November 2005 and did not mention a work-related accident or complaints of shoulder pain. He admitted that he continued to work and that he had told both his supervisor, Jerry Forrest, and the safety coordinator, Raymond Culp, that he did not need to see a doctor after the incident.
Three co-workers of appellee, Ricky Howard, Jimmy Barrett, and Jim Grice, testified that they were working with him and had witnessed the incident in 2005 involving the door to the kiln. Although their descriptions of the event differed in exact details of how far the door fell, their testimony consistently corroborated appel-lee’s testimony that he complained of pain in both shoulders immediately following the incident. They all testified that they |sencouraged appellee to report the injury and that they assisted him in performing his job duties and continued to urge him to seek treatment.
Appellee’s supervisor, Jerry Forrest, testified that he first observed appellee in pain sitting on a bucket and was told by appellee that the door fell and jerked his arm. He testified that he filled out an incident report based on the statements of appellee. He observed appellee continuing to have problems with his shoulders during the months after the incident. He explained that if appellee had reported problems with his right shoulder, he would have included the problems in the report. He testified that he asked appellee if he needed treatment on several occasions and that appellee denied the need for treatment. He testified that although he was told that appellee was having surgery on his right shoulder, he was not told that it was work related.
Mr. Culp, the safety coordinator, testified that he talked with appellee on the Monday following the incident. Appellee told him that he had jerked his left shoulder, but that when he asked appellee if he needed medical attention, appellee said “no.” He testified that he asked appellee if he needed medical attention for a week to ten days when he made daily rounds, and each time he was told by appellee that he did not want to see a doctor. Mr. Culp recalled that after ten days appellee had improved and was no longer complaining of his symptoms. Mr. Culp was subsequently made aware of appellee’s left-shoulder surgery when appellee’s name was on a list of people on short-term disability. Mr. Culp testified that he did not believe the surgery was work related since it was four months later and appellee did not | (¡report it as related to the accident. He first learned that appellee was contending that his need for treatment was work related when Mr. Culp received the workers’ compensation claim in March of 2007.
After the hearing before the ALJ on January 11, 2008, the ALJ issued her opinion in favor of appellants on April 10, 2008, finding that appellee failed to prove by a preponderance of the evidence that he sustained compensable specific-incident injuries to his right and left shoulders and upper extremities. Appellee filed a timely appeal with the Commission, and on March 4, 2009, the Commission reversed the ALJ’s opinion in part, finding that appellee proved that (1) he sustained a compensable injury to his left shoulder; (2) medical treatment, including surgery on his left shoulder, was reasonable and necessary; (3) he is entitled to temporary-total-disability benefits from November 2, 2005, until March 17, 2006.
Appellants filed a notice of appeal on March 11, 2009, with the Commission. On April 2, 2009, appellees filed a motion to quash the appeal, or in the alternative, a notice of appeal, based on appellants’ failing to properly file the appeal with the Arkansas Court of Appeals. On April 6, 2009, appellants filed a response to appel-lee’s motion to quash, and appellees filed a reply to that response on April 15, 2009. On May 4, 2009, the Commission entered an order denying appellee’s motion to quash, recognizing appellants’ March 10, 2009 notice of appeal as a notice “from” the Commission “to” the Arkansas Court of Appeals. The order also recognized appellees’ April 2, 2009 filing as a timely notice of cross-appeal. From [ 7our review of the record, it does not appear that appellees filed a notice of appeal from the May 4, 2009 order, so we need not address the issue and reach the merits of the appeal.
Standard of Review
In appeals involving claims for workers’ compensation, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. See Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclu sions arrived at by the Commission. Dorris v. Townsends of Ark., Inc., 93 Ark. App. 208, 218 S.W.3d 351 (2005).
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Patterson v. Ark. Dep’t of Health, 343 Ark. 255, 33 S.W.3d 151 (2000). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of appellee or any other witness, but may accept and translate into findings of fact only those portions of the |stestimony that it deems worthy of belief. Id. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005).
Discussion
Arkansas Code Annotated section 11-9-102(4)(A)(i) (Repl.2002) defines com-pensable injury as follows:
(1) An accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.
A compensable injury must be established by medical evidence supported by objective findings. Ark.Code Ann. § 11 — 9— 102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark.Code Ann. § 11-9-102(16).
The claimant’s burden of proof shall be a preponderance of the evidence. Ark.Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means evidence of greater convincing force and implies an overbalancing in weight. See Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415.
Appellants argue that appellee failed to prove by a preponderance of the evidence that his injuries arose out of and in the course of employment or that they were caused by a specific incident that is identifiable by time and place of occurrence. See Ark.Code Ann. § 11-9-102(4)(A). They cite Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997), for the proposition that if appellee fails to prove even one of the statutory requirements contained therein, his claim must be denied.
The majority of appellants’ argument focuses on the credibility of the witnesses. Appellants state that the Commission relied heavily upon testimony from appellee and the three co-worker eyewitnesses. They claim that while it is the Commission’s duty to reconcile conflicting testimony, there is significant conflicting evidence existing between the witnesses, as well as within appellee’s own testimony. All of the witnesses, however, discuss the same incident in which a door-hanging mechanism to a kiln fell as appellee and his coworkers were attempting to put the door back on track. The discrepancies in their testimony deal primarily with how far the door hanger fell — from a few inches up to three-and-a-half feet-or if the door had already fallen and its leaning against ap-pellee caused the injury. Appellants point to testimony that appellee might or might not have been on a ladder, and questions as to whether his arms were raised up over his head. While they are correct that none of the testimony from witnesses Ricky Howard, Jimmy Barrett, or Jim Grice exactly mirrors appellee’s testimony — and in pointing out inconsistencies between testimony at the hearing and previ ously signed statements — we hold that these were issues of credibility properly weighed by the Commission.
Any alleged inconsistencies in the witnesses’ testimony have been examined by the Commission and translated into findings of fact. The Commission ruled on the credibility issue — in appellee’s favor. All three of his co-workers verified that appel-lee’s injuries were |insustained when the kiln-door mechanism they were working with fell. Mr. Forrest arrived shortly thereafter, noticed that appellee was injured and in pain, and wrote a contemporaneous report to that effect. Management officials Mr. Forrest and Mr. Culp acknowledged that they knew appellee had been hurt, and his co-workers Mr. Howard and Mr. Grice verified that he was subsequently unable to perform his work activities without obvious pain. Additionally, Dr. Stewart’s recorded history is consistent with this account, as he acknowledged that appellee presented “with four months of left shoulder pain. [H]e was catching a door that was falling and it jerked his shoulder.” The injury required surgery, which Dr. Stewart performed on December 13, 2005.
In their reply brief, appellants cite Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999), for the proposition that the Commission must be able to clearly state the reasons for its determination of credibility, especially when that determination is contrary to the findings of the ALJ, who actually observed the witnesses. They contend that the Commission failed in this respect and arbitrarily disregarded Dr. Stewart’s medical opinion that the left-shoulder injury sustained in 2005 as well as the resulting medical treatment was not work related. The ALJ viewed that as a primary reason to deny appellee’s claim, yet appellants claim that the Commission failed to adequately address its reasons for making a contrary determination. In Patterson, the court stated that although benefits are not always denied to a claimant who has been untruthful, a claimant would obviously not be able to meet his burden of proof if he was untruthful regarding one of the essential elements of his claim.
| nAppellants argue that is exactly what occurred here, and that the Commission erred in reversing the ALJ’s opinion with respect to the left-shoulder injury. We disagree. Although appellants point out that both appellee and Dr. Stewart acknowledged that the injury was not work related by their respective signatures on the short-term-disability forms that were filed, the Commission could, and did, discern that piece of evidence from the contradictory medical-history evidence, which is consistent with the testimony of appellee and his coworkers.
Additionally, appellants note that appel-lee sought medical treatment on five separate occasions during that time period but never informed his physicians about the incident, the resulting shoulder pain, or the difficulty in performing his duties. Appellants maintain that the only logical explanation is that appellee was not in pain until he visited Dr. Stewart in November after another isolated, non-work-related incident occurred — specifically that he injured his shoulder while hunting.
Appellants detail appellee’s testimony regarding his mid-November 2005 hunting trip, including his explanation that he took off three weeks to go to deer camp even though he could not shoot a gun. Appellee initially stated, rather emphatically, that he could not shoot a gun at that time, and that he primarily rode the roads, cooked for the camp, and took pictures when the hunters returned with a kill. Appellants refer to an exhibit they provided in the form of a letter from the Arkansas Game and Fish Commission in response to a FOIA request that indicated that appellee did, in fact, shoot and tag a deer on November 12, 2005. | 12They challenge appel-lee’s response that he “forgot” about it, when he was able to provide detailed information about other aspects of the hunting trip. Within three days of shooting the deer, on November 15, 2005, appellee visited Dr. Marsh and requested a referral to Dr. Stewart for left-shoulder pain. He saw Dr. Stewart on November 23, 2005. Appellants find it ironic that it was not until after the hunting trip that appellee sought and received medical treatment for the alleged injury that occurred in August. Again, this argument is a continuation of appellants’ attack on the credibility of the witnesses. These contradictions in the evidence were within the Commission’s province to reconcile in its determination of the true facts. Patterson, supra. The Commission may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief, and we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. See Arbaugh, supra.
Appellants argue that appellee knew his injury was not compensable because on December 15, 2005, appellee filed for short-term-disability benefits related to his left-shoulder injury, prior to filing for workers’ compensation benefits. Appellants contend that this sequence of events demonstrates that appellee did not think that his left-shoulder problems were work related. He was required to pay his $300-$600 annual deductible, plus $25-$30 co-pays for each visit, plus medication charges. They assert that, surely, had he been injured at work, he would have filed a workers’ compensation claim rather than unnecessarily absorb all those charges himself. Appellants refer to appellee’s testimony that he finally decided to 113file a claim “for money” once the bills became more than he could handle. He waited until his short-term-disability benefits ran out and then recognized another way he could attempt to pay for the medical treatment his personal insurance did not cover. We decline to engage in speculation as to appellee’s motivation, but note that this evidence was before the Commission as part of its analysis of the evidence and determination of the compensability of ap-pellee’s claim.
Finally, appellant-employer argues that if either shoulder injury is found to be compensable, they are entitled to an offset for temporary-total-disability benefits received by appellee. Any benefits payable to an injured worker shall be reduced dollar-for-dollar the amount of benefits received for the same medical services or period of disability. See Ark.Code Ann. § ll-9-411(a)(l) (Repl.2002). Consequently, appellee is not permitted to be put in a better position than had he not sustained a compensable injury. Appellants urge that, because we are affirming the finding of compensability for appellee’s left shoulder, they are entitled to an offset for any benefits he received in short-term-disability benefits with regard to that injury. Appellee does not address this issue in his brief, and we have determined that we do not have adequate evidence before us to make this determination. Accordingly, we remand to the Commission for further proceedings regarding appellant-employer’s entitlement to an offset.
Affirmed; remanded for further consideration.
GLOVER and BROWN, JJ., agree.
. Although the claimant initially contended that the accident occurred on August 11, 2005, a Potlatch Investigation Report for Accident/Incident was actually prepared on July 29, 2005. | [
-112,
-22,
-35,
-116,
27,
-29,
58,
-70,
97,
-121,
-89,
91,
-25,
62,
29,
111,
-31,
125,
64,
55,
-37,
-77,
87,
73,
-42,
-9,
115,
-43,
-15,
106,
-28,
85,
77,
56,
10,
-43,
-26,
-110,
-51,
20,
-128,
-122,
-118,
-19,
121,
64,
56,
-82,
-40,
75,
49,
-98,
40,
34,
24,
-49,
44,
44,
123,
39,
-48,
-32,
-61,
13,
79,
1,
-95,
4,
-98,
110,
-40,
24,
-104,
-71,
1,
-23,
16,
-10,
-62,
52,
123,
-71,
0,
99,
99,
32,
25,
-11,
104,
-72,
15,
74,
-97,
-91,
-109,
24,
91,
3,
-108,
-67,
122,
52,
60,
124,
-4,
13,
31,
108,
-125,
-122,
-106,
-77,
-49,
96,
-116,
-125,
-17,
-115,
-112,
37,
-42,
-94,
92,
101,
115,
27,
-21,
-102
] |
Tom Glaze, Justice.
In this case, appellant June Scamardo asks this court to overrule our decision in Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002). For the reasons discussed below, we decline to do so.
On November 21, 2002, Scamardo filed a lawsuit against Dr. Robert Jaggers, Sparks Regional Medical Center (“Sparks”), and Steadfast Insurance Company (“Steadfast”). In her complaint, Scamardo alleged that she underwent a popliteal artery bypass at Sparks on November 20, 2000, and was discharged to Healthsouth Rehabilitation Hospital in Fort Smith on November 28, 2000. While at Healthsouth, Scamardo was diagnosed with a severe staph infection in her leg. Her complaint alleged negligence against Dr. Jaggers and Sparks. Further, the complaint stated a belief that Sparks might claim to be immune from suit for tort under the charitable immunity doctrine. The complaint alleged that Steadfast, as the liability insurance carrier for Sparks, was subject to a direct cause of action pursuant to Ark. Code Ann. § 23-79-210 (Repl. 1999).
Sparks answered, admitting that it was a not-for-profit corporation and that it was protected by the charitable immunity doctrine. Sparks further admitted that its assets were immune from execution, but contended that, based on our decision in Clayborn, supra, Sparks was not immune from suit. Sparks also denied that its insurance carrier, Steadfast, was a proper substitute defendant that could be sued under Arkansas’ direct action statute, § 23-79-210.
On March 25, 2003, Steadfast moved to be dismissed from the lawsuit. Relying on Clayborn, Steadfast submitted that charitable organizations, such as Sparks, may be sued even though their assets are immune from execution. In sum, Steadfast argued that, because Sparks could be sued, the direct action statute was inapplicable, and Steadfast should be dismissed as a party defendant. In response, Scamardo argued that Clayborn’s discussion of charitable immunity was dicta, and further contended that Clayborn contra- dieted two earlier cases on the topic of charitable immunity. See George v. Jefferson Hospital Assoc., Inc., 337 Ark. 206, 987 S.W.2d 710 (1999), and Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961).
The trial court dismissed Steadfast on May 13, 2003, basing its dismissal on the Clayborn decision. Scamardo appeals, arguing that this court should either overrule Clayborn or limit its holding; she also contends that the doctrine of charitable immunity should be abolished.
When reviewing a trial court’s granting of a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. City of Dover v. City of Russellville, 352 Ark. 299, 100 S.W.3d 689 (2003); Clayborn, supra. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Ark. R. Civ. P. 8(a) (2003). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id.; Country Corner Food & Drug, Inc. v. First State Bank & Trust Co., 332 Ark. 645, 966 S.W.2d 894 (1998).
Before we address Scamardo’s argument that Clayborn should be overruled, we dispose of her arguments regarding the continued viability of the doctrine of charitable immunity. Scamardo asks this court either to abolish the doctrine, or to conclude that the application of the doctrine leads to unconstitutional results. We are unable to reach either of these arguments. Al though Scamardo raised these -arguments in her brief in support of her response to Steadfast’s motion to dismiss, the trial court did not explicitly rule on them. This court has repeatedly held that a party’s failure to obtain a ruling is a procedural bar to this court’s consideration of the issue on appeal. See Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002); Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002); E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001); Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). This is true even of constitutional arguments. Bell, 351 Ark. at 268. The record in this case reflects that both issues were raised in the motions filed below; however, the trial court’s order does not reflect any specific ruling on these issues. The order states simply that “[b]ased on the decision in Clayborn . . . , the motion of Steadfast Insurance Company should be and hereby is granted.” Accordingly, we are precluded from reviewing them on appeal.
Turning to the merits of her remaining argument on appeal, Scamardo argues that this court should overrule our holding in Clayborn. In Thiel v. Priest, 342 Ark. 292, 28 S.W.3d 296 (2000), this court noted that while it does have the power to overrule prior decisions, it is necessary, as a matter of public policy, to uphold those decisions unless a great injury or injustice would result. See also Murphy Oil USA, Inc. v. Unigard Security, 347 Ark. 167, 61 S.W.3d 807 (2001); Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996)). In Thiel, we noted that “[t]he United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority.” Id. at 300, 28 S.W.3d at 300 (citing Sanders, supra; Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999)). As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law. Aka v. Jefferson Hosp. Ass’n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001); State Office of Child Support Enforcem’t v. Mitchell, 330 Ark. 338, 343 (1997) (citing Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds)). Indeed, it is well settled that “[precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Mitchell, 330 Ark. at 343 (quoting Parish, 244 Ark. at 1252). Our test is whether adherence to the rule would result in “great injury or injustice.” Aka, 344 Ark. at 641.
The holding Scamardo asks us to overrule, Clayborn, was a 2002 case involving both § 23-79-210 — the direct action statute — and the doctrine of charitable immunity. Briefly, the facts of that case were that appellant Clayborn’s daughter was injured by the negligence of an employee of Forrester-Davis Development Center, a daycare organized as a nonprofit corporation. Clayborn filed a direct action against Forrester-Davis’s insurer, Bankers Standard Insurance Company. Bankers responded by filing a motion to dismiss Clayborn’s complaint, urging that it was not a proper party to the suit. Clayborn then added Forrester-Davis as a defendant. The trial court eventually dismissed the suit against Bankers, finding that a direct cause of action could not be allowed against Bankers under § 23-79-210, since Ark. Code Ann. § 16-120-103 (Supp. 2001) did not grant Forrester-Davis or its employees immunity from suit in tort. Clayborn, 348 Ark. at 560-61. On appeal, this court affirmed.
Relying on Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996), and Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002), this court held that § 23-79-210 only provides for direct actions against an insurer in the event that the organization at fault is immune from suit in tort. Id. at 564 (emphasis in original). Further, we held that § 23-79-210 was inapplicable to the facts presented by Clayborn because there was “nothing in the pleadings to show that Forrester-Davis is a nonprofit corporation that is immune from suit in tort. Because no showing is made of such alleged immunity, [Clayborn] is precluded from bringing a direct action against Forrester-Davis’s insurer, Bankers.” Id. (emphasis in original). Noting that nonprofit corporations generally have the power to sue and be sued, the court further pointed out that § 16-120-103 provides that the tort liability immunity statute shall not be construed to limit the liability of the nonprofit corporate entity itself for damages as a result of the torts of its employees. Id. at 565.
Finally, the Clayborn court noted that this court has “never said that charitable organizations are altogether immune from suit.” Id. at 566. On this subject, the court wrote the following:
While we affirmed the trial court’s dismissal of a case on the ground that the charitable organization was immune from liability in George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999), no argument was raised in that case that a charitable organization is not subject to suit for tort, as was argued in the present case. We have repeatedly stated that the property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance, or malfeasance of its agents or trustees. See, e.g., Fordyce & McKee v. Woman’s Christian Nat’l Library Ass’n, 79 Ark. 550, 96 S.W. 155 (1906) (emphasis added). We have also recognized that the charitable-immunity doctrine as promulgated in Fordyce and its progeny has become a rule of property. [Citations omitted.] In addition, we stated in Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953), “Judge Rose, [in Fordyce], commented on the statutory authority for suit, drawing a distinction between the right to sue and the power to execute in satisfaction of the judgment.” Croswell, supra (citing Fordyce, supra). Our analysis indicates that a charitable organization may have suit brought against it and may have a judgment entered against it, but such judgment may not be executed against the property of the charity. We conclude that even if facts had been pled to allege that Forrester-Davis is a charitable organization, we would nevertheless affirm the trial court’s finding that Ark. Code Ann. § 23-79-210 does not apply because we have never held that charitable organizations are completely immunefrom suit, but rather, we have only held that they are immune from execution against their property.
Id. at 566-67 (emphasis added).
Scamardo asserts that this recent case should be overruled for three reasons, the first of which is that “federal case law previously addressed this issue and came to the opposite conclusion.” That case, Michael v. St. Mercury Indemnity Co., 92 F. Supp. 140 (W.D. Ark. 1950), addressed whether St. Edward’s Hospital was a nonprofit association not subject to an action for tort, and whether an injured person could have a direct cause of action against the hospital’s insurer, St. Mercury. Citing Fordyce v. Woman’s Christian National Library Ass’n, supra, the federal court held that a charitable corporation, such as the hospital in that case was alleged to be, was not subject to suit for tort within the contemplation of the direct action statute. Michael, 92 F. Supp. at 144.
The Michael case is not controlling here. We note first that federal court decisions are not binding authority for this court. See, e.g., Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002). Further, the court in Michael also explicitly recognized that this court, in Fordyce, “did not hold that the charitable association could not be sued in the first instance,” because “the facts of that case did not require a decision on that question.” Michael, 92 F. Supp. at 142. We believe that the federal district court misinterpreted Fordyce, which held that, although the property of a charity is not subject to execution, the charity may still be sued. If a nonprofit is subject to suit, then the direct action statute simply has no applicability.
Nevertheless, Scamardo suggests that prior case law of this court indicates that Michael reached the right result; in support of this contention, she cites the following six cases: Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953); Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S.W.2d 529 (1958); Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961); Ramsey v. American Auto Ins. Co., 234 Ark. 1031, 356 S.W.2d 236 (1961); Williams v. Jefferson Hospital Assoc., 246 Ark. 1231, 442 S.W.2d 243 (1969); and George v. Jefferson Hospital Assoc., Inc., 337 Ark. 206, 987 S.W.2d 710 (1999).
In Crossett Health Center, supra, the court reaffirmed its rule that “an organization maintained exclusively for charitable purposes will be protected against execution,” Crossett, 221 Ark. at 882 (emphasis added), but went on to hold that the Crossett Health Center had not put on sufficient evidence to establish its immunity as a benevolent charity within the meaning of the court’s previous decisions on charitable immunity.
In Cabbiness, supra, the court simply held that, because the North Little Rock Boys’ Club was a benevolent corporation, it was immune from tort liability. Cabbiness, 228 Ark. at 361. It is significant that the court made no comment about the Boys’ Club’s immunity from suit. Helton, supra, reaffirmed Cabbiness, noting that “to say that a public charity is liable in tort, we would have to overrule cases holdingjust the opposite.” Helton, 234 Ark. at 80 (emphasis added). The Helton court specifically noted, however, that “the individual or individuals alleged to have caused the injuries by their negligence are not immune to a suit for damages, and Ark. Stat. § 66-3240 [now codified at § 23-79-210] gives the injured parties in a case of this kind a direct cause of action against any insurance company that has issued a liability policy applying to the situation.” Id. at 83-84 (emphasis added).
The Ramsey case did not discuss the applicability of the charitable immunity doctrine, but simply stated that the case involved a direct action against the Salvation Army’s liability insurance carrier. And next, in Williams v. Jefferson Hospital Ass’n, supra, the court declined to abolish the doctrine of charitable immunity, concluding that such a responsibility was more properly within the province of the legislature.
Finally, and most recently, in George v. Jefferson Hospital Ass’n, supra, this court discussed the doctrine of charitable immunity as follows:
The doctrine of charitable immunity has over a ninety-year history in Arkansas jurisprudence. Grissom v. Hill, 17 Ark. 483 (1856); Hot Springs School District v. Sisters of Mercy, 84 Ark. 497 (1907).The essence of the doctrine is that agencies, trusts, etc., created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties under the agency or trust. Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953). Through the years we have examined the doctrine in detail, finding it applicable to some entities claiming charitable-entity status and inapplicable to others. [Footnote omitted.] The doctrine obviously favors charities and results in a limitation of potentially responsible persons whom an injured party may sue. We, therefore, give the doctrine a very narrow construction. Williams v. Jefferson Hospital Association, Inc., 246 Ark. 1231, 442 S.W.2d 243 (1969). But applying it narrowly does not mean that we will avoid its use in any appropriate circumstance.
George, 337 Ark. at 211.
Scamardo cites the foregoing cases as supporting the holding in Michael, and concludes that because these have all upheld the doctrine of charitable immunity, Clayborn must be wrong and should be overruled. Any inconsistency perceived by Scamardo in her reading of our prior holdings is explained by pointing out this court’s distinction between the terms “immunity from suit” and “immunity from liability.” In this respect, this court’s use of the words “immunity from liability,” means immunity from execution of the judgment against the property of the nonprofit organization. We discussed this distinction in Clayborn, noting that in Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002), we concluded that § 23-79-210 only provides for direct actions against an insurer in the event that the organization at fault is immune from suit in tort. In Smith, the court explained the difference between immunity from suit and immunity from liability, holding that “[i]mmunity from suit is the entitlement not to stand trial, while immunity from liability is a mere defense to a suit.” Smith, 348 Ark. at 257.
Clayborn further specifically held that we have “never said that charitable organizations are altogether immune from suit.” Clayborn, 348 Ark. at 566 (emphasis in original). The Clayborn court made the point that “the property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance, or malfeasance of its agents or trustees.” Id. (citing Fordyce, supra) (emphasis in original). Clayborn also cited the Crossett Health Center v. Croswell opinion for its comment on the “distinction between the right to sue and the power to execute in satisfaction of the judgment.” Clayborn concluded that “a charitable organization may have suit brought against it and may have a judgment entered against it, but such judgment may not be executed against the property of the charity.” Id.
We do not agree with Scamardo’s suggestion that, if Clayborn is allowed to stand, unjust results will follow. She asserts that, as a result of Clayborn, a plaintiff would have to rely on the good will of a hospital to pay a judgment, contending that a liability carrier is only required to pay damages for which its insured is legally obligated. If a hospital is “immune from liability,” she argues, its carrier will not be obligated to pay any damages that may accrue. However, such an argument appears to be premised on a misunderstanding of what our court meant when it used the term “immune from liability.” As discussed above, the phrase does not mean that a nonprofit organization may not be found liable; rather, it means that the prevailing party in a lawsuit against the nonprofit may not execute on the property or assets of the nonprofit in order to satisfy any judgment.
However, as is true in the present case, the losing party’s insurer (here, Steadfast) can be bound to pay up to its policy limits any judgment entered against the nonprofit entity (Sparks). We therefore decline to overrule Clayborn, and we likewise see no need to limit its holding, because it can be harmonized with this court’s earlier cases regarding charitable immunity. We do, however, believe that the General Assembly should consider whether the charitable immunity doctrine should be abolished, as other jurisdictions have done over the years. See, e.g., Rabon v. Rowan Mem. Hosp. Inc., 152 S.E.2d 485 (N.C. 1967) (overruling doctrine).
Affirmed.
The court also provided a certificate in accordance with Ark. R. Civ. P. 54(b), noting that “it would be a hardship and injustice to the parties in this case to proceed if.. . [the] language [in Clayborn, supra] is without the force of adjudication____Judicial efficiency would be best served if the parties know whether or not the Clayborn decision prevents any and all execution against a charitable institution or its liability insurance carrier. A plaintiff does not file a medical malpractice lawsuit to seek what would in effect be a declaratory judgment, and neither a hospital nor its insurance carrier wishes to defend such a case.”
We also note that, in the event that the charitable organization has no insurance, or if a judgment is entered in excess of policy limits, a trial court can consider the various factors established by this court to determine whether an organization is truly entitled to be immune from execution.Those factors were set out in Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995), and Ouachita Wilderness Institute, Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). They include the following: (1) whether the organization’s charter limits it to charitable or eleemosynary purposes; (2) whether the organization’s charter contains a “not-for-profit” limitation; (3) whether the organization’s goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation. Masterson, 321 Ark. at 401. | [
-48,
124,
-36,
44,
8,
96,
50,
26,
119,
-86,
55,
83,
-83,
-32,
77,
47,
109,
37,
65,
112,
-9,
-77,
23,
105,
-14,
-45,
57,
-57,
32,
-49,
-10,
124,
76,
120,
-118,
-35,
-90,
-54,
-49,
80,
-58,
24,
-87,
-23,
-47,
-46,
96,
-5,
80,
71,
113,
-106,
-87,
37,
-100,
-54,
-120,
40,
74,
-75,
-55,
57,
-119,
-123,
127,
1,
-95,
4,
-100,
35,
-54,
44,
-112,
-79,
9,
-24,
114,
54,
-126,
52,
99,
9,
-124,
102,
99,
-109,
21,
-27,
-120,
-72,
-65,
15,
15,
-90,
-126,
41,
-101,
12,
-73,
31,
121,
20,
-122,
-38,
-4,
92,
30,
44,
1,
-50,
-42,
-95,
-19,
-80,
20,
3,
-26,
-121,
50,
81,
-50,
98,
92,
-57,
58,
-73,
6,
-104
] |
Per Curiam.
Appellant Emmitt Jones, by his attorney, William M. Howard, Jr., has filed a motion for rule on the clerk. Mr. Howard admits that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
116,
-20,
-4,
60,
10,
-32,
48,
-70,
89,
-29,
-15,
83,
-91,
106,
-108,
121,
83,
107,
117,
121,
-58,
-89,
117,
65,
54,
-13,
-29,
87,
57,
109,
-11,
-6,
88,
32,
-54,
-107,
70,
-56,
-123,
92,
-94,
-119,
57,
-19,
113,
65,
52,
33,
16,
15,
49,
126,
-32,
42,
63,
65,
-23,
40,
95,
-70,
66,
-111,
-112,
-123,
127,
20,
-109,
-60,
26,
-122,
88,
110,
-104,
48,
18,
-24,
112,
-90,
-122,
116,
109,
57,
8,
102,
98,
58,
-104,
-17,
-72,
-88,
20,
58,
29,
-90,
-47,
73,
107,
-91,
54,
-75,
42,
20,
6,
118,
-23,
-51,
95,
36,
2,
-49,
-44,
-77,
-113,
33,
-116,
-101,
-30,
3,
16,
117,
-52,
-26,
92,
71,
51,
-101,
-98,
-76
] |
Tom Glaze, Justice.
This appeal arises out of a declaratory judgment action filed by Murphy Exploration & Production Company (“Murphy”) against Chevron U.S.A. Inc. (“Chevron”) in Union County. Between 1969 and 1987, Chevron and its predecessor in interest, Gulf Oil Corporation, operated an oil and gas lease on a 40-acre tract of land located in Union County. On August 28, 1987, Chevron sold and assigned its lease interest in the 40-acre tract to Murphy, pursuant to a Purchase and Sale Agreement and Assignment and Bill of Sale. Murphy operated the oil and gas lease until June 19, 1996, when it sold its lease interest in the 40-acre tract to Merit Energy Partners III, L.P. and Merit Partners, L.P. (“Merit”). Both sales contracts included indemnification clauses, which are the focus of this appeal.
On July 13, 2001, the owners of the 40-acre tract, James Graves and others (“the Graves plaintiffs”) filed suit in federal district court against Phillips Petroleum Company, Texaco Inc., BHP Petroleum (Americas), Inc., Chevron, and Merit. The Graves complaint asserted claims for pollution and contamination of their property and the surrounding environment allegedly caused by the defendants’ improper handling, transportation, storage and disposal of hazardous, toxic, and harmful substances in the form of oil and gas exploration and production wastes. Chevron responded by asserting its right of indemnity against Murphy, which in turn notified Merit that Murphy would be seeking indemnification against Merit.
On November 29, 2001, Murphy filed a complaint in Union County Circuit Court, seeking a declaratory judgment against both Chevron and Merit. In this state lawsuit, Murphy asked the Circuit Court to declare that Murphy had no obligation to indemnify Chevron under their Purchase and Sale Agreement because Murphy did not expressly state in clear and unequivocal terms that Murphy was to indemnify Chevron for liability that Murphy may have caused to the 40-acre tract. Alternatively, Murphy asserted that, if it was determined that Murphy had an obligation to indemnify Chevron, Murphy sought a declaration under the Murphy-Merit sale agreement that Merit had an obligation to indemnify Murphy.
Subsequently, Chevron answered Murphy’s complaint and filed a counterclaim in which it alleged that the indemnity provisions by which Murphy agreed to indemnify Chevron were sufficiently clear and unequivocal so as to provide indemnity to Chevron for the claims asserted in the Graves federal court action. Merit also answered Murphy’s complaint, denying that Merit was obliged to indemnify Murphy. Both Chevron and Murphy then filed motions for summary judgment; Murphy’s cross-motion for summary judgment against Chevron included a motion for summary judgment against Merit. Chevron also filed a cross-claim for declaratory judgment against Merit, alleging that the Merit-Murphy indemnity provision provided third-party beneficiary indemnity for Chevron in Chevron’s capacity as a predecessor in title to Murphy.
On February 20, 2003, the trial court entered an order granting Murphy’s and Merit’s motions for summary judgment against Chevron, denied Chevron’s motions for summary judgment against Murphy and Merit, denied Murphy’s motion against Merit, and granted Merit’s motion against Murphy. From this order, Chevron appeals, contending that the trial court erred in concluding (1) that Chevron was not entitled to indemnity from Murphy, and (2) that Chevron was not entitled to indemnity as a third-party beneficiary of the Murphy-Merit agreement.
In its first point on appeal, Chevron argues that the trial court erred in granting Murphy’s motion for summary judgment against Chevron and in denying Chevron’s own motion. Chevron submits that it is entitled to indemnity from Murphy based on the plain and unambiguous language of the parties’ contract. The indemnity clauses between Chevron and Murphy are found in both the Purchase and Sale Agreement and the Assignment and Bill of Sale; the relevant language from the Purchase and Sale Agreement reads as follows:
Buyer [Murphy] agrees to protect, indemnify and hold Seller [Chevron] harmless against any and all claims, demands and causes of action asserted or filed after closing of this purchase and sale in any way arising from operation of the Assets and the contracts and agreements appertaining thereto based upon any theory of negligence, willful misconduct, liability without fault or other. [Emphasis added.]
Likewise, the language in the Chevron-Murphy Assignment and Bill of Sale provided the following:
Assignee [Murphy] agrees to protect, indemnify and hold Assignor [Chevron] harmless from and against any and all liability, loss, damage, injury and claims, demands and causes of action therefore asserted or filed after the effective date hereof in any way arising from operations or activities related to the Assigned Premises, Wells and Personal Property and the contracts and agreements appertaining thereto based upon any theory of negligence, willful misconduct, strict liability, liability without fault or other grounds. [Emphasis added.]
In granting Murphy’s motion for summary judgment, the trial court determined that the foregoing language did not clearly and unambiguously state that Murphy would indemnify Chevron for liability arising from Chevron’s own acts and omissions. Citing Nabholz Construction Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995), the trial court found that the contract was lacking the specificity required for the assumption of liability for another party’s negligence. The lower court further stated that, given the language of the indemnification clauses, it could not be said that no other meaning could be ascribed to the wording. On appeal, Chevron argues that the trial court erred by creating ambiguity where there was none. Further, Chevron alleges that, in reaching its results, the trial court misinterpreted the holding in Nabholz.
When reviewing and construing indemnification agreements, we keep in mind that they are contracts, see Ray & Sons Masonry v. United States Fidelity & Guar. Co., 353 Ark. 201, 105 S.W.3d 818 (2003), to be construed in accordance with the general rules of construction of contracts. Nabholz, supra; Ark. Kraft Corp. v. Boyed Sanders Constr. Co., 298 Ark. 36, 764 S.W.2d 452 (1989); Pickens-Bond Constr. Co. v. North Little Rock Elec. Co., 249 Ark. 389, 459 S.W.2d 549 (1970). If there is no ambiguity in the language of the indemnification provision, then there is no need to resort to rules of construction. Arkansas Kraft Corp., supra.
When considering indemnification agreements entered into by prime or general contractors and subcontractors, this court has held that a subcontractor’s intention to obligate itself to indemnify a prime contractor for the prime contractor’s own negligence must be expressed in clear and unequivocal terms and to the extent that no other meaning can be ascribed. Nabholz, supra; see also Hardeman, Inc. v. Hass Co., 246 Ark. 559, 439 S.W.2d 281 (1969). While no particular words are required, the liability of an indemnitor for the negligence of an indemnitee is an extraordinary obligation to assume, and we will not impose it unless the purpose to do so is spelled out in unmistakable terms. Arkansas Kraft Corp., supra (citing Batson-Cook Co. v. Industrial Steel Erectors, 257 F.2d 410 (5th Cir. 1958)). Itis also well settled that in contracts ofindemnity the losses to be indemnified must be clearly stated and the intent of the indemnitor’s obligation to indemnify against.them must be expressed in clear and unequivocal terms and to such an extent that no other meaning can be ascribed. Pickens-Bond, supra; Hardeman, supra; Weaver-Bailey Contractors, Inc. v. Fiske Carter Const., 9 Ark. App. 192, 657 S.W.2d 209 (1983). The intent to extend the obligation to losses from specific causes need not be in any particular language, but unless this intention is expressed in the plainest words it will not be deemed that the party undertook to indemnify against it. Pickens-Bond, supra; see also Arkansas Kraft Corp., supra. Indemnity agreements are construed strictly against the party seeking indemnification. See Potlatch Corp. v. Missouri Pac. R. R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995); East-Harding, Inc. v. Horace A. Piazza & Assocs., 80 Ark. App. 143, 91 S.W.3d 547 (2003).
As alluded to above, these indemnification cases all arose in the context of construction contracts entered into between general or prime contractors and subcontractors. The present situation, however, involves an oil and gas lease contract, which requires a somewhat different review. For example, in Bonds v. Sanchez-O’Brien Oil & Gas Co., 289 Ark. 582, 715 S.W.2d 444 (1986), this court held that an oil and gas lessee is under an implied duty to restore the surface of the land to the condition prior to the commencement of the drilling. In reaching this conclusion, the court reasoned as follows:
We are persuaded that the current trend toward placing the burden of restoration [of the surface of land involved in oil and gas exploration and drilling] on the lessee is the better view. This viewpoint recognizes a legitimate legal concern for the environment. In recognition of this concept, many responsible members of the oil industry have already voluntarily begun to clean up their abandoned sites, and we must base decisions upon current concepts of what is right and just. To hold otherwise would allow the lessee to continue to occupy the surface, without change, after the lease has ended. This would constitute an unreasonable surface use, and no rule is more firmly established in oil and gas law than the rule that the lessee is limited to a use of the surface which is reasonable. Accordingly, we hold that the duty to restore the surface, as nearly as practicable, to the same condition as it was before drilling is implied in the lease agreement.
Bonds, 289 Ark. at 585.
This implied duty to restore the surface in oil and gas contracts reflects a different focus or concern than is found in this court’s other indemnification cases. Generally speaking, the issues in construction contractor-subcontractor cases have centered around whether a subcontractor can be held liable for acts of negligence on the part of the general contractor, when those acts of negligence lead to an instance of personal injury. See, e.g., Nabholz, supra (employee of subcontractor injured in accident occasioned by negligence of general contractor); Arkansas Kraft Corp., supra (employee of subcontractor injured while working on a construction project). In an oil-and-gas lease case such as the one now before us, however, the concern is with ongoing environmental issues that frequently persist over a span of years and that may or may not be known at the time an oil and gas lease is transferred from one exploration company to another.
Although there are no Arkansas cases on this precise subject, at least one federal appellate court has addressed a similar matter. In Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321 (7th Cir. 1994), Lefton Iron & Metal purchased a 40-acre industrial site from Moss-American, Inc., the predecessor in interest of Kerr-McGee. The land had been used since 1927 to manufacture wood products in a process that involved treating the wood with creosote and other preservatives. In 1988, the State of Illinois filed a complaint against Kerr-McGee and Lefton, alleging various pollution claims and seeking to require the parties to clean up the site. Kerr-McGee entered a settlement by which it agreed to undertake any and all remedial work necessary to protect the public health and the environment. Kerr-McGee subsequently brought an action against Lefton, seeking indemnification pursuant to the 1972 contract transferring the land from Moss-American to Lefton. Kerr-McGee, 14 F.3d at 324.
Although the federal district court found in Lefton’s favor, the Seventh Circuit Court of Appeals reversed on the basis of an indemnification clause found in the contract transferring ownership of the site from Moss-American to Lefton. That clause provided as follows:
[Lefton] expressly agrees to indemnify and to defend and hold [Kerr-McGee’s predecessor Moss-American], its officers, employees, and agents, free and harmless from and against any and all claims, damages, judgments, fines, penalties, assessments, losses, expenses, including interest, court costs and attorney fees, however the same may be caused, arising out of or resulting from, directly or indirectly, the following: (a) the purchase, dismantling or sale of the personal property and real property by [Lefton]; (b) the maintenance of any action, claim or order concerning pollution or nuisance; and (c) the use by [Lefton] or its employees or agents of the personal property and real property.
Id. at 326-27 (emphasis added).
The federal district court had found that this indemnity provision was “so unclear that the court would not enforce it.” The Seventh Circuit Court of Appeals disagreed and held that the district court erred in refusing to enforce the indemnity clause on the grounds that the clause was not intended to cover Kerr-McGee’s own fault. Noting that Illinois courts (like Arkansas courts) hold that indemnification contracts will not be construed as indemnifying a party for its own negligence unless such construction is required by clear and explicit language, the Seventh Circuit noted that there had been no finding that Kerr-McGee or its predecessors had acted negligently or wrongfully at the site. The court continued as follows:
But even if there had been a finding of fault, Lefton would be required to indemnify Kerr-McGee. In unequivocal terms, the indemnity agreement makes clear that the question of fault is irrelevant: Lefton explicitly agreed to assume the costs of all claims relating to pollution or nuisance “however the same may be caused.” Furthermore, Lefton knew of the pollution at the site when it purchased the property: its inspection of the site revealed signs of pollution; soil samples indicated the presence of creosote; and most importantly, in the contract of sale Lefton expressly acknowledged the presence of wood preservative (of which creosote is one) on the property.... Lefton might not have foreseen that these chemicals would one day need to be removed at a substantial price. But when it agreed to take the property “as is” and to “indemnify . . . [and] hold [Kerr-McGee’s predecessor] harmless from and against any and all claims... however the same may be caused, arising out of or resulting from ... the maintenance of any action, claim or order concerning pollution or nuisance,” it agreed to assume future costs resulting from the presence of chemicals on the property. That Kerr-McGee’s predecessor was the source of the pollution is immaterial; when Lefton bought the property, it bought the chemicals then on the site and the future liabilities that went with them.
Id. at 327-28 (emphasis added).
In the present case, as in Kerr-McGee, Murphy agreed to purchase the lease from Chevron “as is”; the contract also stated that Murphy explicitly assumed the “risk of description, title, and the condition of the Assets and shall satisfy itself with regard thereto.” Thus, Murphy was —• or should have been — on notice of any existing or potential environmental problems with the property. Further, the indemnity clause provided that Murphy would indemnify and hold Chevron harmless against any and all claims arising from operation of the Assets based upon any theory of negligence, willful misconduct, liability without fault, or other. Although the Kerr-McGee indemnity clause specifically mentioned “any action, claim or order concerning pollution or nuisance,” the language in the Chevron-Murphy agreement is even broader, providing that Murphy would indemnify Chevron “against any and all claims, demands and causes of action ... in any way arising from operation of the Assets . . . based upon any theory of negligence, willful misconduct, liability without fault, or other.” (Emphasis added.) Finally, because an oil and gas lessee has an implied duty to restore the surface of the land to its pre-development condition upon cessation of production, see Bonds v. Sanchez-O’Brien Oil & Gas Co., supra, then Murphy should be held to have known that it was taking on the duty to restore any existing surface damage to the former Chevron property.
Construing the contract as a whole, as we must, see First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992), we conclude that Murphy assumed the risk of the environmental conditions on the property. The Chevron-Murphy indemnity agreements’ language, covering “any and all claims arising from the operation of the property,” is clearly broad enough to provide indemnification against environmental claims. Therefore, we conclude that the trial court erred in finding that the indemnification clause did not bind Murphy to indemnify Chevron against the claims asserted by the Graves family in their federal court lawsuit.
We turn now to the issue of indemnification as between Murphy and Merit. The trial court concluded that Murphy’s motion for summary judgment against Merit, in which Murphy sought indemnification from Merit in the event it was required to indemnify Chevron, was moot. However, because we have found Murphy liable for indemnification to Chevron, we must consider whether Merit, in turn, is obligated to indemnify Murphy. The relevant language of the Murphy-Merit agreement is as follows:
Purchaser [Merit], its successors and assigns, hereby agrees to indemnify and defend seller [Murphy], its successors and assigns, its officers, directors, agents or employees and any and all of seller’s subsidiary, affiliate or parent companies and their officers, directors, agents, or employees and any of seller’s predecessors in title from and against all claims, demands, damages, obligations, costs, other liabilities (including attorney’s fees), and causes of action, including any civil fines, penalties or cost of cleanup (“environmental claims”), brought by any and all persons, including (without limitation) purchaser’s and seller’s employees, agents or representatives and also including (without limitation) any private citizens, persons, organizations and any agency, branch or representative of federal, state, or local government on account of damage, destruction or loss of property, contamination of natural resources (including soil, surface water or ground water) resultingfirom or arising out of any liability caused by or connected with the joint, concurrent, or sole negligence of seller, any or all of seller’s subsidiary, affiliate or parent companies, or any of seller’s predecessors in title (whether active or passive), or the presence, disposal or release of any material of any kind in or under the properties at the time it is conveyed to purchase or thereafter caused by acts of purchaser, its agents, employees, representatives, successors or assigns with regard to its use of the described properties subsequent to the conveyance of the described properties. [Emphasis added.]
This language clearly, unequivocally, and unmistakably obligates Merit to indemnify Murphy for liability arising from Murphy’s acts and omissions, or the acts and omissions of any of Murphy’s predecessors in title. At the hearing on the motions for summary judgment, counsel for Merit asserted that the purpose of using the “predecessor in title” language was to create a “pass-through indemnification protection” to Murphy in the event that Murphy should be liable for an indemnity owed by it to its predecessors in title. This is precisely what occurred in this case, as discussed, above, and thus, we hold that as Murphy is obligated to indemnify Chevron, Merit is likewise bound to indemnify Murphy and Chevron by the express language of its indemnification agreement found in its purchase and sale agreement with Murphy.
Reversed and remanded. | [
-12,
106,
64,
12,
-88,
-32,
56,
-102,
93,
-70,
117,
87,
-83,
-40,
0,
59,
-29,
121,
100,
120,
-45,
-94,
65,
82,
-42,
-77,
-71,
-41,
50,
77,
-84,
94,
76,
36,
-54,
21,
-46,
98,
-49,
92,
78,
1,
-103,
-24,
89,
16,
48,
59,
114,
75,
65,
-116,
112,
45,
25,
99,
29,
44,
-7,
-83,
73,
56,
-71,
-99,
125,
54,
1,
68,
-104,
-121,
-38,
90,
-46,
-80,
48,
-24,
122,
54,
70,
-11,
11,
27,
-120,
32,
98,
-127,
0,
-81,
120,
-72,
15,
-34,
13,
-92,
-60,
56,
74,
66,
-73,
-68,
88,
4,
-59,
118,
-28,
5,
95,
41,
-121,
-38,
-110,
-95,
15,
-31,
-98,
5,
-21,
-125,
52,
68,
-51,
-14,
84,
71,
119,
-33,
8,
-48
] |
Per Curiam.
Appellant, Robert Lee Sparkman, by and through his attorney, Jeff Kearney, has filed a motion for rule on clerk. The record reflects that appellant was convicted of rape and sentenced to eighteen years in the Arkansas Department of Correction. The judgment and commitment order was filed on August 6, 2003. Appellant filed a timely notice of appeal on September 2, 2003.
On November 25, 2003, the trial court entered an order extending the time to file the record on appeal until March 6, 2004. Because March 6, 2004, fell on a Saturday, the time for filing the record was extended to Monday, March 8, 2004. Ark. R. App. P. — Civ. 9. A partial record was tendered with this court’s clerk on March 8, 2004, contemporaneous with the filing of the motion for rule on clerk. Because the partial record was timely filed, we will not consider the motion for rule on clerk. Franklin v. State, 318 Ark. 687, 886 S.W.2d 633 (1994). However, in his motion, appellant prays that this court authorize the lodging of the appeal herein on the basis of the partial record, and that the court issue a writ of certiorari, granting the court reporter thirty days within which to complete the record on appeal.
We authorize the lodging of the partial record in this case and issue a writ of certiorari directing Sharon L. Fields, Official Court Reporter for the Circuit Court, Division II, Nineteenth District West, to complete and file the transcript in this matter within thirty days of the date of this order. | [
52,
-18,
-60,
92,
8,
65,
58,
-98,
98,
-117,
49,
83,
37,
-54,
28,
121,
67,
107,
85,
121,
-48,
-73,
103,
73,
98,
-13,
-7,
87,
55,
93,
-20,
-74,
92,
96,
-54,
-111,
70,
-56,
-63,
92,
-50,
-119,
-71,
-28,
81,
-120,
48,
58,
90,
15,
53,
-42,
-30,
45,
24,
-49,
105,
44,
-55,
-65,
80,
-79,
-109,
13,
47,
52,
-95,
-106,
-110,
15,
112,
62,
-116,
49,
0,
-4,
50,
-90,
-122,
52,
107,
89,
40,
98,
-30,
11,
21,
119,
-88,
-88,
5,
62,
-99,
-89,
-104,
105,
105,
109,
-106,
-107,
53,
21,
3,
-2,
107,
-115,
81,
44,
10,
-49,
-112,
-75,
15,
120,
20,
-85,
-21,
41,
112,
53,
-51,
-26,
88,
71,
51,
-101,
-50,
-80
] |
Conley Byrd, Justice.
The Workmen’s Compensation Commission in denying total disability benefits to appellant Floyd Smith made the following findings of fact:
“The claimant indeed appears to be totally disabled, however, based upon Dr. Faulkner’s testimony, it is our opinion that this disability is the direct result of the various hernias that the claimant has experienced, the subsequent repairs thereto and the susceptibility to further type hernia.”
The record shows that appellant has had five hernias while in the employment of appellee, Riceland Foods, and that the employer has paid the workmen’s compensation benefits and furnished the necessary medical expense for each hernia. There is no contention that the last hernia was not properly repaired — in fact the medical proof shows that it was.
The Workmen’s Compensation Law, Ark. Stat. Ann. § 81-1313(e) (Repl. 1976) in so far as here applicable provides:
“In every case of hernia it shall be the duty of the employer forthwith to provide the necessary and proper medical, surgical and hospital care and attention to effectuate a cure by radical operation of the hernia, to pay all reasonable expenses in connection therewith, and, in addition, to pay compensation not exceeding a period of twenty-six (26) weeks. In case the employee shall refuse to permit such operation, it shall be the duty of the employer to provide all necessary first aid, medical and hospital care and service, and to supply the proper and necessary truss or other mechanical appliance to enable the employee to resume work, to pay all reasonable expenses in connection therewith, and, in addition, to pay compensation not exceeding a period of thirteen (13) weeks. In case death results within a period of one (1) year, either from the hernia or from the radical operation thereof, compensation shall be paid the dependents as provided in other death cases under this Act [§§81-1301 — 81-1349], Recurrence of the hernia following radical operation thereof shall be considered a separate hernia and the provisions and limitations regarding the original hernia shall apply.”
Based upon the foregoing record, the circuit court affirmed the commission and for reversal the appellant here contends that since he is totally disabled his benefits should not be limited by the hernia provision in Ark. Stat. Ann. § 81-1313 (e) (Repl. 1976), and that if Ark. Stat. Ann. § 81-1313 (e) (Repl. 1976) does limit his benefits then it is unconstitutional under Art. 2 § 18 of the Constitution of Arkansas and Amendment 14 to the United States Constitution.
POINT I. Appellant here asks that we apply our decision in McNeely v. Clem Mill and Gin Company, 241 Ark. 498, 409 S.W. 2d 502 (1966), to award total disability in accordance with Ark. Stat. Ann. § 81-1313(a) (Repl. 1976), which provides:
“In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-six and two-thirds per cent (66 2/3%) of his average weekly wage. Loss of both hands, or both arms, or both legs, or both eyes, or of any two [2] thereof shall, in the absence of clear and convincing proof to the contrary, constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts.”
In the McNeely case we held that where a scheduled injury under subsection (c) of Section 81-1313 resulted in a total disability then the claimant was entitled to the greater benefit set forth in subsection (a) for total disability even though in the absence of a total disability the smaller limits in subsection (c) would be applied. We do not believe that the proof in this case is sufficient to bring appellant under the doctrine of the McNeely case — i.e. the medical proof shows that he had good results from his hernia operation and that his total disability results from his susceptibility to the recurrence of hernia. Furthermore, as pointed out in Jobe v. Capitol Products, 230 Ark. 1, 320 S.W. 2d 634 (1959), that disability which arises from an inherent weakness of the fascia does not entitle one to benefits under the terms of subsection (e) supra.
POINT II. Here appellant argues that to deny him benefits under the hernia subsection instead of allowing the benefits under the total disability subsection creates an unreasonable classification that is void under the equal protection clauses of the Constitutions of the United States and Arkansas. We find this contention without merit for the reasons set forth in Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184 (1974).
Affirmed. | [
20,
-7,
-107,
-100,
26,
-31,
34,
-102,
82,
-118,
39,
83,
-19,
54,
69,
61,
-23,
125,
89,
41,
118,
-77,
19,
104,
-46,
-13,
-21,
87,
-7,
75,
-12,
-36,
76,
48,
10,
-44,
-26,
-64,
-49,
28,
-54,
-113,
-120,
-19,
121,
-128,
48,
46,
-124,
71,
61,
-114,
-86,
38,
20,
-57,
44,
44,
91,
40,
64,
-31,
-118,
13,
-1,
5,
-94,
4,
-100,
99,
90,
62,
-112,
49,
64,
-88,
82,
-74,
-126,
52,
75,
-103,
12,
98,
98,
52,
29,
-11,
104,
-70,
15,
-82,
-99,
-91,
-117,
41,
91,
71,
-106,
-67,
90,
68,
6,
120,
-12,
21,
93,
44,
11,
-114,
-106,
-79,
-49,
0,
-98,
-93,
-17,
15,
-79,
113,
-35,
-94,
121,
67,
107,
-101,
-61,
-70
] |
John A. Fogleman, Justice.
Warren McSpadden and numerous others filed their complaint against Midwest Lime Company alleging that the company’s agricultural limestone business was operated in such a manner that it constituted a private nuisance and caused damages to the various plaintiffs. They sought injunctive relief to either stop blasting operations carried on by petitioners or to control the operation so it would not constitute a nuisance. They also sought recovery for structural damages and damages caused by the alleged nuisance. During the 4 V2 year period between the commencement of the hearings in the case and the entry of the decree, plaintiffs were added and eliminated; 27 days were devoted to hearing testimony and arguments of counsel, between June 1972 and June 19, 1974; and four memorandum opinions were handed down by the chancellor, before a decree on one phase of the case, i.e., the prayer for an injunction, was rendered on November 19, 1976.
We must depend upon the chancellor’s opinions and the court’s decree as the record of the proceedings in determining the questions raised by petitioner’s request for a writ of prohibition, or, alternatively, a writ of certiorari. By these writs, or one of them, petitioner seeks to prevent the chancery court from proceeding to rehear the question of its liability for damages and to fix the damages in separate trials for each parcel of property for which damages are sought by the remaining plaintiffs. For the reasons later stated the writs are denied.
During the 27 days of testimony, evidence had been directed toward the issues of nuisance and liability. The decree finally entered enjoined petitioner from operating its business except under carefully specified conditions enumerated in the decree but directed that the issue of liability for structural damages, as a result of the operation of the nuisance of blasting that had been carried on by petitioners, be retried and that the case of each individual plaintiff be separately tried. Petitioner contends that this decree requires the presentation of evidence a second time to the same trier of fact and that the court has acted without jurisdiction, or in excess of its jurisdiction, in ordering a retrial and mandating separate trials. It argues that, in effect, the court has granted a new trial and that, not only does the chancery court not have authority to do so, but, even if the statute governing new trials is applicable to a case in the chancery court, the basis for ordering the case retried, i.e., the chancellor’s inability to render a decision on the evidence previously submitted, is not a proper ground for a new trial. Petitioner also argues that it will be forced to go through some 45 retrials for the apparent reason that the evidence failed to convince the chancellor. This, say petitioners, means that the plaintiffs failed to meet their burden of proof; therefore, it is a gross abuse of the trial court’s discretion to order a retrial.
The first memorandum opinion concerned the injunctive phase of the case. It was handed down on July 3, 1974. It recited that 79 plaintiffs had filed the complaint, that six additional persons were later added as plaintiffs, that 22 of the plaintiffs were allowed to dismiss their causes of action without prejudice and that judgments on the evidence had been rendered against others. The chancellor stated that, upon stipulation of the parties, the court had, on the 27 days after hearings were commenced, heard the evidence necessary to rule on the injunctive and liability phase of the case and found that petitioner’s operation was a nuisance and directed that certain types of explosions be enjoined and others, along with petitioner’s crushing operations, be permitted under specified conditions only. The chancellor specifically recited that jurisdiction was retained for the entry of such additional orders as might be necessary, and that the injunctive order would be final and appealable.
In another memorandum opinion handed down on August 30, 1974, the chancellor recited that 79 plaintiffs had originally complained of damages to 39 structures, that additional plaintiffs had been added, claiming damages to additional buildings, while others were allowed to dismiss their actions. The chancellor said that the court “with a blundering and blind lack of foresight” had concurred in the joint request of the parties that the court rule first on the question of liability to the separate plaintiffs and, if liability was found, then rule on damages to each structure. The chancellor stated that the rationale for the procedure was to relieve each side of the economic burden of having expensive expert witnesses present for 39 different trials, but that the case, as tried, was so complex that he was unable to reach a sound, well-founded and accurate opinion in each of the cases, and the finder of fact had become inextricably mired in a mass of evidence in which proper retrieval and sorting into structural damage categories had become impossible. He concluded that the portion of the suit going to damages as to the structures resulting from blastings should be tried as a separate tort suit or suits before a jury and requested that the attorneys prepare an order of transfer. Then on July 18, 1976, the chancellor rendered another opinion stating that, after reviewing objections of the plaintiffs to the order of transfer, it appeared best that the case not be transferred and requested the attorneys to prepare an order setting the individual damage cases for trial in the chancery court.
During all this period, no decree had been entered. The decree dated November 19, 1976, was filed November 22, 1976. It recited that the matter had come on for hearing on June 5, 1972, and had been argued orally on June 19, 1974. The decree incorporated the chancellor’s directions as to the injunction and listed 45 plaintiffs to whom the petitioner was liable for operation of a private nuisance and stated that they were entitled to present proof of nuisance damages at dates to be set by the court. The decree repeated the statements of the chancellor’s opinion as to the court’s inability to reach an accurate opinion in each of the cases of the separate plaintiffs, adding that the situation was compounded by the fact that the court reporter who had taken the 27 days of testimony in 1972 had thereafter retired and that the accurate transcription of her notes and tapes was extremely difficult, if at all possible. The court directed verdicts against four plaintiffs on the issue of liability for damages, and directed that the entire issue of liability for damages be retried and that the case of each plaintiff be tried separately. The court again recited that the injunctive order in the decree was appealable.
We do not agree with petitioner in its classification of the court’s action as the granting of a new trial. A new trial is defined by statute as a reexamination in the same court of an issue of fact after a verdict by a jury or a decision by the court. Ark. Stat. Ann. § 27-1901 (Repl. 1962). Here no decision has been reached. We agree with respondent that its action in the matter is more aptiy equated with declaring a mistrial than with the granting of a new trial. A mistrial is a proceeding which has miscarried and the consequence is not a trial. Sevlesruo Holding Corp. v. American Equitable Insurance Co., 11 N.J.S. Misc. 334, 165 A. 729 (1933); Fisk v. Henarie, 32 F. 417 (Cir. Ct., Ore., 1887). The term is sometimes used to describe any trial which does not result in a lawful decision, but which a proper decision would have completed. Sevlesruo Holding Corp. v. American Equitable Insurance Co., supra; People v. Schwarz, 78 Cal. App. 561, 248 P. 990 (1926). The distinction between a new trial and a mistrial is clearly pointed out in § 1c, New Trial, 66 C.J.S. 65, viz:
*** There is a marked difference between a court’s granting a motion for a new trial and declaring a mistrial; the former contemplates that a case has been tried, a judgment rendered, and on motion therefor said judgment set aside and a new trial granted, while the latter results where, before a trial is completed and judgment rendered, the trial court concludes that there is some error or irregularity that prevents a proper judgment being rendered in which event a mistrial may be declared.
A mistrial is declared because of some circumstance indicating that justice may not be done if the trial is continued. Curley v. Boston Herald-Traveler Corp., 314 Mass. 31, 49 N.E. 2d 445 (1943); Long v. City of Opelika, 37 Ala. App. 200, 66 S. 2d 126 (1953).
It is doubtful that a motion for new trial is appropriate in chancery cases, but there is no doubt that the granting of a new trial in such a case lies within the sound discretion of the court. Rinke v. Shackleford, 248 Ark. 941, 455 S.W. 2d 83; Barton-Mansfield Co. v. Richardson, 190 Ark. 612, 80 S.W. 2d 60; Jacks v. Adair, 33 Ark. 161.
A bill of review or petition for rehearing in chancery cases performs somewhat the same function as a motion for new trial in law cases and all such pleadings are addressed to the sound judicial discretion of the trial court. Richardson v. Sallee, 207 Ark. 915, 183 S.W. 2d 508. But neither has application to the discretion of a chancellor to reopen a case before the entry of final decree upon the record. Kennedy v. Kennedy, 243 Ark. 773, 421 S.W. 2d 611. This is a matter lying within the sound judicial discretion of the chancery court and not a matter outside or in excess of its jurisdiction.
Even in a jury trial, the reopening of a case for further proof, after both sides have rested, is a matter lying within the sound discretion of the trial court. Troxler v. Spencer, 223 Ark. 919, 270 S.W. 2d 936. In a non-jury trial, the latitude of the court’s discretion to hear further evidence when the court has the case under submission after trial but before any judgment has been entered is quite broad. Pulaski County v. Horton, 224 Ark. 864, 276 S.W. 2d 706. This procedure in a trial without jury first addressed itself to this court in Turner v. Tapscott, 30 Ark. 312 (overruled on another point by Pike v. Thomas, 62 Ark. 223, 35 S.W. 212), where we said:
The remaining question is as to the practice of suffering additional evidence to be given after the parties have closed the evidence and submitted the case, but before the court had rendered its verdict. The evidence omitted was to prove a demand of payment before action brought. The Code practice is liberal with regard to amendments when the object is to obviate an omission, either in pleading or evidence, if amended or allowed, which would tend to facilitate the final disposition of the case upon its merits. The defendant could not have been surprised. A material fact had not been proven, and it was a matter of discretion with the court to allow its introduction or not, and, under the circumstances, we think there was no abuse of this discretionary power in permitting it to be introduced.
It has been said that courts should exercise their discretion as to the admission of evidence pertinent to a material issue in the case for the advancement of the right and to the end that justice may be done conformably to the laws and that refusing to allow testimony under appropriate cir cumstances is not a proper exercise of judicial discretion. St. Louis, A. & T. Ry. Co. v. Fire Association of Philadelphia, 55 Ark. 163, 18 S.W. 43. On the other hand, the court’s purpose in admitting testimony in order to ascertain the truth of the matter to be determined is an important consideration militating against our finding of an abuse of discretion. Nutt v. Fry, 119 Ark. 450, 177 S.W. 1137. Even admission of evidence after the jury has been instructed is a matter lying within the discretion of the trial court and its admission will not be held erroneous or the action of the trial court reversed unless an abuse of discretion is shown or is manifest. Bynum v. Brady, 82 Ark. 603, 100 S.W. 66; Nutt v. Fry, supra. We have also held that it was not error for the court to permit witnesses to restate their testimony on a certain matter to a jury in the presence and at the direction of the trial court after the jury had retired to consider their verdict, when the jury returned into court and stated its desire that this be done. Bennefield v. State, 62 Ark. 365, 35 S.W. 790 (overruled on another point in Tollman v. State, 151 Ark. 108, 235 S.W. 389).
We have held that a chancellor did not abuse his discretion in allowing the reopening of a case before the entry of a final decree for the introduction of evidence on a point on which there had been no evidence. Kennedy v. Kennedy, supra. Of course, there is, and should be, a great deal more flexibility in such matters in a court trial than there is in a jury trial, particularly in a court of equity. We have recognized the discretion of a chancellor to set aside the submission of a case to allow a party to introduce additional evidence. Fromholz v. McGahey, 120 Ark. 216, 179 S.W. 360. In considering the question in State v. Midland Valley R. Co., 197 Ark. 243, 122 S.W. 2d 173, we emphasized the trial judge’s discretion in such matters, saying:
“The judge is not to be restricted to the functions of a mere umpire or referee in a contest between opposing parties or counsel, but is charged by law and conscience with the fundamental duty of seeing that truth is established and justice done, under the statutes and rules of law designed to bring about such result, and his control of the situation should be manifest and complete at all times.” 64 C.J. 66
“The trial judge must always have a very large discretion in controlling and managing the routine proceedings at the trial, and it is not necessary to specify the matters to which such discretion extends. *** But it must be a reasonable, a legal discretion, and whether it be so or not must depend upon the nature of the proceeding on which it is exercised, the way it is exercised and the special circumstances under which it is exercised. It can never be intended that a trial judge has purposely gone astray in dealing with matters within the category of discretionary proceedings, and unless it turns out that he has not merely misstepped, but has departed widely and injuriously, an appellate court will not re-examine. It will not do it when there is no better reason than its own opinion that the course actually taken was not as wise or sensible or orderly as another would have been.” Coca-Cola Bottling Company of Ark. v. Jordan, 186 Ark. 1006, 54 S.W. 2d 403, 405.
We have not considered such matters when the trial court acts on its own motion, but there is precedent for such action in equity. In Kirschbaum v. Kirschbaum, 92 N.J. Eq. 7, 111 A. 697 (1920), the court said:
“The court often, of its own motion, gives leave to parties to take further testimony to satisfy the ends of justice.”
In Holcombe v. Trenton White City Co., 80 N.J. Eq. 122, 82 A. 618 (1912), one of the authorities cited in Kirschbaum, the court was unable to fix the amount of liability because there was no evidence before the court on the subject. That court said:
“However, this court has the power to continue a hearing and permit further proof to be taken and that power ought to be exercised where it does not appear that injustice will be done and where, on the contrary, justice seems to require it.”
In Bradford v. Eutaw Sav. Bank of Baltimore City, 186 Md. 127, 46 A. 2d 284 (1946), in which a party’s motion asking leave to take additional testimony on a cross-bill had been filed and granted after the chancellor had indicated that it would be desirable that additional testimony be produced before action was taken on it, the trial court’s procedure was sustained on appeal. The appellants contended that this evidence should have been taken at the first hearing and that the appellee had closed her case without calling the witnesses who gave the additional testimony, even though they were there in court. The Maryland court said:
*** However, a chancellor has the power to allow defects in proof to be supplied at any time. Bailey v. Bailey, Md., 46 A. 2d 275. Such action is in his discretion and is not subject to review here (Trustees of German Lutheran, etc. v. Heise, 44 Md. 453) except where his action is arbitrary, and the rights of some of the parties are improperly affected. When, in the judgment of the chancellor, the ends of justice will be served, this Court has said that it is his plain duty to allow further proof to come in. Worthington v. Hiss, 70 Md. 172, 16 A. 534, 17 A. 1026. We find nothing arbitrary in the action of the chancellor herein in this respect.
In order for a writ of prohibition to be issued, the court to whom it would be directed must be attempting to exercise judicial power without authority of law. Robinson v. Merritt, 229 Ark. 204, 314 S.W. 2d 214; State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33. The writ will be issued by this court to relieve one from the onerous burden of litigation when (and only when) the trial court is attempting to act wholly without jurisdiction or is threatening or about to act in excess of its jurisdiction. Gainsburg v. Dodge, 193 Ark. 473, 101 S.W. 2d 178; Murphy v. Trimble, 200 Ark. 1173, 143 S.W. 2d 534. It is not available to bar pending proceedings if the court has jurisdiction. Schirmer v. Cockrill, 223 Ark. 817, 269 S.W. 2d 300. Remedy by prohibition is discretionary and is applied cautiously. Faver v. Golden, 216 Ark. 792, 227 S.W. 2d 453. The writ will not issue unless the petitioner is clearly entitled to it and the trial court is clearly without jurisdiction, or has clearly acted without authority. Karraz v. Taylor, 259 Ark. 699, 535 S.W. 2d 840; Skinner v. Mayfield, 246 Ark. 741, 439 S.W. 2d 651. Capital Transportation Co. v. Strait, 213 Ark. 571, 211 S.W. 2d 889; Shuman v. Irby, 201 Ark. 907, 147 S.W. 2d 358; Schley v. Dodge, 206 Ark. 1151, 178 S.W. 2d 851; Miller v. Connally, 354 F. 2d 206 (5 Cir., 1965). Prohibition may not be used to control the trial court’s discretion. McKenzie v. Burris, 255 Ark. 330, 500 S.W. 2d 357, 61 ALR 3d 250. See also, State v. Dowd, 448 S.W. 2d 1 (Mo., 1969); Crackerneck Country Club, Inc. v. Sprinkle, 485 S.W. 2d 652 (Mo. App., 1972); Miller v. Connally, supra; State v. Circuit Court of Morgan County, 241 Ind. 168, 170 N.E. 2d 443 (1960); Seward v. Denver & R. G. R. Co., 17 N.M. 557, 131 Pac. 980 (1913).
We should not infer that the plaintiffs had failed to meet their burden of proof merely because the trial judge found that he could not remember testimony given some years earlier sufficiently to make a decision on a critical issue. If retrieval of the testimony was impractical, as the chancellor saw it, the matter of procedure in order to see that justice be done lay in his sound judicial discretion and the exercise of that discretion should not be disturbed by prohibition.
We spoke to the function of certiorari in State v. Nelson, supra. Under the authorities there cited, it would not be available because we cannot say, upon the face of the record, that the chancery court procedures taken are erroneous or illegal, without the jurisdiction of the court or in excess of its jurisdiction. Furthermore, we said in Nelson that certiorari is not available to control discretion or review the exercise of a court’s discretionary authority. If we quashed the trial court’s action on certiorari, we would, indeed, be controlling its discretion or reviewing the exercise of its discretionary authority-
We are perhaps not informed as to the reasons the testimony taken and reported may not be retrieved and cannot know whether, after this lapse of time, the chancellor could properly weigh the testimony of witnesses he saw and heard over four years earlier if it were retrieved. We cannot overturn a discretionary act of a trial court within the exercise of its jurisdiction simply because one or more members of this court might have attempted to address the problem by a different procedure. See Crackerneck Country Club, Inc. v. Sprinkle, supra; Coca-Cola Bottling Co. of Ark. v. Jordan, 186 Ark. 1006, 54 S.W. 2d 403.
The writ is denied.
We agree. Harris, C.J., and Holt and Hickman, JJ. | [
-12,
-20,
-2,
-116,
10,
32,
56,
-4,
105,
51,
37,
87,
-19,
-38,
12,
33,
-2,
105,
-44,
122,
65,
-94,
87,
66,
-46,
-101,
-7,
-43,
-80,
79,
-11,
-9,
72,
-80,
74,
-75,
-58,
-104,
-43,
30,
-114,
5,
25,
-19,
-7,
66,
16,
59,
80,
13,
81,
30,
-13,
46,
17,
-50,
73,
40,
-17,
45,
-55,
-8,
-66,
69,
123,
54,
-95,
22,
-104,
-121,
-24,
31,
-112,
61,
8,
-88,
115,
-78,
-60,
-12,
67,
-71,
-84,
-26,
98,
41,
-127,
-25,
-24,
-72,
54,
126,
9,
-92,
-15,
96,
11,
40,
-66,
-99,
116,
16,
7,
-6,
-18,
4,
21,
108,
3,
-113,
-74,
-77,
-117,
116,
-98,
5,
-21,
-91,
52,
114,
-51,
-9,
94,
103,
48,
-37,
70,
-127
] |
OPINION OF
THE COURT.
This was an action of debt, brought by Alanson More-house against George W. Archer, in the circuit court of Chicot county, and comes to this court by writ of error. Issues were joined on the pleas of payment at the day, and payment after the day, and neither party requiring a jury, the cause was submitted to the court, and a judgment was rendered in favor of Morehouse, for the sum of eight hundred dollars, to bear ten per cent, interest from the 17th day of November, 1831. Seven grounds are assigned for reversing the judgment of the circuit court, most of which were very properly abandoned in argument, and it will only be necessary to give an opinion on three, relied on in the assignment of errors.
The first ground, and that on which most stress was laid by counsel in argument, is that the circuit court did not, in the judgment which it rendered, malte any disposition of the issues of fact joined in the cause; but proceeded to render judgment without saying anything of such issues. The practice of submitting a cause to the decision of the court is peculiar to the laws of this territory, and was altogether unknown to the common law. The court, when a cause is thus submitted to its decision, performs the office of the jury, in addition to its ordinary duty of deciding the law. The whole cause, whether of law or fact, is before the court; and it passes upon it accordingly. Why is it that the jury, when a cause is tried by them, find a verdict upon the issues joined? It is to enable the court to pronounce a judgment of law upon the facts as ascertained by the-jury in their verdict But even-in a cause tried by a jury, a general finding for plaintiff or defendant, according to the practice of this court, is considered good. In this case, the court acting in the double capacity of jury and court, it would seem to be an act of supererogation to spread upon the record a formal finding of the issues. It appears from the judgment of the circuit court, that “issues being joined upon the pleas of payment at the day, and payment after the day, and -neither party requiring a jury, the matters and things were submitted to the court. It was adjudged by the court that the plaintiff have, and recover, etc.” Can any doubt exist as to the intention of the court? -Is there any uncertainty in the judgmént? Why, then, incumber the record with a formal and technical finding of .the issues? The judgment, as rendered, relates not only to the issues but to all the matters and things in the cause.
The second point which we deem it material to give an opinion upon, ealls in question the correctness of the decision, on the sub-jeet of the testimony in the cause. The court, it appears from the bill of exceptions, decided that when the plea of payment is relied on by the defendant, it devolves upon him to support such plea by evidence, before the plaintiff will be' required to adduce any evidence on his part. There can be no doubt, but that this decision was correct. The plea of payment is an affirmative plea, and the burden of proof is imposed on the defendant. The plea of payment admits all the allegations in the plaintiff’s declaration. What do the pleas of payment admit in the case before the court? Why, that the notes declared upon were executed by the defendant, and that the amount of money named in the notes was due from the defendant to the plaintiff at the time of the execution of the notes. All the allegations, therefore,, contained in the plaintiff’s declaration, essential to the support of his action, being admitted by the defendant in his pleas of payment, it was wholly unnecessary for the plaintiff to produce any evidence on his part.
The third and last point on which we propose to give an opinion calls in question that part of the judgment of the circuit court which relates'to the interest. The judgment is for eight hundred dollars, to bear ten per ■cent, interest from the 17th day of November, 1831. It is contended that the interest should have been ascertained by the court, and a judgment rendered for it in damages. It is admitted that this is a very common way of giving judgment; but on the other hand, the mode adopted by the circuit court, is sanctioned by the practice of several of the states, especially by the practice in Kentucky, and we cannot conceive that one mode has any particular advantage over the other, each being equally calculated to promote the ends of justice. Judgment affirmed. | [
-62,
-20,
-4,
-82,
10,
96,
42,
-102,
64,
97,
-73,
-41,
-7,
-117,
16,
113,
-90,
25,
81,
106,
78,
-77,
23,
99,
-14,
-13,
-37,
-59,
-79,
109,
-10,
-41,
76,
-88,
74,
-11,
-25,
-53,
-59,
52,
-50,
-115,
-87,
109,
-47,
-54,
48,
92,
18,
14,
53,
14,
-29,
34,
29,
-61,
107,
44,
-39,
59,
-47,
-71,
-100,
-99,
125,
7,
-111,
38,
-100,
3,
-54,
44,
-112,
49,
0,
-24,
123,
-106,
6,
84,
1,
-101,
12,
102,
102,
3,
33,
-49,
-72,
-56,
39,
-26,
-115,
-89,
-110,
93,
123,
73,
-66,
-107,
125,
84,
7,
126,
-3,
-123,
89,
108,
1,
-114,
-66,
-15,
-97,
60,
-104,
35,
-13,
-117,
48,
113,
-51,
-64,
92,
-122,
59,
27,
-116,
-100
] |
Per Curiam.
This is a proceeding contesting the nomination of appellant for the office of State Senator. The case was tried in the circuit court, judgment rendered, and an appeal prosecuted to this court.
The appellant seeks to supersede the judgment of the circuit court until the case can he heard here on its merits.
This is not a contest for the office of State Senator, and is not a proceeding to contest the election of a State Senator, but it is a proceeding to contest the nomination in the Democratic primary.
This court would have no jurisdiction to try a contest for the office of State Senator, nor to determine who is elected to the Senate.
Section 11 of article 5 of the Constitution provides: “Each House shall appoint its own officers, and shall be the sole judge of the qualifications, returns, and elections of its own members.”
It will therefore be seen that under the Constitution the Senate is the sole judge of the election of its members. What we are to determine, and what we have a right to determine, is whether the appellant or appellee was entitled to the nomination.
If we determine that the appellee was entitled to the nomination, nnder the law the judgment operates as an ouster from office. This does not mean however that we decide who was elected, but it means only that we hold that the election is void.
The statute provides that when the judgment operates as an ouster, there will he a vacancy which must he filled according to law.
The Senate alone can determine who has been elected, and who may sit as a member of the Senate.
A supersedeas could therefore serve no purpose because we do not and cannot decide who is entitled to the office of State Senator. We simply decide the contest for the nomination, and, under the law, if a person is given a certificate of nomination, his name placed on the ticket, and he is elected, we have the jurisdiction to decide whether he was or was not entitled to the nomination, and if the court decides that he was not, and there has already been an election, the judgment of the court operates as an ouster. That is, it decides that his election was void because of a violation of the Primary Election Law.
Whether we issue a supersedeas or deny it, we cannot say who shall serve in the Senate, but the Senate itself is the sole judge of the election and qualification of its members.
The Senate may seat either the contestant or the contestee, or it may decline to seat either until the case is tried, but in no event could the court’s order deter- • mine who is entitled to the office of State Senator.
A supersedeas would be useless, and it is therefore denied. | [
53,
-20,
-59,
-100,
10,
0,
-126,
12,
104,
-93,
103,
83,
43,
-102,
16,
117,
-57,
-85,
81,
123,
-51,
-9,
7,
65,
34,
-77,
-53,
87,
-77,
105,
-5,
-3,
72,
-72,
10,
85,
70,
-95,
-121,
84,
6,
11,
-7,
105,
-24,
-63,
44,
107,
80,
79,
85,
-42,
-31,
46,
25,
67,
-56,
40,
-39,
-91,
-63,
-103,
-98,
-123,
124,
6,
51,
37,
-97,
-126,
120,
106,
80,
25,
0,
-7,
114,
-74,
-126,
-60,
43,
-69,
-88,
102,
97,
0,
-88,
-83,
-68,
-119,
31,
62,
29,
-90,
-101,
57,
-21,
42,
-74,
-97,
116,
-12,
78,
126,
102,
-59,
31,
44,
15,
-50,
-106,
-89,
79,
104,
-82,
-62,
-57,
-48,
16,
117,
-40,
-12,
84,
-57,
51,
-33,
-116,
-126
] |
Humphreys, J.
Appellant sought a judgment against appellee in the county court of Arkansas County and again, on appeal, in the circuit court, .Southern District, of said county for $459.44 on account of having recovered a judgment for appellee against M. F. Montgomery, former treasurer of said county, and his bondsmen in the sum of $2,679, which he retained out of his fees in excess of $5,000, contrary to the Constitution of Arkansas.
The cause was submitted in the circuit court on the testimony adduced, and a judgment was rendered in favor of appellant against appellee for $52.60, from which is this appeal.
Appellant contends for a reversal of the judgment on the ground that, according to the undisputed facts, he was entitled to judgment in the full amount claimed.
The facts are, in substance, as follows:
Appellant and his law partner entered into a written contract with the county court of said county, by and with the advice and consent of the prosecuting attorney, to obtain adjustments and settlements of the amounts due the county by the county officers, which involved an audit and the institution and prosecution of many suits. An order of such employment was made and spread of record in the county court. The order, in part, is as follows:
“Wherefore the court on this day hereby entered into an agreement and employed the law firm of Botts & O’Daniel for the purpose.of securing and assisting in an adjustment of the settlements of the above-named former officers of Arkansas County, and for their services it is agreed that the law firm of Botts & O’Daniel shall receive $250 and expenses for their services, and the further sum of 25 per cent, of all adjustments and collections made in the accounts of the above-named officers.”
In the course of the employment, the firm of Botts & 0 ’Daniel obtained a .judgment in favor of said county for $2,679 against M. F. Montgomery and his bondsmen, from which no appeal was taken, which was collectable and which they were prevented from collecting by the incoming county judge, who discharged them as attorneys in the case. After discharging them, the incoming county judge settled and satisfied the judgment for payment of $500 to the county by M. F. Montgomery.
Appellee contends, first, that the county court had no authority to enter into the contract because no appropriation had first been made to defray the expenses of the litigation, and, second, that, if the county court had authority to make the contract, the judgment should be affirmed because same was settled for $500.
(1) By reference to the order of employment, it will be seen that the fee was contingent and was, together with the retainer and expenses, to he paid ont of adjustments and settlements. This kind of contract is not the character of contract inhibited before an appropriation has been previously made therefor under § 1976 of Crawford & Moses’ Digest.
(2) It is argued that, because the contract uses the words “settlements and adjustments,” the contingent fee must be based on the amount actually collected, and not upon the amount of the judgment recovery, notwithstanding the judgment could and would have been collected. The undisputed evidence shows that the only reason the judgment was not collected by the attorneys for the county was that they were discharged without cause by the incoming county judge. We think the provisions of the contract were substantially complied with when a judgment was obtained which was collectable in full. It is true that parties may compromise suits without the consent of their attorneys, but such settlements are binding upon the parties only and do not prejudice the right of an attorney to a lien on the judgment for his fee.
On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to the trial court to enter a judgment in favor of appellant for $459.44, the full amount claimed. | [
-76,
-20,
-7,
124,
26,
64,
10,
-120,
66,
-127,
118,
83,
-23,
79,
1,
121,
-31,
73,
100,
107,
-57,
-73,
55,
99,
-110,
-77,
-119,
-43,
-80,
79,
-10,
-105,
76,
56,
74,
85,
70,
-62,
-59,
84,
-114,
-128,
43,
68,
-7,
2,
48,
-67,
16,
7,
53,
-98,
-14,
40,
61,
75,
109,
44,
89,
40,
80,
-45,
-118,
-123,
79,
5,
49,
101,
-102,
1,
88,
62,
-100,
49,
1,
-56,
115,
-90,
-58,
116,
73,
-103,
8,
98,
102,
2,
-95,
-49,
-104,
-88,
6,
-66,
29,
-90,
-78,
57,
91,
73,
-106,
-100,
122,
28,
7,
-14,
-20,
5,
29,
108,
3,
-50,
-112,
-93,
-113,
105,
-114,
3,
-21,
89,
52,
113,
-49,
-30,
93,
-57,
19,
-101,
-114,
-48
] |
McCulloch, C. J.
Appellant, J. G. Adams, instituted this action in the chancery court of Marion County to set aside a former decree of that court for the partition and sale of a certain tract of land, and also to cancel a sale of the land made by the commissioner of the court pursuant to that decree.
Appellee, S. W. Woods, was the purchaser under the decree, and subsequently sold an interest in the land to appellee Millard, and both of them were made parties defendant in the present action.
The tract of land contains 40 acres and was originally owned by the heirs of Lynn Adams, but at the time the partition suit was instituted the land was owned by John Q. Adams, J. G. Adams, G. W. Wickersham, Homer Hudson, Marvin Gilley and Ella Gilley. John Q. Adams owned an undivided one-third of the tract, being one of the heirs of Lynn Adams, and having purchased the shares of two other heirs. J. G. Adams was one of the heirs of Lynn Adams and owned an undivided one-ninth of the land by inheritance. G. W. Wickersham owned an undivided one-third by purchase of the shares of three of the Lynn Adams heirs. Homer Hudson owned an undivided one-ninth as one of the heirs of Lynn Adams, and the other one-ninth interest was owned by Marvin and Ella Gilley, two of the heirs. The partition suit was instituted in the name of John Q. Adams, J. G Adams and G. W. Wickersham on January 15, 1903, by an attorney who was employed by John Q. Adams and Wickersham. The contention in the present case is that appellant J. G. Adams did not authorize the employment of the attorney or the use of his name as plaintiff, and that he was not apprised of the fact that he had been made a party to the suit. The other owners, Homer Hudson and Marvin and Ella Gilley, were made defendants in the original action.
The chancery court, at the February term, 1903, rendered a decree for the sale of the land for partition and directed a sale, but fixed a minimum price. There was no sale made under that order, and the case remained on the docket until there was a sale under a new order reducing the minimum price in the year 1911. During the pendency of the action and before the sale, appellee, S. W. Woods, purchased the undivided one-third of John Q. Adams, one of the plaintiffs in the original action, and he appeared before the court asking for a renewed order of sale at a reduced minimum price. The order was made and at the sale Woods purchased the land and the commissioner executed a deed to him which was done by order of the court on June 5, 1911. After Woods sold to Millard, improvements in the way of developments of the land as mineral land were begun, and there was consid: erable advance in value on that account prior to the institution of the present suit. The case was heard by the chancellor upon the evidence adduced, and there was a decree dismissing the complaint for want of equity.
(1) Conceding that the original suit for partition was instituted without authority from appellant, there is abundant evidence in the record establishing the fact that during the pendency of the action appellant was apprised of its pendency and acquiesced in its prosecution. At any rate, he took no steps to repudiate.or discontinue the action which he knew was being prosecuted in his behalf as one of the plaintiffs. Under those circumstances, he is estopped, after the decree and sale of the land, to claim that the decree is void because he had not authorized the institution of the suit.
(2) It is next insisted that Woods should be held to account as trustee for the reason that he was an attorney at law and appeared in the action for the purpose of procuring the order of sale. The answer to that contention is that Woods did not appear as attorney in the action, but as one of the litigants. He was not the attorney who instituted the action originally, but he purchased the interest of John Q. Adams, one of the plaintiffs, and thereafter appeared in his own behalf. He was merely one of the tenants in common and owed no duty to his co-tenants with respect to the sale of the land. In other words, he had a perfect right to buy at the commissioner’s sale, and the fact that he was an attorney at law who represented his own interest afforded no reason why he should be held as trustee for the other owners.
There was no equity in the complaint and the chancery court was correct in dismissing it.
Affirmed.
Humphreys, J., not participating. | [
-14,
101,
-12,
-116,
-70,
-32,
40,
-110,
104,
-96,
117,
83,
41,
74,
12,
121,
98,
77,
97,
127,
-92,
-78,
23,
99,
18,
-45,
-45,
79,
49,
-52,
-11,
87,
76,
104,
74,
17,
-58,
98,
-63,
28,
-50,
-95,
24,
8,
-39,
-40,
52,
123,
24,
75,
81,
30,
-13,
40,
21,
-21,
104,
44,
-53,
56,
-111,
120,
-117,
4,
125,
18,
17,
6,
-62,
-121,
-56,
90,
-104,
53,
-100,
-24,
122,
54,
18,
116,
1,
-99,
40,
38,
102,
8,
108,
-89,
-128,
56,
14,
-66,
-115,
-90,
-57,
72,
99,
2,
-74,
-99,
104,
64,
2,
126,
-24,
-123,
24,
40,
45,
-113,
-42,
-125,
14,
116,
-99,
3,
-5,
-123,
48,
112,
-49,
-25,
92,
103,
57,
-101,
13,
-11
] |
Mehaeft, J.
On December 30, 1930, tbe appellant filed snit in the circuit court of Arkansas County against tbe appellee, alleging that she and tbe appellee entered into an. agreement on October 5, 1925, by which she rent ed to the appellee certain property in DeWitt, Arkansas, for rental of $20 per month; that appellee took possession of said property, bnt had paid nothing on the rent except $50. It was alleged that 10 days’ notice was given, ihnt that appellee refused to deliver possession, and refused to pay the rent due, and she asked judgment, for rent in the sum of $350, and in the sum of $40 as damages for unlawfully detaining the property. The appellant filed affidavit and gave bond required in suits of unlawful detainer.
At the time of filing the suit, she filed a written stipulation signed by W. H. Bonner, appellee, wherein he agreed to waive issuance of summons, and entered his appearance in the court.
Thereafter judgment was entered for the sum of $350 with interest, and also for possession of the property.
On July 1, 1932, an execution was levied and notice of sale published by the sheriff, and proof of publication filed and report of sale made.
On July 25, 1932, the appellee filed a complaint and petition to vacate the judgment rendered at the January term, 1931. In this motion he alleged that there was no such person as Mrs. Fern Kirk, and denied that any process of any kind was ever served in the original suit. He also alleged grounds for defense to the original suit.
On October 10, 1932, Mrs. Fern Kirk filed motion to dismiss the complaint and petition filed by appellee, and alleged that appellee had not set out any of the statutory grounds necessary to vacate a judgment after the term at which it was rendered.
The court heard testimony and found that the entry of appearance of Bonner was not obtained by fraud, and that Carpenter was attorney but not employed by Bonner in this particular case, but held that the stipulation signed by Bonner and filed with the papers was not sufficient to constitute service as required by law, and that the service should be quashed, and the judgment vacated. From this order, appellant prosecutes this appeal.
Appellee first contends that the appeal is not properly before this court because the motion for new trial was not filed in proper time. The record as to motion for new trial does not state the date on which it was filed. The indorsement, however, on the motion itself shows that it was filed on October 17. The case was tried on October 11, and appellants attorney states that, at the time the judgment was entered on October 11, he was granted permission to file the motion for a new trial, and was given 60 days in which to file bill of exceptions. He discovered immediately that the judge had failed to note on his docket the filing of a motion for a new trial, overruling the same, and giving 60 days in which to file bill of exceptions. When appellant’s attorney discovered that the record did not show the filing of the motion, he immediately asked the clerk to send the docket sheet to the circuit judge requesting him to make proper entries, and at the same time filed the motion for new trial, dating it on the same day that it should have been presented and overruled; that the circuit judge held the request until several days later when he again opened court at DeWitt, and at that time overruled the motion for new trial.
Whether all these things are true, it is impossible to tell from the record, but the record does show that the court acted on a motion for new trial and overruled the same without stating that it was not filed in time. From the record we are unable to say that it was not filed within the time fixed by statute, or allowed by the court. It is immaterial when it was overruled, so that it was overruled during the same term of court.
In addition to this, we think error appears on the face of the record, justifying a reversal of the case.
It is next contended by the appellee that there was no service, and that the stipulation ■ entering appearance of Bonner was not sufficient to give jurisdiction to the court.
The first case relied on by appellant as supporting this contention is Clary v. Morehouse, 3 Ark. 261. The court there, after stating how suits were instituted in the circuit courts, stated: “The requisitions of the statute do not appear to have been observed or complied with, for, as before remarked, no writ was ever issued, nor was there any voluntary appearance to the proceeding on the part of either of the defendants. * * *”
“The indorsement on the declaration purported to have been signed by Clary and Webb, being nothing more than a simple agreement by which they acknowledge service of the declaration and waive the necessity of any process issuing thereon, could not be regarded by the court for any purpose; nor could it in any manner subject them to the same legal consequences as if they had failed to appear in the action upon the service of a valid writ requiring such appearance; because the law does not regard such acts or agreements of the parties to a suit, not made in the presence of the court or entered on the records, as possessing in themselves such absolute verity as the official acts of the accredited officer of the court, etc.”
In the next case cited by appellant, Ex parte Gibson, 10 Ark. 572, the court said: “We are aware that the former decisions of this court with regard to constructive notice, and in some other cases, have not given entire satisfaction to the bar. Without being understood as expressing any opinion as to whether in some instances the rule may not have been extended too far in cases of constructive notice, we think in the case before us the rule heretofore adopted by this court should not be changed.”
The instrument relied on as giving the court jurisdiction in the above case was as follows: “I, Abraham Clark, do acknowledge due and legal service of the with in writ, and promise to enter my appearance at the next term of the Scott Circuit Court, this 17th October, 1839.”
The above statement was indorsed on the back of summons and signed by Clark. It will be observed that there was merely a promise to enter his appearance, and not a signed statement entering his appearance.
The instrument relied on in the instant case, as entering the appearance of Bonner, gave the style of the court, the parties plaintiff and defendant, and the number of the case. The caption was, “Entry of Appearance and Waiver of Summons,” and continued as follows:
‘ ‘ On this day the third day of December, 1930, comes the above-named defendant, W. H. Bonner, and hereby agrees to enter his appearance in the above-styled action, whether filed on this day or to be filed later, and the said W. H. Bonner, does hereby enter his appearance in the above-styled actions and waives the issuance of summons herein.
“ (Signed) W. H. Bonner.
“Piled in my office Dec. 3, 1930, P. E. Stephenson, Clerk. ’ ’
This was unlike the instruments signed in the cases cited by appellee. This was an actual entering of the appearance. This suit was prepared by Senator Basco, before his death, who was a lawyer engaged in practice at DeWitt, Arkansas. Senator Basco died before this suit was brought, but the stenographer who worked for him testified at length. She testified that Mr. Bonner came to the office several times; that he was advised about the suit, and was told what the amount of the rent was; he knew who was bringing the suit, and, according to the testimony of the stenographer, which is undisputed, he agreed to sign a stipulation waiving summons, and entering his appearance in order to save costs. She was asked if Mr. Bonner knew what the case was about and answered:
“Yes, sir, we explained, it to Mm in the letter we wrote him; also in a conversation in our office. We took this waiver of service and filed it along with the complaint, same as we did the sheriffs summons.”
She also testified that Mr. Rasco had prepared a waiver of service, and entry of appearance,. and Mr.. Bonner did not sign this instrument, but took it to Mr. Carpenter, and came back with the instrument above quoted, which had been prepared by Mr. Carpenter, and Mr. Bonner signed it in Mr. Rasco’s office. It, according to the secretary’s testimony, and the summons were filed with the complaint. '
Another case cited by appellee is Nunn v. Sturges, 22 Ark. 389. In that case the court said:
“Everything upon the face of the transcript of the judgment shows that it was obtained in a different proceeding from any suit that is conducted according to the observances of our courts or the practice of the common law. And, as the court was evidently one of superior or general jurisdiction, one that must be taken, in the absence of proof to the contrary, to have had jurisdiction of the subject-matter of the suit, we must take it for granted that it would not have proceeded to render judgment without first obtaining jurisdiction of the person of the debtor, the action appearing to be a personal action. It also appears that the court considered the indorsement equivalent to personal service, and to a confession of judgment, in open court, and we must presume that the court acted according to law. Besides, to us the plain meaning of the indorsement is that Nunn thereby entered his appearance to the action begun by the petition, waiving the formality of citation, that is, waiving and in fact acknowledging the notice, the alleged want of which is the subject of Nunn’s second plea.” '
The plain meaning of the instrument signed by Bonner is that he waived the service of the summons, and entered his appearance in the circuit court. He did this, evidently, for the purpose of saving costs. If the instru ment does not mean this, it is meaningless, and he had a right to enter his appearance, and, when he did so, the court had jurisdiction to render a judgment against him.
There is some conflict in authorities as to whether one may enter his appearance before process has been issued, but we know of no reason why one may not sign and permit to be filed, an instrument entering his appearance in the suit. He knew who the plaintiff was, he knew what court the suit was in, and he knew he was defendant, and knew he was being sued for rent, because the instrument prepared by Mr. Carpenter, who represents him, gave the style of the court and the names of the plaintiff and defendant, and was prepared by Mr. Carpenter, his attorney, at his request.
“Although no process has issued against a party, it seems that, if such party has a right to save or an interest to protect, he may enter an appearance.” 4 C. J. 1324.
“On the foregoing statement it is evident that the Alabama court accepted and treated the aforesaid agreement as an appearance in said cause then pending, and based its subsequent decree against the defendants personally thereon; and the question for decision by this court is whether its judgment is and was valid and jurisdictional. We think it was manifestly so. The meaning of the phrase, ‘We hereby enter our appearance to said cause,’ means just what it says, and an appearance in a pending cause signifies an appearance for every purpose in said cause. Otherwise it would be meaningless. It was prepared, as its language and terms fully import, for use in that suit, and the defendant is conclusively bound thereby.” Mutual National Bank of New Orleans v. Moore, 50 La. Ann. 1332, 24 So. 304.
Any action of a defendant which amounts to an intention to enter his appearance and be in court is a voluntary appearance. A voluntary appearance may be by formal writing as in this case, or it may be by informal parol action, but in either case, if it is manifestly the intention by the formal writing to enter his appearance, he will he held bound by his act. Stephens v. Ringling, 102 S. C. 333, 86 So. 683.
Having entered his appearance, it- was appellee’s duty in that suit to interpose all the defenses he had. The court found in its judgment that. W. H. Bonner had entered his appearance in form and manner as prescribed. by statute. See Chapman & Dewey Lbr. Co. v. Bryan, 183 Ark. 119, 35 S. W. (2d) 80; Galloway v. LeCroy, 169 Ark. 833, 277 S. W. 45; Purse Bros. v. Watkins, 171 Ark. 464, 284 S. W. 533; Soloman v. Carroll, 175 Ark. 86, 298 S. W. 483; Purnell v. Nichol, 173 Ark. 496, 292 S. W. 666.
The statement signed by the defendant in the instant case did not purport to be an agreement to enter his appearance sometime thereafter, but it was an actual entry of appearance, just as much so as if he had filed an answer.
It is next contended by the appellee that Bonner did not have knowledge that a suit had been filed against him. Mr. Bonner testified that when he signed the entry of appearance the plaintiff’s name in the instrument was Mrs. Fern Kirkpatrick. The evidence, without dispute, shows that she was known both as Mrs. Kirkpatrick and Mrs. Kirk. He admitted that he signed it in Mr. Rasco’s office. He admits that he was told in Mr. Rasco’s office that the suit was for about two years ’ rent, $290, and that he, Bonner, told them that it should be a little more than that. The appellee also admitted that he went to Mr. Rasco’s office several times to see about the matter, and knew that suit was going to be filed, and knew the party plaintiff.
The purpose of a name is to designate a person, and this purpose is accomplished when the name is that by which she is known or called. Nat. Life & Acc. Ins. Co. v. Scaffold, (Ala.) 144 So. 816.
Mr. Carpenter, according to Bonner, fixed up the papers for him to take to Mr. Rasco, and he did take them, and signed them in Mr. Rasco’s office.
The court found that the entry of appearance was drawn by Mr. Carpenter; that it was signed by Mr. Bonner at Mr. Basco’s office, and left at Mr. fiasco's office with knowledge that it was an entry of appearance to the suit in the circuit court; that no fraud was perpetrated by Mr. Basco in securing the entry of appearance.
Our conclusion is that the appellee had entered his appearance, and that the court had jurisdiction, not only of the subject-matter, but of the person.
The case is therefore reversed, and remanded with directions to dismiss appellee’s motion and petition. | [
-48,
-22,
-48,
44,
43,
-32,
42,
-104,
-14,
-63,
61,
83,
-23,
68,
4,
109,
99,
77,
117,
121,
-61,
-73,
67,
104,
-110,
-13,
-45,
-43,
-72,
79,
-28,
-44,
64,
33,
-62,
-35,
-126,
-16,
-59,
24,
-114,
-127,
-101,
-60,
-39,
64,
48,
-69,
88,
79,
97,
-66,
-5,
41,
17,
75,
76,
46,
95,
45,
80,
-16,
-110,
13,
-1,
6,
-111,
4,
-104,
-127,
72,
44,
-104,
53,
0,
-8,
115,
38,
-122,
116,
7,
27,
8,
54,
66,
99,
-67,
-5,
-88,
40,
46,
-66,
-99,
-90,
-112,
88,
11,
105,
-66,
-99,
117,
-44,
69,
-4,
102,
-123,
29,
108,
-117,
-49,
-44,
-79,
5,
56,
-98,
27,
-29,
-27,
116,
80,
-51,
-32,
92,
71,
115,
-101,
-121,
-71
] |
Humphreys, J.
Appellee brought suit in the Washington Circuit Court against appellant, seeking to recover damages in the total sum of $2,950 for injury to himself and property, on account of the alleged negligence of appellant in running a motor car at an unusual, reckless and negligent speed, and for causing said motor car to emit unusual and loud noises, so as to frighten his horse and cause him to run away. Appellee alleged that at the time the runaway occurred, he was in his buggy engaged in directing the loading of a car of wheat about a hundred yards west of the passenger depot near a sidetrack paralleling the main track in Prairie Grove, Arkansas.
Appellant filed a demurrer; also an answer denying each material allegation in the complaint.
The cause was heard upon the issues and oral evidence adduced, and a verdict returned by the jury in favor of appellee for $50, upon which judgment was rendered.
i It is contended that Dr. H. Gr. Fagan did not sufficiently qualify to give expert testimony as to the nature and extent of the injury suffered by appellee. Doctor Fagan had studied and graduated from a school unknown to the skilled surgeon and learned counsel of the railroad company, towit: The American College of Methanopy, Chicago. He asserted that by profession he was a ‘ ‘ mechanotherapist.” Further explanation revealed the fact that a “mechanotherapist” is known to the laity as a “drugless healer,” or a “rubbing doctor.” This physician claimed by education and practice to be familiar with * ‘ diseases of muscles and bones, and dislocations and such matters. ’ ’
(1) The rule with reference to experts is that the witness must be “possessed of such experience, skill, or science in the particular subject or inquiry as entitles his opinion to pass for scientific truth. The knowledge contemplated by the rules is knowledge acquired, either from actual study or long experience, in the particular field toward which the inquiry is directed.” 6 Thompson on Negligence, § 7753.
(2) This court has fixed the test that medical experts may give their opinions if skilled in the science and practice of medicine. Tatum v. Mohr, 21 Ark. 349; Thompson v. Bertrand, 23 Ark. 730.
(3) Doctor Fagan testified that in addition to being a graduate ,of a medical college, he was a practitioner of eight or nine years’ experience, thereby bringing himself well within the rule laid down by Mr. Thompson and the two Arkansas cases supra, with reference to the competency of experts. No error was committed in admitting the evidence of the “rubbing doctor.”
In any event, no prejudice resulted to appellant by reason of this expert testimony. The testimony of the lay witnesses as to the extent of damages sustained by appellee to his person and property exceeded in value $50.
(4) Complaint is made that appellee was permitted to testify that if the car had been running at a reasonable rate of speed, he could have gotten out of the way and saved himself the injury, for the reason, it is said, that it is opinion evidence. Appellee was in his buggy at the car door, facing west, when he discovered the motor car coming toward him from the west. He described as best he could the entire situation, and then stated that if the car had been running at an ordinary speed, or if he had had any warning, he could have gotten out and saved himself. We can not concur with learned counsel that this is opinion evidence. It was a statement of fact, rather than opinion. He stated it as a fact, and not as an opinion.
Appellant insists that there was no evidence showing that the motor car was being operated at a high, unusual, reckless and negligent speed.
J. A. Nugent, who had been around trains many years, testified touching the speed of this motor car at the time of the injury. These are some excerpts from his testimony : “It was running a good swift gait; there was no doubt about that. According to the way I saw it, it made as good time as any passenger train I ever saw on that track. My judgment would be this: It was as fast as any passenger train runs on that track, at least. It came from behind that depot that way (indicating) just like my hat coming, that is all there is to it.” Mr. Nugent first saw the car seventy-five or eighty yards west of the depot, and noticed it last seventy-five or eighty yards east of the depot.
Otto Bollin first noticed the motor car.when it was opposite, and again after it passed the depot. The following interrogatories and answers appear in his evidence:
Q. You saw it after it passed the depot?
A. Yes, sir.
Q. How was it running?
A. It was running fast.
Q. IIow far could you see it after it passed the depot until it passed out of your sight?
A. Well, it was a good piece.
Q. I will ask you to state to the jury the speed that this motor car was running with reference to the fast speed of other trains or other motor cars.
A. Well, I don’t know; it seems to me like it was going as fast as it could he, and stay on the track.
Q. Did you, in your judgment, ever see any motor car or train run faster?
A. No, sir; not on this road.
The following questions and answers appear In the testimony of W. T. Edminston:
Q. Did you see the motor car coming before it got to the depot?
A. Yes, sir.
Q. How far back did you see it?
A. Something like three hundred yards from the depot.
Q. When you first noticed it ?
A. Yes, sir, coming toward the depot.
Q. Did you see it pass right on through?
A. Yes, sir, it came right by me.
Q. Mr. Edminston, you have seen trains and motor cars run lots of times, haven’t you?
A. Yes, sir; I have.
Q. I will ask you to state how fast this motor car was running, whether slow or fast.
A. Well, sir, I don’t see how it could run much faster unless it had wings. It was going “some.”
Q. Was it going that way when you first saw it?
A. I couldn’t pay much attention to it until it got close to the depot; when it come up, it come up right then, and went on by, right then; I thought it would jump the track when it struck the switch, but they seemed to know more than I did; it didn’t.. 1
■ H. E. Morton and J. H. Tharp gave testimony of like tenor on the question of speed.
The appellee, J. M. Fulkerson, referred to the speed of the car in the following manner: “I seen the car coming from the west like lightning. They were coming so fast and making such a racket I tried to get away, but before I could get started, they come whizzing by like lightning, scared my horse and he started to run. I never seen nothing coming like it did, in my life. I have seen trains run sixty miles an hour. It was—”
At this point, attorney for appellant interrupted with an objection, and after quite a difference between counsel as to the manner of examining the witness, the court inquired :
‘ ‘ State whether or not it was unusual speed. ’ ’
“A. I say, most emphatically, it was. It was runninglike—”
Appellant’s testimony tended to show that the car was coasting through at the rate of about fifteen miles an hour. Prairie Grove has about eight hundred or' a thousand inhabitants. This was a hand-car propelled by motor power, and its maximum speed rate was eighty miles an hour. Hand-cars have no bells or whistles with which to signal their approach. Appellee was examining a car of wheat his hands had been loading to see if it was ready for shipment. The car had been placed on the sidetrack near the depot to be loaded by appellee. He was there by invitation, and in no sense a trespasser. While engaged in loading and inspecting the car, it was incumbent upon the appellant carrier to exercise ordinary care for his safety. A great many people go to depots to transact business, in buggies, wagons, etc., and it is the duty of railroad companies to use ordinary care in running their trains or cars into or by places of this character, either by signaling their approach in time for people to protect themselves and their property or by reducing the rate of speed so that the. train or car can be stopped and prevent injury to person or property. Whether such care was used is a question for the jury in each particular case. In the instant case, there was ample evidence to warrant the submission to the jury of the question whether the car was being operated at a high, unusual, reckless and negligent speed.
Instruction No. 1, asked by appellee, is in accord with law, and it was proper to give it. Instructions 1, 2, 3 and 4, asked by appellant, are predicated on the idea that hand-cars propelled by motor power can be run at any speed when approaching depots, regardless of conditions. The instructions are erroneous as applicable to the facts in this case, and were properly refused.
(5) Likewise, there was evidence tending to show that in the operation of the car, loud and exciting noises were emitted, calculated to frighten a horse. ■ Appellant produced evidence tending to show that no such noises were made. Unless timely notice of the approach of such a car is given, it is the further duty of carriers to exercise ordinary care in the operation of such car so as to prevent injury to persons and property likely to be at depots; and it is a question for the jury to say whether such care was exercised. There is ample evidence in the record to warrant the submission of this issue to the jury., Instruction No. 2, asked by appellee and given by the court, properly submitted this question to the jury. Instruction No. 5, asked by appellant and refused by the court, assumes that railroad companies are not compelled, in the operation of motor cars at any time or place, to exercise ordinary care to regulate the noise so as to avoid frightening a horse that is not seen or known to be in close proximity to the track. In this assumption, the instruction is erroneous and the trial court properly declined to give it. Instruction No. 6, asked by appellant and refused by the court, is erroneous in that it assumes that without warning or notice, when approaching or passing depots, all noises incident to operation may be emitted. However, instruction No. 1, given on the court’s own motion, fully covered instruction No. 6, asked by ap pellant, so no prejudice could have resulted by refusal to give the instruction.
It is insisted that the breaking of the driving line by appellee was the proximate cause of the injury. We do not think so. All the evidence tends to show that the horse was frightened and ran away on account of the operation of the motor car. If the car was operated by the railroad company in a negligent manner, which was a question for the jury, then the company was responsible for all the consequences resulting directly from this negligence. The breaking of the line was an incident to the runaway. The line was broken in an effort to hold the horse after he began to run. Railway Co. v. Roberts, 56 Ark. 366.
In the last place, it is contended that the undisputed evidence showed that appellee was guilty of contributory negligence, and that the trial court should have given the peremptory instruction asked by appellant on this question. ' We think there was a sharp conflict in the evidence on this issue, and instruction No. 3, given by the court on its own motion, properly submitted the question.
Finding no error in the record, the judgment is affirmed. | [
-80,
-22,
-124,
-81,
27,
64,
42,
10,
97,
79,
55,
19,
-19,
-63,
5,
37,
-25,
125,
-60,
43,
118,
-77,
67,
-61,
-110,
-41,
123,
-59,
21,
-50,
100,
-35,
77,
56,
-62,
85,
-58,
74,
-51,
92,
-114,
-122,
-85,
-24,
25,
-128,
-88,
124,
84,
111,
49,
-98,
-61,
46,
56,
-49,
45,
46,
107,
-84,
-56,
-15,
-126,
13,
125,
6,
51,
38,
-66,
-121,
94,
14,
-104,
49,
2,
-4,
114,
-74,
-126,
-12,
107,
-103,
12,
102,
98,
33,
25,
-91,
104,
-88,
14,
-98,
15,
-92,
-86,
1,
73,
9,
-97,
29,
58,
80,
23,
-8,
-23,
93,
95,
104,
7,
-113,
-108,
-77,
-49,
52,
-98,
-111,
-21,
-17,
22,
81,
-33,
-14,
93,
5,
122,
-101,
-102,
-74
] |
Riddick, J.,
(after stating the facts.) The question in this ease concerns the right of the children of Wheeler, acting by their grandfather and next friend, to claim for their father, in his absence, certain personal property belonging to him as exempt from execution. The statements in the affidavit attached to the schedule of property claimed as exempt show that Wheeler is a resident of the state and head of' a family. So it is clear that, if he had himself made this claim of exemption, it would have been sustained. But one of the chief objects of the homestead and exemption laws is to protect the family of the debtor from destitution and want. The exemption allowed the individual debtor is small, compared with that allowed him as the head of a family. Such laws are given a liberal construction, in order, as far as possi ble, to carry into effect the beneficent purpose for which they are intended. For this reason it has been often held that the desertion of the family by the husband, still leaving them occupying the homestead, is not an abandoment nf the homestead by him; the presumption in such eases being that he is but temporarily absent, and intends ultimately to return to his home and family. Hollis v. State, 59 Ark. 211; Moore v. Dunning, 81 Am. Dec. 301. And so in this case, nothing being shown to the contrary, we must presume that Wheeler, in leaviug his home and family, did not intend permanently to abandon them. The presumption is that he was only temporarily absent. But when the head of the family, having the right to claim exemptions, is absent, it has been decided that not only his wife, but a son or daughter, may interpose and claim the exemption for him. Any person may do this who is authorized to take charge of and protect the property and rights of the debtor during his temporary absence. And this authority need not be expressly given, but may be presumed from circumstances. Wilson v. McElroy, 32 Pa. St. 82; Waugh v. Burket, 3 Grant’s Cases, 319; Regan v. Zeeb, 28 Ohio St. 483; Thompson on Homesteads, § 829; Waples on Homesteads, p. 877.
Now, in this case the debtor left his household furniture and other personal property in the possession of his children; intending, no doubt, that it should be preserved and used for their benefit. They being young, their grand-father took charge of them, and, acting for them and the absent debtor, claimed the property as exempt from execution. Under these circumstances, with nothing to show to the contrary, we think it should be presumed that the debtor consented to this action taken for the benefit of himself and children by one who had rightfully assumed control of them in his absence. To hold otherwise would be to say that, if the absconding debtor had left a wife oran adult son or daughter, the law would allow the exemption to be claimed, but would refuse its protection when the deserted family consisted only of the young and helpless. Such a construction of the statute would overlook entirely the main purpose of the exemption law; for, although the exemption is allowed the debtor, it is given to him in part _ at least foi the protection of his family, who need it all the more when deserted by him during early infancy. The claim of exemption, being made in behalf of the children, and not for the debtor as head of the family, was soipewhat informal; but, as before stated the affidavit attached to the schedule states all facts required to show that the debtor was entitled to the exemption. As no special objection was made to the form, the court will consider the substance rather than the form of the proceeding. .•
A majority of the judges are of the opinion that this case comes within the scope and purpose of the exemption law, and think that the exemption was properly allowed.
Judgment affirmed. | [
-43,
104,
-39,
94,
10,
96,
43,
-102,
-6,
-125,
39,
-45,
-21,
66,
-108,
105,
112,
107,
81,
122,
-43,
-77,
39,
33,
80,
-69,
-79,
-36,
-76,
77,
100,
-41,
12,
32,
74,
85,
-28,
8,
-59,
84,
-126,
1,
-118,
109,
-8,
66,
48,
-21,
-42,
15,
-47,
-113,
-13,
46,
57,
101,
-120,
14,
75,
61,
-48,
120,
-65,
14,
79,
23,
-111,
71,
-104,
101,
104,
10,
-120,
17,
0,
-24,
115,
52,
-106,
85,
74,
-97,
-87,
102,
103,
-96,
45,
-20,
-8,
8,
14,
-102,
-97,
-26,
-106,
120,
3,
77,
-73,
-99,
92,
4,
110,
-4,
-26,
13,
92,
108,
23,
-81,
-44,
-77,
-115,
122,
-100,
-125,
-10,
-127,
49,
113,
-50,
-94,
92,
67,
115,
-101,
-114,
-37
] |
Mehabfy, J.
Appellant filed suit in the Ouachita Chancery Court against appellee, alleging cruel treatment and adultery as grounds for divorce and asked for the custody of their eleven-year-old child. Appellee filed answer and cross-complaint in which the allegations in the complaint were denied and asked for divorce and alimony. The trial court granted appellant a divorce and the custody of the child, and held that appellee was not entitled to any alimony, but that she was entitled to one-half interest in the property described, subject to the burden of one-half the indebtedness against it.
Appellant prosecutes an appeal from that part of the judgment and decree of the court, finding that there was a partnership, and that appellee was entitled to one-half interest in the property.
There is some conflict in the evidence as to the ownership of the property, and it would serve no useful purpose to set it forth here. The chancellor found that the appellee was the owner of one-half of the property, and we cannot say that his finding is against the preponderance of the evidence.
The appellant testified that he bought the property where they lived, and borrowed $770 and paid for it; that the deed was made in his name; that he had added to the property from time to time and owed $700, and that he had bought one pressing machine for which he paid $400. Appellant^ testified in rebuttal that he owed $700 on the place and $300 on other debts; that the $1,250 mentioned by appellee as having been paid on property was not that much bnt was a little over $1,000. When asked about the partnership that his wife spoke of, he said: “She never did want the property. When we built, she did not want to. I had to give her father a job to get her to sign the mortgage.”
Appellee testified that they bought the property in 1923, and up to just before the suit was filed they both lived on it and operated a pressing and cleaning business. They separated in 1927. He begged her to come back and about March they paid $1,250 for the property, the same property that they bought in 1923. The interest ran it up to $1,250. That since 1923 she had actively taken part in the business at all times. When they talked about buying the property, appellant told her it would be for both of them. They were supposed to be partners in everything since they bought the property. Appellant does not dispute appellee’s testimony that he told her they were buying the property for both of them. There is no contradiction of her testimony that they were partners. Appellant was asked about the partnership, and he did not say they were not partners. The evidence shows that the house was a two-story building, and they lived in the upper story and conducted the business in the lower story. It is clear from the evidence that both appellant and appellee worked and conducted the business which resulted in the accumulation of the property in controversy. It is immaterial whether there was a partnership. If appellee and appellant, by their joint work, labor and management, acquired the property, a court of equity would, even before the recent statutes, protect the wife’s interest in the property. “A question arises as to the validity of the notes of Pillow to his wife. Are they valid ? At common law, contracts between husband and wife are void. But in equity a promise by the husband to his wife to repay her a loan bona fide made by her to him out of her own separate estate, upon Ms promise to repay, is obligatory and can be enforced. ” Pillow v. Sentelle, 49 Ark. 430, 5 S. W. 783; Munday v. Collier, 52 Ark. 126, 12 S. W. 240.
Tbe statute provides: “Every married woman and every woman wbo may in the future become married shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this State, as though she were a feme sole; provided, it is expressly declared to be the intention of this act to remove all statutory disabilities of married women as well as common law disabilities, such as the disability to act as executrix or administratrix as provided by § 6 of Kirby’s Digest, and all other statutory disabilities.” Section 5577, Crawford & Moses’ Digest.
The above statute removes all disabilities, statutory as well as common law. However, if there were no statutes removing disabilities of married women, a court of equity would not take the property earned by the labor of a married woman from her and give it to some one else.
The decree of the chancery court is sustained by the evidence, and is therefore affirmed. | [
-48,
111,
-108,
77,
-102,
-32,
8,
-104,
90,
-125,
39,
83,
-21,
-58,
0,
109,
-14,
73,
97,
122,
-57,
-77,
22,
96,
-48,
-77,
-7,
-43,
-72,
109,
-28,
-41,
68,
56,
-118,
-43,
-30,
-48,
-25,
-36,
14,
-128,
-85,
76,
-39,
-26,
52,
123,
64,
15,
53,
-121,
-77,
104,
53,
79,
76,
46,
15,
59,
-48,
-88,
-102,
5,
127,
7,
-79,
54,
-100,
65,
74,
-116,
-104,
17,
0,
-23,
115,
38,
-122,
116,
27,
-103,
9,
114,
98,
18,
-83,
-17,
-68,
24,
46,
-6,
29,
-90,
-48,
120,
11,
105,
-68,
-99,
125,
-60,
-121,
-2,
118,
29,
93,
104,
10,
-117,
-106,
-95,
13,
-88,
-100,
19,
-29,
-125,
52,
113,
-51,
-96,
92,
67,
122,
-101,
-113,
-73
] |
Battle, J.
John C. Law sued the St. Louis, Iron Mount ain & Southern Railway Company for damages which were caused by the escape of his cattle from the stock pens of the defendant, in which they had been placed for shipment, and by the failure to ship them within a reasonable time after, they were ready and waiting for transportation. He alleged in his complaint that he notified the defendant’s agent that he would have 340 head of cattle at Portland, on the line of its railway, in this state, on the 23d of November, 1897, ready for shipment, and that he was informed that the- ears would be ready to receive them on the 24th of the same month; that he arrived at Portland with his cattle on [the 23d of November, and placed a part of them in the defendant’s stock-pen; that on the night following the cattle in the pen broke through a defective gate, and made their «escape; that 112 of them were recovered at an expense of $71.10 to him; and that 28 could not be found, and were lost. He further alleged that the cattle were detained at Portland needlessly and negligently from the 23d to the 25th of November, when they were shipped; that while the 112 were in the stock pens they were not fed or watered, but were “starved” by the defendant for a period of 60 hours; that they became emaciated, hungry, and restless, to the plaintiff’s damage in the sum of $336; that the 28 which were lost were worth $700; that he was further damaged in the sum of $309 by reason of the defendant’s failure to ship the remaining 206 head in a reasonable time, and to water and feed them while awaiting shipment. And he asked for judgment for $1,416.10, the total amount of his damage. The defendant answered, and denied each allegation in the complaint, and set up many defenses. The jury in the case, after hearing the evidence, returned á verdict in favor of the plaintiff for $600. The court rendered judgment accordingly, and the defendant appealed,.
The evidence that was adduced in the trial tended to prove, substantially, the following facts: On the 15th or 16th of November, 1897, Law, the plaintiff, applied to the defendant’s agent at Portland for ten cars for the purpose of shipping 340 or 350 head of cattle to St. Louis and Little Rock, and the agent promised that he would try to procure the cars for him. Plaintiff then returned to his home at Hamburg, in this state, where his cattle were. While there he was informed by the agent, through a telegram, that the cars would not be ready until the 23d of November. He drove his cattle to Portland; reaching there on the 23d, — the day designated. On arrival there he placed four car loads of them, which he expected to ship to St. Louis, in Cammack’s lot, which adjoined the defendant’s stock-pens. The remainder of the cattle (six car loads) he herded in an (old held about a mile and a half from town. The next day (the 24th of November) the agent informed him that he would get his cattle off about 3 o’clock in the afternoon. He then took the four car loads of cattle out of Cammack’s lot, and put them in the defendant’s stock-pens. The gate to the pens was an old one. It sagged down and dragged on the ground. It had settled so, as plaintiff testified, “that you could not fasten it good.” It had a sliding latch, which fitted in a notch in a post; and it could be fastened by slipping the latch into the notch, or on the inside of the post. He pushed the gate to, and as it sagged he made no effort to raise it in order to shove the latch into the notch, but slid the latch on the inside of the post. On account of the crowded condition of the pens the latch was subject to be pushed back, and the gate opened, by the cattle rubbing and pressing against it. But he made no effort to prevent this, but slid the latch on the inside of the post, and left it in that condition. On the next succeeding night, about 8 o’clock, the cattle pushed open the gate and escaped. All of the cattle, except 25, were recovered, at a cost of $71.10. Twenty-eight were atfirst lost, but 3 of them were afterwards found. The 25 which were never recovered were worth $625.
One hundred and thirty-eight head of the cattle were shipped from Portland on the 25th of November, 1897, and 206 were shipped on the 28th of the same month. While they were at Portland, awaiting shipment, the weather was bad, and mud abounded everywhere. They were compelled to stand in the mud. It was difficult to obtain feed for them. A few cotton seed were obtained, but there were no troughs, and no place suitable for feeding; and the seed were thrown in piles on the ground, and a good part of them were lost in the mud, and they did but little good. The consequence was, the cattle, suffered with hunger, and lost much in flesh, and it became necessary to feed them for some time before they were ready for market. The delay in the shipment was caused by the great demand for cars on the defendant’s road, which exceeded reasonable anticipation. The defendant was unable to supply the demand of shippers.
,The plaintiff claims that he was damaged in the manner aforesaid as follows:
First. He claims he was damaged by reason of loss of twenty-eight head of cattle, caused by their escaping from a defective and insecure pen, $700.
Second. To amount paid out for gathering up the escaped cattle, $71.10.
Third. To damages to-112 head of cattle by exposure and detention at Portland and Little Rock, caused by delay in furnishing cars, $3 per head, $336.
Fourth. To damages for detention of 206 head from Tuesday, November 23d, to November 28th, without food and water, at $1.50 per head, $309.
The jury, in a special verdict, found that he was entitled to damages as follows:
To loss of 25 head..................$375.00
To damage to stock and gathering same. 225.00
Total.........................$600.00
Did the evidence sustain the verdict? The evidence shows that the cattle which made their escape from the pen passed through the gate, and that their escape was due entirely to the manner in which the gate was fastened. If there was any defect or insecurity in the manner in which it was fastened, it was the result of plaintiff’s negligence. He relieved the defendant of every duty in this respect, and, unaided and aloue, except by his own employees, undertook to fasten it. The defendant was not called upon, and did not undertake to assist in any way. The escape of the cattle was due entirely to the negligence of the plaintiff, and he is consequently entitled to recover nothing on that account.
Was the verdict of the jury sustained by the evidence in other respects? The plaintiff undertook to prove the damages that he sustained by the detention of the cattle at Portland by his own testimony, elicited by questions and answers, over the objection of the defendant, as follows:
“Q. You have charged here damage to 112 head of cattle by reason of neglect in furnishing ears, exposure and detention at Portland and Little Rock, $3 per head. Tell the jury what was the damage, and what was the cause?
“A. Why, the damage I considered was at least $3 a head, and I think more than that.
“Q. What was the damage resulting from delay in furnishing cars at Portland per head of cattle?
“A. Three dollars a head is what I said just then. I considered they were damaged that much.
“Q. Tell the jury how they were damaged.
“A. They were starved to death in the mud, and detained there, and then, after they got out of the pens, of course, they got nothing to eat there, you see, and they were detained there three or four days without anything to eat; and, of course, that fixed them so they were not fit to go on the market at all, and I had to put them in my feeding pens, and ship them out in the spring as fed cattle. I would have sold them off the range just as they were the first time.
“Q. The next item is the detention of 206 head of cattle from Tuesday, November 23d, until November 28th, at 3 o’clock. Where did the detention occur?
“A. At Portland.
“Q. What was that worth per head?
“A. One dollar and fifty cents per head.”
This was all the evidence adduced to show the damage mentioned, and it was clearly incompetent; for it is not, as a general rule, permissible for a witness to estimate the damages a party has sustained by the doing or omitting to do a particular act. That is not a fact, but a matter of opinion, to be deduced from competent evidence by the court or jury trying the issues of fact. The damage in question was the pecuniary injury the plaintiff suffered on account of the unreasonable de tention of his cattle at Portland. We do not know what elements entered into his estimate of the same. He might have estimated it to be the depreciation in the market value of the cattle on account of an unreasonable delay in the shipment, or the cost of restoring the cattle to the condition they were before the delay. In the latter case his measure of. damages would have been clearly wrong. This is not one of those cases in which there is no room to estimate damages, except in one way. Hence the greater was the reason for confining witness to a statement of facts, and allowing the jury to estimate the damages under instructions of the court. The jury should have been left to determine the damages according to the facts, uninfluenced by the opinions of interested witnesses.
In the bills of lading executed by the defendant to plaintiff, the following clause was incorporated:
Fifth. “That, as a condition precedent to any damages, or any loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim thereof to some general officer, or to the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment, or from the place of destination, and before such stock is mingled with other stock; such written notification to be served within one day after the delivery of the stock at destination, to the end that such claim may be fully and fairly investigated, and that a failure to fully comply with the pro-' visions of this clause shall be a bar to the recovery of any and all such claims.” The notice mentioned in this clause was not given, and the defendant insists that it was thereby relieved from liability for the claim sued for. The noticeto be given was confined to “any damages,” or any loss or injury to live stock covered by the bills of lading. It does not appear to us that the damages sued for were covered by the bills of lading; and we think that the notice was not required by the contract of the parties to be given in this case.
Reversed and remanded for a new trial. | [
-15,
109,
-72,
-115,
10,
40,
42,
-102,
69,
-125,
102,
-45,
-51,
-45,
0,
101,
102,
61,
85,
127,
116,
-73,
23,
34,
-109,
-45,
-111,
-123,
49,
79,
108,
-9,
75,
2,
-118,
93,
-62,
-32,
-63,
-100,
-50,
105,
-23,
-19,
-7,
16,
56,
125,
22,
35,
49,
-98,
-13,
46,
80,
-13,
73,
60,
-5,
61,
-63,
121,
-14,
79,
61,
22,
0,
98,
-100,
5,
-54,
62,
-112,
53,
19,
-3,
114,
-78,
-126,
84,
33,
-99,
8,
34,
103,
49,
69,
-49,
2,
-86,
39,
123,
-117,
-122,
-64,
0,
3,
45,
-66,
-107,
18,
68,
-122,
-8,
-3,
69,
25,
40,
6,
-49,
-80,
-94,
-113,
-84,
-108,
21,
105,
-73,
54,
112,
-51,
-94,
77,
71,
118,
-97,
-114,
-65
] |
Humphreys, J.
Appellee brought suit against appellant before a magistrate in Calhoun township, Prairie county, to recover possession of four shoats. The cause was tried in White River township on change of venue from Calhoun township, and judgment rendered in favor of appellee. The cause was appealed to Prairie circuit court for the Northern District thereof. The result of the trial in the circuit court was favorable to appellee, and an appeal has been prosecuted to this court.
(1) The first assignment of error is that there is no substantial evidence to support the verdict. The appellee and his son testified positively that the shoats belonged to appellee. They identified them by flesh marks and by. resemblance to appellee’s sow. The evidence of several other witnesses shows that these shoats ran on the range with appellee’s sow. It is within the province of the jury to pass upon the credibility of witnesses. The weight to be given the testimony is a question for the jury. A verdict will not be disturbed on appeal if supported by substantial testimony. Vaughan v. Cooper, 103 Ark. 260; Rhea v. State, 104 Ark. 162.
(2) The second assignment of error is that the court erred in refusing to give a new trial on account of the alleged misconduct of certain jurors in viewing the sow and shoats when permitted to separate and before rendering a verdict. The only evidence produced to establish the fact that the jurors looked at the sow and shoats while the case was under consideration is the affidavit of Emmett Vaughan to the effect that R. A. Patterson, one of the jurors, told him that he saw the sow and pigs during the trial of the case and the evidence of O. C. Baugh, R. A. Patterson and Maleom Bacon, all members of the jury, to the same effect. Section 2423 of Kirby’s Digest is as follows: “A juror can not be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.”
This court said in the case of Osborne v. State, 96 Ark. 400: “If the verdict is not decided by lot, and it is claimed that it. was decided in any other manner than by a fair expression of opinion by the jurors, such claim must be established by witnesses other than the jurors.” What was said in Osborne v. State, supra, has been reaffirmed in the case of Capps v. State, 109 Ark. 193.
No proof having been offered to establish the alleged misconduct of the jury, other than the statement and testimony of certain jurors, and the affidavit of Emmett Vaughan containing hearsay evidence of a juror, no error was committed by the trial court in refusing to grant a new trial.
The judgment is affirmed. | [
48,
-18,
-67,
60,
40,
96,
48,
-100,
71,
-127,
55,
83,
-17,
-61,
85,
127,
-29,
-83,
85,
107,
71,
-77,
7,
65,
50,
-13,
-101,
-43,
-80,
75,
-92,
-2,
64,
112,
-54,
-35,
-30,
-26,
-127,
-36,
-114,
-114,
-117,
108,
120,
-64,
56,
37,
18,
67,
53,
30,
-22,
42,
21,
-61,
105,
44,
107,
63,
81,
-47,
-38,
69,
31,
6,
-77,
102,
-78,
5,
-54,
44,
-112,
49,
1,
-40,
115,
-106,
-126,
84,
75,
-103,
8,
102,
102,
17,
-68,
-49,
61,
-116,
110,
126,
93,
-89,
-112,
65,
75,
11,
-74,
-99,
52,
82,
15,
-6,
-27,
-59,
-99,
104,
33,
-50,
-112,
-73,
-113,
44,
-102,
3,
-13,
-81,
16,
113,
-35,
-30,
89,
69,
18,
-101,
-122,
-109
] |
Kirby, J.
This appeal is from a judgment of conviction for the murder while attempting’ robbery of one Cyrus Luman, who was killed by being struck on the head with a blunt instrument on the night of April 3,1932, at about 7 or 8 o’clock, as he was closing his store, located in the Northern District of Logan County.
The only eye-witness stated that, while Mr. Luman had his back turned trying to lock the store door, a man with a white mask over his face ordered him to “Stick ’em up! ” and as Luman turned the robber struck him on the head two or three times, knocking him down, and took witness’ horse, upon which he had come to the store, and fled. The robber was about the same size and height as defendant.
The defense was an alibi, and 12 or 15 witnesses testified about having seen the defendant at other places during the day and on the night of the killing, which, if true, would have rendered it impossible for him to have been present at the time of the killing.
A witness, Frank Faulkenbury, who testified he was with the defendant all day, said he was in the vicinity of the killing and turned back near a certain filling station, and when they arrived at a graveyard a little before sundown he and his wife got out of the car, and Owen Lile, the appellant, went north for the purpose of getting some wine. That he was gone about an hour, and returned shortly after dark. This witness was called for further cross-examination the next day, and, being asked if he had not made the statement to certain people, naming them, on the night before that he was so drunk after he left Harkey Yalley that he didn’t remember anything, admitted that he made the statement, and said that he was so drunk after he left Harkey Yalley that he did not know what happened. He also said that his first statement made to the deputy prosecuting attorney and a deputy sheriff was made upon their promise to turn him out of jail and let him go to work, he being in jail at the time charged with the murder of Luman. Thereupon, the prosecuting1 attorney, in the presence and hearing of the jury, arose and said to the court, “If the court please, I want this man arrested and held on a charge of perjury.” And the court replied: “Mr. Sheriff, you will take this witness into your custody.” Defendant’s attorney objected to the statement made by the prosecuting attorney and the action of the court, and saved exceptions. This is the only error urged for reversal of the cause.
In Crosby v. State, 154 Ark. 20, 241 S. W. 380, it is held that the commitment of a witness for perjury during the trial of the cause before a jury was prejudicial error. See also the note in the case of State v. Swink, 151 N. C. 726, 66 S. E. 448, 19 A. & E. Annotated Cases, wherein it is said to be the general rule that the commitment of a witness for perjury during’ a trial is prejudicial error. It was an invasion of the province of the jury by the trial judg’e to tell them in effect that the witness perjured himself in his testimony that would have been beneficial to appellant on the trial, necessarily discrediting his former testimony placing the defendant in the vicinity of the murder where he could have been present at the time of the killing.
The court might well have ordered the witness arrested after he left the court room and the presence of the jury, if he thought it should have been done, without having it done at the time, and, for this error, the judgment is reversed, and the cause remanded for a new trial. | [
-14,
-23,
-16,
13,
58,
96,
46,
62,
1,
-94,
-12,
115,
-23,
-46,
65,
33,
127,
109,
117,
113,
-28,
-105,
7,
-29,
-46,
-13,
33,
-59,
-78,
76,
-90,
-12,
13,
96,
74,
81,
-26,
8,
-27,
20,
-116,
-128,
-87,
-14,
-37,
24,
56,
62,
36,
14,
-79,
30,
-13,
42,
28,
-50,
73,
44,
75,
-71,
112,
-15,
-77,
-35,
-51,
20,
-125,
2,
-104,
3,
120,
31,
-104,
21,
64,
-24,
115,
-74,
-124,
116,
45,
-120,
12,
102,
38,
1,
29,
-81,
-96,
-23,
47,
46,
-103,
-89,
60,
56,
11,
-83,
-97,
-99,
115,
49,
2,
124,
-4,
29,
89,
104,
6,
-33,
-106,
-75,
-119,
60,
-106,
95,
-37,
23,
50,
113,
-115,
98,
92,
100,
112,
25,
-117,
-15
] |
Riddick, J.,
(after stating the facts.) The questiou in this case is controlled by the laws of the state of New York. The plaintiff is a New York corporation, and the purchase or discount of the note sued on took place in that state, and the question presented is whether the transaction by which the trust company obtained possession of the note, and under which it claims the ownership thereof and the right to recover therefor, was lawful under the statutes of that state. We naturally feel some hesitation in interpreting the statutes of a distant state with the purpose and history of whose laws we are not very familiar; and this feeling is increased when, as in this case, only detached portions and sections of different statutes have been introduced in evidence for consideration by the court.
Among the laws of New York introduced in evidence is article four of the “banking law” (Laws of N. Y., 1892, c. 689), which article seems to be a general law covering the subject of trust companies in that state. It does not expressly state that it applies to all trust companies previously organized, but from the general scope of this law we think that it was intended to define the powers and duties of trust companies in that state generally, and is not confined to those only which were organized after the passage of the statute. This, as before stated, does not very clearly appear from article four itself, but we must remember that this article is only one chapter in a general statute known as the “Ranking Law.” If the whole of this banking law was before ns, it is probable that its scope and extent would more fully appear. In fact, the supreme court of New York, in a recent ■case in which this same trust company .was a party, held that this act of 1892 applied to such company, though it was organized under the statute of 1887. Binghampton Trust Co. v. Clark, 52 N. Y. Sup. 941. This law was passed in the spring of 1892, and was in force at the time the-trust company purchased or discounted the note in controversy, and we think it defines the powers that the company had in matters of that kind. Under this law it had authority to receive deposits and “to loan money on real or personal securities,” to “purchase, invest in and sell stocks, bills of exchange, bonds aud mortgages and other securities.” And, again, the statute authorizes it to invest the moneys received by it in trust “in the stocks or bonds of any state of the United States, or in such real or personal securities as it may deem proper.” We are of the opinion that these provisions of the statute gave it the power to discount or purchase the note sued on. The note was a personal security, and under the statute the company had power to purchase, invest in, or loan money on such securities. It seems to us that this would include the transaction by which the trust company became the owner of this note, whether that be called a purchase or a discount of the note. In either event it amounted to nothing more than an investment of money in a personal security, which the company was expressly authorized to do. We think that the company had- substantially the same power under the law of 1887, for the terms of that law are very much the same as those of the act of 1892 above quoted; but we need not refer to that law, for it was superseded by the statute of 1892.
Counsel for appellee has called our'attention to certain restrictive statutes of New York which forbid corporations not formed under, or subject to, the banking laws, and corporations not authorized by law, from “receiving deposits, making ■discounts, or issuing notes or evidences of debt to be loaned or put into circulation as money.” Now, we think it is very clear that all of these restrictions do not apply to trust companies. For instance, there is in this law, as just stated, a ■restriction which forbids certain corporations from receiving deposits; but this does not apply to trust companies, for they are expressly authorized to receive deposits, and one of the objects of the statute which permits their formation is to furnish a safe place of deposit for trust funds.
We are also of the opinion that these restrictive laws, so far as they forbid certain corporations from discounting notes, do not apply to trust companies, for the powers expressly granted to these companies to purchase, invest in, and loan money on personal securities include, as we think, the power to discount and purchase notes; and to hoi 1 that a trust company could not discount — in other words, purchase at a discount — a note owned by the bank would be to hold that the legislature forbade in one section what it had expressly authorized in another section of the same law.
The cases of N. Y. Trust Co. v. Helmer, 77 N. Y. 64, and Pratt v. Short, 79 N. Y. 437, cited by counsel for the bank, have no inference to trust companies organized or governed by statutes like those of 1887 and 1892, and we think those eases should not control our judgment here. On the other hand, the case of Binghampton Trust Co. v. Clark, 52 N. Y. Sup. 941, a case in which this same company was a party, seems to us to be a decision which fully supports our conclusion that the trust company had authority to purchase or discount notes. As this is a case recently decided, it is propable that the learned circuit judge did not have the benefit of it in his consideration of the case.
While, as before stated, we do not feel altogether sure about the law of New York, we nevertheless entertain no doubt as to what is right and just in this case. The bank disposed of the note to the trust company, secured by the bank’s indorsement, and .under a promise from its president that the bank would “pay at maturity, regardless of whether the parties desired renewals or not”; and the bank should have kept its promise. As the bank failed to perform any portion of its contract, we think that the trust company is entitled to the judgment asked. The judgment of the circuit court will be reversed, and judgment entered here for amount of the note and interest.
Battle, J., not participating. | [
-76,
122,
-12,
-84,
10,
96,
-86,
-70,
65,
-96,
39,
115,
-23,
-61,
21,
45,
-10,
-83,
117,
66,
-43,
-77,
6,
3,
-14,
-77,
-39,
-115,
-79,
93,
-26,
-41,
76,
48,
-54,
93,
102,
-62,
-61,
-44,
14,
0,
10,
68,
-15,
8,
48,
59,
83,
67,
97,
-51,
-79,
37,
21,
95,
105,
44,
107,
-67,
-48,
-71,
-117,
69,
127,
6,
-109,
117,
-104,
15,
-54,
6,
-120,
49,
1,
-24,
114,
-90,
6,
84,
109,
-71,
1,
98,
98,
-128,
101,
-25,
-102,
-116,
38,
-49,
-83,
-89,
-16,
72,
-125,
43,
-65,
-35,
54,
16,
-89,
-12,
-66,
-36,
19,
108,
5,
-33,
-106,
-125,
61,
126,
-102,
-125,
-25,
-109,
48,
97,
-50,
32,
92,
119,
60,
-101,
-114,
-11
] |
Riddick, J.,
(after stating the facts.) The first question presented by this appeal arises on the contention that the complaint in this case was multifarious. But we agree with counsel for appellant that “no bill is multifarious which presents a common point of litigation, the decision of which will affect the whole subject-matter and settle the rights of all the parties.” Kelley v. Boettcher, 85 Fed. Rep. 55; Curran v. Campion, ib. 67; Bliss on Code Pleadings, § 110. All the defendants in this case derive title to the real estate claimed by them from the estate of Henry C. Dade through conveyances made by Elizabeth Dade under power conferred upon her by the will of Henry C. Dade. The determination of the question of whether Mrs. Dade had under the will power to convey the fee or only an estate for her life will settle the rights of all the parties, so far as the legal title to the land is concerned, and for that reason they were all properly joined in this action. The will which we are called upon .to construe contains the following provision: “I do hereby ordain, constitute and appoint my wife, Elizabeth Dade, my sole executrix and sole trustee of my estate, whether of moneys, credits or effects, and the sole guardian of my children, * * * without requiring of her, my said wife Elizabeth Dade, security for the same; with power to sell any and every portion of said property, and reinvest the money arising from said sale again, whenever she may find it advantageous so to do for the best interest of my children aforesaid, except all slaves which I am possessed of at this time or may hereafter own; making use of the proceeds of said property for her own maintenance and the education and support of my children during her natural.life, to be equally divided amongst them, share and share alike, at her death.”
A consideration of the entire will convinces us that the power to sell conferred upon the trustee, Mrs. Dade, embraced all the.property of the estate, both real and personal. A different construction would lead to the conclusion that the testator only intended to dispose of his personal property by his will, whereas it seems more reasonable to believe that, in referring to his estate and making his wife trustee thereof with power to sell, he intended to dispose of his entire property. But the language of the will above quoted did not confer upon Mrs. Dade, the trustee, an estate in her own right, either for life or in fee. The testator does not bequeath or devise his property to his wife, but appoints her executrix and trustee of his estate, with power to sell any and every portion of the property and reinvest the proceeds whenever she may deem it for the best interest of the children to do so. If she held an estate in this property under the will, it was not for herself, but as trustee of her children. The beneficial interest which she obtained in the property devised only extended to a maintenance out of the income or proceeds of the property. It is not her property which she is authorized to sell and reinvest, but the property of the children which she held as trustee. It would seem unreasonable to believe that the testator, in making provision that the trustee might sell this property for the purpose of reinvestment, intended she should only sell a life estate therein. We therefore conclude that the power given was an absolute power to dispose of all the interest owned by the testator. If the will had devised to the executrix an estate for life in the lands, in her own right, with the power to dispose thereof, we might, as this court did in Patty v. Goolsby, 51 Ark. 61, infer that the power of disposal referred to the estate of the executrix, and not to the remainder left to the children. But no estate is conferred upon the executrix in her own right by the will. As before stated, she is appointed trustee of the property, with power to sell and invest for the children, giving to her the right to use so much of the income or proceeds of the property as might be necessary for her own maintenance. The beneficial interest which she obtained in the property devised only extended to a maintenance out of the income or proceeds of the property.’ For this reason, we do not think the rule laid down in Patty v. Goolsby applies in this case, and we hold that Mrs. Dade had, under the will, power as trustee to make an absolute disposition of the property devised.
It was the manifest intention of the testator that his property should, after the termination of the trust conferred upon Mrs. Dade, be equally divided among his children, and the will directed that she might make this division before her death. But it is clear that she had no right to prefer one child to another in such division nor could she do so by a pretended sale or gift of the property to one child in preference to another. There is some evidence tending to show that Mrs. Dade did attempt to confer an undue portion of the property upon her daughter, Mrs. Williams, but the evidence on that point is not very clear, and we are not called upon by the pleadings to go into a discussion of that question in this case, a question with which a large number of the defendants, who are not children or heirs of the testator, have no connection, and in which they have no interest.
For this reason, the decree of dismissal entered by the chancery court must be affirmed, but the decree below is modified, so that this dismissal may be without prejudice to any future action by plaintiff against Mrs. Williams or other children and heirs of Henry C. Dade, to secure an equal distribution of the land or distribution of the property devised by him. | [
-16,
126,
-36,
-18,
88,
96,
0,
-102,
-29,
35,
39,
-41,
109,
67,
16,
105,
115,
111,
81,
107,
-73,
-25,
31,
3,
-48,
-77,
-39,
-33,
-71,
76,
-25,
87,
76,
32,
-22,
85,
102,
-117,
-19,
84,
-118,
1,
10,
45,
-47,
-64,
52,
51,
88,
14,
85,
-82,
-13,
44,
25,
70,
104,
46,
-21,
-67,
80,
-88,
-82,
-123,
122,
23,
-111,
36,
-104,
-31,
-54,
14,
-112,
48,
0,
-24,
115,
-74,
6,
84,
13,
-117,
-120,
34,
103,
33,
33,
-19,
-112,
-104,
14,
120,
-115,
-90,
80,
88,
33,
9,
-76,
28,
125,
0,
39,
-10,
-26,
-108,
28,
108,
28,
-117,
-42,
-95,
-115,
-2,
-102,
27,
-9,
107,
-80,
81,
-49,
34,
85,
71,
60,
-109,
-113,
-26
] |
Mehaefy, J.
Wm. Gr. Jordan, a soldier in the United States Army, received a certificate of insurance on his life for $10,000, issued by the United States through the Bureau of War Risk Insurance in 1917. His mother, Mrs. Margaret Jordan, was the sole 'beneficiary. He died on June 22,1919, and after his death the United States G-ov-ernment, under the terms of the policy, paid $57.50 per month to his mother, the beneficiary, until her death, on March 30,1920. The soldier, Wm. Gr. Jordan, died intestate, and his mother died intestate. When Jordan, the soldier, died, he left surviving him, his mother, one brother and two sisters, Charlie J., and Mrs. Mollie Waldo and Mrs. Hortense Starks. After the death of Mrs. Jordan, the beneficiary, the government paid $19.16 per month to each of the three nest of kin, Charlie Jordan, Mrs. Mollie Waldo and Mrs. Hortense Starks. This amount was paid to each of them until the death of Mrs. Mollie Waldo, one of the sisters, on June 7, 1931. The government still continues to pay $19.16 each to Charlie Jordan and Mrs. Hortense Starks and recognizes its obligation to continue such payments until each has received a one-third of the balance due on said policy of insurance. After the death of the beneficiary, the government awarded one-third interest in the balance due on said policy to each of the three heirs named above. Upon the death of Mrs. Waldo, her interest, which was represented during her lifetime by the monthly payments above mentioned, was commuted, its present value found to be $1,611. The government is willing to pay said sum to Lon T. Jones, of Ashdown, Arkansas, the administrator of the estate of said Wm. Gr. Jordan, deceased. Mrs.' Bertie Jones, the appellee and sole heir at law of her deceased mother, Mrs. Mollie Waldo, claims the full sum of $1,611, and filed her claim with the administrator. The administrator disallowed the claim, and then appellee filed tlie claim in probate court on March 1, 1932. The probate court found that Mrs. Bertie Jones was entitled to the entire sum of $1,611, less cost of administration. An appeal was taken by the administrator to the circuit court, where appellee was allowed the entire sum less cost of administration. The administrator, the appellant here, filed motion for new trial, which was overruled, and an appeal granted to this court.
The contention of appellant is that, when the $1,611 was paid to the administrator of the estate of Jordan, the deceased soldier, each of the heirs, the two sisters and brother, is entitled to one-third of the amount. The contention of appellee is that she is entitled to the full amount of $1,611.
Both parties filed briefs citing many authorities. We do not deem it necessary to review these authorities, because we are of opinion that the act of Congress, as amended and as construed by recent decisions of the Supreme Court of the United States, settles the question in favor of appellee.
While the certificate of insurance was issued in 1917, it provided that it should be subject in all respects to the provisions of the act of 1917 (40 Stat. 398) of any amendments thereto and of all regulations thereunder now in force or hereafter adopted, all of which, together with the application for the insurance and the terms and conditions published under authority of the act, shall constitute the contract.
The Supreme Court of the United States has expressly held not only that Congress had a right to amend the law, but had the right to make the later acts retroactive so as to take effect as of October 6, 1917. White v. U. S., 270 U. S. 175, 46 S. Ct. 274.
The act of December 24, 1919 (41 Stat. 376), provided: “That, if any person to whom such yearly, renewable term insurance has been awarded dies, or his rights are otherwise terminated after the death of the insured, but before all of the 240 monthly payments have been paid, then the monthly payments payable and ap plicable shall be payable to such person or persons within the permitted class of beneficiaries as would under the laws of the State of residence of insured be entitled to his personal property in case of his intestacy.”
In compliance with the law, the $57.50 was paid to the mother, who was the beneficiary, and at her death was paid to the two sisters and brother, one-third to each. They were the persons who, under the laws of the State of Arkansas, the residence of the insured, would be entitled to his personal property, and these payments to ihe sisters and brother continued until the death of Mrs. Waldo, one of the sisters, on June 7, 1931.
The act of Congress of 1925, (§ 14, 43 Stat. 1310, 38 USCA § 514) provides: “If no person within the permitted class be designated as beneficiary for yearly renewable term insurance by the insured, either in his lifetime or by his last will and testament, or if the designated beneficiary does not survive the insured or survives the insured and dies prior to receiving all of the 240 installments, or all such as are payable and applicable, there shall be paid to the estate of the insured the present value of the monthly installments thereafter payable, said value to be computed as of date of last payment under existing- awards; provided, that all awards of yearly renewable term insurance which are in course of payment on the date of the approval of this act shall continue until the death of the person receiving such payments, or until he forfeits the same under the provisions of this act. When any person to whom such insurance now awarded dies, or forfeits his rights to such insurance, then there shall be paid to the estate of the insured the present value of the remaining unpaid monthly installments of the insurance so awarded to such person.”
The Supreme Court recently said, in discussing this act: “All installments, whether accruing before or after the death of beneficiary named in certificate of insurance, as a result become assets of the estate of the insured upon the instant of his death, to be distributed to the heirs of the insured, in accordance with the intestacy laws of the State of his residence, snch heirs to he determined as of the date of his death and not as of the date of the death of the beneficiary.” Singleton v. Cheek, 284 U. S. 493, 52 S. Ct. 257.
Under the act and the decisions of the Supreme Court above referred to, we are of opinion that all installments after the death of the beneficiary 'become assets of the estate of the insured, to- be distributed to the heirs of the insured, in accordance with the intestacy laws of this State. The heirs of the insured at the time of his death were the two sisters and brother, and upon the death of the mother, the beneficiary, the entire amount provided for in the certificate became assets of the estate of the insured, to be distributed to these heirs, and, as we have said, these heirs were at that time the two sisters and brother, each of them being entitled to one-third of the amount upon the death of the beneficiary. If either of the distributees, under the law, thereafter died, the share of the one who died would descend to his or her heirs.
We find no error, and the judgment is affirmed. | [
-16,
109,
-44,
92,
40,
-96,
10,
-102,
-38,
-128,
-89,
91,
-7,
67,
85,
109,
37,
1,
113,
109,
-78,
-89,
55,
-118,
-46,
-69,
-87,
-43,
48,
125,
108,
-10,
68,
40,
-86,
-47,
106,
-62,
-27,
94,
-34,
-124,
-69,
-27,
93,
49,
49,
111,
80,
71,
117,
-73,
-73,
10,
21,
115,
44,
14,
-1,
-87,
-62,
-32,
-118,
4,
-5,
23,
16,
7,
-98,
-53,
-54,
14,
-104,
49,
-120,
-8,
59,
-90,
70,
116,
103,
25,
-104,
96,
118,
16,
-27,
-19,
-80,
10,
47,
-26,
-99,
-124,
6,
121,
3,
12,
61,
29,
127,
-64,
23,
112,
-8,
68,
93,
32,
1,
-113,
-10,
-79,
-120,
-4,
-100,
-109,
-9,
-49,
34,
117,
-55,
-94,
93,
71,
125,
-71,
-121,
-2
] |
Btttleb, J.
This case was before this court on appeal at its November term, 1931. The opinion on the judgment then rendered appears in 184 Ark., at page 996, 44 S. W. (2d) 662. The mandate reversing the judgment of the trial court with directions was filed in the lower court, hut, not being- entered of record, it was refiled with a motion requesting the court to enter of record the said mandate and to affirm the judgment of the county board of education consolidating the two districts in accordance with the judgment of this court. A reply to that motion was filed by W. N. Holland and others, and upon a hearing of the matter the circuit court ordered the mandate of this court stricken from the files, and that the cause be dismissed for want of jurisdiction of said Supreme Court, the circuit court and the county board of education. From that order and judgment this appeal is prosecuted.
It is the contention of the appellees, and the conclusions reached by the trial court, that the issue presented by the appellees in the instant case was not adjudicated before the circuit court or this court on appeal, and, as it now appears that the notice was not in fact legally given within the rule announced in Texarkana Special School Dist. v. Consolidated School Dist. No. 2, 185 Ark. 213, 46 S. W. (2d) 631; Shook v. Morrison, Ib. 522, 47 S. W. (2d) 1089, and Ellis v. Gann, Ib. 625, 48 S. W. (2d) 1103, the order of the county board of education was void, and neither the circuit court nor this court acquired any jurisdiction on appeal; that for that reason the judgment of this court reversing and remanding that of the circuit court was, afi.d is, void, and that the circuit court therefore was justified in making the order last appealed from and its action should here be sustained.
A number of cases from this court and other jurisdictions are cited by the appellees as tending to sustain their contention, but which we find it unnecessary to review, as we are of the opinion that the appellees are in error in their contention, i.e., that the question of jurisdiction was not before the court on appeal to the circuit court from the order of the county board of education consolidating the districts or in this court on appeal from the judgment of the circuit court. The facts out of which this litigation arose are fully stated in Milsap v. Holland, 184 Ark. 996, 44 S. W. (2d) 662, and from the opinion it will be seen that on appeal to the circuit court that court found the facts and law in favor of the remonstrants and adjudged that the petition for consolidation be dismissed for want of jurisdiction. The opinion in Milsap v. Holland, supra, shows that the county board of education, among other things, found that due notice had been given as required by statute, and in the statement of the case it was said: “Notice of the proposed consolidation was duly given as required by statute and was introduced in evidence.”
The judgment of the court appealed from and the opinion of this court on that appeal are sufficient to disclose that the issue as to the jurisdiction of the court was considered and the judgment of this court and its mandate based thereon are binding upon the trial court, and this court as well, even though our decision may have been based upon an erroneous view of the law. It is a rule of universal application early recognized by this court, that whatever is before the Supreme Court and disposed of in its appellate jurisdiction is to be considered as settled, and the lower court must carry its judgment into execution according to the mandate. This remains true even where an error is apparent and where a case has been remanded to the trial court and is again brought before the Supreme Court nothing is before the court for adjudication but the proceedings subsequent to the mandate. It will be observed that the term of this court at which the case of Milsap v. Holland, supra, was decided has long since expired, and we have no power to review or reform the judgment and opinion which irrevocably concludes the rights of the parties thereby adjudicated.
In Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S. W. 741, the case was here on second appeal, and, in referring to the decision on the first appeal, we said: “Whether this decision was right or wrong, it is a law of the case; it is res judicata. The rule has been long established in this State and uniformly adhered to that in the same cause this court will not reverse nor revise its former decisions. ’ ’ Numerous decisions of this court are cited to sustain the rule announced, and the reason is thus stated: ‘ ‘ This general rule is grounded on public policy, experience, and reason. If all questions that have been determined by this court are to be regarded as still open for discussion and revision in the same cause, there would be no end of their litigation until the financial ability of the parties and ingenuity of their counsel had been exhausted. A rule that has been so long established and acted upon and that is so important to the practical administration of justice in the courts should be followed and not departed from.”
In that case the issue was the constitutionality of the severence tax act. Referring to the first appeal in the case, the court said: “The act was held to be constitutional on the ground that it was an occupation tax, and no testimony or raising of additional issues as to the construction of the act or its applicability to appellants can prevent our former decision and judgment from being the law of the case.”
On the hearing of the motion granted by the court below and from which comes the appeal we are now considering, no additional testimony was heard, but the motion was considered on the record made in the case decided in Milsap v. Holland, supra. Therefore all the questions expressly or necessarily involved in the former appeal must be deemed to have been considered and must be regarded as tbe law of tbis ease. It follows from wbat we have said that tbe action of tbe circuit court in refusing to obey tbe mandate of tbis court must be reversed and tbe cause remanded witb directions to enter judgment in accordance witb tbe said mandate. | [
-76,
-28,
-11,
44,
74,
-64,
18,
-65,
80,
-93,
101,
-45,
109,
-101,
20,
127,
-45,
47,
113,
120,
-44,
-89,
34,
96,
-78,
-9,
-39,
-43,
-65,
-51,
102,
-33,
76,
120,
-54,
-43,
70,
78,
-51,
-36,
-118,
15,
-87,
78,
89,
-125,
56,
100,
26,
79,
53,
-2,
-29,
40,
24,
-61,
104,
44,
-39,
-71,
86,
-15,
-102,
5,
111,
6,
-79,
-91,
-102,
-123,
112,
46,
-100,
49,
3,
-24,
114,
-90,
-122,
116,
5,
25,
8,
104,
98,
65,
-68,
-17,
-72,
-120,
14,
-9,
29,
-26,
-109,
25,
-29,
1,
-74,
-103,
117,
18,
7,
126,
-26,
-59,
31,
124,
4,
-114,
-44,
-73,
-121,
-31,
-102,
11,
-29,
99,
48,
116,
-119,
-34,
95,
70,
19,
-101,
-58,
-100
] |
Smith, J.
On October 28,1930, a thief abandoned an automobile which he had stolen in one of the streets of the city of North 'Little Pock, a city of the first-class. When the presence of the car was discovered, the chief of police of that city directed appellant, who operates a public garage in that city, to remove the car from the streets and to place it in storage. This appellant did.
The city of North Little Rock has an ordinance relating to motor vehicles abandoned in the streets of that city, the relevant portions of which are to the following effect: Such cars are to be seized by any member of the police department. The owner may identify and recover the car without cost within twenty-four hours after being notified to appear and claim his car. If the owner is unknown, the chief of police shall publish notice that the car lias been seized, and the owner may, within two weeks, identify and recover his car “upon payment of all storage charges and cost of posting and publishing notice.” If the abandoned vehicle remains unclaimed for a period of thirty days or more, the chief of police is required to sell it after notice published in a local newspaper, and to hold the proceeds of sale, less costs, for sis months, during which time the owner may establish his title and claim the net proceeds of the sale. There was no sale of the car in question.
The owner of the stolen car carried theft insurance with appellee, American Equitable Assurance Company, hereinafter referred to as the company, and he collected from the company the insurance carried upon the car. Upon making this payment the company took a bill-of-sale for the car from the owner.
Later an agent of the company discovered the car in the possession of appellant, who offered to surrender it upon payment of his charges. This demand was refused, and the company brought replevin for the possession of the car.
It was evidently the opinion of the circuit judge, in the trial of this cause in the court below, that the ordinance, set out above, was invalid, as the jury was instructed that appellant had no right to hold the car for his charges and to allow nothing on that account. The cause was submitted under instructions which required the jury to find the value of the car and the damages arising from its detention, and this appeal is from a judgment rendered upon the verdict thus returned.
Inasmuch as we do not concur in the view that the ordinance was invalid and that no rights were acquired under it, we find it unnecessary to decide certain questions which have been discussed in the briefs on this appeal.
Counsel for the company correctly say that no authority has been expressly conferred by the General' Assembly, even in the statute conferring certain en larged powers upon cities of the first and second class, to pass the ordinance in question"; but we think this power is necessarily implied from those which were expressly granted by § 7494, Crawford & Moses’ Digest to all municipalities, commonly known as the “general welfare” clause. This section provides, in part, that“* * * they (municipalities) shall have power to make and publish, such by-laws and ordinances, not inconsistent with the laws of this 'State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof. ’ ’
We think the power is implied under this grant to pass ordinances providing for the removal of abandoned motor vehicles in the streets of a town or city which, if not removed, would obstruct and menace traffic; and we think also that the ordinance in question was a reasonable exercise of this implied power, and that the action of the chief of police was authorized by the ordinance.
This being true, appellee should have paid a reasonable charge for storing the ear. There was, however, no compliance with the ordinance in regard to advertising the recovery of the car, nor with its provisions in regard to its sale. On the contrary, it appears that appellant kept the car in his possession and made certain personal use of it. We are therefore of the opinion that the value of this use of the car to appellant should be offset against the storage charges.
We say the value of the use made of the car by appellant, and not the value of its use generally or the value thereof to the owner, should be assessed by the jury, for the reason that the true owner was not wrongfully deprived of its possession. Appellant had the right to retain possession, but, as he used the car without having the ordinance under which he held it complied with, he should pay for the value of the use which he made of it, or any damages to the car resulting from such use.
The judgment of the court below will therefore he reversed, and the cause will be remanded with directions to try the issues stated in accordance with the principles herein announced. | [
-48,
117,
120,
44,
24,
-32,
58,
58,
83,
-85,
36,
-109,
-83,
71,
18,
41,
-21,
-1,
116,
97,
-11,
-77,
79,
51,
-38,
-77,
-5,
-59,
-66,
-55,
108,
-44,
124,
32,
-54,
-99,
4,
-36,
-59,
88,
78,
-95,
-102,
101,
-7,
80,
36,
-86,
32,
11,
65,
-98,
-26,
46,
16,
-56,
109,
40,
-21,
41,
-32,
-6,
-87,
5,
111,
22,
-95,
36,
-71,
37,
-8,
8,
-100,
49,
16,
-24,
115,
-90,
-106,
116,
111,
-101,
-120,
98,
98,
2,
9,
-29,
-80,
-116,
46,
-86,
-113,
-122,
-112,
121,
11,
103,
-98,
-99,
107,
0,
12,
-2,
-2,
85,
85,
104,
3,
-49,
-48,
-79,
109,
104,
28,
3,
-21,
-105,
50,
112,
-50,
-10,
92,
85,
119,
-101,
-58,
-47
] |
MoHaNey, J.
Appellant correctly states the case as follows: “This is a suit for specific performance of a contract to purchase a lot in the city of Little Rock. The appellee agreed to sell the lot to the appellant, and the appellant agreed to purchase upon being furnished with an abstract showing good and merchantable title in the appellee. The abstract which was submitted showed that the appellee was claiming title through the Arkansas Baptist College, which in turn secured the lot under the will of one Julia Little, deceased. The only point involved in the litigation is the correct construction to be given to that will. The chancellor held that the Arkansas Baptist College, and through it the appellee, had a good and merchantable title. He decreed a specific performance of the contract. The appellant excepted, and has brought this appeal.”
The will of Julia Little, deceased, was executed on the twelfth day of March, 1900, and the second, third and fourth paragraphs of the will are as follows: “ (2) After the payment of my said debts and funeral expenses, I give to Thomas Preston, the son of George and Carrie Preston, of Little Rock, Arkansas, an education in the Arkansas Baptist College, the same being situated in the city of Little Rock, Arkansas. (3) And for the education of the said Thomas Preston, I give and devise to the trustees of the Arkansas Baptist College all the rents and profits and such other personal property owned by me (after the payment of my just debts and funeral expenses) and so much of my real estate as when sold by leave of the court of probate will be sufficient, in addition to the said personal estate herein given, to educate the said Thomas Preston in the Arkansas Baptist College, provided that the said Thomas Preston is under the age of 21 years and shall conduct himself properly and consistent [with] discipline of the said Arkansas Baptist College. (4) After the education of the said Thomas Preston, or his default herein, all the rest and residue of my property, real, personal and mixed, wheresoever situated, which I now own or hereafter may acquire and of which I shall die seized or possessed, I give, devise and bequeath to the cause of education, to the Arkansas Baptist College, upon the condition that the said Arkansas Baptist College shall not cease to exist. But, in case the said Arkansas Baptist College shall cease to exist, then in that case all of my said estate above described shall become the property of Charlie, Thomas and Tennie, the heirs of George and Carrie Preston, of Little Rock, Arkansas, share and share alike, absolutely and in fee simple.”
It is contended by appellant that the language in the fourth paragraph, that “I give, devise and bequeath to the cause of education, to the Arkansas Baptist College, upon the condition that the said Arkansas Baptist College shall not cease to exist,” and making- further provision for the disposition of the property in the event said college should cease to exist, constitutes a conditional conveyance. In other words, appellant contends that the testator, Julia Little, intended by the language used that the college should have her property only so long as it continued to exist, and, when it ceased to exist, it was then to go to the individuals named. We cannot agree with appellant in this contention. On the contrary, we are of the opinion, construing the will as a whole, the language used clearly shows the intention of the testator is to give to Thomas Preston an education in the Arkansas Baptist College; and, second, after he had been educated or defaulted in same, to give all her property, including the property involved, in fee simple in the event the college was in existence at the date of her death. Thomas Preston defaulted in the matter of an education, and died in 1917, unmarried and without issue. Julia Little died in the year 1915. The college was in existence at the time of her death and still is, and it would be unreasonable to presume that she intended to tie up the fee to the property indefinitely. The law favors the early vesting of estates, and if a will by one susceptible construction would vest an estate, and by another construction the estate would be contingent, the former construction should be adopted. Wallace v. Wallace, 179 Ark. 30, 13 S. W. (2d) 810; Hurst v. Hildebrandt, 178 Ark. 337, 10 S. W. (2d) 491. But here we do not think the intention of the testator doubtful, and clearly that, it was her intention to convey her property to the Arkansas Baptist College, if it were still in existence at the time of her death.
The decree of the chancery court is therefore correct, and must he affirmed. It is so ordered. | [
18,
-20,
-35,
92,
-102,
96,
58,
-70,
113,
-63,
101,
-45,
-21,
-62,
20,
105,
-89,
77,
96,
120,
-73,
-77,
7,
112,
-46,
-13,
-7,
-59,
48,
-51,
-26,
-73,
76,
32,
-54,
85,
-62,
-54,
-51,
16,
14,
41,
-101,
100,
89,
-63,
52,
-70,
16,
15,
21,
-105,
-45,
32,
25,
66,
111,
46,
105,
52,
72,
-104,
13,
-123,
95,
7,
18,
36,
-70,
3,
74,
72,
-104,
113,
1,
-24,
115,
-74,
-58,
84,
45,
-119,
8,
42,
119,
2,
33,
-9,
-112,
-104,
47,
126,
29,
-90,
-110,
88,
75,
9,
-65,
-98,
88,
-112,
7,
-10,
-28,
-107,
92,
108,
5,
-49,
86,
-95,
40,
-12,
-98,
3,
-29,
79,
32,
116,
-49,
-78,
89,
3,
59,
-101,
-114,
-14
] |
Humphreys, J.
This suit was brought in the circuit court of Benton County to recover damages for an alleged libel contained in an answer of appellant herein filed by him in a suit brought in the chancery court of said county by Rogers Sewer District No. 8 to collect assessments from M. D. Boatright upon his lands embraced within the district, in which suit appellant herein was made a party as an equitable garnishee, alleging it owed M. D. Boatright a certain amount under a fire insurance policy issued by it to him. In that suit appellant herein filed an answer in which it denied liability under the policy on the ground that M. D. Boatright had destroyed the house protected by the policy by setting fire thereto. This charge of arson was made the basis of the instant suit.
A demurrer was filed to the complaint on the ground that the charge of arson in appellant’s answer in the Rogers Sewer District No. 8 case was a judicial pleading and privileged.
The demurrer was overruled, over the objection and exception of appellant.
Appellant elected to stand upon its demurrer; whereupon the court rendered a judgment for $1,000 in favor of appellee in response to the verdict of the jury impaneled to assess the damages, from which is this appeal.
Appellant contends for a reversal of the judgment under the rule announced and the application thereof in the case of Mauney v. Miller, 142 Ark. 500, 219 S. W. 1032. The rule is as follows:
‘ ‘ There are two classes of privileged communications recognized in the law governing the publication of alleged libelous matter: One of these classes constitutes an absolute privilege, and the other a qualified privilege, and, according to the great weight of authority, pertinent and relevant statements in pleadings in judicial proceedings are held to be within the first class mentioned and are absolutely privileged. * * * The test as to absolute privilege is relevancy and pertinency to the issue involved, regardless of the truth of the statements or the existence of actual malice. ’ ’
The application of the rule to the facts in that case is as follows:
“The complaint in the present case discloses the relevancy and pertinency of the alleged libelous statements. The purpose of the original action was to cancel a lease on account of a breach or breaches of. the contract alleged to have been committed by appellee. In the answer appel-lee, as the defendant in that action, denied the breach of the contract on his part and alleged that the delay in the performance of the contract had been caused by acts of appellant, among other things, the burning of the plant erected for the purpose of washing of diamond-bearing dirt. The allegations of the answer, including allegations now under consideration, presented issues, in defense to that action, and were pertinent and relevant to the issues involved. The alleged statement was therefore absolutely privileged, and the court was correct in sustaining the demurrer to the complaint.”
Appellee admits the correctness of the rule, hut denies its applicability herein, for the alleged reason that the libel set out in the answer of appellant to the suit brought by Rogers Sewer District No. 8 was not pertinent to the issues therein. The argument is made that under §§ 5674 and 5678 of Crawford & Moses’ Digest, the proceeding to enforce the collection of assessments in improvement districts such as Rogers Sewer District No. 8 is by condemnation and sale of the delinquent property and not by personal judgment against the property owner, and that, since M. D. Boatright was not liable personally to the sewer district, there could be no liability against appellant as garnishee of the amount it owed Boatright under the fire insurance policy. It may be true that appellant could have made such defense in that action for Boatright as well as itself, but it was not compulsory for it to do so when M. D. Boatright, appellee herein, was made a defendant and properly served in that action. It was Boatright’s duty to make such defense for himself, and, having failed to do so, he cannot have damages against appellant because it interposed other defenses it had against the attempted collection of the fire insurance policy, in order that the proceeds thereof might be subjected to the payment of the assessments.
Relative to the duties of a garnishee in situations like this, the rules announced in 28 C. J., p. 277, are as follows:
“Where defendant is personally in court, the garnishee is not required to question the jurisdictional legality of the proceedings or their regularity as to defendant, but where defendant is not personally before the court, the garnishee is required to examine and know that the court has jurisdiction of the subject of the action and to interpose in behalf of the defendant de fenses of which he is cognizant, and which he is able to make.”
“But while the garnishee may plead all defenses which may be necessary for the protection of his own interest, he is not ordinarily permitted to set np matters which concern defendant only, with regard to the validity of the proceedings, or the claim asserted by plaintiff.” (P. 274.)
The liability and extent thereof by appellant herein on the policy of fire insurance issued by it to M. D. Boat-right, appellee herein, was drawn in question in the suit of Rogers Sewer District No. 8 v. M. D. Boatright, as defendant, and appellant herein as garnishee, and on that account, appellant was privileged to plead as pertinent to the issue in that case its defense of arson against the payment of the policy.
On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to the trial court to sustain the demurrer to the complaint. | [
20,
104,
-20,
-35,
-119,
97,
42,
-80,
83,
-127,
-75,
-45,
-1,
-25,
9,
33,
-9,
89,
-43,
43,
-42,
-93,
23,
99,
-44,
-37,
-77,
-41,
-102,
79,
-19,
-42,
76,
49,
-62,
21,
-62,
-56,
-123,
92,
2,
9,
41,
-23,
-7,
76,
52,
-5,
16,
75,
69,
-82,
-13,
62,
17,
75,
-119,
40,
-5,
-93,
66,
18,
-102,
13,
95,
6,
49,
101,
-104,
19,
106,
8,
-112,
49,
9,
-24,
115,
-90,
-122,
-12,
111,
-103,
40,
102,
98,
42,
-75,
-25,
-84,
-88,
46,
-1,
29,
-90,
-102,
105,
43,
9,
-73,
-100,
114,
16,
7,
106,
-9,
21,
29,
108,
3,
-113,
-108,
-31,
-117,
40,
-98,
-125,
-25,
83,
36,
84,
-50,
-32,
93,
75,
55,
27,
-98,
-55
] |
Smith, J.
In 1925, while J. C. Wilcox was county judge of Arkansas County, a contract was let, upon competitive bidding, for the erection of a bridge in that county. The lowest bid received was made by Ross Duckett, who offered to build the bridge for $177.75. Tbe other bids ran as high as $375.
The contract appears to have been let by the county judge, and not by the county court; but the bridge was built, and is now in use, and was accepted by the county, and an allowance was made by the county court covering this claim, upon which a county warrant was issued and delivered in the sum of $177.75.
After the issuance of this warrant, an order was made by the county court calling in all outstanding warrants for the purpose of reissuance, and this warrant was taken up and a new warrant issued therefor, which Wilcox acquired in due course.
Wilcox had a contract with the .St. Louis Southwestern Railroad. Company to furnish the county scrip used by that company in paying its county taxes in Arkansas County. He sent the warrant in question, along with a number of others, to the railroad company, with a letter from the county collector reading as follows:
“Stuttgart, Ark., March 14, 1927.
“The county warrants as listed below on this sheet will be accepted for taxes at the face value for the taxes of 1926, provided the warrants do not exceed the amount due the county.”
Under the contract for the sale of this scrip, Wilcox had agreed to refund to the railroad company the purchase price of any scrip which the collector refused, for any reason, to accept. The railroad company tendered this scrip to the collector in payment of its county taxes, and all of it was received for that purpose except the warrant in question, which the collector declined to receive for reasons later stated. The railroad company returned this piece of scrip to Wilcox, who also tendered it in payment of taxes, and, upon this tender being re fused, lie brought suit to require the collector to receive it in payment of county taxes.
A few days after Wilcox retired from the office of county judge, Ms successor brought a suit, on the relation of the State for the use of Arkansas County, against the sheriff and collector, the county clerk and the treasurer of the county, praying that the warrant be canceled as having been issued without legal authority. Wilcox testified that he was not a party to this litigation, and was not advised of its pendency until the court had rendered a final decree. No defense was made to this suit, and the warrant was adjudged to have been illegally issued, and the officers named were enjoined from receiving it for o any purpose, and it was decreed that it be canceled.
The defendants in the instant case, which is a suit to compel the collecting officers of Arkansas County to accept this scrip in payment of taxes, pleaded this decree of the chancery court as a bar to the suit, and also raised certain other questions which will be discussed.
Wilcox was not and is not bound by this decree, for the reason that he was not a party thereto. The proceeding in which the warrant was declared void was not a proceeding under the statute calling in and reissuing the county scrip, of which notice had been given.
It was alleged in the complaint filed in the chancery court, and is here alleged, that the contract to construct the bridge was let by the county judge, and not by the county court, and that § '2028, Crawford & Moses’ Digest, relating to the allowance of demands against a county, was not complied with, in that a claim had not been made out and verified as required by that section of the statute.
The testimony does not show any fraud or collusion between the county judge and the contractor in letting the contract, and the undisputed testimony establishes the following facts:
There was no showing whether there had been an appropriation by the county court to build bridges. The bridge in question was built, and accepted by the county judge, and used by the public. A claim covering the contract price, which Wilcox testified was not increased on account of the depreciated value of the county scrip, was filed with the county clerk. The same was presented to and allowed by the county court, and a warrant covering the allowance was issued on June 6, 1925. It is alleged, in the answer in the instant case, that the claim was issued for a sum $27.75 more than was due for the construction of the bridge and the material furnished therefor; but this allegation was not established by the testimony.
The court below denied the prayer for mandamus, and this appeal is from that judgment.
We think the court was in error in its judgment. The law is that the county court may ratify an unauthorized contract made by the county judge in behalf of the county if the contract is one which the court could have made in the first instance. Greenberg Iron Co. v. Dixon, 127 Ark. 470, 192 S. W. 379. The contract in question was clearly one which the county court had the power to make, and the undisputed testimony shows its subsequent ratification by the county court.
It was also held, in the case just cited, that, when an order has been made by the county court calling in for reissuance the outstanding scrip, the court is not authorized to review its original order allowing the claim upon which scrip was issued for mere errors in the allowance of the claim, but can only reject those warrants presented for reissuance which were illegally or fraudulently issued. It was there also held that ‘ ‘ a claim would be illegal where it was one which, under no evidence that might have been adduced, could have been a valid claim against the county. Izard County v. Vincennes Bridge Co., 122 Ark. 557, 184 S. W. 67, and Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40. It will be readily seen that evidence might have been introduced to show that the levying court had made an appropriation for building bridges, and, upon the authorities just cited, it may be said that in the absence of such affirm ative showing' the presumption is that such appropriation was made.” See also Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 570, and Howard County v. Lambright, 72 Ark. 330, 80 S. W. 148. The case of Shofner v. Dowell, 168 Ark. 229, 269 S. W. 987, cites other cases to the same effect.
As has been said, the warrant here in question had been reissued by the county court under a calling-in order made by that court, and, as testimony might have been offered, when this was done, that an appropriation had been made for building bridges, the presumption must be indulged that there was such an appropriation. It may be said, aside from this presumption, that there was no testimony at the trial from which this appeal comes that no appropriation for building bridges had been made.
We conclude therefore that the warrant in question was and is a valid obligation of Arkansas County, and should be received as such.
The judgment of the court below is therefore reversed, and the cause will be remanded with directions to grant the writ of mandamus as prayed, and it is so ordered. | [
112,
-27,
-28,
124,
-22,
-64,
26,
-120,
82,
-93,
100,
83,
-19,
70,
17,
123,
-29,
125,
-12,
120,
67,
-74,
119,
119,
-46,
-77,
-5,
-57,
-69,
77,
-4,
-42,
92,
48,
-54,
-99,
68,
-30,
-59,
88,
-50,
32,
-117,
-24,
89,
80,
60,
-93,
38,
-113,
53,
-82,
-30,
42,
16,
99,
109,
44,
-33,
-86,
-64,
115,
-102,
85,
125,
7,
-111,
36,
-103,
1,
-24,
56,
-104,
49,
0,
120,
115,
-94,
-62,
-11,
73,
-101,
12,
34,
98,
64,
-123,
-17,
-76,
-88,
22,
-5,
-115,
-90,
-122,
88,
26,
11,
-98,
29,
86,
18,
-122,
-4,
-28,
69,
93,
108,
-125,
-50,
-46,
-77,
61,
36,
-124,
3,
-29,
57,
50,
100,
-59,
98,
93,
-41,
49,
-101,
-122,
-75
] |
Humphreys, J.
Appellee instituted suit in a magistrate’s court by specific attachment to enforce a laborer’s lien on logs, cut by him and other laborers, under the 3d subdivision of chapter 101, of Kirby’s Digest of the Statutes of Arkansas. He secured judgment for $97.87, from which appellant prosecuted an appeal to the circuit court for the Northern District of Woodruff County. In the circuit court, a judgment was rendered in favor of appellee for $64.50. An appeal from that judgment has been lodged in this court.
The facts are that appellant was the owner of certain timber, and made a contract with W. K. Noble to manufacture the standing timber into logs. W. K. Noble employed appellee to assist in the manufacture thereof at $3 per day and board. Before beginning work in the morning, at noon and after quitting in the evening, appellee filed saws used in cutting the timber. Appellant knew that he was working in the timber. W. K. Noble collected what was due under the contract, and left without paying the laborers. Appellant paid all the laborers except appellee. The laborers were paid different amounts—some $2, and some $2.50 per day without board, and appellee $3 per day with board; his wage being larger on account of filing the saws. Fifty-eight dollars and fifty cents was dne him for nineteen and onefialf days’ labor under the contract. He also cut some timber by the thousand, and a balance of $6 was due him under that contract. The trial court gave a peremptory instruction, excluding from his original claim the amount of $31.35, covering the time of hauling timber, but instructed the jury to return a verdict for $64.50.
(1) Appellant contends that the court erred in giving the peremptory instruction and refusing to give instruction No. 2, asked by defendant, which is as follows: “The court instructs the jury that if you find for the plaintiff, you will find an amount equal to the value of the work done, and in arriving at the amount, you will consider the value of the labor actually performed in cutting the logs.’.’ It is contended that instruction No. 2 is correct,- because it excludes from the consideration of the jury the services for filing saws. It is insisted that that portion of the services can not be considered as services coming within the meaning of the statutes giving laborers’ liens on the production of their labor. The undisputed evidence is that appellee was to receive $3 per day for cutting the timber and filing saws. The main employment was cutting timber, and incident thereto, before and after working hours and during the noon hour, appellee filed saws that were used in felling the standing timber and sawing same into logs. Filing the saws being an incident.to the main employment, we are of opinion that it entered into and became a part of the production of the logs, and is clearly within the statute giving liens to laborers on the production of their labor.
Appellant has cited the case of Van Etten v. Cook, 54 Ark. 522, in support of its contention that filing saws is no part of the labor in producing the logs. In that case, the main employment of J. Gk Bony was to file the saws at the mill where shingles were produced. He was superintendent of the work. What little work he did in the production of the shingles was incidental to his main employment as superintendent and saw filer. The view expressed in the instant case in no way conflicts with the construction given the statute in Van Etten v. Cook, supra.
(2) Appellant contends that the court erred in refusing to give instruction No. 3, asked by defendant, which is as follows: ‘ ‘ The court instructs the jury that if you find from the testimony that at the time of the institution of this suit, the defendant was not indebted to W. K. Noble, your verdict will be for the defendant.”
It was said by Mr. Justice Biddick, in the case of Klondike Lumber Co. v. Williams, 71 Ark. 334, in referring to work done by a laborer, “If it is done under a contractor who has a contract with the owner for the performance of the work, that sufficiently shows the consent of the owner, though in such a case a lien could not exceed the amount agreed to be paid by the owner to the contractor for the performance of the work.” In the instant case, we are left entirely in the dark as to what the contract price was between appellant and the contractor, W. K. Noble. Neither are we enlightened as to whether the amount paid the other laborers, together with the amount claimed by appellee, exceeded the contract price. Our construction of the statute is that the owner of the property is responsible for all the labor debts entering into the manufacture of the article or property for an amount equal to the contract price, provided he had notice or knowledge that the laborers were engaged in work on said property. Under this view of the law, it is immaterial whether appellant had paid the entire amount to W. K. Noble, the contractor, and therefore the court would have committed error by giving instruction No. 3, requested by appellant.
The judgment is affirmed. | [
84,
110,
-68,
-99,
8,
96,
106,
-102,
81,
-31,
117,
83,
-1,
-121,
81,
107,
-29,
93,
117,
106,
69,
-77,
19,
115,
-46,
-77,
113,
-59,
-68,
74,
-12,
-44,
77,
48,
74,
-107,
66,
-62,
-59,
80,
-114,
-124,
-119,
104,
-39,
64,
56,
-17,
116,
75,
49,
-114,
-5,
40,
24,
-53,
12,
44,
125,
47,
80,
-72,
-78,
13,
31,
21,
49,
39,
-104,
1,
72,
108,
-112,
49,
2,
-55,
115,
-76,
-126,
116,
3,
-103,
9,
102,
98,
35,
29,
-17,
-104,
-120,
30,
-2,
-99,
-89,
-110,
24,
43,
105,
-106,
20,
126,
20,
86,
118,
-28,
5,
-100,
108,
3,
-49,
-44,
-125,
-113,
32,
-100,
27,
-21,
7,
48,
117,
-50,
-94,
93,
71,
51,
-101,
-114,
-69
] |
Humphreys, J.
Appellant filed an intervention in the case of Walter E. Taylor, State Bank Commissioner, v. Bank of Osceola, pending in the chancery court of Mississippi County, to have three cashier’s checks and a time certificate of deposit, issued to it by the Bank of Osceola before it closed its doors, declared preferred claims. It was alleged in the intervention that appellant purchased the cashier’s checks and certificate of deposit with currency, silver and checks its agent received in the course of its business, and, at the time, it was not a depositor in or indebted to said bank. It was also alleged in the intervention that the cashier’s checks were presented in due course to the First National Bank of Memphis, Tennessee, but were not honored because during the interim the Bank of Osceola had gone into liquidation.
A demurrer was filed to the intervention on the ground that it did not state facts sufficient to show that the cashier’s checks and time certificate of deposit were preferred.
The demurrer was sustained to the intervention, and same was dismissed in so far as it prayed for a preference, hut the claims were allowed as general claims, from which is this appeal.
Appellant seeks a reversal of the decree denying its prayer for a priority or preference of its claims over those of general creditors on the ground that it was entitled to a preference under subdivision 7 of § 1 of act No. 107 of the Acts of the General Assembly of 1927. The subdivision referred to applies only to collections made by a bank in which the relationship of principal and agent exists. The purchase of cashier’s checks and of time certificates of deposit creates a relationship of creditor and debtor. The instant case is governed by the interpretation placed upon said act in the cases of Taylor v. Dermott Grocery & Commission Company, 185 Ark. 7, 45 S. W. (2d) 23, and Missouri Pacific Railway Company v. Taylor, 185 Ark. 211, 46 S. W. (2d) 642.
No error appearing, the decree is affirmed. | [
-76,
-20,
-32,
-51,
26,
32,
42,
54,
83,
32,
54,
83,
-23,
-25,
16,
113,
-9,
125,
85,
121,
-25,
-77,
51,
74,
-46,
-77,
-15,
69,
49,
123,
100,
119,
12,
48,
106,
17,
70,
-126,
-31,
-98,
14,
32,
59,
-56,
-39,
-53,
48,
46,
16,
11,
116,
-123,
-31,
57,
57,
79,
105,
46,
-23,
-86,
-16,
-80,
-102,
5,
127,
21,
-79,
-27,
-102,
1,
-40,
14,
-128,
54,
48,
-87,
114,
-74,
-62,
20,
121,
57,
9,
98,
98,
3,
49,
-17,
-120,
-71,
38,
-34,
-99,
-90,
-102,
88,
33,
40,
-68,
-99,
116,
21,
7,
-36,
-66,
-107,
31,
108,
31,
-50,
-106,
-109,
-83,
-68,
15,
-117,
-13,
19,
48,
113,
-50,
-32,
92,
71,
63,
-101,
-10,
-111
] |
Mehaeey, J.
A number of citizens of Union County, Arkansas, filed their petition to initiate a local or special statute for the purpose of fixing the compensations and expenses of certain officials of Union County, Arkansas, and fixing’ the number of their deputies, assistants and clerks, and their salaries, and of fixing the manner in which, such compensations and salaries shall he paid, and for the purpose of effecting economies in the expense of government in said county.
The Initiative and Referendum Amendment to the Constitution provides: “The initiative and referendum powers of the people are hereby further reserved to the legal voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, hut no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.
The amendment further provides that in counties the number of signatures required upon any petition shall be computed upon the total vote cast for the circuit clerk. The time for filing the petition is then fixed by the Amendment.
Act 356 of the Acts of 1927 provides that the petition shall be filed with the county judge at least 60 days before the election, and that the county judge shall submit all such petitions to the county election commissioners, who shall place the matters petitioned for in the proper form on the tickets provided for the next general election of county officers, stating plainly and separately the matters initiated or referred, with the words “for” and “against” each measure.
The act further provides that, when any measure initiated or referred shall receive a majority of the votes in the county cast upon the subject, it shall immediately become a law.
In 1910 the people of Arkansas adopted a constitutional amendment reserving the right and power to themselves to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly. That amendment undertook to provide for local legislation, but it read: “The people of each municipality, each county and of the State reserve to themselves power to propose laws and amendments to the Constitution, and to enact.or reject the same at the polls, independent of the legislative assembly,” etc.
No one doubted at the time, and no one doubts now, that the people, in adopting this amendment, thought they were providing for local legislation in counties by initiating acts. But it will be observed that the reservation of power and authority to initiate and enact laws was in the same paragraph that the power was reserved to enact constitutional amendments, and this court held that that part of the amendment adopted in 1910 was meaningless.
The court said that the people of municipalities and counties, never having possessed the sovereign legislative power apart from the other people of the State, could not reserve the power to counties and municipalities to adopt constitutional amendments. The court further said that courts cannot supply legislative defects and omissions ; that, whenever a provision is left out of a statute, either by design or mistake of the Legislature, the courts have no power to supply it.
It was held by this court that the question for the interpreter is not what the Legislature meant, but what its language means. Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656.
It will be remembered that the amendment construed by this court in the case of Hodges v. Dawdy, supra, was adopted in 1910. Thereafter the present amendment was adopted, and, in submitting the present amendment to be voted upon, the provision for the Initiative and Bef eren-dum Amendment as to counties was in a separate paragraph, in which the amendment was not mentioned. It simply provided for local, special and municipal legislation of every character in and for their respective municipalities and counties. The fact that the people adopted this provision a second time, and having written it in such plain language that it cannot be misunderstood by any one, shows clearly that they intended to reserve to themselves the right to pass all local laws affecting the counties. In addition to this, in 1926 the people initiated and adopted an amendment to the Constitution which reads as follows:
“The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”
It is therefore seen, not only that the people reserve to themselves the power to legislate as to the local affairs of the county, hut they adopted an amendment expressly prohibiting the Legislature from passing any local or special law.
The appellant, however, contends that the measure adopted by the people of Union County is contrary to the general law of the State, and therefore violative of the constitutional amendment which prohibits counties from enacting local legislation contrary to any general law of the State.
Appellant cites and relies on act 216 of the Acts of 1931. That, however, is not a general law fixing the fees of the county officers of the State, but that law provides that the Legislature has determined and declared that the fees now being drawn by the different county officers, according to the provisions of general statutes of the State, and special and local acts, are based on proper classification, and that they shall continue to receive the salaries and fees under said local and special acts. Therefore the act itself provides that they are still receiving the fees and salaries under special acts, and not under general acts. We do not think the people had in mind legislation of this character in adopting the amendment which provided that no local law shall be enacted contrary to a general law.
Under this amendment the people of the county could not enact a law contrary to a general law which operated uniformly throughout the State, like the criminal laws of the State, but the fixing of fees and salaries of the county officers is purely a local matter, and is not of interest to persons except the taxpayers in the particular county where the law is enacted. The fixing of salaries and compensations to be paid county officers is of peculiar interest to the taxpayers of the county, and it was legislation of this kind that the people intended to provide for. No local matter could he more important to them.
The Legislature passed a law fixing the fees to be collected by the sheriff of Crawford County, and we said: “The trial court ruled that the act was void because the enactment thereof was prohibited by Amendment No. 14 to the Constitution of the State of Arkansas, which is as fallows: £ The G-eneral Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of any local or special act.’ ” Smalley v. Bushmiaer, 181 Ark. 874, 31 S. W. (2d) 292. The court cites a number of cases, among others, Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617. In that case the court held that the exclusion of a single county from the operation of the law malíes it local, and the court said: “It cannot be both a general and a local statute.” See also Simpson v. Matthews, 184 Ark. 213, 40 S. W. (2d) 991; Street Imp. Dists. Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S. W. (2d) 62; Smith v. Plant, 179 Ark. 1024, 19 S. W. (2d) 1022.
It is a well-settled principle of statutory construction that statutes should receive a common-sense construction, and, when this whole amendment is construed together as it should be, and a common-sense construction placed upon it, the conclusion that fixing compensation for county officers is a local act cannot be escaped. We have also held that an act which provided for open and closed seasons for killing squirrels, Avhich exempted certain counties from its operation, was a local act. Dupree v. State, 184 Ark. 1120, 44 S. W. (2d) 1097.
We have also held, under these amendments, that an act placing the treasurer and clerk of the county and probate courts on a salary is a local act, and not within the power of the Legislature. Cannon v. May, 183 Ark. 107, 35 S. W. (2d) 70; Board Com’rs of Red River Bridge Dist. v. Wood, 183 Ark. 1082, 40 S. W. (2d) 435.
That this act is local is beyond question. Moreover, we think it the very kind of local legislation that the people intended to provide for.
It is next contended that-the Initiative and Referendum. Amendment to the Constitution is not self-executing. However, this court said in the case of Hodges v. Dawdy, supra: “We have already held that the amendment is in force, and is self-executing as to general laws initiated by or referred to the people of the whole State. Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199.”
There is no difference, as to the amendment being self-executing, between that part of it providing for general laws and that part providing for local laws. After the provision for municipalities and counties and in the same section, the amendment provides that it shall be self-executing, but that laws may be enacted to facilitate its operation. We have also held that the amendment is self-executing with reference to municipal ordinances. Wright v. Ward, 170 Ark. 464, 280 S. W. 369.
However, the Legislature, in 1927, passed a law to carry out the initiative and referendum in the counties. It provides that the petition shall be filed with the county .judge at least 60 days before the election in which they are to be voted. It provides that the county judge shall submit the petition to the county election commissioners, who shall place the matters petitioned for in proper form on the tickets provided for the next general election of county officers. It is also provided in said act that, when any measure initiated shall receive a majority of the votes cast in that county upon that subject, it shall immediately become a law.
Therefore, if a majority of the votes were cast in favor of the act, it immediately became a law. It might be well to have somebody to certify the matter, but the fact that there is no provision for that does not prevent it from becoming a law. It may be certified as other questions are under the general election law.
The result of the election on candidates and all questions submitted is announced by the proper officers in each county, and everybody may know from that whether an act has been adopted. But, whether they know or, not, the law provides that, if it receives a.majority of the votes, it immediately becomes law.
It is next contended by the appellant that the constitutional amendment requires publication, and .that there was no publication as required by law. It is not contended that the act was not published. In fact, it is conceded that it was published, but the manner of its publication is not shown by the record.
When any duty is required of a public officer, unless there is something to indicate the contrary, it will be presumed that he performed the duty according to law. The law does not require that a person must, at his peril, find out whether an officer has honestly and in good faith performed the duties of his office. He is not required to inquire into the honesty and good faith of the officer, the presumption being that the officer has performed his duty according to law. Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, 147 S. W. 64.
The decree of the chancery court is affirmed. | [
70,
-19,
-76,
108,
-22,
68,
83,
-124,
82,
-103,
-27,
115,
-17,
-40,
21,
113,
-21,
-17,
85,
123,
-63,
-77,
21,
106,
-78,
-77,
-43,
-41,
-16,
109,
-10,
125,
78,
48,
-54,
-107,
69,
102,
-119,
-34,
-114,
3,
75,
71,
88,
64,
56,
98,
99,
-117,
113,
-65,
-8,
-88,
46,
81,
109,
102,
89,
-113,
19,
-85,
-72,
93,
121,
-121,
-95,
70,
24,
-127,
122,
46,
-100,
21,
-56,
-8,
86,
-90,
-106,
-44,
5,
-5,
-116,
98,
102,
27,
-83,
-17,
-72,
-86,
22,
91,
-87,
-122,
-106,
121,
106,
-118,
-105,
-97,
90,
-108,
15,
-2,
-91,
-59,
23,
110,
-124,
-114,
-44,
-73,
21,
105,
4,
3,
-53,
111,
48,
117,
-32,
-9,
126,
71,
19,
-102,
-50,
-127
] |
Hughes, J.
This is an appeal from a conviction of larceny, and one of the grounds of the motion below for a new trial is that, after the trial had been commenced and part of the testimony had been taken, the jury in the case were allowed to disperse and separate as they chose, without being admonished by the court as required by section 2237 of Sandels & Hill’s Digest, which is as follows: “The jury, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit any one to speak to or communicate with them on any subject connected with the trial,' and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, or form or express an opinion thereon, until the cause is finally submitted to them. This admonition must be given or referred to by the court at each adjournment.”
In section 2236 id., it is provided that “the jurors, before the case is submitted to them may, in the discretion of the court, be permitted to separate, or be kept together in charge of proper officers.”
It is held in Johnson v. State, 32 Ark. 309, that it is within the sound discretion of the court to permit the jury to separate either before or after the cause is submitted to them, but such discretion should be exercised, especially in trials for felony, with the utmost caution. “The officers must be sworn to keep the jury together during the adjournment of the court, and to suffer no person to speak to or communicate with them on any subject connected with the trial, nor do so themselves.” Latter clause of § 2236, Sandels & Hill’s Digest. In reference to this clause of this section it is held in Atterberry v. State, 56 Ark. 515, that it is too late to object after verdict that the officer, in charge of the jury was not sworn as directed by this section, where the defendant was present when the jury retired, and did not request that the oath be administered, nor object.
“It seems that if a jury in a criminal case, or any portion of it, have been exposed to undue influence, either by the whole jury being under charge of an unsworn officer, or any portion of the jury have separated from the others and had intercourse, or opportunity of intercourse, with third persons, and it does not affirmatively appear that no consequences were effected upon the jury by such exposure, and the possibility of undue influence be not wholly negatived, the verdict of such jury will be set aside. It seems, however, it would be otherwise, if the record showed that no undue influence had been exerted or attempted. McCann v. State, 9 S. & M. 465; Lewis v. People, 44 Ill. 452.
In reference to this question see Maclin v. State, 44 Ark. 115; Vaughan v. State, 57 Ark. 1. In Maclin v. State, it is held that “the separation of a juror from his fellows pending the trial casts upon the state the burden of proving that no improper influence was brought to bear upon the juror during his absence. In other words, the mere fact that a juror separates from his fellows without the order of the court is prima facie ground for a new trial, unless it affirmatively appears that the separating juror was not subject to any noxious [undue] influence [while absent].”
In this ease the jury separated without an order of the court allowing their separation, and without being admonished by the court, as required by section 2237 of Sandels & Hill’s Digest, above quoted. The judge was not requested to admonish the jury, nor was there any exception at the time to his failure to do so. They were not placed in the custody of an officer, but went where they pleased, as the record expressly shows.
Section 235 of the General Statute of Kansas, 857, 858, reads as follows: “When jurors are allowed to separate after being impaneled,' and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves, nor suffer others to converse with them on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.” In the case of the State v. Mulkins, 18 Kas. 16, it is held prejudicial error to fail to admonish a jury, as required by this statute. In discussing the question, the court said: “The statute says that the court ‘must’ admonish the jury; and therefore no construction should be put upon the statute that would allow it to be wholly disregarded, or even to be lightly considered. By failing to admonish the jury, as required by the statute, the door is opened wide for intervening prejudice to enter during the irregular separation of the jury. By such a failure one of the safeguards to an impartial trial is broken down, one of the securities to an impartial verdict is overthrown, one of the evidences that impartial justice is done is obliterated; and all this without any fault on the part of the defendant. Therefore, where there has been a separation of the jury during an adjournment of the trial, without such admonition, and the defendant afterwards moves for a new trial on the ground of such separation, want of admonition, and intervening prejudice, we think it ought to be presumed, in the absence of everything to the contrary, that prejudice, injurious to the defendant’s rights, did intervene during such separation, and did result from the want of such admonition; and therefore we think that in such a case a new trial ought to be granted, and a refusal to grant the same would be substantial error. * * * Of course, the failure of the court to admonish the jury was a mere oversight, which the court would have corrected at the time if either party had at the time called its attention to the same. But as the statute makes it the imperative duty of the court, without any suggestion, to give such admonition to the jury, we do not think that the defendant waived any rights by failing to call attention of the court to the matter at the time of such-failure. If the defendant had failed to move for a new trial because of said failure, then perhaps we might presume that the defendant had waived, the error, or at least we might presume that the error did not work any substantial prejudice to his rights,” etc.
For the error in failing to admonish the jury in the case at bar, as required by the statute, the judgment herein is reversed, and the cause is remanded for a new trial. | [
112,
-8,
-84,
-100,
40,
96,
50,
-4,
-112,
-91,
38,
82,
111,
-38,
21,
59,
-77,
63,
85,
67,
-52,
-10,
61,
3,
-90,
-45,
-48,
-59,
-73,
75,
-76,
-4,
29,
-80,
-118,
-111,
71,
72,
-115,
22,
-122,
1,
-88,
64,
96,
-14,
48,
55,
82,
31,
117,
62,
-29,
42,
21,
-61,
104,
104,
74,
39,
80,
113,
-97,
-113,
-107,
20,
-77,
7,
-101,
7,
-8,
60,
65,
49,
1,
-24,
115,
-76,
-110,
84,
107,
27,
-84,
102,
96,
1,
5,
-21,
-72,
-127,
54,
-86,
-99,
-89,
-104,
65,
75,
-120,
-74,
-41,
98,
48,
-122,
124,
111,
-44,
94,
100,
74,
-49,
-44,
-109,
47,
61,
-106,
-62,
-62,
-95,
52,
49,
-56,
-14,
86,
71,
27,
-101,
78,
-59
] |
Kirby, J.,
(after stating the facts). The undisputed testimony shows that appellant had for years been a customer and depositor of the bank where his notes and business papers were all kept, the bank looking after this business and making credits upon the notes of payments by the debtors; and also that the cashier, Mr. Har-tón, who afterwards became president of the bank, advised with him about the execution of papers, notes and mortgages securing the money loaned by him, that he prepared this particular mortgage for execution and it was taken out by appellant and the signatures procured at the distant town and returned by mail immediately thereafter to the bank. The president of the bank had prepared the mortgage, evidently knew that it had not been recorded, collected payments on the note secured thereby, and before the note became due the bank took a mortgage conveying the same property to it for further security on a pre-existing debt due it, knowing at the time that the appellant’s mortgage tbereon had not been recorded.
These transactions established the agency of the bank, and it conld not take advantage of the information thereby acquired, and, failing to record this mortgage as their relationship required should be done, the bank could not then take a mortgage on the same property to further secure a pre-existing indebtedness from the mortgagors to it and thus acquire a prior lien upon the lands already mortgaged to appellant for the security of his loan, in effect taking advantage of its own wrong and violating its duty to its principal for its own benefit and to the injury of appellant whose agent it was, and the court’s finding to the contrary is not supported by the preponderance of the testimony, and it erred in holding otherwise. 21 R. C. L. 819-20; Walthour v. Pratt, 173 Ark. 617, 292 S. W. 1017; Rose City Mercantile Co. v. Miller, 171 Ark. 872, 286 S. W. 1010; Moore v. Ziba Bennet Co., 147 Ark. 216, 227 S. W. 753; Bell v. State, 93 Ark. 600, 125 S. W. 1020.
Every one, whether designated agent, trustee, servant or what not, under contract or other legal obligation to represent and act for another in any particular business or line of business or for any valuable purpose must be loyal and faithful to the interests of such other person in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to that of his principal. “This is a rule of common sense and honesty, as well as of law. ’ ’ In 21 R. C. L. 825, it is also said: “He may not use any information that he may have acquired by reason of • his employment, either for the purpose of acquiring property or doing any other act which is in opposition to his principal’s interest.” See also Houston Rice Co. v. Reeves, 179 Ark. 700, 17 S. W. (2d) 884; Dudley v. Wilson, 180 Ark. 416, 21 S. W. (2d) 615, where the court quoted with approval from Trice v. Comstock, 121 F. (C. C. A.) 620, 61 L. R. A. 176, the following: “Every agency creates a fiduciary relation, and every agent, how ever limited Ms authority, is disabled from using any information or advantage he acquires through his agency, either to acquire property or to do any other act which defeats or hinders the efforts of his principal to accomplish the purpose for which the agency was established.” See also 2 C. J. 692.
The fact that the agency is gratuitous does not affect the rule requiring good faith and loyalty on the part of the agent if he has entered upon or assumed the performance of his duties. Walthour v. Pratt, su/pra.
The bank could perform these duties, had been doing so for a long time, and certainly it could be expected to continue, under the circumstances of this case where appellant was a customer and depositor with a substantial account to his credit in the bank, the bank having charge of all his notes and securities and advising him as to the form of such instruments, actually preparing them, and receiving payments on said notes in settlement thereof.
The decree will be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion holding appellant’s mortgage constitutes a prior and superior lien to that of the bank on the property and applying the money received from the foreclosure to the payment of appellant’s note accordingly. It is so ordered. | [
48,
-20,
-64,
-3,
74,
-32,
58,
-70,
91,
-96,
-73,
83,
-21,
-58,
4,
45,
-12,
105,
-44,
112,
-43,
-77,
103,
73,
-46,
-13,
121,
-43,
-79,
124,
-92,
-43,
12,
48,
-56,
85,
-26,
8,
-61,
-40,
-50,
-124,
41,
64,
-7,
0,
52,
31,
84,
78,
81,
-76,
-13,
44,
29,
78,
75,
46,
111,
61,
-48,
-31,
-38,
-121,
125,
7,
-79,
100,
-128,
3,
-6,
12,
-112,
59,
1,
-56,
112,
-90,
-126,
-44,
77,
11,
9,
98,
98,
50,
-12,
105,
-68,
-100,
39,
-2,
29,
-90,
-112,
73,
2,
45,
63,
-99,
107,
17,
6,
-12,
-21,
-115,
25,
108,
27,
-49,
-42,
-109,
13,
124,
-102,
11,
-1,
-121,
52,
113,
-49,
-32,
93,
71,
115,
-101,
-114,
-15
] |
MoHaney, J.
Prior to the passage of act 85, p. 247, Acts 1931, Street Improvement Districts Nos. 76 and 52, in the city of Pine Bluff, had improved certain streets therein, a portion of which was being used as continuation of State Highway No. 3. Prior to the passage of said act 85, in the year 1930, appellee contemplated changing the route of State Highway No. 3 so that it would not pass over any portion of the improvement in said districts. Pursuant to that purpose, appellee entered into a contract for the construction of approximately one-half mile of new highway to connect State Highway No. 3 with West Sixth Avenue, and participated with Improvement District No. 105 in said city in the paving of West Sixth Avenue and other streets in said district over which said highway would pass, under the provisions of act 8 of 1928, approved October 3, 1928. The one-half mile connection above mentioned was graded, but has never been paved-nor opened for public use. Certain streets in district No. 105 have been designated as the continuation of highway No. 65, which is both a Federal and State highway, and appellee participated in the cost of said improvement to the extent of one-half of the entire cost of construction of the improvement made by said districts. Appellee has continued to route traffic passing over State Highway No. 3 over a few blocks of the improvement in appellant districts since the passing of act 85, but with the purpose and intent of changing the route as above stated, and has designated same as a temporary route by its markers thereon. Appellants brought these suits against appellee to compel it, by writ of mandamus, to participate in the retirement of the outstanding bonds and maturing interest under § 2 of said act 85. Demurrer was interposed and sustained to the complaint setting forth the above facts, and this appeal followed.
We think the court correctly sustained the demurrer. The complaint shows that appellee contemplated the change in the route of highway No. 3 through the city of Pine Bluff, and had actually entered upon the construction of one-half mile connection to route the traffic over the streets in Improvement District No. 105, and had participated with said district to the extent of one-half the cost of the improvement in said district No. 105. This shows that, although appellee was using as a continuation of State Highway No. 3 a few blocks of the improvement in appellant districts, this use was temporary in character, and we are of the opinion that it was not the intention or purpose of the lawmakers in passing act 85 of 1931 to require appellee to participate by paying one-half the bonds then outstanding in municipal street improvement districts for a mere temporary use of said streets, and especially where a permanent route had been selected over other streets and its share of the cost thereof assumed. The fact that appellee was using a portion of the street improved by appellant districts at the time of the passage of act 85 gave it no vested right to a continuation of the use thereof. Hempstead County v. Huddleston, 182 Ark. 276, 31 S. W. (2d) 300.
The route to be selected as continuations of State Highways through cities and towns rests in the sound discretion of the Highway Commission, and no person would have the right to control such discretion by mandamus. The ultimate effect of this suit is virtually an attempt to compel appellee to continue the use of a portion of the streets in appellant districts as a continuation of State Highway No. 3, and, as we have already shown, this is. a matter resting in the discretion of the Commission, and not subject to be controlled by mandamus.
The judgment of the circuit court is correct, and must be affirmed. | [
-48,
-22,
-44,
126,
-38,
0,
26,
-106,
80,
-95,
-3,
-33,
-83,
78,
4,
113,
-1,
125,
81,
122,
-11,
-77,
67,
66,
-110,
-77,
-29,
71,
-69,
-35,
-28,
-108,
78,
48,
-54,
21,
70,
-62,
-51,
88,
78,
-89,
-117,
-52,
-55,
-63,
48,
111,
16,
15,
117,
-50,
-13,
40,
56,
-57,
12,
46,
-35,
44,
-47,
-15,
-104,
-99,
126,
4,
-95,
68,
-102,
1,
-36,
27,
-104,
49,
24,
120,
119,
-90,
-58,
102,
103,
-103,
8,
34,
102,
1,
97,
-49,
-8,
-88,
6,
-14,
-115,
-92,
-126,
25,
10,
67,
-65,
-97,
117,
6,
-121,
126,
-11,
-123,
95,
108,
1,
-53,
-16,
-15,
-59,
52,
-124,
1,
-25,
7,
18,
116,
-49,
-30,
95,
103,
51,
-101,
-121,
-112
] |
Wood, J.,
(after stating the facts.) 1. The recital of the judgment is: “And the court being fully advised in the premises, and it appearing from the proceedings that this is an action of replevin in which the plaintiff had obtained possession of the property herein, and that the plaintiff had executed a replevin bond with John W. Glenn as his surety.” This i*ecital shows tlmt Glenn, petitioner, was a party to the replevin suit. Although the bond may not have been returned by the sheriff with the order of delivery, as required by § 6393 of Sandels & Hill’s Digest, this is not a matter of which the. surety can complain, or take advantage of to show that he was not a party to the proceedings. The bond_ is given for the benefit of the defendant in the action. When it has been executed in the presence of the sheriff, as required bysection 6387, id., and the property has been taken away from the defendant, and delivered to the plaintiff, it has performed its office, and the surety, by the act of executing the bond, has made himself a party to the suit, and thereafter shall be so considered, and no further notice is required.
Non est factum is not pleaded. It appears that the bond was taken by the sheriff, executed by petitioner, and the property taken from the defendants, and delivered to the plaintiff, in the replevin suit. The judgment shows the execution of the bond by petitioner, and, even if it were proper to consider the affidavit of the sheriff that the bond was “never filed in the clerk’s office” (which we do not decide), that does not contradict the recitals of the judgment. The sheriff, on motion of defendant, could have been made to bring the bond into court before any judgment was rendered upon it. For aught that appears to the contrary, the bond was before the court when he rendered judgment. Suffice it to say, we must accept the recitals of the judgment as true, although the bond may not have been filed in the clerk’s office, and although the sheriff at the time he made his affidavit might have still had the bond in his possession. Glenn, then, being a party to the record, if the court had jurisdiction to render judgment against Olson, his principal, all other matters of which he here complains could and should have been corrected on appeal.
2. Did the court have jurisdiction to render the judgment complained of against Olson? It is urged that it did not have, for two reasons: (a) Because, having taken a non-suit, he (Olson) was out of court, and no longer within its jurisdiction; (b) the defendants having failed to file a plea to the merits, there was no law entitling them to judgment.
The judgment must be looked to as a whole. The judgment of non-suit, and for a return of the property to the defendants or its value, is all in one entry. All doubtless took place simultaneously, and was intended to embrace, and did embrace, one order. The parties were all before the court. Section 5792 of Sand. & H. Dig. provides that the plaintiff may dismiss any action in vacation in the office of the clerk, on the payment of all costs that may have accrued therein, except an action to recover the possession of specific personal property, when the property has been delivered to the plaintiff. This shows the policy of the law. True, “there is nothing in this ■statute that prohibits a plaintiff in replevin from dismissing his action in term time with the consent of the court.” But it would be monstrous for any court to yield its consent to such a proceeding, leaving the plaintiff in the possession of the property which the processes of law had enabled him to acquire. It was unnecessary to make such a prohibition, for it will always be assumed that courts will not consent for,, or permit, one to profit by his own wrong. The defendant asked for judgment in his favor, just as soon as the plaintiff moved for a non-suit. This was tantamount to denying the plaintiff’s right to the property, and was, to all intents, setting up a claim to the property. Before the judgment of non-suit was entered, the defendant interposed his claim to the property, which, although verbal, was equivalent to an objection to the verbal motion to non-suit, unless the property was returned to the defendant. It was in answer to plaintiff’s verbal motion to dismiss. There is nothing in the ease like those cases where, instead of urging some claim to the property, the defendant interposes a plea in abatement or in bar of the proceedings. Here it appears from the judgment.that defendant announced, “Ready for trial.” It does not appear from this that he was seeking to avoid a determination of the matters in controversy on. the merits. The effort to avoid the trial was by plaintiff.
We find nothing in the record for which to quash the judgment of the circuit court in the case of P. A. Olson v. Jeff Porter. The petition for a writ of certiorari is therefore dismissed.
Battle, J., not participating. | [
116,
-20,
-48,
-66,
-118,
-32,
43,
-104,
99,
-61,
35,
-109,
-83,
102,
0,
43,
112,
-17,
117,
104,
68,
-78,
7,
65,
-14,
-77,
-47,
-43,
-73,
79,
-10,
92,
76,
-80,
42,
-43,
102,
11,
-59,
88,
-114,
-115,
-120,
-27,
-47,
64,
48,
-109,
16,
9,
117,
94,
-93,
36,
16,
79,
73,
40,
111,
-71,
-64,
-8,
-103,
7,
127,
5,
-109,
37,
-104,
71,
120,
8,
-100,
49,
0,
-8,
115,
-74,
-122,
-44,
45,
-103,
40,
102,
98,
33,
84,
-21,
-72,
-120,
47,
-2,
31,
-89,
91,
88,
107,
33,
-90,
-99,
127,
112,
-90,
-4,
-30,
-99,
29,
100,
1,
-50,
-42,
-107,
13,
120,
2,
11,
-33,
16,
48,
81,
-51,
98,
84,
71,
80,
-37,
-114,
-73
] |
McHaNey, J.
In June, 1922, appellant issued to ap-pellee its policy of accident and health insurance, by which it agreed to pay him $50 per week for total disability caused by sickness for a total period of 60 weeks. The application for the policy was taken in Fort Smith and forwarded to appellant at its home office in Massachusetts, where the policy was promptly issued. The application provided for a quarterly premium of $43.25 until he was fifty year's of age, and thereafter a quarterly premium of $45. This application was changed at the home office to show a quarterly premium up to fifty years of age of $46.25 and thereafter of $53.75, and the policy as issued contained or called for these amended amounts as quarterly premiums, and attached to the policy was a letter calling appellee’s attention to such changes. The policy, with letter attached was forwarded by appellant to its agent in Fort Smith for delivery to appellee. It was accepted by him, and the premium was paid according to such changed amounts, and has been continuously paid since that time. Also attached to the policy is what is called a “continuous disability rider,” which reads as follows: “If total disability resulting from disease and " arising thereunder prior to the insured’s sixtieth birthday continued beyond the sixty weeks described in clause 1 of the attached policy, the weekly indemnity provided for by clause A of said policy shall continue to be payable to the insured so long as he thereafter lives and is continuously totally disabled and necessarily confined within the house under the care of licensed physician. In all other respects the terms, provisions and conditions of said policy remain the same.”
More than sixty weeks prior to August 1,1931, appel-lee became totally disabled, being afflicted with heart trouble, known as myocarditis, for which appellant paid to him $50 per week for sixty weeks, which expired August 1, 1931, and thereafter it refused to pay under said “continuous disability rider,” although demanded so to do, because it claims appellee was not “necessarily confined within the house,” as provided in or within the meaning of said rider. Suit was thereafter brought to collect the accumulated benefits which had accrued under said policy, which resulted in a verdict and judgment in appellee’s favor with penalty and attorney’s fees.
Por a reversal, appellant first insists that the evidence is insufficient to entitle appellee to recover. It admits that he is totally disabled, was so during the sixty weeks for which it paid up to August 1,1931, and still is. But it says, in order for him to be entitled to recover under said rider for continuous disability, he must not only be totally disabled, but must be confined within the house as a necessary result of his sickness. In other words, it is contended that he was not “necessarily confined within the house.” This contention is based on the fact that appellee, under the advice of his physicians, took frequent short automobile rides, in favorable weather, for fresh air and sunshine; that he also, under the same advice, took a train trip to the seashore at Corpus Christi, Texas, for a change of climate and for the salt air; and that he made an automobile trip to Monticello, Arkansas, to spend Thanksgiving with relatives and friends. This evidence, of course, shows that he was not confined within the four walls of his house for every' minute of the day. But does it show such a break in confinement as to preclude a recovery as a matter of law? We do not think so, and we think the case is ruled on this point by the previous decisions of this court in Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750, and Interstate Business Men’s Accident Association v. Sanderson, 144 Ark. 271, 222 S. W. 51. In the former case the clause under consideration was, “and shall necessarily and continuously confine him within the house”; while in the latter it was, “that the disease shall compel the insured to remain continuously and strictly within the bouse,” etc. In tbe former or Robins case tbe trial court instructed tbe jury that ‘ ‘ a continuous confinement within tbe meaning of this instruction does not mean that tbe plaintiff, in order to be entitled to this benefit, must have actually been confined within tbe walls of a bouse every minute or hour, ’ ’ and that ‘ ‘ tbe mere fact that be went out occasionally and at stated intervals for tbe purpose of taking exercise and fresh air, under tbe instructions of bis physician, would not be sufficient to prevent plaintiff from recovering in this action.” This instruction was approved by this court. A number of cases from other courts are cited to tbe same effect. In tbe course of its opinion, tbe court said: ‘ ‘ Tbe contract is couched in tbe language of tbe insurer, and it would be following too much tbe letter of it to say that temporary excursions from tbe bouse upon tbe advice of a physician for tbe purpose of treatment, take tbe case outside of tbe terms of tbe policy. That would be a very strained construction of tbe language of the policy, and would defeat its very purpose.” In tbe Sanderson case, supra, tbe court held that it was ruled by tbe Robins case and followed it on tbe construction of tbe language quoted. Tbe case now under consideration is not distinguishable from those. Tbe facts are quite similar, and tbe law is tbe same. Of course, as said in tbe Sanderson case, and as tbe court instructed tbe jury in this case, if tbe disease is such as to require tbe insured to remain out of tbe bouse, be could not recover, as tbe insurer has the right to dictate tbe terms upon which its risk is assumed. “But,” as said in tbe Sanderson case, u short trips away from tbe bouse for purposes necessary to bring beneficial results to the health of tbe insured does not take tbe case out of tbe operation of tbe language of tbe policy which requires confinement to tbe bouse.”
It is next insisted that tbe policy and rider constitute a Massachusetts contract, and that tbe courts of said State have placed a different construction on tbe language used than tbe foregoing, and bold under such circumstances there is no liability. The case, of Rocci v. Mass. Acc. Co., 222 Mass. 336, 110 N. E. 972, is cited. We will not here determine what the Supreme Court, of Massachusetts has decided in the premises, for we are convinced that, under the facts heretofore detailed, this is an Arkansas contract. The application was changed at the home office so as to increase the rates named therein; the policy was issued based upon the increased rates; it was sent to its local agent in Fort Smith for delivery to appellee; and it had to be accepted by him and at least the additional premium paid by, him in Fort Smith before any binding contract was made. It became a completed contract upon delivery, acceptance of the policy, and payment of the premium, all of which occurred in Arkansas. Therefore it was an Arkansas contract and governed by its laws. Scaife v. Bird, 39 Ark. 568; Cage v. Black, 97 Ark. 613, 134 S. W. 942; Garnet Carter Co. v. Carver, 132 Ark. 305, 200 S. W. 984; Connor v. Excess Ins. Co., 51 Fed. (2d) 626.
Complaint is also made of the action of the court in giving appellee’s instruction No. 3 and in refusing to give appellant’s requested instruction No. 4. What we have already said disposes of these assignments. No. 3 was similar to that given in the Eobins case, which was there approved, and No. 4 was properly refused.
Other assignments are argued, which we have carefully considered, and find them without merit. We think it unnecessary to discuss them, and to do so would unduly extend this opinion.
We find no error. Affirmed. | [
-80,
-3,
-108,
15,
8,
48,
106,
18,
113,
-128,
37,
83,
-23,
68,
69,
47,
-17,
41,
69,
120,
-76,
35,
54,
58,
-46,
-77,
105,
-59,
-80,
73,
-26,
-9,
69,
56,
-54,
81,
-26,
-64,
-51,
28,
-54,
-116,
-87,
-19,
89,
-112,
48,
127,
64,
79,
53,
-105,
-118,
42,
31,
75,
44,
44,
91,
-79,
-48,
-32,
-118,
5,
-1,
1,
33,
6,
-102,
71,
92,
14,
-104,
49,
24,
-4,
50,
-74,
-122,
52,
39,
-103,
4,
98,
98,
48,
1,
-19,
-92,
-100,
47,
-106,
-97,
-124,
-77,
89,
59,
13,
-74,
25,
118,
20,
6,
124,
-3,
21,
20,
40,
3,
-98,
-108,
-95,
-17,
64,
-98,
3,
-1,
-121,
34,
113,
-51,
-94,
92,
71,
123,
-109,
-125,
-120
] |
Hughes, J.,
(after stating the facts.) Appellant contends that the appellees had a remedy at law by appeal from the judgment of the probate court allowing the claim of Robert M. Scott. The administrator, Miller, might have appealed, and was urged to do so, but he would not. The appellees here could not appeal, because they were not parties to the record. Austin v. Crawford County, 30 Ark. 578; Arnett v. McCain, 47 Ark. 411.
Even if appellees had a remedy at law, chancery had concurrent jurisdiction, and fraud is always the subject of chancery jurisdiction. Our own court has decided that a chancery court has the jurisdiction to set aside the allowance of a claim in the probate court obtained by fraud. The fraud must consist in obtaining the allowance. West v. Waddill, 33 Ark. 575; Reinhardt v. Gartrell, 33 Ark. 727.
An administrator is not bound to plead the statute of limitations under ordinary circumstances. There are extraordinary circumstances in this case. Twelve years had elapsed since the claim was barred. No effort appears to have been made to collect it. The claimant testified that he had notes for the amount which had been lost or taken from his trunk, but he seems to have made no effort to get new notes instead of the ones said to have been lost or taken from him. This is not natural, even in a brother who intended finally to insist on payment of a debt. Under some circumstances, less than twenty years will afford a presumption of payment. Long delay in presenting a claim may in some circumstances be a circumstance tending to prove payment, and in other instances it may be sufficient, when taken in connection with other circumstances, to create a presumption of payment. Long v. Straus, 124 Ind. 84. There was less than- twenty years’ delay in presenting the claim in the case cited. The presumption of payment after the lapse of twenty years is one of law, if not satisfactorily rebutted or explained. The presumption of payment from lapse of time less than twenty years is one of fact, from lapse of time in connection with other circumstances. 1 Greenleaf, Ev. p. 136, §39(16 Ed.) In Woodruff v. Saunders, 15 Ark. 144, Judge Scott, delivering the opinion of the court, said: “At common law, a debt was presumed to be paid if unclaimed and without recognition for the space of- twenty years, in the absence of any explanatory evidence. * * * Before the expiration of twenty years, the law did not make the presumption; nevertheless the jury, upon issue of payment, might infer the fact of payment for [from] a lapse of time short of twenty years in combination with other circumstances in evidence, such as * * * the parties residing in the same neighborhood with each other, without any demand being made, and other like circumstances.”
We think the circumstances in this case, in connection with the long delay in presenting the claim for payment, and the absence of any effort to keep it alive, raise the presumption that the debt had been paid. We are therefore constrained to find that there is not a clear preponderance in the evidence against the decree .of the chancellor, which is affirmed. | [
-12,
104,
-8,
-66,
-38,
96,
42,
-94,
99,
99,
37,
83,
-19,
-62,
-128,
45,
-9,
41,
101,
114,
71,
55,
39,
65,
98,
-69,
-40,
87,
-75,
105,
-26,
-43,
76,
48,
2,
-43,
70,
111,
-63,
-38,
14,
-122,
-71,
101,
-15,
64,
48,
-21,
18,
79,
113,
127,
107,
42,
52,
-57,
72,
43,
75,
-65,
-64,
-32,
-98,
5,
127,
20,
-127,
103,
-104,
3,
104,
46,
-104,
57,
19,
-24,
115,
-74,
-126,
84,
107,
25,
40,
98,
98,
32,
5,
-21,
-72,
-120,
14,
-68,
31,
-90,
18,
89,
75,
109,
-90,
-99,
117,
-124,
68,
-4,
-28,
-123,
95,
46,
10,
-114,
-42,
-13,
-97,
116,
-98,
2,
-57,
-127,
112,
113,
-52,
-30,
92,
71,
49,
27,
-98,
-79
] |
Smith, J.
Suits were brought by appellant on four fire insurance policies, which, for convenience, were consolidated and tried together. Three of the insurance companies made defendants carried policies of fire insurance on the seats in the Home Theatre in Blytheville, Arkansas, owned by the appellant. The other defendant insured the appellant against loss of rents resulting from the fire. The fire occurred about two o’clock on Sunday morning in a building adjacent to the theatre building, and as a result of this fire the roof covering the theatre was damaged. The damage to the roof was serious enough to require its repair, but not serious enough to prevent the use of the theatre for the usual purposes, and pictures were shown in the building each day up to and including the Saturday following the fire. On this Saturday, while the roof was being repaired and a portion of it open for that purpose, a heavy rain occurred, and the seats were damaged as a result of the rain.
The trial court submitted the question of loss of rents to the jury, and there was a verdict for the appellant on that account. The appellant complains, however, that this verdict was inadequate, and was made so by the instruction of the court on that issue. In the suits for damage to the seats a verdict was returned under the direction of the court for the defendants, this being upon the theory that the damage was the result of the intervening negligence of the insured in repairing the roof, and the plaintiff has appealed from the. judgment of the court on both issues.
The undisputed testimony is to the effect that there was no damage to the seats either from the fire or from water used in extinguishing it. There was a damage to the roof which made its repair necessary, but there was no leak in the roof as a result of the fire, and the use of the building was continued for its usual purposes notwithstanding the fire. There was testimony to the effect that a representative of the insurance companies directed the owner to repair the roof as a part of the fire loss; but this direction was general, and the owner was left to use his own judgment in this respect.
The fire made the repair of the roof necessary, but the undisputed testimony is to the effect that the repair could have been made at a time and in a manner which would have occasioned no damage to the seats. This damage was the result of tearing off the roof and letting in the rain, whereas the roof might have been repaired without this result.
Appellant insists, however, that his right to recover should not be defeated, although the negligence of his contractor may have contributed to the damage, for the reason that the fire was the primary cause of the damage. The case of Beavers v. Security Mutual Ins. Co., 76 Ark. 595, 90 S. W. 13, is cited to support this view.
The trial court, in the case just cited, had instructed the jury that “if the loss occurred either through the negligence of the plaintiff or was the result of his own wrong, the insurer would not he liable. ’ ’ In condemning this instruction this court said: “The law is well settled that the insurer is liable, even though the negligent act of the insured or his servants be the proximate cause of the damage through the fire,” and a number of cases were cited to support that declaration of law.
There is in the instant ease, however, no insistence that the negligence of the insured was the proximate canse of the fire; nor is it questioned that the insurer is liable for all damage of which the fire was the proximate cause. The insistence is that, the fire having occurred, the insurer is not liable for any damage thereafter occurring through the negligence of the insured. Upon this issue the case of Benson v. Firemen’s Ins. Co., 150 Ark. 532, 234 S. W. 628, appears to be decisive.
We said there that we could easily imagine a case where the insurer in a fire policy might be liable for damage done by rain as a direct damage by fire, and that such would be the case if rain followed so closely after the fire that no reasonable opportunity was afforded to protect the property from that damage, for the reason that the fire continued to be the proximate cause of the damage. But it was also said in that ease that, where subsequent to the fire there had been a failure to exercise care and to use reasonable means to protect the property after the fire, this failure broke the causal connection between the fire and the subsequent damage, and that such subsequent damage was not a direct loss or damage by fire against which the insurer had contracted to indemnify the insured.
It is ordinarily a question of fact for the jury as to whether the original fire or the subsequent negligence of the insured is the proximate cause of the damage; but there appears to be no such question of fact in the instant case. Numerous witnesses testified that there would have been no subsequent damage to the seats, had the roof been repaired in a proper time and manner, and the contractor employed to do the work admitted that there would have been no damage if he had cemented and waterproofed the roof as he tore the old roof off and put the new roof down. It is not only a matter of common knowledge that roofs may be repaired without damage to the contents of the buildings which they cover, but the undisputed testimony here shows this to be true. One contractor testified that he had repaired and re placed something over eleven thousand roofs without damage to the contents of the buildings in any case, and that there was no occasion for damage in the instant case.
The insuring clause in the rent policy was in the form of a rider attached to a standard fire policy, and contains the following provision: “If said premises or any part thereof, whether rented at the time or not, shall be rendered untenantable by fire or lightning occurring during the continuance of this policy, this company shall become liable for the rental value of such untenantable portions, loss to be computed from the date of fire or damage by lightning, until such time as the building could, with reasonable diligence and dispatch, be rendered ten-antable. ’ ’
This rider further provided that this “loss is to be computed from the date of fire or damage by lightning, until such time as the building could, with reasonable diligence and dispatch, be rendered again tenantable, although the period may extend beyond the termination of this policy.”
The original policy to which the rider was attached provided that the insurer shall have the option to repair, rebuild or replace the property lost or damaged with other of like kind and quality; but these provisions do not appear to be applicable to the loss of rents, as they could not, of course, be repaired or replaced.
Upon the issue of the rents recoverable, the court instructed the jury to find for the plaintiff “for such amount as you may find, from a preponderance of the evidence, to be the rental value of the building during the time it would have taken the plaintiff, with reasonable diligence and dispatch, to repair the damage caused by the fire which was necessary to restore the building to the same tenantable condition as before the fire.”
It is insisted that this instruction was too narrow, and that the court failed to instruct the jury with reference to contingencies and conditions beyond the control of the insured. But we think the instruction correctly defines the measure of damages for loss of rents and did not exclude from tlie jury any circumstances which, the jury had the right to consider. The instruction appears also to have conformed to the obligations which the insurer assumed in this respect.
The testimony shows the rental value of the property to have been $475 per month, and the jury returned a verdict for $1,425 for loss of rents, this being for a period of three months.
We conclude therefore that there was no error in this respect, and, as we are also of the opinion that the court was correct in holding that there was no liability for the damage to the seats caused by the rain, the judgment must be affirmed, and it is so ordered. | [
-16,
120,
-28,
-18,
24,
-32,
104,
10,
87,
-125,
-26,
-45,
-3,
-61,
93,
111,
-90,
125,
65,
99,
-106,
-93,
7,
34,
-38,
-97,
-13,
-59,
-72,
76,
-12,
-10,
76,
52,
-54,
-33,
-122,
-64,
-59,
88,
6,
-123,
42,
-23,
-39,
98,
52,
90,
64,
71,
65,
-97,
-13,
44,
29,
75,
77,
40,
91,
-87,
113,
-7,
-54,
7,
127,
21,
-95,
36,
-98,
3,
-56,
8,
-112,
53,
16,
-24,
115,
-90,
-122,
60,
109,
-119,
12,
-30,
98,
42,
1,
-21,
-24,
0,
38,
-105,
-81,
-90,
-109,
88,
27,
45,
-65,
-99,
117,
16,
-121,
122,
-13,
85,
93,
108,
-125,
-50,
-44,
-13,
-51,
96,
-98,
3,
-17,
19,
32,
116,
-49,
-86,
92,
-57,
21,
-33,
30,
-35
] |
Mehaeey, J.
On March 4, 1932, John Temple filed snit in the Grant Circuit Court against T. 0. Tobias and Eva Tobias, alleging that he was the owner in fee simple and entitled to the immediate possession of certain described lands; that the defendants wilfully and without right were holding over said lands after the termination of the time for which they were demised to them, and wil-fully and unlawfully holding possession of said lands after written demand for delivery of possession; that the reasonable rental value of said lands is $100 per year; that the defendants have not paid any rental for the year 1931.
He prayed for a writ of unlawful detainer, for judgment for possession, for $100 rent, and costs.
Bond was filed on March 5, 1932, and on the same day the appellees entered into and filed a bond that they would perform the judgment of the court.
The appellees answered, denying each of the allegations of the plaintiff’s complaint, and alleging that the lands belonged to T. C. Tobias, and have belonged to him for many years, where he has lived in the peaceable possession of same, and is still in possession, and no one has ever claimed title or possession until this suit.
On April 18, appellant, B. T. Burkett, filed suit in the same court, alleging that he was the owner of the lands described in plaintiff’s complaint, and that the appellees had conveyed the land to John Temple on April 14,1926, and on April 3, 1931, Temple and -wife had conveyed the lands to Burkett. He also alleged that the defendants were in possession of the premises.
The appellees answered Burkett’s complaint, denying the allegations, and denying that they had conveyed the land to Temple. They further stated in the answer to Burkett’s'complaint that he gave to John Temple a mortgage, or what he understood was a mortgage, for an account due Temple for merchandise; that he had traded with Temple for many years, and had given him mortgages from year to year before this, and that Temple-represented to him that this was a mortgage; that, while he had traded with Temple for many years, he went to him in the spring of 1927, and Temple told him he would have to get furnished elsewhere; that he had kept the lands described and lived on them and cultivated them, and no one had ever claimed any rights or title to them until Temple’s suit was brought, and then Temple informed him that, instead of making a mortgage in 1926, he had made a deed; that it was not his intention to make a deed, and Temple had told him it was a mortgage; that Temple had died since he brought his suit, and that Bur-kett’s complaint alleged that he bought the lands from Temple a year before Temple’s death, and that the claim was fraudulent and void; that the deed mentioned was a mortgage, was intended to be a mortgage, and was so understood by him, and was so represented by Temple; that five years has run without any payments being made on said indebtedness, and that defendant pleads the statute of limitations of five years, and asks that said deed be held as a mortgage, and set aside and held for naught.
There was a prayer also that the ease of Burkett be consolidated and tried with the case of Temple, and both complaints be dismissed.
The case brought by Temple was, after his death, revived in the name of Susie B. Temple. Appellants filed motion to transfer to equity, which was overruled, and the parties announced ready for trial.
There was a verdict and judgment for defendants, and the case is here on appeal.
It will be seen from the pleadings that Temple deeded the place to Burkett on April 3, 1931. Temple’s suit was begun March 4,1932, not quite a year after the deed.
The undisputed evidence shows that Burkett purchased the lands while the appellees were in possession, occupying the place ás a homestead, as they had for many years.
S. M. Burkett, the father of appellant, testified that he boug’ht the lands in the fall of 1930 for his son; that Mr. Temple furnished him an abstract; that Temple dealt with witness as agent for his son, and that, after he got the abstract, he paid $100, and that his son gave five notes for the rest of the purchase money. He introduced the deed from Temple, which was a warranty deed, retaining a vendor’s lien for the payment of $430.16 unpaid purchase money; that the notes were afterward paid off. He testified that he knew nothing about Tobias claiming the lands; all he had was the abstract. He said Tobias told him that he signed a paper, but that he was signing for something to eat. This conversation was aftér the purchase by Burkett.
He further testified that both he and his son knew that Tobias was living on the land, but they went by the abstract. Tobias was notified as soon as bis son purchased tbe land. Tobias refused to give possession. He did not know that Temple owned tbe land until be saw tbe abstract. Tobias was in possession, but Temple told Burkett be bad rented it to Tobias.
It was agreed that Temple was dead, and that Ezell, who acknowledged tbe deed, is also dead.
It will be seen from tbe above evidence that Burkett knew at tbe time be purchased tbe lands that tbe appel-lees were in actual possession, and be therefore purchased with notice of appellees’ equities, and is bound thereby.
In a somewhat similar case, where there was a party in possession, a purchase was made-, although tbe purchaser did not have actual notice of tbe occupancy of tbe place, and this court said:
“She purchased without any actual notice of appel-lee’s occupancy, and appellee did not place a deed of record until after tbe sale to Mrs. Tbalbeimer. But she was informed by Smith that be bad previously sold forty acres to appellee, and when she purchased appellee was in actual, open and visible possession of eight acres of tbe land which Smith conveyed to her. Such possession was equivalent to actual notice of the title, rights or equities of the occupant.” Thalheimer v. Lockert, 76 Ark. 25, 88 S. W. 591.
Burkett, the purchaser, with appellees in possession of the lands purchased and holding adversely, acquired no greater title than Temple had. He was not an innocent purchaser. Crowley v. Neal, 152 Ark. 232, 238 S. W. 1054 ; Naill v. Kirby, 162 Ark. 140, 257 S. W. 735; Reed v. Ziff Lodge No. 119, Order of Masons, 175 Ark. 979, 1 S. W. (2d) 1000; Midland Savings & Loan Company v. Brooks, 177 Ark. 470, 6 S. W. (2d) 828.
Whatever rights Burkett acquired by his purchase depended upon the rights of Temple, and, if Temple did not have title to the property, Burkett did not have, because Tobias’ occupancy of the premises was notice to Burkett of whatever rights and equities Tobias had.
Appellants contend that the court should have given the peremptory instruction for possession of the property, or should, under the undisputed testimony, have declared a lien upon the property, and cites and relies on the case of Sturdivant v. McCorley, 83 Ark. 278, 103 S. W. 732. It is insisted that that case is conclusive of all the questions involved here.
That case was in chancery court, and the undisputed evidence showed that the son borrowed money from his father and gave him an absolute deed to the land, under an oral promise from his father that he would reconvey so soon as the money was paid. The court held that, as no time was fixed for the payment of the money, it was due on demand, and the statute of limitations began to run immediately; but it also held that the title to the land was in the grantee, and that he had a right to bring an action at law to recover the possession, and, as the deed was absolute in form without written defeasance, the defendant could not show the parol agreement to reconvey; and, as the defendant had not held the land adversely for more than seven years, the grantee or his heirs could recover possession, unless the defendant set up an equitable defense that the deed was in equity a mortgage. The court also held that when he did this he would be met by the equitable principle that he who asked equity must do equity, and that the court would interfere only on condition that the debt be treated as a valid lien on the land; that the statute of limitations as to mortgages did not apply to equitable mortgages, evidenced by absolute deeds without any written defeasance.
This court has repeatedly held that, when a deed, absolute in form, was given as security for debts, the statute of limitations as to mortgages does not apply, and that, when suit is brought for the possession of the land by the grantee, the grantor cannot sh,ow that the deed was intended and was in fact a mortgage to secure debt, and defeat the grantee’s action, by pleading the statute of limitations. In other words, he cannot defeat the action without paying the debt.
This doctrine seems to be supported by the weight of authority, but, so far as we have been able to discover, all the cases hold that this is because the grantee has title to the land.
In this case Temple brought suit claiming to be the owner of the land and entitled to possession and rent for the year 1931. He claimed that he was the owner and had title under the deed from Tobias and wife, dated April 14, 1926. He, however, deeded the land to Burkett on April 3, 1931, and the suit was not brought until March 4, 1932, nearly a year after he had conveyed the land to Burkett and been paid for it, and he had no title or interest in the land at all at the time he brought suit.
According to the undisputed testimony in this case, it was not the intention of the parties to take a deed absolute in form for the purpose of securing indebtedness, but that the deed'was acquired by Temple fraudulently, •and that he told Tobias at the time that it was a mortgage.
If there had been a deed for the purpose of securing a debt, and it had been the agreement and understanding that it was for this purpose, then the cases referred to by appellant would apply. But, if the evidence of appellees is true, this deed was procured by fraud, and was absolutely void. It is only where the parties agree to make a deed to secure a debt that it will constitute an equitable mortgage.
In the motion to transfer, made by the appellants, they did not claim that the instrument was a mortgage, but said that the answer in the consolidated cause stated grounds of defense cognizable only in equity, and that, in substance and effect the answer asked that the deed executed by defendants be reformed to read as a mortgage.
This was a suit in unlawful detainer for the possession of property and rent, and this court has many times held that a defendant may set up or plead all the defenses he may have, both legal and equitable. The defendant in this case alleged that he did not give a deed to Temple, that it was never intended that he give a deed, and that Temple himself said that it was a mortgage, and his prayer was that both complaints be dismissed and the title vested in him. That is, his contention was that the deed relied on by Temple was void, and this was a legal defense to plaintiff’s canse of action, a defense in a court of law, as well as in a court of equity.
If the evidence of appellee is true, Temple could not fraudulently procure a deed, and then, when the deed was held invalid, take advantage of his own wrong and have it declared a mortgage.
Appellant’s contention all the way through the lawsuit was that it was not a mortgage, but a deed. Certainly there was no equitable mortgage as is discussed in the case of Sturdivant v. McCorley, supra.
Under the pleadings in the case, it was not contended by appellants that Tobias owed anything, but it was contended that the property did not belong to him because he had conveyed it.
If there had been a mortgage, the right to foreclose would have been barred when the debt was barred.
Appellant calls attention to some other cases which are, in effect, the same as Sturdivant v. McCorley, supra, but in all of them that we have examined, they were discussing deeds intended as mortgages.
Temple could not have had any intention that the deed should be a mortgage, but he intended it as an absolute deed, and actually conveyed the lands to Burkett, nearly a year before the beginning of the suit, and, so far as the evidence shows, never at any time said any: thing to Tobias about conveying it.
Therefore, under the evidence, there can be no conclusion other than that Temple did not take this deed to secure a debt, but to acquire title to the lands.
Appellant requested the court to instruct the jury in effect that, if Tobias signed the instrument believing it to be a mortgage, its verdict would be for the defendant for possession of the land, subject to a lien of $1,477, with interest, to be enforced by appropriate orders of the court.
The court modified this instruction by adding- the following: “unless you further find that the statute of limitations has run against plaintiffs, Temple and Burkett, as defined in other instructions given in this case.”
It is contended that this modification by the court was error because it has no application under this type of mortgage. As we have already said, appellants contended that this was a deed conveying the land to them, not intended as a mortgage, and, according to appellees’ testimony and the finding of the jury, the deed was void, and was not an equitable mortgage.
Therefore the instruction requested by appellants was erroneous, and there was no error in the modification by the court.
The court, at the request of the defendants, gave the following instruction: “The jury is instructed that the plaintiff must recover upon the strength of his own title and not on the weakness of the title of the defendant, and if you believe from the evidence that the plaintiff has failed to establish a good title within himself, then he cannot recover in this action, and you should find for defendant.”
Appellants’ objection to this instruction was that the undisputed evidence established plaintiff’s muniments of title, and that the burden was on the defendants. But the court gave instruction No. 3 at the request of appellants, which was as follows: “If you find from'all the evidence that the deed made by the defendants to plaintiff in 1926 was intended as a mortgage -and the defendants signed it under that belief and understanding, then you will find the title to the lands in controversy in Tom Tobias, regardless of any amount that may be shown he owes plaintiff.”
There was no conflict between these instructions, and instruction No. 1, given at the request of appellees, is a correct statement of the law.
Appellants also objected to instruction No. 3, given at the request of the appellees, which told the jury that, if the deed was intended as a mortgage, and the defendants signed it under that belief and understanding, they would then find the title to the lands in controversy in Tobias, regardless of any amount that he might owe. This instruction, we think, is a correct statement of the law. If appellee- thought he was signing a mortgage, but, by reason of the false and fraudulent representations by Temple, he was induced to sign a deed instead of a mortgage, the deed would be void, and the appellants would not be entitled to recover.
Temple could not recover in this case in any event, "because the undisputed evidence shows that, even if the deed to him had been valid, he had conveyed the land and had no interest whatever in it.
Appellants also object to instruction No. 4, given at-the request of the appellees, because they say it tells the jury that defendants may recover if they held the lands adversely for more than five years after the deed. The instruction tells the jury, if it was executed as a mortgage, then the statute would begin to run from the date of the alleged deed. They object to the instruction also because they say it disregards their theory that the instrument was a mortgage given to secure a current account, and was not barred for that reason.
In the first place, that was not the theory of the appellants. Their theory was that it was not a mortgage; that it.was a deed, and that it was intended to be and was executed as a deed.
As to whether the deed was procured by fraud, and as to whether the debt was barred by the limitations, were questions of fact submitted to the jury at the request of both parties, and the jury’s verdict on these matters is conclusive.
We find no error, and the judgment is affirmed. | [
-12,
113,
-36,
31,
42,
96,
10,
-102,
115,
-88,
-30,
87,
-23,
70,
0,
45,
-31,
121,
81,
122,
71,
-89,
103,
34,
-46,
-77,
-39,
-59,
-8,
77,
-26,
-41,
8,
36,
-62,
31,
-26,
-30,
-3,
-40,
-114,
-95,
-87,
100,
-37,
64,
48,
29,
1,
77,
113,
15,
-78,
40,
53,
106,
72,
46,
123,
57,
80,
-7,
-67,
-59,
-1,
39,
-127,
6,
-116,
-63,
-54,
-118,
-104,
53,
4,
-24,
115,
-74,
-58,
116,
15,
-103,
-116,
36,
102,
32,
117,
-25,
-30,
88,
47,
-6,
-107,
-90,
-46,
72,
66,
77,
-68,
-99,
114,
4,
101,
118,
111,
-108,
20,
104,
3,
-50,
-42,
-93,
13,
120,
-114,
3,
-13,
-57,
48,
112,
-49,
-118,
92,
103,
112,
63,
-113,
-71
] |
Kieby, J.,
(after stating the facts). The legal principles governing transactions between husband and wife where the interest of third parties intervene are well settled by numerous decisions of this court. While such transactions are closely scrutinized, they are, when made in good faith and for a fair consideration, upheld by our court to the same extent as transactions between strangers. In Mente v. Westbrook, 181 Ark. 96, 24 S. W. (2d) 976, the court, discussing an alleged fraudulent conveyance between a husband and wife, said:
“It is also well settled that, if the evidence shows that the grantor had abundant means other than his property to satisfy all his creditors, the conveyance will not be declared fraudulent. It is also well settled that, to entitle a creditor to set aside a conveyance as fraudulent, it is necessary, not only that there be fraud on the part of the vendor participated in by the vendee, but also that there be an injury to the person complaining. The creditor who seeks to set aside a conveyance as fraudulent must show that his debtor has disposed of property that might otherwise have been subjected to the satisfaction of his debt. And not only that, but he must show that the debtor did not have other property sufficient to pay the creditor. * * * If the evidence shows that one had ample means to pay all his debts, the conveyance to his wife of property of small value, as compared with his whole property, together with other facts tending to show good faith, would be sufficient to justify the conclusion that the transfer was not fraudulent.” The opinion quotes extensively from 12 R. C. L. 513-514.
It has likewise been held that an insolvent husband may, without fraud, when justly indebted to his wife, prefer her claim to those of other creditors and make a valid appropriation of his property to pay it, notwithstanding the result be to deprive other creditors of means of satisfying all their claims. Stallings v. Galloway-Kennedy Co., 171 Ark. 24, 283 S. W. 41. See also Davis v. Yonge, 74 Ark. 161, 85 S. W. 90; Godfrey v. Herring, 74 Ark. 186, 85 S. W. 232; Driggs v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78; Taylor Com. Co. v. Bell, 62 Ark. 26, 34 S. W. 80.
At the time of the agreement of conveyance of the lands in controversy to Mrs. McCown, in consideration of her execution of the mortgage on the home place and in satisfaction of the notes executed by McCown for the purchase money thereof and given to her by her mother, the testimony tends strongly to show, if there is no decided preponderance thereof, that McCown was worth much more than his indebtedness; and the virtually undisputed testimony shows that he was indebted to his wife in a sum aggregating about $4,000, the amount due on the notes that he executed to his mother-in-law, which were later given to his wife when he purchased the homestead. It is true that the value of his holdings was greatly diminished at the time of this conveyance because of the failure of many of the banks in which he held stock and the general existing financial depression, but it is virtually undisputed that he owed the amount of the notes given to his mother-in-law, and by her to appellant, at the time of the execution of the mortgage to the Bank of Dierks, when he agreed with his wife to conveythe land in controversy to her in consideration of her joining in the execution of a mortgage of the home and in satisfaction of the notes held by her. The husband could not have incumbered or disposed of the homestead without the consent of Ms wife, who could compel any reasonable terms as a condition for her joining in the execution of the mortgage, and the relinquishment of her dower and homestead rights in the conveyance would have been a sufficient consideration for his conveying the lands herein to his wife, as was agreed to be done. Section 5542, Crawford & Moses’ Digest; Davis v. Yonge, supra; Baucum v. Cole, 56 Ark. 259, 19 S. W. 671; Hershey v. Lathem, 46 Ark. 542.
She not only joined in the execution of the mortgage, but surrendered the notes, valid claims against her husband for more than $4,000, and the value of the lands which he was to convey to her under the agreement at the time, the lands involved herein, was only three or four thousand dollars. McCown owned only an undivided two-thirds interest in the lands, which was subject to the dower rights of his mother and wife, and which would be restored to them upon cancellation of the conveyance herein; this without regard to whether she had participated in any fraudulent intent in the execution of the conveyance. Elliott v. Locklar, 185 Ark. 269, 46 S. W. (2d) 1105.
This was not a fraudulent conveyance as sho'wn by a great preponderance of the testimony, nor was the agreement to make it, at the time of the wife’s joining in the execution of the mortgage to the Bank of Dierks and her surrender of the valid notes against her husband in consideration thereof, made with any fraudulent intent to cheat, hinder or delay existing or subsequent creditors, and, in fact, no complaint of the transaction was made by any creditor existing at the time of such agreement to convey the lands, and the testimony does not warrant the finding that there was a fraudulent intent on the part of the wife to cheat, hinder or delay such subsequent creditors in the collection of their debts; the burden being upon them to show the existence of such intent. Townes v. Krumpen, 184 Ark. 910, 43 S. W. (2d) 1083; Williams-Echols D. G. Co. v. Bloyd, 169 Ark. 529, 276 S. W. 1; Buchanan v. Williams, 110 Ark. 335, 160 S. W. 190; Mente & Co. v. Westbrook, supra; Miles v. Monroe, 96 Ark. 531, 132 S. W. 643.
The testimony is not sufficient to warrant the belief that McCown was influenced by fraudulent intent in making the conveyance of these lands, which should have been conveyed at the time of the agreement therefor, and the chancellor made no finding that Alta V. McCown, appellant, knew of, or participated in, any fraudulent design of her husband in making such conveyance, if he harboured any such intention. She had the right to expect the immediate conveyance of these lands upon execution of the mortgage with her husband to the Bank of Dierks and the surrender of the notes of her husband in accordance with the agreement, and delay in its execution was not through any fault of hers. She, in fact, thought the conveyance had been made, and, although she could have compelled its being done by a suit for specific performance, she was not at fault in not doing so, so long as she thought the conveyance had been made, as the husband indicated an intention to perform the agreement and make the conveyance, which should be regarded, so far as any intention on her part is concerned, to have been made and related hack to the time of the agreement for the making of it. Loftin v. King, 185 Ark. 421, 47 S. W. (2d) 578; Block v. Smith, 61 Ark. 266, 32 S. W. 1070.
Under the circumstances of the whole transaction, the finding that appellant, Mrs. McCown, should he estopped from holding the property agreed to be transferred to her at the time of her joining in the execution of the mortgage to the Dierks bailk because the conveyance was not sooner made is not warranted, and the chancellor erred in holding otherwise.
The decree is accordingly reversed, and the cause remanded with directions to enter a decree dismissing the complaint for want of equity. | [
50,
125,
-47,
109,
74,
100,
43,
-86,
105,
-118,
39,
123,
-3,
66,
16,
63,
-28,
121,
97,
98,
-41,
-77,
15,
73,
-14,
-45,
-47,
-33,
-71,
-19,
103,
-43,
77,
48,
-57,
-43,
103,
-117,
-125,
92,
-122,
2,
-117,
65,
-39,
4,
52,
107,
21,
12,
65,
-113,
51,
45,
57,
103,
72,
42,
43,
-27,
-48,
112,
-81,
5,
127,
7,
-125,
36,
-20,
47,
-38,
12,
-108,
89,
9,
-23,
115,
-74,
-110,
116,
9,
27,
-119,
98,
98,
-128,
69,
-7,
-80,
-104,
42,
-14,
29,
-81,
-112,
88,
11,
105,
-65,
-103,
68,
20,
38,
-12,
-14,
29,
95,
-20,
23,
-113,
-42,
-105,
-115,
124,
-100,
3,
-42,
-91,
49,
81,
-49,
-32,
92,
83,
30,
59,
14,
-9
] |
Butler, J.
This action was brought by the appellee against the appellant in the circuit court of Crawford County to recover damages for personal injuries alleged to have been caused by an injury to his eye while cutting a cotter pin with a chisel and hammer at the shops of appellant company. There was a verdict and judgment for the amount sued for, from which is this appeal.
Several questions are presented which we find it unnecessary to decide, as it is onr opinion that the first assignment of error urged by the appellant is well taken, and our determination of that question disposes of the case.
It is claimed, and we agree, that there was no actionable negligence shown by the evidence, and the court should have given the peremptory instruction requested by the appellant. In arriving at this conclusion, we do not overlook the rule that the evidence on appeal should be viewed in the light most favorable to the appellee and given the greatest weight to which it is entitled, if by so doing the verdict may be sustained. The appellee, Burns, at the time of the injury was at work in appellant’s shops engaged in repairing- a locomotive with the help of one O. N. Meeks'. These two were the only persons present at the time of the injury and the only witnesses testifying regarding the occurrence. Their testimony is not in conflict except in one particular.
The evidence, which is undisputed, establishes the following facts: Appellee was 29 years old and his position with the appellant was that of a “second-class mechanic”, in which position he had worked for approximately five years. Meeks was his helper at the time of the accident, which occurred during the night, as they were preparing to put truck wheels on the engine. Meeks was working under the direction of the appellee, and was told to place a cotter pin on the rail and hold it there while Bums cut off the end of it. The cotter pin was a round pin about three or three and a half inches long and about three-eighths of an inch in diameter, with a slit down the middle so that when the pin was placed through a hole in the shaft the protruding ends of the pin could be bent back on either side and prevent it.from slipping out. Meeks testified that he was holding the pin with his hand with the end lying on the rail as he had been directed to do; that he did not turn the pin at all, and that it had not moved in any way at the time the appellee struck the final blow cutting off a portion of the pin, which flew out and injured Hm. Meeks stated tliat as tbe blow descended be turned bis bead to one side.
Appellee testified, in substance, tbat be directed tbe pin to be placed and held so tbat tbe slit in it would rest upon tbe rail, and, when it was so placed and beld, be adjusted tbe cutting edge of bis cbisel on tbe pin and fixed it in place by striking- with bis hammer two ligb't blows upon tbe bead of tbe cbisel, thus “setting” it. He tben prepared for tbe blow by wbicb be proposed to sever tbe end of the pin, and stated tbat, as the hammer was falling, “it seemed as if something attracted tbe attention of Meeks, and be turned bis bead, and at the same time tbe pin was turned”; tbat be bad already started down with the blow, and it was impossible to stop it then. At this time lie was standing down in a pit, and, when tbe pin turned as be delivered tbe blow, one side of it was cut off, wbicb flew out, striking him in tbe eye; that tbe cbisel and hammer were his own tools, and tbat be had bad five years’ experience and understood tbe work.
The question presented by this evidence is, does it show tbat Meeks, while helping the appellee, failed to exercise ordinary care? No fixed rule can be stated as to what constitutes “ordinary care,” except tbat it is tbat degree of care wbicb an ordinarily prudent person would exercise under tbe circumstances of tbe case. Care in one case would be negligence in another, and vice versa. Tbat degree of care must be exercised commensurate with tbe danger reasonably to be anticipated. Therefore, ordinary care is a relative term, dependent upon tbe facts and circumstances of each particular case, and tbe degree of care required must always be measured by tbe exigencies of tbe ease under consideration. Meeks v. Graysonia N. & A. R. Co., 168 Ark. 966, 272 S. W. 360; Evans v. B. L. & A. Ry. Co., 147 Ark. 28, 227 S. W. 257; Murphy v. Clayton, 179 Ark. 225, 15 S. W. (2d) 391. The cbisel was set in tbe pin by two preliminary blows, and it is difficult to see bow the pin could turn without turning the chisel also, or indeed bow tbe pin could turn except by some considerable effort, as tbe cbisel was set in it and held in place by Burns as be was striking the bead of it. This would seem more sufficient to bold the pin steady than the bold Meeks bad upon it, since it must be remembered that the pin was round, only three-eighths inch in diameter and not more than three or three and one-half inches long. A considerable portion of the pin must have been resting on the rail*, so that the projecting end which was held by Meeks could not be held very firmly, and without the support of the chisel the pin was likely to turn by a very slight muscular contraction. The fact that Meeks turned his head as the blow descended is not disputed, but that he was not attending to his business, because of his attention being attracted by something else, as suggested by the appellee, is not warranted, for there are no circumstances related which would cause his attention to be attracted elsewhere. It appears to us that the turning of his head was the natural and instinctive act of one in his position, for his head and face could not have been very far from where the impact of the hammer upon the chisel would fall.
There is no contention that Meeks wilfully moved the pin, and the mere fact that he turned his face aside as the blow was descended does not seem to us to be sufficient to show that he was failing to exercise ordinary care. The cutting off of the end of the cotter pin was a simple operation, attendant with no particular danger, although, in the light of common experience, it was to be expected that the end of the pin, when cut by a violent blow, would fly off some appreciable distance. Ordinarily this would be attended by no particular danger, for it is not to be doubted that, if the fragment had struck the person of the appellee anywhere else -but in the eye, no injury would have resulted. That it did strike his eye was a remote mischance which no one contemplated, or else the appellee, who was experienced, would have taken some precautions other than shown to protect his eyes from flying fragments.
In the case of Booths Flynn Co. v. Pearsall, 182 Ark. 854, 33 S. W. (2d) 404, the plaintiff sued for personal injuries sustained while working for the defendant by being struck in the eye by a sliver broken from an iron gas pipe. While the plaintiff was bending over a metal pipe, a fellow-servant working next him threw a block of wood from his shoulder on the pipe, causing a sliver to fly off and strike the plaintiff in the eye. In commenting upon thef testimony, it was. said: ‘ ‘It cannot be said that, even though the sliver which struck the plaintiff in the eye came from the iron pipe, when his fellow-servant threw down the block of wood on it, the master or fellow-servant was guilty of negligence. The work was being done in the ordinary and customary way of doing such work, and there is nothing to show that it was not reasonably safe. * * * It was an unanticipated and unexpected occurrence which no reasonable person would have likely foreseen.” It is a matter of ordinary observation that frequently there is some danger attendant upon the most common and ordinary transactions, but the care required is only to provide against such dangers as ought to be foreseen in the light of the attendant circumstances, and the ideal “prudent person” will therefore not neglect what he can foresee as probable nor divert his attention to the anticipation of events barely possible, but will order his conduct by the measure of what appears likely in the ordinary course of events. Walloch v. Heiden, 180 Ark. 844, 22 S. W. (2d) 1020; Booth & Flynn Co. v. Pearsall, supra; Mo. Pac. Rd. Co. v. Medlock, 183 Ark. 955, 39 S. W. (2d) 518; Mo. Pac. Rd. Co. v. Richardson, 185 Ark. 472, 47 S. W. (2d) 794.
It may be that Meeks could have held the pin more firmly and prevented its slightest movement, had he foreseen the consequences, but were they such as would reasonably be expected to probably flow from a slight turning of the pin? We do not think so. Hence, although he might have exercised greater care, it does not appéar that he should have ordered his conduct by a measure of prudence against every possible risk, but only as to what would ordinarily likely occur.
From the views expressed it follows that the judgment of the trial court must be reversed, and, as the cause appears to have been fully developed, it will be dismissed. It is so ordered. | [
-16,
106,
-40,
-99,
24,
96,
56,
26,
81,
-91,
-91,
-45,
-19,
-57,
89,
47,
-26,
-67,
81,
42,
118,
-93,
3,
-30,
-46,
-77,
-7,
-60,
-79,
75,
-12,
-34,
77,
48,
74,
-43,
70,
3,
-59,
92,
-62,
44,
-70,
-22,
25,
0,
48,
122,
54,
79,
49,
-97,
98,
42,
28,
-49,
41,
44,
-21,
-84,
-48,
121,
-128,
5,
29,
16,
-95,
4,
-100,
39,
-8,
30,
-104,
-79,
0,
-24,
115,
-90,
-61,
116,
107,
-103,
4,
98,
102,
33,
29,
-57,
44,
-72,
14,
110,
-99,
-89,
-102,
56,
-37,
43,
-97,
-97,
102,
16,
70,
-2,
-9,
77,
27,
108,
-125,
-121,
-80,
-77,
-113,
32,
-34,
-87,
-21,
-123,
22,
113,
-52,
-22,
93,
5,
27,
27,
-98,
-102
] |
Mehaeey, J.
The appellant, about three o’clock a. m. on the 26th of August, 1931, left Stuttgart, Arkansas, in an automobile for St. Louis, Missouri. The appellant was the driver of the car, and the appellees were his invited guests.
H. A. Hoover occupied the rear seat, and William Snotzmeier rode in front with the driver.
Between Brinkley and Wheatley, about 50 miles from Stuttgart, in attempting to pass a truck parked on the side of the highway, the car in which appellant and appel-lees were riding was turned over, injuring the parties in the car.
From a point about five miles west of Brinkley, to the place of the accident and beyond, is a concrete surfaced road, and from Brinkley to the place of the accident the road is straight. The accident occurred about four o’clock in the morning.
Each of the appellees filed separate suits against the appellant, seeking to recover damages for the injuries sustained. The cases were consolidated and tried as one case.
The appellees alleged that appellant was driving at a high rate of speed, and that this excessive rate of speed continued for approximately four miles beyond Brinkley; that, while continuing this high rate of speed, appellant undertook to pass another vehicle on the road, but, on account of the rate of speed at which he was traveling, or on account of the careless and negligent manner in which he was driving, appellant’s car struck against the car which appellant tried to pass. It was also alleged that all of the occupants of the car were made unconscious as a result of the accident, and that appellant’s car was traveling at such an excessive speed, and turned over with such force, that it was practically destroyed. The injuries received by appellees were described in their complaints, and it was alleged that the appellees suffered great pain, and would continue to suffer. Hoover prayed judgment for $4,736 and Snotzmeier for $10,000.95.
There is very little conflict in the evidence. The appellant himself did not testify.
The trial resulted in a verdict of $2,500 for Hoover, and $5,000 for Snotzmeier, and judgment was entered accordingly. Appellant filed a motion for a new trial, which was overruled, exceptions saved, and the case is here on appeal.
The undisputed evidence shows that appellant was driving his car at a very rapid rate of speed at the time and some time prior to the time of the accident.
It is not seriously contended that appellant was not guilty of negligence, but the appellant earnestly insists that the appellees were guilty of contributory negligence, and therefore not entitled to recover. He calls attention first to the case of Carter v. Brown, 136 Ark. 23, 206 S. W. 71. Appellant quotes from that case as follows: “It is the duty of the guest to exercise ordinary care for his or her safety; and a failure to exercise such care, which contributes to the injury or might have resulted in avoiding* the danger and resultant injury, will constitute contributory negligence.” The court, however, also said: “It was also an issue for the jury as to whether the appellant was guilty of contributory negligence. The court erred in not submitting these issues to the jury.”
Negligence and contributory negligence are questions of fact to be submitted to and determined by tbe jury, where there is any evidence tending to show negligence or contributory negligence. The question of the contributory negligence of the appellees was submitted to the jury at the request of the appellant.
Negligence is the failure to exercise such care as a person of ordinary prudence would exercise under the circumstances, and whether one has exercised such care is a question for the jury.
Appellant calls attention to many authorities in support of his contention that it is the duty of an invited guest to exercise ordinary care to protect himself from injury, to caution the driver of the danger, protest against it, and to do what a reasonable, prudent person would do under the circumstances for his own safety. If he fails to exercise such care, and his failure contributes in any degree to produce the injury, he cannot recover. This court has many times announced this doctrine, and it is supported by the great weight of authority.
In determining the question of contributory negligence, it is proper to consider all the circumstances and evidence in the case, the condition of the road, appellees ’ knowledge of the ability and fitness of the driver, the speed of the car, the character and cause of the accident, and all the circumstances in the case.
Mr. Conrey testified that the car had turned over two or three times, and, after it turned over the last time, had skidded for some distance. The car was almost demolished. The wrecked car had apparently “sides wiped” the truck; had run up on the pavement and turned over about 120 feet beyond the truck. The car was badly wrecked, and witness testified that he had to practically rebuild it.
¥m. Snotzmeier testified that he told the driver he was going too fast, and the driver told him not to worry, that he would watch out. Snotzmeier then testified that he dozed off to sleep, and the next thing he knew he was in the hospital. Snotzmeier was riding in the front seat with the driver.
. Hoover testified that the car was being driven at a high rate of speed, ahont 60 miles an honr. He heard Snotzmeier tell Ragland not to he in snch a hnrry, or something of the sort, and Ragland said that he wonld watch ont and he careful.
Statements made hy both Snotzmeier and Hoover were introduced in evidence. It will he seen from the evidence that the road was a concrete surface, straight, and the accident occurred about four o’clock in the morning, when there was very little travel. Snotzmeier testified that he cautioned the driver, and the driver said that he would be careful, and watch out. The question therefore of contributory negligence of appellees was for the jury..
“Unless the facts are manifest, and the inference to be drawn therefrom clear beyond peradventure, the question whether the guest of an automobile driver, having no control over him, was negligent in failing to appreciate the danger in crossing railroad tracks, or to act in relation thereto, must be submitted to the jury.” 2 Blashfield on Automobiles, 1133.
So here the question of whether the guests were negligent was a question for the jury. Negligence is never presumed, but must be proved, and when Snotzmeier cautioned the driver, and when the driver said he would watch out an<f be careful, the guests had a right to assume that he would do this. They had a right to take into consideration the character of the road, the time of the morning, their knowledge of the driver’s ability; and, considering all these facts and circumstances, it was a question of fact whether the appellees acted at the time as men of ordinary prudence would have acted under the circumstances, and, if they did, they were not guilty of negligence.
There would have been no reason at all for Hoover to speak to the driver, when he heard Snotzmeier speak to him, and heard his reply. If several guests are riding in a ear, it would be unnecessary for all of them to caution tlie driver, if any,one of them cautioned him, and the others heard it. In other words, guests in an automo.-bile are required to exercise just such care as a person of ordinary prudence would exercise under the circumstances.
“The question whether a guest or passenger in a motor vehicle exercised due care for his own safety is usually a question for the jury under all the evidence, as whether an automobile driver and his guests were negligent in attempting to cross before defendant’s approaching motor truck, 75 or 100 feet away, or where plaintiff failed to act as a person of ordinary prudence would have acted under the circumstances, or, as the rule is sometimes expressed, he is bound to look out for his own safety as far as practical.” 2 Blashfield on Automobiles, 109.
“The fact that a passenger in an automobile was sleeping before and at the time of being injured in an accident caused by the negligence of the driver does not necessarily show negligence on his part. ’ ’ '2 Blashfield on Automobiles, 1089.
The Connecticut court said: “The trial court submitted to the jury the question whether, in view of the circumstances preceding and surrounding the accident, the fact that the defendant momentarily fell asleep constituted negligence on his part. There is surprisingly little authoritative discussion in decisions or text books as to the relation of sleep to the doctrines of negligence, although in a number of cases it seems to have been assumed that it constitutes contributory negligence for one in a position of peril to become incapacitated by sleep from protecting himself from harm. * # * In any ordinary case one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires without having been negligent. It lies within his own control to keep awake or cease from driving, and so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify bis conduct are proved. If snob circumstances are claimed to bave been proved, it then becomes a question of fact whether or not the driver was negligent; and in determining that issue all the relevant circumstances are to be considered, including the fact that ordinarily sleep does not come upon one without warning of its approach. The trial court was right in leaving the issue to the jury as one of fact.” Bushnell v. Bushnell, 103 Conn. 583, 131 Atl. 432. 44 A. L. R. 785.
Appellant cites the case of Sheehan v. Coffey, 205 App. Div. 388, 200 N. Y. S. 55. The court in that case, however, set aside the verdict because it was against the weight of the evidence. This court does not pass on the weight of evidence, but, if there is any substantial evidence to sustain the verdict, it cannot be disturbed by this court, although we might believe that it was against the weight of the evidence
It is next contended by the appellant that the verdict of the jury is contrary to the law and the evidence. It is contended that the verdict is contrary to instruction No. 5, which tells the jury in substance that, if Hoover was riding in the automobile which was traveling at a high rate of speed for a sufficient distance for him to become aware of it, and he made no protest, he was guilty of contributory negligence, and could not recover.
We have already said that the request of Snotzmeier made in Hoover’s presence made it unnecessary for him to caution the driver. Besides that, under instruction No. 5, the jury could have found that Hoover was not aware of the fact that the -automobile was being driven at a dangerous rate of speed.
This instruction was immediately followed by instruction No. 6 with reference to Snotzmeier’s right to recover, and both these instructions were given at the request of the appellant.
The appellant cites the case of Oppenheim v. Barkin, 262 Mass. 281, 159 N. E. 628, 61 A. L. R. 1228. In that case the evidence showed that the driver had gone to sleep, and the court said: “If the plaintiff saw that the defendant was asleep, or if he were awake and the plaintiff saw him turning away from the line of travel across the highway to the left, it could have been found to he the plaintiff’s duty to arouse the defendant or warn him of the approaching danger, or for the plaintiff to take some precaution for his own safety. ’ ’ The above case is annotated on page 1252, where a great many cases are collected, among others some Arkansas cases.
It is next contended that the instructions given on the measure of damages were erroneous. Special objection was made to that part of the instruction which submitted to the jury, as an element of damages, the alleged pecuniary loss on account of diminished earning capacity. Appellant contends there was no evidence upon which to base this instruction.
Snotzmeier was a farmer, and Hoover an expert machinist. There is ample evidence on which to base the instruction, both as to Hoover and Snotzmeier. The evidence shows that Snotzmeier was very severely injured, and that his earning capacity decreased. Both the ap-pellees were severely injured, and there is evidenec to show that the earning capacity of each was decreased. The evidence showed the injury, the character of work that each performed, and from that the jury could estimate as well as any one else whether or not there was a decrease in the earning capacity, and, if so, how much.
It is next contended that the verdicts are excessive. The evidence shows that each appellee was severely injured, and also that the injuries are permanent, and are such injuries as will not only decrease their earning power, but cause them pain and suffering.
Appellant also contends that some of the instructions are erroneous, but he asked, and the court gave, practically the same instructions that he now objects to. We think the instructions, when considered together as a whole, correctly state the law to the jury.
We find no error, and the judgments are affirmed. | [
-16,
-24,
-40,
108,
26,
-32,
58,
-102,
-15,
-61,
-11,
-45,
-23,
-51,
69,
49,
-29,
-99,
112,
107,
-9,
-93,
23,
50,
-109,
-77,
107,
76,
-66,
-51,
36,
-3,
79,
40,
-54,
-99,
-26,
72,
-59,
124,
-114,
36,
-69,
-20,
25,
-45,
48,
126,
68,
15,
113,
-113,
-62,
46,
16,
-33,
109,
62,
-85,
40,
-48,
-16,
-128,
5,
-1,
6,
-94,
4,
-102,
33,
-38,
26,
-104,
-79,
57,
-72,
114,
-90,
-61,
-35,
97,
-119,
-116,
34,
102,
33,
17,
-49,
-24,
-120,
6,
-2,
-99,
-91,
48,
25,
11,
9,
-98,
-103,
122,
82,
6,
124,
-4,
85,
93,
-32,
3,
-53,
-76,
-127,
-19,
112,
-36,
11,
-29,
-83,
53,
113,
-56,
-46,
93,
4,
-6,
-101,
-125,
-112
] |
Battle, J.
The statutes of this state provide that the sheriff of each county shall be ex-officio collector of all taxes of his county, and, before entering upon his duties as such collector, “shall give bond and security to the state;” that such bond “shall be conditioned for the faithful performance of the duties of his office, and for well and truly accounting for and paying over all moneys collected by him” in his official capacity; and that, “should he fail to give such bond before the' first Monday in December of each year, the clerk of the county court shall immediately notify the governor, and some competent person having the requisite qualifications shall be appointed by the governor to perform the duties of collector.” Sand. & H. Dig., §§ 6558, 6560, 6563.
In this ease the' sheriff filed his bond as collector of the taxes of 1895 on the first Monday in December, 1895. No notice of his failure to file his bond in time was given to the governor, and no one was appointed collector in his stead. His bond was approved by the county court, and he collected the taxes of 1895, and failed to pay a large portion of the same, and the sureties upon his bond made good the deficit. In doing so, they were not volunteers or strangers. He was ai least de facto collector, and they were estopped from denying their liability on his bond. Having enabled, him to get pos session of the public moneys, they were responsible for the pay: ment of the same to the proper officers, and, upon payment of the amount due the state on account of the default of their principal, became entitled to be subrogated to the right the state had to the sum in controversy. People v. Beach, 77 Ill. 52; Jones v. Scanland, 6 Humph. 195; Dunphy v. Whipple, 25 Mich. 10; People v. Jenkins, 17 Cal. 500; Jones v. Gallatine County, 78 Ky. 491; Inhabitants of Trescott v. Moan, 50 Me. 347; Inhabitants of Wendell v. Fleming, 8 Gray, 613; Byrne v. State, 50 Miss. 688.
Wood v. State, 63 Ark. 337,ris unlike this case. In that case a county treasurer and his sureties executed a bond for the faithful performance of the duties of his office. The bond was approved by the county judge in vacation, and was after-wards rejected by the circuit court. He was ordered by the court to file a new'bond within fifteen days. He failed to file the bond within the time allowed, and the office by virtue of the statute became vacant. Sand. & H. Dig., § 5399. This court held that the sureties on the rejected bond were not liable for moneys received by their principal after the expiration of the fifteen days. The office was then vacant, and the bond was no longer of any force and effect.
The collector in this case, when he was collecting the revenue, deposited in the Boone County Bank $3,178 of the taxes of 1895 Collected by him for the state. The bank, having notice at the time that the amount so deposited belonged to the state, appropriated it to the part payment of the indebtedness of the collector in his individual capacity, and refused to pay it to the state or to the sureties on the collector’s bond. He collected other taxes of 1895 for the state, and appropriated them to his own use. The sureties paid to the state the amount of the taxes which he collected and misappropriated, but failed to pay the interest and penalty which accrued to the state on account of the default of the collector. The bank insists that the sureties are not entitled to be subrogated to the state’s right to the $3,178 in its hands until they pay this interest and penalty. But this is not true. As against it or the collector, the sureties are entitled to be subrogated; it is only the state who can interpose any objection. Sheldon on Subrogation (2 Ed.) § 128. And it has released the collector and his sureties from the payment of the interest and penalty.
There were twenty-three sureties on the collector’s bond. Twenty-one paid to the state the amount for which he was defaulter, and they were liable. Eleven of them brought this action against the collector, the bank, and the ten others who contributed to the payment of the amount misappropriated by their principal; and the plaintiffs asked to be subrogated to the right of the state to the $3,178. Only one of the sureties made defendant asked for any relief against the fund. The others failed to appear, made no defense, filed no answer, and asked no relief. The $3,178 was apportioned among those who asked relief according tothe amounts paid by them. Three of those who failed to answer have appealed from the decree of the circuit court before the clerk of this court, and now insist that they were entitled to share in the distribution of the fund, and that the circuit court erred in-denying them this right. But this contention is without merit. They remained silent when they should have spoken. Had they asked for relief, and shown that they were entitled to it, they certainly would have recovered it. On the other hand, had they asked for it, it might have been shown .that they were not entitled to share in the distribution. It is now too late to ask for a correction of errors, if any were made, which were solely the result of their own silence. They cannot lawfully complain. Section 1061 of Sand. & H. Dig. provides: “A judgment or final order shall not be reversed for an error whieh can be corrected on motion in the inferior courts until such motion is made there and overruled.” It is obvious that the error of which they complain, if any was committed, could have been corrected in the trial court, and that appellants are not entitled to a reversal on account of it.
The Boone County Bank insists that each surety who contributed to supply the deficit caused by the misappropriation of the state funds is entitled to a pro rata share of the $3,178, and that the decree should have been only for the pro rata share of those who asked for relief, and that the remainder of the state fund in its hand should have been left where the court found it. The basis of this contention is unsound. The $3,178 did not, at any time become the absolute property of the sureties who paid a portion of the amount necessary to supply the deficit, but a fund which the sureties who contributed had a right, by equitable proceedings, to have appropriated to indemnify them for losses sustained. No surety was entitled to any part of it after he had received or been paid the sum contributed by him. His right as to it extended no farther than was necessary for his indemnity. If he has been repaid, the whole of it became an indemnity to those who were unpaid, and the same was the result of any other act or omission which deprived him of his remedy against it for indemnity.
Decree affirmed. | [
112,
-19,
-40,
-36,
-85,
96,
27,
56,
-45,
-13,
32,
83,
-23,
102,
16,
97,
-79,
127,
117,
88,
-63,
-74,
51,
67,
-80,
-77,
-115,
-57,
51,
79,
-4,
-42,
12,
120,
56,
-47,
71,
98,
-123,
-38,
-114,
9,
59,
69,
83,
80,
48,
45,
50,
11,
113,
15,
-29,
58,
48,
-21,
105,
46,
-55,
-85,
-48,
-31,
-104,
-115,
110,
22,
-109,
71,
-104,
5,
-56,
46,
-104,
49,
64,
-22,
123,
-74,
-126,
-44,
13,
13,
40,
102,
-94,
49,
-99,
-19,
-96,
-72,
38,
-78,
-97,
-89,
-112,
121,
11,
14,
-74,
29,
95,
-47,
7,
-4,
-95,
5,
85,
44,
38,
-50,
-42,
-89,
13,
44,
-124,
23,
-17,
96,
48,
113,
-50,
-86,
85,
-57,
49,
27,
-57,
-60
] |
Per Curiam.
There is no bill of exceptions in this case—the one appearing in the record having been stricken out by order of this court, made on motion of the Attorney General on the ground that it was not filed within the time allowed by the trial court. The only assignments of error relate to matters which must appear in a bill of exceptions in order to be brought here for review. Since the bill of exceptions was stricken out, nothing is left in the record to call for review by this court.
It is not contended that there is any defect in the indictment, or any other defect in the record which would affect the integrity of the court’s jurisdiction. The judgment is, therefore, affirmed. | [
-79,
112,
-7,
-4,
-70,
-96,
40,
-100,
-53,
-127,
-73,
83,
-89,
11,
-112,
97,
71,
107,
117,
115,
-51,
-73,
6,
-63,
118,
-77,
-96,
-44,
50,
109,
-17,
94,
93,
-32,
74,
-11,
70,
10,
-27,
20,
-126,
-93,
-103,
-20,
-7,
-128,
48,
63,
92,
15,
113,
-49,
-29,
46,
30,
-61,
-23,
40,
72,
109,
64,
-72,
-119,
13,
79,
20,
-79,
54,
21,
6,
-38,
46,
0,
49,
3,
-8,
114,
-90,
66,
92,
47,
121,
0,
102,
50,
1,
125,
-17,
-72,
-40,
39,
62,
-99,
-89,
-104,
121,
-23,
-89,
-74,
-67,
-75,
80,
38,
110,
-31,
-51,
25,
100,
8,
-114,
-108,
-77,
-98,
116,
84,
38,
-21,
83,
16,
112,
-60,
-10,
92,
67,
57,
-101,
-66,
-46
] |
Kirby, J.,
(after stating the facts). Appellant first contends that the testimony is not sufficient to support the verdict, and insufficient to prove that any notice was given of the disability under the policy that would warrant a recovery in the case. It is insisted that the presumption that the letter of July 12,1930, properly mailed to the company, was delivered had been overcome by the rebuttal testimony, and that in any event it was not sufficient notice of loss as required by the terms of the policy.
The testimony showed that the letter was dictated by the insured, written by the stenographer at the hospital on the same day, and thereafter signed by the insured; was addressed accurately to the appellant company at Chattanooga, Tennessee, with the insured’s return address on the corner of the envelope, the ward of the hospital in which he was confined being shown thereon; and the stenographer testified that the envelope was stamped properly, that she carried it to the postoffice station and mailed it herself, although she did not remember whether it was sent by registered or air mail, and that the letter was never returned. The insured also testified that it had never been returned.
The instructions on this point about the presumption of the letter having been delivered to and received by the appellant were correct. Merchants’ Exchange Co. v. Sanders, 74 Ark. 16, 84 S. W. 786, 4 Ann. Cas. 955; Burlington Ins. Co. v. Threlkeld, 60 Ark. 539, 31 S.W. 265; Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388, 135 S. W. 913, Ann. Cas. 1912 D, 1062; Knight v. American Ins. Union, 1772 Ark. 303, 288 S. W. 395; Harper v, Thurlow, 168 Ark. 491, 270 S. W. 607; Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510; Keffer v. Stuart, 127 Ark. 498, 193 S. W. 83; Click v. Sample, 73 Ark. 194, 83 S. W. 932; Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557; United Assurance Ass’n v. Frederick, 130 Ark. 12, 195 S. W. 691.
The jury found that the presumption was not overcome by appellant, ‘ ‘ and we must draw the strongest inference in favor of that finding that the jury were warranted in deducing from the evidence,” as said in Merchants’ Exchange Co. v. Sanders, supra.
Four or five of the employees of the insurance company testified that, if the mail was received and distributed regularly, they would have received or known of such letter and given it to the claim department of the company; but not all the employees, whose duty it was to distribute the mail, who were working for the company during the month of July, when the letter was claimed to have been written, testified, some of them having been replaced by other employees, and the chief of the claim department did not testify at all. Neither was the letter addressed to any particular department of the company, but to the company generally, and it might have been received by the company without going through the hands of the particular employees whose duties it was to properly distribute the mail received. The testimony left the question as to the receipt of the letter for the determination of the jury under all the testimony adduced at the trial, and the jury found that the presumption as to its delivery was not overcome. Burlington Ins. Co. v. Threlkeld, supra; and Southern Engine & Boiler Co. v. Vaughan, supra.
This letter of July 12, 1930, informed the company that, as a result of the fall of last December, insured sustained certain injuries which necessitated two operations, giving the name and location of the two hospitals wherein they were performed. That he had not recovered and had been sent to the hospital in Denver three months before this letter was written, and his trouble had been diagnosed as tubercular; advised that its agent through whom the policy had been taken ont had been written to without reply received; that insured had been confined to his bed since April 10, and had been unable to work for several months, in fact, from the date of his second operation on February 4. He said he did not know the amount of the policy, but that it was one giving his wife an income of $100 per month in case of his death; and said that the number on the premium note recently paid was 34,310, and the amount of the premium was $508. This letter, if it could be regarded as insufficient proof of the disability under the terms of the policy, certainly furnished the company all the necessary facts for its ascertainment about the condition; and the company could have waived any additional proofs by not notifying insured that such were required. Exact and full proofs were later demanded and supplied by the insured; and there has been no question raised or intimation even that the disability suffered by the insured did not exist or continue as shown in the proofs.
The disability herein began with the injury that caused it and prevented the insured from the prosecution of any kind of work or business until his recovery, and not with the giving of the notice of such disability, and appellant cannot claim that, notwithstanding it was advised of the time of the beginning of the disability and the duration of its continuance, it could escape payment therefor, except for the last month thereof, because it claimed that it had not had proper notice and proof of such disability, and that it was only bound to the payment of one month’s indemnity, notwithstanding the time of its existence, because of failure to give notice and furnish proof thereon. It cannot escape payment therefor under the terms of its policy because of any such claim, and limit payment of the indemnity to one month because of the alleged failure to give the notice about and furnish the proof of such disability under the circumstances of this case.
We find no error in the record, and the judgment is affirmed. | [
-80,
124,
-56,
-99,
8,
96,
42,
-70,
114,
-91,
39,
83,
-19,
-60,
29,
47,
-10,
37,
-43,
96,
-10,
-93,
115,
74,
-46,
-13,
123,
-44,
-79,
78,
-26,
116,
76,
32,
-118,
-41,
-26,
72,
-59,
16,
-54,
31,
-71,
-19,
-7,
48,
32,
111,
-8,
79,
81,
-106,
99,
46,
-100,
86,
13,
42,
107,
-79,
-64,
-31,
-118,
7,
123,
0,
49,
68,
-104,
103,
-8,
12,
-104,
49,
0,
-24,
112,
-90,
-122,
-12,
43,
-119,
0,
102,
99,
48,
5,
105,
-84,
-100,
38,
118,
63,
-90,
-110,
8,
11,
5,
-73,
-99,
124,
16,
38,
-40,
-4,
29,
29,
100,
11,
-113,
-106,
-77,
11,
100,
-120,
-113,
-25,
-65,
-128,
80,
-51,
-94,
93,
7,
59,
-101,
-34,
-86
] |
Mehaeey, J.
This suit was brought by the appellee in the Hot Spring Circuit Court for damages for killing a mule belonging to appellee. He alleged that the value of the mule was $200. It was alleged that the mule was negligently killed by being struck by one of defendant’s freight trains, and that payment had been demanded and refused. Defendant answered, denying that appellee owned the mule, and denying all allegations with reference to killing the mule, and its value.
Appellee testified in substance that on February 14, 1931, he found his mule dead, and that it had been dead for something like three or four hours. The mule was found about two miles from where appellee lived. The mule was' struck inside of the railroad fence, and the signs showed that the mule was knocked toward the south, and the track at this point was not straight; that it was night when he found his mule, but that he went back the nest day and made an examination and he could see where the mule had run down the track. The mule’s tracks disappeared at the cattle guard.
Appellee bought the mule from Green & Meador, and paid $200 for it. It was worth what he paid for it, and it weighed 1,100 pounds. It was three years old when he bought it, and he had had it about three years. Appellee also testified that he had inquired about the value of mules, and mules like the one killed sold generally for about $200. The mule got out because the gate was left open. He did not see the mule killed. There was a deep 'Cut at the place where the mule was killed. The cut was shoulder deep. He saw the mule’s tracks ten or fifteen yards from the crossing, running down by the end of the ties. There was a hole knocked on the mule’s, right hip, and one behind the shoulder. He based his idea of how the mule was struck by the tracks. The tracks were between the ties and the rail.
John Walters testified in substance that he knew appellee, and knew about his mule being killed in February, 1931; made an examination of the place where the mule was killed, and you could see this crossing 1,500 feet from it; the mule’s tracks were along the end of the erossties, and he noticed them for a distance of 75 feet. The tracks were along the end of the ties, and between the ties in the corner, and the mule jumped the cattle guard, and the train struck him and threw him into a post and bent the post; saw the mule after it was killed, and it was hit on the right side, four ribs broken, a hole punched in behind the right shoulder, and also a hole somewhere around the root of his tail. Witness lived about 75 yards from the crossing. The cut there varies from eight to fifteen feet; saw the mule’s tracks 75 yards from the crossing, and could see the tracks between the ties.
John Haynie testified in substance that he did not see the mule struck, but went out to the railroad and saw three mules, and one mule had a hole in its right side. It started to the house stumbling, and ran up to the yard fence and fell dead. The whistle did not sound and the bell was not ringing. He was not positive about the train sounding a warning for the crossing, but there was no stock-alarm whistle.
Tom Bell testified that he is engaged in buying and selling mules; was acquainted with their market value, and the reasonable market value of Benning’s mule was $200.
The appellee was recalled and testified that he gave the railroad notice of thejrilling of the mule, and the claim agent came to see him, and the company had not paid him within thirty days. He testified that he told the claim agent that he wanted $200 for his mnle.
W. B. Haynie testified in substance that he lived in North Little Bock; was a locomotive fireman for the Missouri Pacific Eailroad Company, and had been for 14 years. He was fireman on the freight train when the mule was killed at Wyandotte Crossing; saw»the accident; train was running 35 miles an hour. There was a crossing whistle sounded; the cut was 200 yards from the crossing, and was between 70 and 90 feet wide; saw two mules as the freight train came along that day. The mules were in the right-of-way, about 100 yards north of the cattle guard. The right-of-way fence is about 30 feet from the track. When he saw the mules, there was no danger of their being hurt by the train, and the front end of the train did not hit the mule. The mule was struck by the 7th or 8th car behind the engine. Witness was looking back and saw it happen; was looking back because the mules were running, and they ran about 100 yards before getting to the cattle guard; they started running when the front end of the engine passed them. There was nothing witness could have done to have prevented the accident. The mule attempted to jump between the cattle guard apron and the crossing when he was struck by one of the box cars. Witness saw the mule 100 yards from the crossing, and about 25 feet from the fence. He saw the mule one-fourth of a mile away. He saw two mules, and the other one stayed up on the dump. There was nothing projecting out from the cars. There was no stock alarm sounded, but the whistle for the crossing was sounded.
M. T. Wilbanks testified that he had been working for the appellant for 24 years as section foreman; found the mule on February 15, 1931, near Mr. Haynie’s gate; buried the mule, and there was a hole behind the mule’s right shoulder.
There was a verdict an<| judgment for $195, and the case is here on appeal.
Appellant’s first contention is tliat there is no evidence tending to show that the mule was killed through any negligence on the part of defendant company or its agents, servants or employees, but that the proof shows that the mule was struck by the seventh or eighth car of the train.
Appellee and his witnesses testified that they saw the tracks of the mule where it had run along between the ties, and the evidence on the part of appellee showed •that it jumped the cattle guard, and was struck then.
Appellant’s witness, the fireman, testified that he ran along by the side of the train, and was struck by the 7th or 8th car back of the engine. Of course, it was impossible for the mule to have run along beside the track and make his tracks between the ties as testified by appel-lee’s witnesses.
The evidence as to the manner of the killing of the mule is in conflict. The jury had a right to believe the „ testimony of appellee’s witnesses, and to believe that the mule was running in front of the train. No one testified about seeing the mule at the time it was injured but the fireman. Whether the testimony of appellee’s witnesses or appellant’s witness is true is a question of fact to he determined by the jury. Where the evidence is in conflict, the finding of fact by the jury is conclusive here, although we might believe that it was against the preponderance of the evidence.
Appellant calls attention to authorities holding that where an unimpeached witness testifies distinctly and positively to a fact, and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established. The rule invoked by appellant is well established, but we have already called attention to the fact that the testimony of the fireman is contradicted, and that circumstances are shown from which an inference against the fact testified to by the fireman can be drawn. The mule could not have been running along by the side of a freight train and made tracks between the ties, as some of the witnesses testified. Onr conclusion is that the evidence was sufficient to justify the finding of the jury.
It is next contended that the court erred in giving instruction No. 1 requested by appellee. That instruction reads as follows: “You are instructed that all railroad companies operating trains in the State are liable for all damages doné to or stock killed which is caused by the operation of such trains in the State.”
This instruction is practically a copy of § 8562 of Crawford & Moses’ Digest, and this instruction should not have been given. We have reached the conclusion, however, that there was no prejudicial error in giving instruction 1 in this case.
It was immediately followed by instructions 2 and 3, which read as follows:
“No. 2. You are instructed that when stock is killed by the operations of a train the burden shall devolve on such railroad company to show that such stock was not negligently killed, and if it fails to discharge that burden then it is liable in damages. ’ ’
“No. 3. You are instructed that, if you find from a preponderance of the evidence in this case that the plaintiff’s mule was killed by the operation of one of the defendant’s trains, it will be your duty to find a verdict for the plaintiff unless the defendant satisfies you that it was guilty of no negligence in the killing of said mule. ”
The court also gave several instructions at the request of the appellant, which told them in substance that there could be no recovery unless the appellant was guilty of negligence. The court also instructed the jury that they would have no right to ignore any part of the law, or to base their verdict on any certain part of the instructions, but should consider them all together as the law of the case.
This court has said: “There are, however, cases, as we conceive, not inconsistent with that rule, where we have held that the law of the case cannot be stated in one paragraph or instruction and, though the instructions given may be apparently conflicting, if, from tbe language used or tbe relation which tbe instructions are made by tbe whole charge to bear toward each other, it is readily seen that they are to be read together without conflict and as a harmonious whole, and they can be so read, then it is onr duty to so treat them.” St. L., I. M. & S. R. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375, 1199. This case has been followed many times by this court. The following are some of the cases approving the rules announced in Ry. Co. v. Rogers, supra; St. L., I. M. & S. R. Co. v. Lamb, 95 Ark. 209, 128 S. W. 1030; Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325, 87 S. W. 645; St. L., I. M. & S. R. Co. v. Cleere, 76 Ark. 377, 88 S. W. 995; Sou. Cotton Oil Co. v. Spotts, 77 Ark. 458, 92 Ark. 249; Arkadelphia Lbr. Co. v. Posey, 74 Ark. 377, 85 S. W. 1127; Pettus v. Kerr, 87 Ark. 396, 112 S. W. 886; Miller Rubber Co. v. King, 147 Ark. 302, 227 S. W. 301.
This court recently said: “Counsel for defendant insists that these should be treated as separate instructions, and that number 5 is erroneous because it takes away from the jury the consideration of whether, under the facts, the danger was so obvious and patent that the fireman must have known and appreciated it. It will be observed that these two instructions follow each other; and, from the language used, it is apparent that they should be read together, and, when so read together, they harmonize with each other. We cannot see how the jury could have been misled when the two instructions were read and considered together. Each one supplements the other, and they were doubtless so understood by the jury as well as by the counsel for the respective parties in their arguments to the jury.” Ft. Smith-Subiaco & Rock Island Rd. Co. v. Moore, 172 Ark. 353, 289 S. W. 6.
The law requires jurors to be persons of good character, of approved integrity, sound judgment, and reasonable information. No one of sound judgment and reasonable information could have been misled by the instructions in this case. They could not have mis understood the instructions. No average person on the jury could have been misled when they were told that they should not take one instruction alone, hut they must consider them as a whole, and that they must be read and considered together.
„We think there is no doubt that the jury understood from, the instructions, when considered together, that they could not find for the plaintiff if the evidence showed the defendant was not guilty of negligence.
A verdict will not be set aside because an erroneous instruction is given, where it is immediately followed by other correct instructions, and where it is evident the jury could not have been misled.
There are some other questions discussed by appellant,. but we have reached the conclusion that there was substantial evidence to support the verdict of the jury, and that there was no error except in giving instruction No. 1, and that, when the other instructions were given to the jury, and they were directed to consider them all together, they could not have been misled.
The judgment is affirmed. | [
112,
125,
-68,
13,
42,
96,
10,
-102,
-45,
-61,
101,
83,
-19,
-125,
0,
37,
-18,
-83,
85,
59,
-26,
-93,
67,
-10,
-109,
-77,
-71,
-35,
-69,
77,
-32,
-43,
77,
0,
106,
85,
98,
96,
-27,
-38,
-114,
-87,
-99,
-20,
-37,
112,
48,
43,
38,
79,
33,
-82,
-22,
34,
17,
-21,
77,
62,
-21,
45,
-48,
113,
-78,
-123,
57,
6,
-80,
102,
-97,
1,
74,
26,
-112,
21,
18,
-8,
112,
-92,
-123,
116,
33,
-85,
8,
-30,
39,
1,
77,
-19,
44,
-120,
47,
30,
-114,
-89,
34,
24,
106,
41,
-98,
-107,
18,
-62,
-121,
116,
-4,
-43,
93,
40,
67,
-50,
-106,
-31,
-83,
32,
-100,
-113,
-37,
21,
22,
113,
77,
-86,
92,
68,
116,
23,
-117,
-109
] |
Mehaffy, J.
Appellant was convicted of the crime of perjury in Randolph County, Arkansas, and his punishment fixed at one year in the State penitentiary.
The indictment charged that appellant falsely swore and subscribed to an affidavit before a notary public who was authorized to administer oaths, and that said affidavit was to he, and was, used in a motion for a new trial in a cause in the Randolph Circuit Court. It charged that appellant swore in said affidavit that on one occasion Massey jumped up from his chair, kicked his so-called paralyzed leg into the air, and that Massey told appellant his leg was not hurt, and that it perfectly appeared to appellant that he was telling the truth, for he used it naturally enough, and walked without the slightest limp. It was also charged that the affidavit stated that the appellant positively knew that Massey was stalling and faking his injury; that he recovered from his slight injury long before the trial was held.
The indictment charged that the statements in the affidavit were false, and known by appellant to he false, and were feloniously, wilfully, corruptly and falsely made.
The motion for a new trial, in which the affidavit was used, was in the case of Massey v. Phoenix Construction Company. Massey had obtained a judgment and a motion for new trial had been filed in the Randolph Circuit Court, and the affidavit was used for the purpose of securing a new trial.
At the beginning of the trial the following occurred:
“Mr. Jackson: Tour Honor, I believe the- defendant admits the execution of the affidavit; that it was in Randolph County, Arkansas; that it was material to the issue; that Miss Cecelia Jansen was a qualified and acting notary public. I believe you admit all of the allegations except the truth of the statements made in the affidavit1?
“Mr. Schoonover: Yes, sir.
“The Court: As the court understands it, the only question is whether or not the statements made in the affidavit are true?
“Mr. Jackson: I believe that is right.
“Mr. Schoonover: Yes, sir.
“The Court: Then the only question is whether or not the statements are true or false. Proceed, gentlemen. ’ ’
There was therefore no evidence introduced except upon the issue as to whether or not the statements in the affidavit were true.
Massey testified that he was injured in his leg; that his leg and foot were paralyzed; that he could not use it, and testified that all of the statements in the affidavit made by appellant were untrue. A number of physicians and other witnesses testified corroborating Massey.
Bill Cockrum, the appellant, testified that he made the statements alleged in the indictment, and that they were true, and testified about when he saw Massey, saw him using his foot, and testified that Massey told him he was not injured. The appellant was corroborated in part by a number of witnesses. The testimony was in conflict, and it will not be set out in full.
At the close of the evidence, the appellant requested the court to direct the jury to return a verdict of not guilty. This request was overruled, and the appellant filed motion in arrest of judgment, and motion for new trial, both of which were overruled, and exceptions saved. The ease is here on appeal.
Appellant says there are three general errors urged for a reversal of this case: One, that the indictment is fatally defective; two, that the court erred in overruling appellant’s motion for an instructed verdict; three, that the court erred in admission of certain testimony.
It is first contended by appellant that the plain inference is that the petition for a new trial, in which the affidavit was used, was pending before the judge of the cir cuit court, rather than in the circuit court itself, and that the circuit judge would have no jurisdiction.
The indictment, after stating the cause which was pending in the Randolph Circuit Court, contains the following allegations: “That the said Randolph Circuit Court and the judge thereof, before whom the said petition for a new trial in said cause was pending, had jurisdiction of the persons and subject-matter in each of said causes.”
It is perfectly clear from the indictment that the cause in which the motion for a new trial was filed was in the Randolph Circuit Court, and it appears equally clear that the motion for new trial was pending in the Randolph Circuit Court, and the added words, “and the judge thereof,” do not indicate that it was not being heard by the court. Those words were unnecessary, of course, but they did not change the effect of the allegations that the petition was before the Randolph Circuit Court.
Appellant calls attention to 21 R. C. L. 262 et seq., and 30 Cyc. 407 and 411. These authorities have no application here.
Our statute defines perjury as follows: “Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths.”
It is contended, however, by the appellant that the authorities above referred to by him show that perjury cannot be predicated on an ex parte affidavit not required or authorized by law. A sufficient answer, however, to this is that the affidavit in this case was authorized by law.
Appellant then calls attention to a number of authorities holding in effect that it should be shown either that the affidavit was intended by the accused for. use in the proceeding with which it is sought to connect it, or that it was subsequently so used by him or some one with his consent.
The indictment in this case shows that the affidavit was to he so used, and was used, in a motion for a new trial.
Section 2590 of Crawford & Moses ’ Digest prescribes what shall be set forth in an indictment for perjury. It is as follows: “In indictments for perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath or affirmation was taken, averring such court or person to have competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is charged or assigned, without setting forth any part of the record, proceeding or process either in law or equity, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same.”
The indictment in this case is sufficient.
Section 3013, Crawford & Moses’ Digest, provides: “The indictment is sufficient if it can be understood therefrom:
“First: That it was found by a grand jury of a county impaneled in a court having authority to receive it, though the name of the court is not accurately stated.
“Second: That the offense was committed within the jurisdiction of the court, and at some time prior to the time of finding the indictment.
“Third: That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce the judgment on conviction, according t'o the right of the case.”
Section 3014 provides: “No indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the, merits.”
“The rule is that in indictments for perjury, the false testimony or statement for which the defendant is' indicted may be shown by the indictment to be material, either by direct averment or by allegation from which their materiality appears.” Loudermilk v. State, 110 Ark. 549, 162 S. W. 569.
The appellant next contends that the court erred in refusing his request for an instructed verdict. As we have already said, the evidence is in conflict, but Massey, the injured party, testified positively as to his injuries. Dr. J. C. Lamm testified that he examined Massey prior to the civil suit, and that his leg and foot were paralyzed; that, if the injury produced the condition he found, there was no way-to relieve the effects, and that he did not think he could have used the leg or moved it at all.
Dr. George W. Brown testified that he examined Massey and that his lower limb was paralyzed. Dr. M. A. Baltz testified to the same effect, as did Dr. H. H. Price. Dr. Reyburn also testified that Massey seemed to have paralysis of the lower limb. Dr. J. W. Brown testified contradicting appellant, Bill Cockrum. There was therefore substantial evidence tending to show that the statements made by Cockrum in the affidavit were untrue. Of course, whether they were true or not was a question of fact for the jury on conflicting evidence.
It is- next contended by the appellant that the court erred in admitting certain testimony. The first objection is to the testimony of R. J. Baker, and appellant says it was error to permit the witness to read all the affidavit to the jury. He contends that there was no necessity for allowing proof of the affidavit when appellant admitted making the same. There could not be any prejudicial error in this testimony, and it did not bring any foreign issues into the case.
It is also contended that the court erred in permitting the jury to examine Massey’s legs, and appellant says that the jurors are not experts. However, whether experts or not, the jury could have some idea of the extent of the injury, and also as to whether appellant or Massey was telling the truth in their testimony. It could not have resulted in any prejudice to the appellant. His only contention was that the statements made in the affidavit were true.
Objection is then made to the testimony of Mrs. Massey, who testified that her husband had been unable to use his limb. There was no error in this. The question was whether he was paralyzed, and this was competent testimony.
We have very carefully examined all the evidence, and we find no prejudicial error in the admission of testimony. The weight to be given to the evidence and the credibility of the witnesses are for the jury. We find no error, and the judgment is affirmed. | [
48,
-23,
-15,
95,
42,
-32,
26,
-104,
-77,
-125,
-28,
115,
-19,
-43,
12,
55,
-31,
121,
84,
57,
-60,
-77,
39,
73,
-94,
-13,
-21,
85,
-77,
79,
-28,
-75,
77,
48,
-118,
85,
-26,
74,
-57,
92,
-54,
-128,
-119,
-12,
82,
-47,
36,
107,
69,
15,
49,
-98,
-6,
42,
21,
78,
-19,
44,
75,
-117,
64,
113,
-102,
21,
-39,
6,
-79,
38,
-102,
9,
122,
44,
-104,
-79,
1,
88,
50,
-74,
-126,
116,
107,
-85,
4,
98,
98,
17,
-67,
-85,
-92,
-40,
15,
46,
-99,
-89,
-38,
65,
75,
45,
-97,
-35,
82,
16,
6,
124,
-12,
-35,
125,
108,
3,
-113,
-48,
-95,
13,
108,
30,
19,
-53,
45,
16,
65,
-51,
-30,
93,
39,
120,
-101,
-113,
-14
] |
Smith, J.
This appeal involves the right of a prosecuting attorney to the fee allowed by law for a felony conviction in a case in which the following order was entered: State of Arkansas, Plaintiff,
v. No...................
Jim Float, Alias Heavy, Defendant.
Plea of guilty selling liquor. Cause continued.
Now, on this day, this cause coming on to be heard, came the State of Arkansas by M. P. Huddleston, prosecuting attorney, and comes the defendant, per person, and by his attorney, J. H. Hawthorne, and the defendant, after being advised of the nature of the charge and its penalty, elects in open court to enter a plea of guilty to the charge of selling liquor since January 1, 1916, which plea of guilty is by the court hereby accepted and entered of record, and this cause is by the court, on its own motion, continued for the term.
It is therefore by the court considered, ordered and adjudged that the defendant be, and he is hereby, adjudged guilty of the crime of selling liquor since January 1, 1916, and that the State of Arkansas do have and recover of and from the defendant, Jim Float, alias Heavy; all costs herein expended, and the court further finds that the defendant, Jim Float, alias Heavy, has no money or property out of which said costs can be collected, and that Craighead County is therefore liable for said costs, and the clerk of this court is hereby ordered and directed to properly certify said costs to the county court of Craig-head County for payment.
The county court refused to allow the fee, and the circuit court, upon appeal, made a similar order, and this appeal has been prosecuted to reverse that judgment.
The question to be decided is, whether the plea, upon which the judgment set out above was entered, constitutes a conviction within the meaning of section 3488 of Kirby’s Digest. And we answer the question in the negative.
The fee allowed is the compensation fixed by law to compensate the full and final discharge of the duty of the prosecuting attorney to prosecute a felony charge, where the performance of that duty has resulted in the conviction of the person so charged.
We concur in the view of the trial judge, in the opinion rendered by him in the court below, that the above section, allowing this fee, should be read in connection with sections 2446 and 2471 of Kirby’s Digest. Section 2446 reads as follows:
‘ ‘ Section 2446. In judgments against the defendant, a judgment for costs, in addition to the . other punishments, shall be rendered, which shall be taxed by the clerk for the benefit of the officers rendering the services, and, in case of failure by the defendant to pay said costs, they shall be paid by the county where the conviction is had.”
Section 2471 provides that the county shall not be liable for costs, when the defendant is convicted, until execution shall have been issued against the property of such convict, and returned unsatisfied for the want of property to satisfy the same, unless the court in which the trial was had shall certify that, in the opinion of the court, the costs can not be made out of the property of the defendant. Notwithstanding his conviction, by the verdict of a jury, or a plea of guilty, the accused does not become a convict until there has been a judgment and sentence by the court. Owen v. State, 86 Ark. 317; Michigan-Arkansas Lbr. Co. v. Bullington, 106 Ark. 29.
In the case of Barwick v. State, 107 Ark. 115, there was a plea of guilty and a continuance of the case under the direction that the fine be imposed at the pleasure of the court, but that the costs should be immediately paid by the defendant. It was there said:
“It may well be doubted whether the costs should be collected until final judgment was rendered against appellant. ’ ’
It was not necessary to decide in that case whether it could be done or not. However, we are now called upon to confirm the doubt there expressed; and we do now so hold. The judgment rendered is not a final one. Evidently it was in the contemplation of the court that some further order might be entered. The defendant might be brought in under this plea at some subsequent term, and the punishment then imposed which the plea authorized. On the other hand, such plea might be withdrawn at the discretion of the court at a subsequent day, and a trial thereafter had. Upon such trial, the officer then prosecuting would also demand a fee if a conviction was secured; and, if there was an acquittal, we would have the situation of a fee paid by the county where the accused had been acquitted.
A fee is essentially a creature of the statute, and can not be charged except where express power for its allowance is found; and we think the statute does not allow compensation for securing a provisional order like the one set out above; and the judgment of the court below is, therefore, affirmed. | [
80,
-26,
-84,
61,
58,
-32,
58,
-100,
-63,
-29,
-26,
83,
-17,
70,
1,
113,
-93,
-5,
85,
107,
-58,
-89,
115,
96,
-70,
-77,
-71,
-41,
52,
79,
-19,
-12,
87,
48,
66,
-107,
102,
-54,
-59,
90,
74,
1,
-119,
-32,
105,
75,
48,
43,
4,
14,
49,
-58,
-21,
43,
53,
65,
9,
44,
-99,
-82,
64,
-79,
-102,
29,
-1,
20,
-79,
38,
-101,
65,
-38,
12,
-100,
49,
0,
-24,
114,
54,
-122,
116,
77,
25,
-92,
98,
102,
32,
17,
111,
32,
-95,
63,
-66,
-103,
-121,
-40,
89,
75,
45,
-66,
-100,
-17,
16,
12,
-10,
-15,
-36,
25,
40,
-125,
-34,
-76,
-77,
-81,
101,
12,
83,
-53,
-89,
48,
101,
-57,
-30,
92,
70,
114,
-101,
-122,
-44
] |
Humphreys, J.
Appellants, owners under warranty deed of the east half, east half of section 28, township 18 south, range 26 west, brought suit in the circuit court of Miller County to recover twenty-four acres thereof alleged to be in the wrongful and unlawful possession of appellee.
Appellee filed an answer denying he was in the wrongful and unlawful possession thereof, but alleging'; first, that the twenty-four-acre tract was a part of the west half of section 27, township 18 south, range 26 west, owned by him; and second, that if said twenty-four-acre tract was a part of the east half, east half of section 28, as alleged in appellant’s complaint, appellee and his predecessors in title had acquired title thereto by adverse possession thereof for more than seven years; and, third, that appellee, owner of the west half of said section 27, and B. J. Mills, who was a predecessor of appellants in title to the east half, east half of said section 28, entered into an agreement, in order to settle a dispute between themselves as to the correct line between sections 27 and 28, by which the wire fence built by Winham and Batt in 1912 should be the correct line between said sections and the dividing- line between their respective lands.
On motion the canse was transferred to the chancery conrt, and there tried npon the issues joined by the pleadings, as amended, and testimony adduced by the parties, resulting in a finding that the title to the twenty-four-acre tract in question was acquired by appellee and his predecessors in title by adverse possession for more than seven years claiming title thereto and also by oral agreement with J. B. Mills in 1929' establishing the wire fence as the division line between their respective lands. Based upon these findngs, the chancery court rendered a decree dismissing appellants* complaint for the want of equity, from which is this appeal.
It is next to impossible to determine from the testimony relative to the numerous surveys made in search for the government line between said sections 27 and 28 whether the twenty-four-acre tract in question lies in section 27 or in section 28 because the division lines fixed by the several surveys do not exactly coincide. This uncertainty as to the true division line and the dispute and controversy about it brought the case within the rule that owners of adjoining lands may orally agree upon a division line without the necessity of making conveyances the one to the other. Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723, 140 Am. St. Rep. 141; Schrader Mining & Mfg. Co. v. Packer, 129 U. S. 688, 9 S. Ct. 385. In the instant case, testimony was introduced pro and con as to an oral agreement settling and acquiescing in the wire fence built by Winham and Batt in 1912 as the true division line between said sections 27 and 28 by the adjoining owners of the east half, east half of said section 28 and the west half of said section 27. The chancellor found that said agreement was made and acquiesced in, and, after a very careful reading of the testimony bearing upon this point, we have concluded that the finding is supported by the weight thereof. No useful purpose could be served by setting out herein the testimony of each witness responsive to this issue.
Likewise, we agree with the chancellor that the weight of the testimony is to the effect that appellee and the predecessors in bis chain of title acquired title to the twenty-four-acre tract of land by adverse possession for more than seven years claiming title thereto beginning in 1912 Avhen Winham and Batt built the wire fence around said tract. After that date, appellee’s predecessors claimed the rents thereon and asserted title thereto for more than seven years before any question was raised as to the boundary line. It would extend this opinion unnecessarily to incorporate herein the testimony of the several witnesses responsive to this issue. Suffice it to say that, after a careful reading of their testimony, we are of the opinion that it fully supports, by the weight thereof, the finding of the chancellor.
No error appearing, the decree is affirmed. | [
-76,
100,
-3,
-84,
-88,
-96,
40,
-112,
123,
-95,
53,
83,
-17,
-38,
9,
53,
-30,
121,
117,
121,
-59,
-77,
83,
-29,
16,
-77,
-109,
85,
-79,
79,
-10,
86,
12,
33,
74,
21,
66,
-96,
-19,
92,
-114,
5,
-113,
76,
-39,
80,
62,
57,
80,
79,
53,
-114,
-13,
46,
53,
-21,
73,
44,
-21,
41,
1,
120,
-70,
69,
91,
10,
1,
71,
-102,
33,
-22,
-102,
-112,
116,
-116,
-24,
115,
-90,
-106,
117,
9,
-103,
40,
102,
103,
24,
-20,
-25,
-28,
-104,
14,
-6,
9,
-90,
-62,
72,
83,
-128,
-66,
-99,
112,
80,
71,
126,
109,
68,
95,
104,
5,
-57,
-106,
-125,
-115,
-4,
-120,
-121,
-5,
39,
112,
113,
-57,
-30,
93,
103,
17,
27,
31,
-55
] |
Wood, J.,
(after stating the facts). I. The statute provides that proceedings for divorce shall be in the county where the complainant resides, and that the process may be directed in the first instance to any county in the State where the defendant may reside. Kirby’s Digest, § 2674.
It was held in Wood v. Wood, 54 Ark. 172, 174, that this statute contemplates actual, and not constructive, residence.
(1-2-3) One of the grounds for which judgments may be set aside is, “Fraud practiced by the successful party in obtaining .the judgment or order.” It was purely a question of fact as to whether the appellant was a bona fide resident of Cleburne County at the time he obtained the decree for divorce against the appellee. The testimony of Judge Ivie to the effect that at the time he dismissed appellant’s suit for divorce pending in Boone County, the appellant was living in Harrison, Arkansas, was not in the nature of a confidential communication. Witness Ivie does not show that he received this information by reason of the relation of attorney and client.
In Vittitow v. Burnett, 112 Ark. 277, we held that “the statute rendering an attorney incompetent to testify concerning communications made to him by his client tends to prevent a full disclosure of the truth, and it should be strictly construed and limited to cases falling within the principle upon which it is based. ’ ’
(4) Since information or knowledge of the residence of appellant is not shown to have been communicated to witness Ivie as a confidential communication, we must hold that his testimony concerning this issue was competent. When this testimony is considered, a finding to the effect that appellant was not a resident of Cleburne County at the time he obtained the decree for divorce is not clearly against the preponderance of the evidence. ■ Before he could obtain such a decree it was necessary, under the statute, for him to show to the court that he was a resident of Cleburne County.' Therefore, in so testifying or making such representation to the court when the same was not a fact, he perpetrated a fraud upon the court.
Moreover, the clear preponderance of the evidence shows that appellant perpetrated a fraud upon the court in representing that he had obtained service upon the appellee in his suit for divorce in Cleburne County. When appellant filed his complaint, in order to obtain a warning order against the appellee he filed an affidavit setting forth that the appellee was a nonresident of the State, whereas a decided preponderance of the evidence shows that appellee was not a nonresident, and that appellant knew at that time that she resided at Rogers, Arkansas.
(5) II. Appellant contends that appellee is barred by laches. “It is generally conceded,” says Cyc., “in all jurisdictions that public policy, good morals and the interests of society require that the marriage relation should be surrounded with every safeguard and its severance allowed only in the manner and for the causes prescribed by law.” 14 Cyc., p. 578.
The application of this principle should cause a court of chancery to set aside a decree of divorce that has been obtained through fraud when the party entitled to such relief acts promptly to obtain it. Application of the same principle should likewise cause the court to refuse to annul a decree of divorce¿ even though obtained by fraud, where the injured party, upon discovery of the fraud, fails to act promptly to have the decree of divorce annulled.
Mr. Bishop gives an admirable statement of the policy of the law, which is quoted by us in Corney v. Corney, 97 Ark. 117, 122, as follows: “There are excellent reasons why judgments in matrimonal causes, whether of nullity, dissolution or separation, should be more stable, certainly not less, than in others, and so our courts hold. The matrimonal status of the parties draws with and after it so many collateral rights and interests of third persons that uncertainty and fluctuations in it would be greatly detrimental to the public. And particularly to an innocent person who has contracted a marriage on the faith of the decree of the court the calamity of having it reversed and the marriage made void is past estimation.” Bishop on Marriage and Divorce, vol. 2, sec. 1533.
The record shows that the decree of divorce was rendered on the 26th day of January, 1915. The appellant married the second Mrs. Yanness on the 3d of'February, 1915. The appellee testified that she did not know that the suit for divorce had been filed against her in Cleburne County until the latter part of the month of April, 1915, and she instituted this suit to annul the decree on the 6th day of May, 1915. True, appellant testified that his marriage was public, so that the people in Rogers and Boone County all knew it; but this testimony does not tend to prove that the appellee knew it, and does not overcome her positive testimony that she did not learn of it until the latter part of April, 1915. After she learned of the decree in Cleburne County only a few days intervened before she instituted this suit to set it aside. She therefore acted promptly, and the court did not err, under the circumstances, in granting her the relief sought.
The second Mrs. Vanness was not a party to the fraudulent decree, and the motion filed by the appellant to make her a party does not set forth any facts to show any interest that she has that would make her either a necessary or proper party to the proceeding. All the defenses that could have possibly been set up to the suit for annulling the fraudulent decree were brought into the record by the pleadings and the testimony on the part of the appellant, and the court correctly held that these could not avail against the relief sought by appellee.
The decree is therefore affirmed. | [
-80,
-20,
-11,
60,
11,
-32,
58,
-88,
114,
-85,
33,
83,
-1,
-62,
8,
41,
98,
-53,
84,
112,
69,
-74,
67,
81,
50,
-77,
-61,
93,
-75,
79,
-11,
-36,
93,
48,
-54,
-43,
70,
74,
-59,
88,
-114,
14,
-117,
80,
72,
-48,
52,
-25,
90,
11,
117,
-81,
-13,
46,
59,
-57,
108,
44,
89,
-84,
80,
16,
-98,
31,
79,
6,
-77,
102,
-126,
39,
88,
42,
-112,
57,
1,
-23,
51,
-106,
22,
116,
73,
-71,
8,
96,
98,
33,
45,
-17,
-28,
-103,
-114,
126,
-97,
39,
-104,
73,
75,
11,
-74,
-99,
125,
48,
12,
-18,
104,
69,
61,
104,
11,
-50,
-42,
-79,
-115,
112,
-110,
19,
-17,
-89,
20,
65,
-51,
-30,
85,
14,
17,
-37,
-116,
-11
] |
Battle, J.
This action was brought by Martha Martin and the other heirs of Dudley Lynch, deceased, against James D. Driver, to recover the possession of a certain tract of land described in their complaint. They allege that Dudley Lynch, under whom they claim, held seven years adverse possession of the laud, and thereby acquired title to the same. Upon this possession ‘they base their claim.
The defendant answered, and denied that Lynch acquired title to the land by adverse possession or in any other manner, ■and alleged that he is vested with the legal title to the same, ■and is the owner thereof.
The evidence adduced at the trial in this action tended to prove that the land in controversy is wild and unimproved, and •is situate one and a half or two miles from the land upon which Lynch resided in his lifetime; that he held color of title to it, and claimed it as his own; and that annually for more than seven years Lynch cut fire wood and made rails of a part ■of the timber on the lands in controversy, and used the same •on his homestead, and paid the taxes on the land sued for. Upon this evidence the plaintiffs, being the heirs of Lynch, recovered judgment for the land. Was the evidence sufficient to support the judgment?
Seven years adverse possession of the land in controversy by the plaintiffs, or those under whom they claim, was necessary to sustain this action. Such possession must have been “actual, open, continuous, hostile, exclusive, and be accompanied by an intent to hold adversely and ‘in derogation of’ and not in ‘conformity with’ the rights of the true owner, * * * and must continue for the full period prescribed by •the statute of limitations. * * * . It must be actual, either of all or part of the land claimed, as the same may be held with color of title or without; because constructive possession follows the title, and there cannot be two possessions of the •same land at the same time; and the owner, being in possession by virtue of his title, remains until he is disseized or •ousted by another entering and holding for himself. It must ■be open, in order to give the owner notice of the adverse claim, and to force him to protect his rights, or lose them by -a failure to assert them within a period of time allowed him by the statute to do so. It must be continuous, because when it ceases the seizin of the owner revests, and the statute ceases to run; and any subsequent ouster or disseizin forms the beginning of a new period of limitation and of a new adverse possession. It must be hostile, in order to show that it is not .held in subordination and subserviency to the title of the owner. It must be exclusive, because the owner’s possession continues until he is disseized, and there can not be two actual possessions of the same premises at the same time; and in case the owner and another are in actual occupation of the same land, the legal possession follows' the title. It should be accompanied by the adverse intent, because it is necessary to fix ‘the character of the original entry, and determine whether it be an ouster or a mere trespass, or whether the possession be in subordination or in hostility to the true owner.’ The possession should be contiuuous and unbroken during the statutory period so ‘as to leave no doubt on the mind of the true owner, not only who the adverse claimant was, but that it was his purpose to keep him out of his land.’ ” Ringo v. Woodruff, 43 Ark. 464, 486.
Absence from the laud during the period of limitation prescribed by the statute will revest the owner with seizin, and stop the running of the statute, unless the adverse claimant left it under circumstances indicating that he has not left the possession, but still holds it. If he would continue the statute in motion, “he must so leave it that the condition and appearance of the premises themselves show to the world that there is still a person in actual control and exercise of dominion. If he should leave the premises personally, but not in the condition or manner indicated, before the expiration of the time-prescribed by the statute of limitations, he acquires no title by adverse possession.” Scott v. Mills, 49 Ark. 266, 274.
The “payment of taxes and the assertion of the exclusive right to lands do not constitute possession or disseize the holder of the true title. A claim of possession, without the «. fact agreeing therewith, is not to be recognized by law as productive-of right. The fitful acts of ownership above detailed, • in-connection with the payment of taxes and claim of title, were-not of such notoriety as to put the owner upon his guard against a contiuuous disseizin and adverse possession for seven years.” Brown v. Bocquin, 57 Ark. 97, 104. They lack the-continuity that is necessary to constitute the seven years’ unbroken possession that will bar the recovery of the land by the true owner, and vest the title in the adverse occupant. They were disconnected trespasses, and vested title in no one.
The act entitled, “An act for the protection of those who pay taxes on land,” approved March 19, 1899, (Acts 1899, p. 117,) which provides that unimproved and unenclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he have color of title thereto, does not affect the rights of the parties to this action. The taxes referred to in this opinion were paid long before its passage.
Reversed and remanded for a new trial. | [
-8,
126,
-4,
-98,
-56,
96,
42,
-104,
97,
-53,
-28,
87,
-17,
75,
12,
33,
-29,
-7,
113,
107,
-25,
-77,
7,
-125,
-48,
-77,
-45,
85,
-73,
-51,
118,
-42,
12,
32,
-56,
84,
-58,
-96,
-51,
88,
-114,
-113,
-72,
79,
-55,
64,
52,
59,
64,
15,
113,
30,
-13,
46,
49,
-61,
9,
44,
75,
61,
81,
40,
-97,
13,
-1,
22,
19,
22,
-68,
-125,
-56,
42,
-112,
29,
16,
-24,
123,
-74,
-122,
-12,
5,
-119,
8,
38,
98,
33,
101,
-81,
-32,
-104,
46,
54,
31,
-90,
-44,
120,
67,
104,
-66,
-99,
116,
16,
-91,
116,
-20,
68,
84,
108,
15,
-49,
-42,
-87,
-49,
56,
-98,
1,
-45,
59,
52,
112,
-49,
-117,
92,
103,
113,
-101,
-115,
-45
] |
Wood, J.
The appellant was indicted and convicted in the Logan circuit court for selling liquor without license, andi appeals to this court.
The proof showed that one Rawlings ordered a jug of liquor from one Odom, a liquor dealer at Huntington, in Sebastian county. Rawlings lived at Booneville in Logan county. He ordered the liquor through Glass, the appellant, who lived at Booneville, and who was the agent of Odom to solicit orders for the sale of liquor, receiving a regular salary for such services. Glass sent in the order to Odom at Huntington. Odom put a jug of liquor, sealed, tagged and addressed to Rawlings, at Booneville, into the hands of the mail carrier at Huntington. The carrier left the jug at Glass’ place of business, and in a day or so thereafter Rawlings called there and got the whiskey, and afterwards paid Glass for it at Boone-ville. Glass testified that there was no understanding between him and the house that the liquor was to be delivered to him and by him to the customer. There was testimony that the house at Huntington had nothing further to do with the liquor after it was delivered to the mail carrier at Huntington for the customer, and that Glass had nothing to do with it except to send in the order and to remit what money he collected; that the carrier had no instruction to deliver the liquor to Glass, but for convenience he sometimes left the liquor at Glass’ place, sometimes at the post office, and sometimes with the customer; that neither Glass nor the house had any control of the liquor after it was delivered to the carrier.
The court on its own motion instructed the jury as follows:
“1. If the defendant was in the employ of a licensed liquor dealer at Huntington, Arkansas, soliciting orders for whiskey to his house, and in this county received the order of J. O. Rawlings therefor, transmitted the same to his house, where it was filled, and the liquor for Rawlings was sent by the house to defendant in this county, was there received by defendant, and by him there delivered to the witness, Rawlings, and money therefor there collected, then the sale was in this county and by defendant, and you will convict defendant. If you fail to find the above supposed state of facts to be true beyond a reasonable doubt, yon will acquit the defendant.”
“2. Tf the defendant was the agent of a liquor house, and in this county took Rawlings’ order for whiskey, deliver- mg' in this county the whiskey to Rawlings pursuant to such order, and in this county collected the pay therefor from Rawlings, defendant is guilty, and you will convict.”
Defendant asked the following instruction, which was refused: “If you find from the evidence that the liquor was placed in a jug at Huntington, Sebastian county, Arkansas, sealed and addressed to J. O. Rawlings, at Booneville, Ai’kansas, and delivered to the mail carrier, a common carrier, to be by him delivered to Rawlings, and that the carrier left the liquor at defendant’s house for Rawlings, and that defendant, for accommodation only, permitted it to be left there, and afterwards delivered it to Rawlings, then defendant is not guilty, and you should acquit.”
The attorney general confesses that the refusal of the court to give the instruction asked by appellant was reversible error. The attorney general is correct. The instruction was warranted by the evidence, and the defendant was fairly entitled to an instruction which would give the jury, the right to find that the liquor was appropriated to the order for same, and delivered to the carrier for the purchaser at Huntington in Sebastian county, and that Glass had no conti’ol over the liquor after it was delivered to the carrier in Sebastian county. If Glass had. no control over the liquor after he' sent in the order for same to his house at Huntington, then he would not be guilty of selling liquor in Logan county, because in such a case there would be no setting apart or delivery of the liquor, under the contract of purchase, by Glass in Logan county. On the other hand, if Glass received the order for the liquor in Logan, and sent same to his house, and the house filled the order and returned same to Glass, who delivered same to the purchaser in ■Logan county, then the jury might find him guilty. Both views should have been presented to the jury. The court following Berger v. State, 50 Ark. 25, Blackwell v. State, 42 Ark. 275, and Yowell v. State, 41 Ark. 355, presented the latter view in its charge, but failed to present the former. The doctrine announced and authorities cited by this court in State v. Carl, 43 Ark. 353, shows clearly that this was error. See also Berger v. State, supra, on this point.
Hie judgment is reversed, and cause remanded for a new trial.
Battle, J., absent. | [
-80,
-17,
-20,
29,
58,
-16,
42,
24,
82,
-29,
116,
115,
-19,
86,
25,
97,
-94,
-3,
116,
121,
-60,
-90,
23,
65,
-46,
-109,
-39,
-57,
-76,
111,
-20,
-12,
77,
52,
90,
-35,
-58,
-64,
-59,
28,
-114,
32,
-85,
104,
113,
-127,
52,
-81,
6,
11,
97,
15,
-13,
46,
30,
-53,
77,
44,
89,
13,
-48,
-16,
-112,
-99,
-19,
22,
-127,
116,
-103,
-123,
-56,
28,
-104,
49,
1,
-24,
123,
-74,
0,
116,
13,
-119,
8,
36,
98,
33,
29,
-17,
-84,
-120,
47,
62,
-99,
-89,
-48,
73,
67,
72,
-65,
-99,
126,
88,
30,
-2,
-13,
69,
25,
124,
-121,
-114,
-74,
-79,
13,
56,
-108,
31,
-21,
23,
52,
85,
-49,
115,
84,
68,
112,
27,
-116,
-41
] |
Wood, J.
When the holder of a cheek delivers same to a bank as his bailee for collection, and the bank sends the check by mail to the drawee, who lives at a distance, and the drawee, upon receipt of the check, having money on deposit to the credit of the drawer, indorses the cheek “Paid,” and after-wards delivers same to the drawer, as between the payee or holder and the drawer, the check is paid; for, if the holder chooses this method of collection, and the bailee' bank, instead oí receiving the cash, takes, for the amount of the check, exchange which turns out to be worthless, the loss which the holder thereby sustains is regarded as the result of his own negligence, or that of the bank holding same for collection. This doctrine applies here. Anderson v. Rodgers, 27 L. R. A. 248, and authorities there cited; also, note to same; 1 Dan. Neg. Inst. 328a; 3 Am. & Eng. Enc. Law, (2d Ed.) 804; Bolles on Banks & Bankers, § 295; Anheuser Busch Brewing Assn. v. Clayton, 13 U. S. A. 295; Wagner v. Crook, 167 Pa. St. 259; Zane on Banks & Banking, § 171 et seq., 188; Minneapolis Sash & Door Co. v. Metropolitan Bank, 44 L. R. A. 504. See, also, Loth v. Mothner, 53 Ark. 116. See, contra, McIntosh v. Tyler, 47 Hun, 99; Indig v. Bank, 80 N. Y. 100; Briggs v. Bank, 89 N. Y. 182. The rule, it seems, is not affected by any usage or custom where such methods of collection obtain. Minneapolis Sash & Door Co. v. Bank, 44 L. R. A. 504, and authorities cited.
2. There is no rule of law that would make Abeles liable for the loss resulting from the transaction in proof because of his being a director in the drawee bank. He is not shown to have been negligent in the discharge of any of his duties as director, whereby the loss was occasioned. He is not charged with fraud, but the proof shows affirmatively that he acted ip good faith with his creditor. He believed the bank solvent, as shown by his depositing money therein on the very day his check was presented for payment. The bank was open and doing business -on that day. Certainly, there was nothing in his duties as director that would charge him with the knowledge that a check drawn by him on funds in the bank to his credit would not be properly presented for collection, and collected in money, instead of worthless exchange. Good faith only is required of him in matters of this kind. Hayes v. Beardsley, 136 N. Y. 299. See, also, Briggs v. Spaulding, 141 U. S. 132.
Affirm.
Battle, J., did not participate. | [
-14,
124,
-40,
-67,
42,
96,
58,
-102,
83,
-91,
49,
-77,
-7,
67,
-108,
111,
-9,
-65,
-79,
82,
-43,
-77,
15,
67,
-46,
-78,
-47,
-107,
53,
107,
100,
-43,
12,
48,
-62,
-107,
103,
-62,
-64,
-44,
-50,
4,
40,
101,
-7,
81,
48,
-18,
-128,
75,
113,
31,
-29,
34,
27,
71,
108,
44,
-24,
-75,
-16,
-16,
-102,
5,
119,
23,
-109,
39,
-104,
37,
-40,
44,
-120,
115,
3,
-8,
122,
-76,
2,
84,
109,
61,
9,
98,
98,
-112,
69,
109,
-76,
-104,
-90,
-50,
-99,
-89,
-112,
124,
11,
-81,
-122,
-99,
100,
1,
38,
-60,
-30,
13,
31,
100,
25,
-50,
-46,
-109,
-83,
116,
28,
-113,
-49,
-93,
48,
113,
-50,
-94,
28,
87,
90,
-101,
-98,
-47
] |
Bunn, C. J.
This is a bill in chancery to enjoin the court house and jail commissioners of Chicot county from letting a contract to build a court house and jail at Lake Village, as ordered by the county court. The bill sets up various objections to the proceedings of the county court, both as a tax levying and appropriation court, and while sitting as the ordinary county court; to all of which objections the defendants interposed a demurrer, assigning sundry grounds therefor. Most of the allegations to which the several specific demurrers are interposed are mere averments of objections to the manner in which the county court had assumed to exercise its undoubted jurisdiction. To all of these allegations, except as to the character of the notice for bidders given by the commissioners, the demurrer was sustained by the chancellor, and properly so. The chancellor also sustained the demurrer on the four general grounds, and in this also he was correct, in our view of the law in relation thereto, as will appear from what follows in considering the several questions necessary to be discussed as they arise in their order. '
The history of the proceedings of the county court, both as an ordinary court and a levying court, and of the county commissioners, complained of in the complaint, is as follows, viz.: On the 11th day of July, 1889, it being a day of the regular July term of the Chicot county court, that court, among other things, appointed John C. Connerly, O. C. Stearns, Walter Davis, N. W. Bunker and Baldy Vinson, as commissioners of the court, to examine into the condition of the court house and jail of said county, “with special reference to building a fire-proof vault for the records of the comity, and with directions to report at the following October term.” On the first Monday in October, 1899, it being the 2d day of that month, the county court, with the justices of the peace of the county, mei to make appropriations and levy taxes for the year, and to this court said county court commissioners reported; and in their report they showed that the court house and jail were both in such bad condition as to be incapable of being repaired so as to make them serviceable for their purposes, and they therefore earnestly recommended the building of a new court house and jail, presenting to the court, at the same time, such information on the subject as they had obtained upon diligent inquiry and investigation as they thought would be of benefit to the court iu the premises. Upon consideration the levying court approved the report and the recommendation therein contained, and appropriated the sum of fifteen thousand dollars for the building of a court house, and ten thousand dollars for the building of a jail, and made an order directing the regular county court to appoint commissioners for that purpose, the judge thereof to be one of them, and the record shows that court then adjourned for two weeks — that is, until the 16th October, 1899. There is no further record of the convening or adjournment of that court for that year. This much appears, however: that at its meeting on the 2d of October it made, succinctly and separately in their order, what appears to be the appropriations for the current and ordinary expenses of the county for the year, in addition to the court house and jail appropriations aforesaid. The opening order of the levying court, which convened on the first Monday in October aforesaid, is as follows, to-wit: “Beit remembered that on this the 2d day of October, 1899, the same being the day fixed bylaw for the meeting of the Chicot county court, were presiding Hon. Charles F. Wells, Judge, and a majority of the justices of the peace for said county, met at the court house in the town of Lake Village, Chicot county, Arkansas, for the purpose of making appropriations and levying taxes for the year 1899, and Frank Strong, sheriff, and Johnson Chapman, clerk, also being present, and the opening of same being proclaimed in due form of law by the sheriff, the following proceedings were had, to-wit: It is ordered by the court that the clerk call the roll of justices of the peace, which was accordingly done, when the following-named justices answered to their names, to — wit: [here follow the names of eleven justices of the peace], and, there being a majoi’ity of the qualified justices of the peace present, the court proceeded with its business in the following order, to-wit.” Then from page 31 to page 36, inclusive, of the transcript filed by defendants herein appear the minutes of the court making appropriations, except as to the court house and jail, of which the minutes appear on pages 23 and 24. The following is the adjourning order: “The court now sitting for the purpose of making appropriations and levying taxes for the year 1899, having completed its duties, stands adjourned by operation of law for two weeks, or until October 16, 1899.” Then follow blank places for names of justices, but none appear to have been given.
The first question raised by the allegations of the complaint and demurrer thereto is, does the record show that a majority of the justices of the peace were present on the 2d of October, 1899? The roll was called, and eleven answered to their names, and these names appear in the record of the call, and these' were declared to be a majority of the justices of the peace of the county; and the minutes of the proceedings of that day further show that each and every item of the general appropriations for the current year were taken up one by one, and voted upon, and that each item was adopted by a unanimous vote; and that this was also true of the items of building the court house and jail and the appropriations therefor. The object of the minute record in such cases is to show that each item of appropriation received a majority vote of the members of the court present and participating, when these constitute a majority of the justices of the county. The record of the proceedings in this case show a substantial compliance with the statute. The rule which requires the yeas and nays to be called and taken down is applicable solely to legislative bodies. Thus the constitution contains such a provision as to the legislature, and the statute requires the observance of it by town and city councils in voting upon certain classes of propositions, but there is no rule of the kind applicable to judicial bodies in this state.
The next and more serious question to be considered is, was the first Monday in October, 1899, fixed by law for the convening of the levying court? It is undoubtedly true that section 6417 of Sand. & H. Digest, which is a part of our revenue statute, fixed the 1st Monday in October as the day for the annual meetings of the levying courts of all the counties in the state; but it is contended in argument (although the issue is not clearly made in the complaint and demurrer thereto) that section 1163, id., changes the time for convening of the levying court in counties where the holding of the circuit court is fixed for the same time, and where there is but one clerk. This section reads as follows, to-wit: “Whenever it shall happen that the time for holding the county court and the circuit court in any county shall be on the same day, the county judge shall not commence his court until two weeks thereafter. Provided, this section shall not apply to-counties having separate county clerks, as provided for in section 19, article 7 of the ■constitution.” This section, with some subsequent amendments, unimportant in this inquiry, was first enacted February 5,1875, as part of an act fixing the time for holding the ordinary county courts in the state, and has always been referred to by the legislature under that head, and digested in that connection by the digesters. The time for holding the levying courts, as we have said, is and has always been a part of our revenue statute, and in each of the changes that have been made since 1875 there has been no express nor direct reference to the other. So, if section 1163 of the digest has any effect, as a repealing or amendatory statute, upon section 6417, it can only be by the vaguest implication. Our revenue act of March 28, 1883, from which the law is taken, was a general and comprehensive act on the subject, expressly repealing all laws in conflict therewith. If this postponing section (1163), which was then in force, had any reference to the revenue law at all, or to the time of holding the levying court, it was in direct conflict with section 9 of the act of 1883, and was repealed thereby; for the revenue statute was on a special subject, and took up the whole of that special subject, to which said section 9 was strictly germane, and the postponing section, as subsequently amended, makes no reference to this section of the revenue statute, and, indeed, contains no repealing clause whatever. The language of section 1163 is significant in this, that the county judge is required not “to commence his court until two weeks afterwards.” This language is more appropriately applied to the county court held by the judge (for such is his court) than when applied to a court composed of many persons, who are authorized to organize and proceed to business in his absence; thus impliedly denying him the effectual power to permit that court to lapse by his mere non-action. It will be observed that the section fixing the time for holding the annual levying court is uniform throughout the state, although in some counties the county courts proper do not hold ón that day. It will be observed, also, that the section does not provide for the levying court to meet at the fall term of the regular county court, but on the 1st Monday in October of each year, indicating an independency of the terms of the county court proper; and if the times for holding the county courts proper were changed, and no reference be made to the section of the revenue statute fixing the time for holding the levying court, the latter would not be affected by the former, for, there being no conflict, there would be no repeal by implication or by general terms. We conclude, for these and other reasons that might be assigned, that the postponing section had reference only to the terms of the county court proper, and not to the terms of the levying court.
The question is not altogether free from doubt in the minds of some of us, and it would not be strange to find that the county courts throughout the state, which have been affected, have entertained and acted upon divergent views of the subject; for the enactments, it must be confessed, are confusing , although more in their arrangement than in their sub - stance. It must be borne in mind- that nothing here said must •be considered as denying to the levying courts the power inherent in all superior courts of record to adjourn from time to time, as necessity or convenience may demand, provided no statute is violated, nor any interference is made with the uniform, systematic and orderly administration of our revenue laws.
In Durrett v. Buxton, 63 Ark. 397, this court held that sections 839, 841 of Sand. & H. Dig. are special statutes, and are not repealed by the subsequent statute, digested as section 1279, which forbids county courts or their agents from making contracts until appropriations have been made therefor. Section 841 leaves the whole question of building a court house and jail to the county court proper.
The objection that the record of the day’s proceedings were not signed by the members' of the court present and participating does not go to the validity of the proceedings so noted by the clerk as shown in the record. In the first place, the authorized officer having written up the minutes upon the record, and their verity not having been called in question, the county court having general jurisdiction of the subject-matter, and being a superior court, the truth of the minutes could be established by parol. Lowenstein v. Caruth, 59 Ark. 588; Bobo v. State, 40 Ark. 225.
The objection that the county court appointed three (only two were appointed), instead of one, is abstractly correct, but it only goes to the compensation to be allowed the commissioners for services. This bill is to restrain the letting of a contract on the notice given at first by the commissioners for informality, and the chancellor sustained the plaintiff in that regard. As we understand it, the commissioners then advertised in proper form for bidders, and the temporary restraining order granted by us was to restrain them from letting the contract on this last notice. In the case at bar the levying court made the appropriation required by section 1279, and so, in either event, whether a previous appropriation by the levying court was necessary, as provided in section 1279, for the erection of county buildings generally, or the order for the building of the court house and jail could be made by the county proper without such previous appropriation, as seems to be the effect of the rule of Durrett v. Buxton, supra, the order of the county court proper was valid, and binding upon the county.
In such an expensive matter as the building of a court house and jail, it is not of course expected, under ordinary cir eumstances, to cover the whole amount by the levy for one year, and in fact this cannot be done, since, together with the ordinary expenses of the county, the levy for erecting these buildings must not exceed in one year the rate of 5 mills. The amount and number of the annual installments necessary to cover the whole cost of the structure must be and is left to the discretion of the levying court, to be exercised so as to accomplish the result intended in a reasonable time.
Having thus disposed of all the questions that properly arise under the allegations of the bill and demurrer thereto, our conclusion is that the decree of the chancellor should be affirmed, and the temporary injunction granted by us should be dissolved, and it is so ordered. | [
114,
-23,
-12,
-22,
-22,
-128,
2,
-112,
67,
-77,
102,
83,
-19,
86,
16,
97,
-93,
127,
81,
105,
64,
-73,
53,
115,
-94,
-69,
-105,
87,
-77,
-51,
-20,
-9,
74,
52,
-53,
25,
7,
-32,
-49,
20,
14,
-119,
-85,
72,
-47,
-56,
52,
109,
54,
10,
117,
15,
-13,
44,
84,
-21,
-55,
108,
73,
59,
-47,
-88,
-72,
-67,
95,
15,
-127,
-26,
9,
7,
-24,
-24,
-80,
21,
-112,
-24,
55,
-126,
-122,
116,
79,
-39,
40,
42,
-58,
64,
-27,
-65,
-96,
-88,
22,
-70,
-87,
39,
-111,
112,
122,
104,
-66,
-115,
117,
86,
6,
122,
39,
68,
93,
110,
-122,
-50,
-42,
-77,
13,
60,
-124,
99,
-61,
34,
48,
81,
-49,
-10,
94,
-57,
81,
27,
-98,
-8
] |
Wood, J.
This suit was brought by B. Faisst & Co., a firm composed of B. Faisst and others, to recover damages for the burning of a mill and other property, alleged to have been negligently caused by sparks from an engine of the railway company. There was a judgment in favor of plaintiff for $17,622.25, from which this appeal was taken.
On the trial witness Ulmer testified, among other things, “that he saw the passenger train go north, and that it was throwing fire, as they usually do, and it was all going over towards the mill. The air was carrying it from the track towards the mill. The train was throwing fire enough to set anything afire, like they do in the day time. The sparks looked to be as big as the end of your finger.” On the cross-examination of this witness he was shown an affidavit, and the record as to what took place concerning it is as follows:
“Q. Is that your signature? A. Yes, sir. Q. You signed that, didn’t you? A. Yes, sir. Q. You swore to it before Mr. Mashbmm, notary public, didn’t you? A. Yes, sir. Q. Didn’t you state in that connection, T didn’t see any sparks flying from the engine?’ A. No, sir; I did not. Q. You signed that statement, didn’t you? A. No, sir; I didn’t know about that. Q. You signed that? A. Yes, sir. Q. Was that read to you when you signed it? A. The man that wrote that out read it to me; I couldn’t read it. Q. He read it to you? A. I didn’t tell him, though, that I didn’t see no sparks. Q. You saw that statement, ‘I saw no sparks flying from the engine?’ A. No, sir; I didn’t tell him any such thing. Q. It is there, isn’t it? Can you read? A. No, sir; I didn’t say any such thing at all. Q. This statement was taken down, or at least a statement was taken down and read over to you, and you signed it? A. lie read it over, but I know that wasn’t in it when he read it over. I know that much. Q. Did you know you signed that statement? A. Yes, sir; that is my hand-write. Q. Did you sign it before notary public Mashburn? A. No, sir; I signed it in the depot. Q. Didn’t you swear to it? A. Yes, sir. Q. Did you go before him and swear to it? A. Yes, sir.”
Witness Hendricks testified, among other things, that he was awake when the passenger train came north, and noticed the sparks being thrown out from the locomotive as it passed. They were of unusual size, and seemed to be a great many. He did not notice any fire at the mill before the passing of the train; noticed the fire sometime near two o’clock, after the passenger train liad gone north. The record shows the witness was asked this question, to-wit: “Well, when you noticed the mill burning, what portion of it was burning?” The answer was as follows, to-wit: “The west end; what I call from where I live the west end of the main lumber shed. It had burned the entire west end of the main lumber shed. This was afire, and had burned to half way up the east end.” On cross-examination of this witness the record shows the following: “Q. Didn’t you state to Mr. Faulkinbury, when he took your statement, that the first you knew of that fire the whole west end of the mill was afire? A. No, sir. Q. You made a statement to him? A. Yes, sir. Q. You never said a word about these sparks from the engine at that time? A. He didn’t ask me at that time. Q. You made no statement about it? A. Yes, sir; I made a statement in regard to the sparks on the train. Q. You think now you made a statement to him? A. I know I did. Q. Didn’t you state to him and wasn’t that statement taken down in writing, that ‘when I first discovered the fire, all of the west end of the mill was in flames, and it burned very rapidly all over the entire building; so fast nothing could be saved,’signed byG. T. Hendricks? Is that your signature? A. Yes, sir. Q. Didn’t you make that statement? A. I did not. Q. Did you sign this? A. I did. Q. Was it read over to you? A. No, sir. Q. Did you ask it to be read over to you? A. No, sir. Q. Did lie take the statements as you made them? A. He took it down as I made them.”
Defendant here asked to be allowed to read to the jury those parts of the affidavits of .A. B. Ulmer and G. T. Hendricks to which attention has been called, but the court refused to allow same to be read, to which refusal the defendant saved its exceptions.
Does the record raise the question as to whether or not the trial court erred in refusing to permit to be read to the jury those portions of the affidavits or written statements of witnesses Ulmer - and Hendricks to which their attention had been called? Such question was treated as raised in the original brief of counsel for appellee. There is no intimation or suggestion there that the record does not properly raise the question. But, upon a careful reading of the transcript by one of the judges of this court, it was suggested that there might be some question as to whether the bill of exceptions really presented the alleged error of the ruling of the court below in rejecting the parts of the affidavits offered in evidence, so as to call for the judgment of this court upon such ruling. Whereupon the matter was deemed of such importance that the propriety of a brief upon the point by the respective counsel was suggested, and accordingly briefs have since been prepared. We must determine, therefore, in limine whether the question is raised. The record shows that each of the witnesses was shown an affidavit or written statement which he admitted having signed. The attention of each witness was called to certain parts of the writing which he had signed, and those parts were read to him by the appellant’s counsel, and he was asked if he did not make that statement. The parts of the affidavit which counsel desired to introduce are set forth specifically in the record, and designated by quotation marks as the parts taken from the affidavit which the witness had signed. Then, when the record recites that defendant “asked to be allowed to read to the jury those parts of the affidavits of A. B. Ulmer and G. T. Hendricks to which attention had been called,” it certainly sufficiently designates and sets forth the testimony that was offered, and which the court refused to allow to go to the jury. It does not appear that there were any other parts of affidavits to which the attention of the witnesses had been called. Useless repetition is to be avoided. After identifying parts of the affidavits offered in evidence by quotation marks (setting them forth verbatim), it would have been an idle waste of words and space to have repeated them. Unless we close our eyes, it would be impossible for us not to read from the above record the precise parts of the affidavits of the respective witnesses that were offered and refused. The record, then, meets the requirement of the rule that where the alleged error consists in the admission or rejection of evidence, such evidence must be set out in the bill of exceptions.
It must be remembered that the purpose in view was the impeachment of these witnesses by showing that they had made statements different from their present testimony. It was unnecessary, therefore, and would have been manifestly improper, to offer the whole of the affidavit in evidence when only portions of it were contradictory of the witness' present testimony. Only such parts as were contradictory of his present testimony were relevant on the question of impeachment. § 2960, Sand & H. Dig. It was not claimed that the whole of the affidavit was contradictory. Appellant was not seeking to establish by the affidavits, as original evidence, any fact involved in the main issue. No question as to the contents of the affidavits was involved. Only the question of the credibility of the witness was raised. It was the province of appellant to offer only those parts of the affidavits which it conceived to be contradictory. If appellee had contended that there was no inconsistency in the statements, past and present, of its witnesses, when their respective affidavits were considered as a whole, then its province and duty was to object specifically to the reading of a part of the affidavits only, and to call for the reading of the whole. 1 Greenl. Ev. §§ 201, 462b; Chicago, M. & St. P. Ry. Co. v. Artery, 137 U. S. 507. The record discloses no such objection and demand of appellee. Therefore it is only necessary for the record to identify those parts of the affidavits which appellant asked to read in order to raise the question of the correctness of the ruling of the circuit court in refusing such request. Having determined that the record calls for a review of the ruling of the trial court, the next question is, did the court err?
It is a well-established rule that when a witness has testified to material facts on the trial of a cause, any acts done or declarations made by him, which appear to be inconsistent with his statements on the stand, are competent by way of contradiction, and to enable the court or jury trying the case to ascertain what weight should be given to his testimony. Handy v. Canning, 166 Mass. 107. As witness Ulmer testified that when he saw the train go north it was throwing fire which was all going towards- the mill, and was throwing fire enough to set anything afire, and that the sparks emitted “looked to be as big as the end of your finger,” his testimony was exceedingly important in establishing thé plaintiff’s case; and, as he had previous to the trial signed an affidavit which contained the statement, “I didn’t see any sparks flying from the engine,” it was patent that there was a palpable contradiction between the statement contained in his affidavit and the testimony he gave upon the trial upon the most material point in the case.
The statement contained in the affidavit was, therefore, clearly competent, and should have been admitted, if offered at the proper time. “According to the oi’dinary rule of proceeding-in such cases,” says Greenleaf, “the letter is to be read as the evidence of the cross-examining counsel in his turn when he shall have opened his ease; but if he suggests to the court that he wishes to have the letter read immediately, in order to found certain questions upon its contents, after they shall have been made known to the court, which otherwise could not well or effectually be done, that becomes an excepted case; and for the convenient administration of justice the letter is permitted to be read as part of the evidence of the counsel so proposing it, subject to all the consequences of its being considered.” 1 G-reenleaf, Ev. § 463.
The supreme court of Minnesota, discussing a question of this kind, said: “If a party desires to show the contents of a paper, and to cross-examine upon it, he must, if the writing be admitted, introduce it as a part of his cross-examination.” O’Riley v. Clampet, 53 Minn. 539. The rule of practice which generally obtains is to require the party who desires to impeach a witness by prior contradictory written statements to simply lay the foundation on cross-examination by showing the witness the writing and asking if he signed it, then to abide his turn for the introduction of his own proof before offering the writing in evidence. State v. Stein, 79 Mo. 330; Romertze v. Bank, 49 N. Y. 577. But, as shown by Prof. Greenleaf and the other authorities, supra, the exception, for the convenient and orderly administration of justice, is to have the writing, where the signature is admitted, read then and there to the jury, provided a cross-examination upon the contents is desired and suggested to the court. For this gives the witness the opportunity then and there to make such explanation as he may desire, and it obviates the necessity of calling him again upon the stand, should a cross-examination upon the contents be desired. The exception is quite as well established as the rule itself. But there is no exception unless the cross-examiner suggests to the court that he desires to cross-examine the witness while on the stand as to the contents of the writing. Here the counsel proceeded on cross-examination, without interruption or interference by the court, to cross-examine witness TJlmer on the contents of his affidavit. No more forcible suggestion of a desire to cross-examine on the contents of the writing could have been made than by proceeding to do that very thing. The fact that it was done is tantamount to permission asked and leave granted for so doing. As a matter of fact, however, counsel for appellant did' not offer to read the portions of Ulmer’s affidavit while he was on the witness stand and being cross-examined, but postponed the request to read from his affidavit until the close of the cross and re-direct examination of witness Hendricks. This was out of time as to Ulmer, and the reasons for allowing the writing to be read during the cross-examination, therefore, did not exist in his case. It cannot be said that the trial court, having a large discretion as to (he order in which evidence shall be admitted, which will not usually be controlled by this court, in any manner abused his discretion in not permitting the reading from the affidavit of Ulmer at this juncture of the proceedings. Appellant, having neglected to avail itself of the rule allowing the writing to be read during the cross-examination of the witness, might well be deuied the privilege of injecting it during the cross-examinalian of some other witness. When appellant's time came to introduce its evidence, it did not make the request to have the alleged contradictory writing read, which would have been in order. As the trial court had no opportunity, therefore, to rule upon the question when presented in due and proper time, no error is shown. We are to presume that if the request had been seasonably made it -would have been granted.
It follows from what we have said that the court should' have permitted the reading of the alleged contradictory statement from the affidavit of the witness Hendricks, provided there is any statement whatever in it legally sufficient to warrant a jury in finding that such statement is inconsistent with his testimony on the trial. Primarily, the lower court must determine whether there is any evidence at all of a contradictory nature. If there be, the question is then for the jury, and the alleged contradictory evidence should be admitted.
On the trial witness Hendricks was asked, “Well, when you noticed the mill burning, what portion of it was burning?” The answer was, “The west end; what I call from where I live the west end of the main lumber shed. It had burned the entire west end of the main lumber.shed. This was afire, and had burned to half way up the east end.” The part of the affidavit set out in the record which appellant asked to read to contradict the witness is as follows: “When I first discovered the fire, all of the west end of the mill was in ñames, and it burned very rapidly all over the entire building, so fast nothing could 'be saved.” Witness, when asked if he did not' make the above statement, answered: “I did not.” He had just acknowledged, however, his signature to the writing which contained the above statement. He said also that Fanlkinbury took' down the statements as he made them. Having admitted •'signing the-writing-containing the alleged contradictory state- mi’ist, it was then a matter for the jury to determine as to whether the writing contained the statement at the time witness signed same or not. If the writing which he signed really contained the alleged contradictory statement at the time he signed it, and same was not misread to the witness when he signed it, then his present testimony was in direct conflict with the prior written statement, and such contradiction would tend strongly to impeach him.
It is argued that, as the witness admitted that the alleged contradictory statements were in the affidavit when presented to him on the witness stand, but denied that they contained such statements, or that such statements yrere read to him when he signed the affidavit, therefore the ruling of the circuit court was proper, because appellant did not offer the testimony of the party before whom the affidavit was made or other witness to support the affidavit. The failure to make such proof might have lessened the weight to be attached to the contradictory statements, but it could not effect the competency of such evidence. By admitting the signature to the writing, the witness must be considered, prima facie, at least, as having made the statements therein contained; and his denial of any knowledge of the alleged contradictory statement, or that they were iu the writing when he signed same, was itself contradictory of what he had just admitted, and thus raised -a question vitally affecting his credibility, which was the point of inquiry. If the writing bore no evidences of alterations or interlineations, and appeared as having been written all at the same time, in the same hand, etc., what better evidence could there have been tending to show the contradiction of the witness’ present testimony! But how could the jury know about this without au inspection of the writing! The writing having been excluded, appellant, if it had desired, could not thereafter have been allowed to introduce the one who wrote it and the officer who administered the oath to show that the writing did indeed contain, at the time it was signed and sworn to, what it now contains, aud thus corroborate and strengthen the proof of contradiction. The court, after having permitted cross-examination on the contents of the writing, and then, when same was offered at the proper time, having excluded it, must have done so for the reason that he considered such writing irrelevant or incompetent. Without any suggestion to the contrary, appellant had the right to assume, under the circumstances, that such was the view of the court, and hence it was not incumbent upon it to offer it again when it had opened its case.
Furthermore, there is a variance between the statement in the writing offered in evidence and that made by the witness upon the stand as to the portion of the property he first discovered on fire. This difference was sufficient to entitle appellant to have the writing put before the jury for the purpose of impeaching him. It at least made it a question for the jury to say whether or not this witness was impeached by contradictory statements. The plaintiff was endeavoring to show that the mill and property were fired by a spark from defendant’s engine. The testimony of Hendricks tended to show that the portion he first saw burning w;as the west end of the main lumber shed. When asked what portion of the mill he first saw burning, he answered, to quote his exact language, “The west end; what I call from where I live the-west end of the main lumber shed. It had burned the entire west end of the main lumber shed, and had burned to half way up the east end.” This testimony was well calculated to make the jury believe that the fire originated in the west end of the main lumber shed. This lumber shed was situated, according to the scale of distance on the plat made part of the record, within some fifteen or twenty feet of the railroad track where the train had passed. There had been no fire at all about that part of the property during that day, and from the direction of the wind, the amount and size of the sparks, and the "proximity of this lumber shed to the railroad track, the jury might well have concluded that if the fire originated in the lumber shed the sparks from the engine produced it. Indeed, this would have been the most natural conclusion from the testimony of witness Hendricks, conceding it to be true, and it was very material. On the other hand, if the fire originated at the west end of the mill, which was some eighty or one hundred feet from the railroad track, and nearer to the kilns and nearer to the shaving house and engine house of the mill where there had been fire on the day of the night of the fire, then there was less probability that the fire originated from the engine of the railway, and more reason for the contention of the railway company that the fire originated in some other way than by a spark from its engine. Now, the witness stated simply in the affidavit that “when I first discovered the fire, all of the west end of the mill was in flames, and it burned very rapidly all over the entire building; so fast nothing could be saved.” This statement was without explanation or qualification, and might have been taken by the jury as meaning the “west end of the mill” and not the “west end of the main lumber shed,” the two being entirely different. So that the jury might have concluded that there was a decided contradiction of the witness on a most material point. The court therefore erred in not permitting the reading of the alleged contradictory statement.
Nor can we say, as matter of law, that, because the witness admitted signing the affidavit, and admitted on the stand that the affidavit contained the contradictory statement, therefore appellant was not prejudiced by the ruling. By not permitting it to be read as evidence, the jury were prevented from examining the writing. The appellant was deprived of the right to have it considered as evidence in the case, and its counsel could not refer to or discuss it in their argument. All of this was exceedingly important to appellant, and the ruling of the court refusing it was prejudicial error.
The contention that the court did not err in refusing the request to read from the affidavit of Hendricks, because it was joined with the request to read from the affidavit of Ulmer is not well taken. The authorities cited to show that where any part of the evidence is admissible a general objection is not available are not applicable here; for, although the request' of anpellant to be permitted to read from the affidavits of each of these witnesses was made at one and the same time, it was a request for two separate and specific things, the one having no connection with the other. The attention of the court in the request was called to each specific affidavit that appellant desmed to read from by name. The court could not have been misled, and must have known that in refusing the request it was passing upon the admissibility of each one of the affidavits for the purpose of impeachment. The affidavits were not joint. They could not be read at the same time. The court should therefore have admitted the one properly offered and rejected the other. .
We find no other error. But for this the judgment must be reversed, and the cause remanded for a new trial.
Battle and Riddick, JJ., dissent. | [
-80,
104,
-24,
-113,
-120,
-32,
42,
-38,
117,
65,
-89,
115,
-3,
-48,
1,
37,
-10,
93,
112,
58,
86,
-109,
23,
3,
-46,
-109,
27,
-59,
-72,
74,
-4,
95,
12,
32,
74,
85,
-90,
-56,
-59,
92,
-116,
21,
-87,
-22,
-101,
120,
52,
-13,
86,
77,
49,
30,
-5,
46,
28,
81,
77,
62,
111,
-120,
-46,
49,
-126,
77,
49,
18,
-96,
114,
-98,
11,
72,
58,
-112,
-75,
3,
-84,
115,
-92,
-128,
-12,
33,
-87,
0,
102,
38,
49,
13,
-81,
-84,
40,
38,
14,
31,
-93,
-80,
65,
11,
41,
-69,
-99,
112,
16,
39,
106,
-8,
93,
28,
108,
2,
-117,
-122,
-29,
-33,
36,
-98,
-73,
-21,
-101,
54,
112,
-55,
50,
92,
5,
50,
-103,
-49,
-65
] |
Battle, J.,
(after stating the facts.) The defendant relied upon what is known as the two years’ statute of limitations for her defense against this action. The statute, so far as it relates to this case, is as follows: “No action for the recovery of any lands, or for the possession thereof, against any person or persons, their heirs or assigns, * * * who may hold such lands under a donation deed, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the lands in question within two years next before the eommeneement of such suit or action.” Band. & H. Digest, § 4819.
This statute does not protect a party holding land under a certificate of donation by the state against actions for possession. Adverse possession for two consecutive years under the certificate is no bar to an action against him, because he is not named in the statute. As such possession does not set the statute in motion, it is obvious that it cannot be of any avail to the owner of the certificate, under the two-years statute, after the deed of donation has been executed to him by the state. That possession only which sets the statute in motion can be tacked to other possession for the purpose of completing the statutory bar to the maintenance of actions for the recovery of land. McCann v. Smith, 65 Ark. 305; Gates v. Kelsey, 57 Ark. 523.
This action was not barred. It was commenced^' within less than two months after the deed of donation was executed.
The defendant says that this action was not submitted upon the amendment of the complaint, but upon the complaint and exhibits and the answer and exhibits. The record, however, shows that the defendant is in error, and that it was submitted upon the amendment; and we are governed by the record. Parties aggrieved by errors in the record of the circuit court, and desiring to have them corrected, should apply to that tribunal for correction, and not to this court. This is not the proper forum in which to institute such proceedings.
The judgment of the circuit court is set aside, and this cause is remanded for a new trial.
Bunn, C. J., and Riddick, J., did not sit in'this ease. | [
-11,
108,
-36,
124,
9,
96,
58,
-102,
67,
-93,
-30,
19,
-17,
-64,
16,
47,
99,
109,
113,
120,
70,
-89,
31,
65,
114,
-78,
88,
87,
113,
-51,
116,
-42,
76,
48,
-54,
-11,
66,
-126,
-53,
88,
14,
6,
27,
77,
113,
-64,
52,
43,
82,
11,
117,
28,
-7,
43,
53,
79,
105,
44,
79,
57,
64,
61,
-97,
5,
-65,
21,
33,
69,
-108,
67,
-22,
42,
-104,
49,
1,
-24,
115,
-74,
-122,
116,
71,
-101,
40,
102,
98,
-96,
125,
-1,
-128,
-104,
15,
54,
29,
38,
-48,
72,
11,
111,
-90,
-106,
108,
-108,
98,
-2,
100,
76,
81,
44,
39,
-118,
-42,
-79,
79,
44,
-128,
67,
-45,
39,
52,
81,
-50,
-25,
92,
67,
48,
-101,
-113,
-45
] |
Riddick, J.
(after stating the facts.) This is an action for the assessment of damages for a railroad right of way across lands of defendants. The defendants claim that their laud was underlaid with coal; that they had a slope or entrance to the coal by which the coal was brought out of the mine to the surface; that this slope or entrance was destroyed or rendered useless by the construction of the railroad; and that they were in that way injured in a large amount.
The first contention on the part of the appellant company is that the defendants have no right to recover, for the reason that they had not only leased the land before the railroad had been built, but that, since the commencement of the action, they had sold their reversionary interest in the land. But if the defendants were the owners of a reversionary interest in the land across which the railroad was constructed, and if this reversionary interest was damaged by the construction of the road and the taking of the right of way, they can recover damages to the extent of that injury. The right of way here had been taken, the road constructed, and this action commenced, before the reversion was sold. Defendant’s right of action was complete when the injury occurred, and they did not sell it by selling their reversionary interest. Roberts v. Northern Pac. Railroad Co., 158 U. S. 1; 3 Elliott, Railroads, § 100.
But counsel for the company contends, as the defendants did not show that they were compelled on account of the construction of the railroad to receive a lower price for their interest in the land than they would otherwise have received, that it is not shown that they were injured. We cannot concur in this view of the matter. On the contrary, even if it was shown that defendants did not reduce their price for the land on account of the.construction of the road and the taking of the right of way, if they were not compelled to receive a less price on that account, this would by no means be conclusive of their right to recover in this action; for their right to recover depends upon whether the value of their reversionary interest was in fact injuredby the taking of the right of way and construction of the road, not upon the price for which it was afterwards sold. If defendants received a full price for their reversionary interest after the construction of the railroad, this would no doubt tend to show that such estate was not injured, but it would not be conclusive, for they may have sold it for more than its value. In other words, the fact, if shown, that they sold it at a good price would not relieve the company from responsibility for any damage actually caused, though it might be evidence that none was caused. Again, it is possible, under Ihe rules of law which govern such cases, for one to be entitled to recover damages caused by the construction of a railroad across his land when in fact the land is worth more afterwards than it was before the construction of the road; for the general benefits received from the construction of the road may be greater than the special injury, but, as general benefits cannot be considered, it not infrequently happens that a judgment for damages in right of way cases must be sustained, though, if benefits of all kinds could be considered, no injury would be found. It is apparent from this that the mere failure of defendants to prove that the price which they after-wards received for their interest was affected by the construction of the road is a matter of little consequence now. It is sufficient that the jury have found that the estate of defendants was injured as alleged, and that there is evidence to support the finding.
We are also of the opinion that the circuit judge was correct in holding that the damages occasioned to defendants by the construction of the railroad across their land could not be reduced by showing that the land of defendants not taken would be benefited by the increased facilities in shipping coal furnished by the construction of the road. It was not alleged nor shown that the advantages to be derived by the defendants were in any way special or peculiár to them or different from, those which other owners of coal land in that locality, would-, receive from the construction of the railroad, and, as before' stated, general benefits cannot be considered. The reason for the exclusion of such benefits is that it would be unjust to charge the owner of laud a part of which is taken by the company with those benefits which he receives from the construction of the railroad in common with the community in general when other land owners, whose lands do not happen to be taken, receive and enjoy such benefits equally with himself, and pay nothing for them. Cooley, Const. Lim. (4th Ed.) 707.
The same reason, it is said, does not apply to special benefits, though it seems that our statute excludes such benefits also. After providing for a trial by jury to ascertain the amount of compensation which the company shall pay for the right of way, the statute provides that “the amount of damages to be paid the owner of such lands for the right of way for the use of such company shall be determined and assessed irrespective of any benefit such owner may receive from any improvement proposed by such company.” Sand. & H. Dig. § 2776. Now, it has often been decided that the damages for the assessment of which this statute provides include not only the value of the land actually taken for the right of way but all injury to the remainder of the tract reasonably caused by the appropriation of the right of way and operation of the railroad. St. L. A. & T. Rd.v. Anderson, 39 Ark. 171; Little Rock, Miss. R. & Tex. Ry. Co. v. Allen, 41 Ib. 431; Springfield & Memphis Railway v. Rhea, 44 Ib. 258; Railway v. Combs, 51 Ib. 324.
It follows, from the rule firmly established by these decisions,- that the damages, which the statute says “shall be determined and assessed irrespective of any benefit” the owner may receive from the road, include not only those for the land actually taken but all incidental damages to the remainder of the tract as well. The statute makes no distinction between damages for value of land taken and damages to remainder of the tract, but declares that the amount of damages to be paid the owner shall be determined and assessed without regard to benefits. It is true that there are many cases in our reports where the court seems to have ignored the statute, and stated that the measure of damages for a right of way taken by a railroad is the difference between the value of the whole tract without the railroad at the time it was constructed aud the value of the remainder after its construction. Little Rock, Miss. R. & Tex. Railway Co. v. Allen, 41 Ark. 431; Springfield & Memphis Railway v. Rhea, 44 Ib. 258; Railway v. Combs, 51 Ib. 324; Newgass v. Railway Co., 54 Ib. 140. But in these cases the question of benefits was not raised, and the statute was not considered. The rule of assessing damages for a right of way by taking the difference between the value of the tract before and after the construction of the road across it is simple and easily understood, and no doubt works justice in most cases, but in approving it the court did not intend to abrogate the statute, which is still in force. The statute was not referred to in those cases, for the reason that there was no question of benefits involved.
We do not know of any case in which this court has discussed the distinction between general and special benefits. While, as above stated, we are inclined to the opinion that the consideration of both are excluded by our statute in the assessment of damages, still it is not necessary to determine the question here; for, conceding that special benefits may be considered, we are of the opinion that increased value founded merely upon increased facilities for travel and transportation, such as is afforded the public in general along the line of thfe road, is not a special but a general benefit. Roberts v. Board of Com., 21 Kan. 186; Mahaffey v. Buck Creek Rd., 163 Pa. St. 158; Sullivan v. North Hudson County Rd. Co., 51 N. J. L. 518; Lewis on Eminent Domain, § 476.
It may be that the value of this land was increased by the construction of the road; but the same argument was made .in Adden v. White Mts. N. H. Rd., 55 N. H. 413, where the tract claimed to have been injured was valuable on account of pine timber which the railroad enabled the owner to market. In reply to the argument that this benefit should be considered, Cushing, C. J., said: “Now, it seems to me that if there b'e any class of benefits which is emphatically shared by all, it is that class which has its origin in increased facilities for transportation. One man is enabled to get his pine timber to market, another opens his granite quarry, a' third may have a large grass farm, and. finds facility for taking his pressed hay to market. These facilities are greater or less in proportion to the proximity of the land to the railroad or station, but they all belong to the same class. They all belong to the class of general benefits which is open to all and shared alike by all.” The same reasoning holds good in this case. If it had been alleged and shown that the company had constructed a spur or side track specially for the shipment of coal from defendants’ mine, and that this added to its value, a different question might have been presented. But this was not shown. It was, in substance, only alleged that the construction of the road, by furnishing increased facilities for the transportation of coal, greatly increased the value of defendants’ lands. The value of other lands of the kind in that section were no doubt affected in the same way, and, though there is some conflict of authority on this question, we are of the opinion that only a general benefit is shown, and that the question as to whether under outlaw special benefits can be considered is not presented. St. Louis, Ark. & T. Rd. v. Anderson, 39 Ark. 167.
The evidence in the ease is not very convincing; hut there is some evidence to support the verdict, and we must take the finding of the jury on that point as conclusive. Finding no prejudicial error, the judgment is affirmed.
Wood, J., not participating. | [
-16,
-6,
-40,
-68,
-101,
96,
42,
-102,
65,
99,
-89,
87,
-83,
-118,
-112,
55,
-89,
-7,
117,
111,
20,
-93,
87,
-93,
-41,
-77,
115,
-51,
-77,
77,
102,
-57,
76,
32,
-54,
21,
98,
-64,
85,
28,
-114,
5,
-102,
108,
-47,
64,
60,
58,
80,
79,
49,
-82,
-37,
44,
16,
-61,
73,
46,
47,
41,
-47,
121,
-110,
69,
49,
4,
33,
102,
-100,
39,
-56,
25,
-112,
53,
11,
-120,
115,
-92,
-41,
-12,
33,
-103,
-120,
34,
-27,
33,
69,
-1,
-72,
-88,
38,
-8,
-113,
-89,
-62,
16,
67,
99,
-75,
-99,
90,
68,
39,
126,
-2,
29,
93,
60,
5,
-53,
-108,
-62,
-33,
108,
-101,
67,
-53,
55,
48,
116,
-59,
-94,
93,
79,
118,
-101,
15,
-114
] |
Battle, J.
On the 4th of September, 1890, at Mount Vernon, Ohio, W. H. Mitchell, executed to John S. Braddock' three promissory notes, each for the sum of one hundred dollars, payable to the order of Braddock at his office in Mt. Vernon, Ohio, and due, respectively, in two, three and four years after date. Subsequently, and before the maturity of the notes, Braddock sold and assigned them to M. Wertheimer, and indorsed upon each of them a guaranty as follows: “I assign the within notes to M. Wertheimer, and guaranty collection and payment thereof when due. [Signed] J. S. Braddock.” Mitchell did not pay the notes. On the 4th of April, 1898, Wertheimer instituted an action on the guaranties on these notes before T. W. Wilson, a justice of the peace of Pulaski county, and recovered judgment. Braddock appealed to the circuit court, where judgment was rendered against him; and he appealed to this court.
The appellee, to sustain his action, read as evidence, on the trial, the notes and guaranties sued on; and also read as evidence, over the objection of appellant, Clay v. Edgerton, 19 Ohio St. Rep. 551, Neil v. Board, 31 Ohio St. Rep. 15, and Kautzman v. Weirick, 26 Ohio St. Rep. 330, to prove that, according to the laws of Ohio, no demand by appellee upon Mitchell, the maker of the notes, for payment thereof, and notice to Braddock of the non-payment, were necessary to render appellant liable for the payment of the notes.
“The appellant testified that, shortly after he got the notes from Mitchell, he went to appellee and negotiated the notes to him, and wrote the following indorsement on the notes: ‘I assign the within note to M. Wertheimer, and guaranty the collection thereof when due.’ Appellee then asked that he be permitted to exhibit said indorsement to his lawyer for advice, which appellant agreed to, and returned with said notes, saying that his lawyer advised that the words ‘and payment’ should be inserted in said indorsement after the word ‘collection’ and before the word ‘thereof,’ and thereupon appellant interlined the ■said word as requested, and appellee then accepted the notes.”
The reading of the opinions of the supreme court of Ohio as evidence was not prejudicial to appellant; for, in the absence of evidence to the contrary, the presumption is that the common law is in force in Ohio.
The only qnestion in the case which demands serious consideration is, was appellant, according to common law, discharged from liability upon his guaranties by any failure of .appellee fro demand payment of the’ notes by Mitchell, and to give notice to Braddock of the non-payment? According to the decisions of this court, he was not. The guaranty of the appellant was absolute. Nothing was necessary to be done to fix the liability of Mitchell, the maker of the notes. The rule ■is that demand and notice are not necessary to hold the guaran tor of a debt liable where nothing remains to be done on the part of the guarantee to perfect his rights as against the principal — the maker of the notes in this case. In such cases his undertaking is not treated or considered as a collateral liability, but as a primary and positive agreement, by which he binds himself to see that the principal debt is paid. Lane v. Levillian, 4 Ark. 76; Killian v. Ashley, 24 Ark. 517; Friend v. Smith Gin Co. 59 Ark. 86; Read v. Cutts, 7 Greenleaf, 186, marginal page.
Judgment affirmed.
Bunn, C. J., dissents. | [
-16,
121,
-16,
93,
-54,
96,
56,
-110,
-120,
3,
51,
83,
-23,
-25,
1,
97,
118,
49,
113,
123,
69,
-93,
54,
67,
-13,
-13,
-127,
-43,
-80,
-19,
-76,
87,
77,
108,
-56,
-99,
-57,
-126,
-59,
-100,
-114,
-91,
-85,
76,
-43,
-63,
48,
125,
84,
13,
113,
38,
-85,
46,
21,
67,
110,
40,
107,
41,
-64,
-21,
-71,
-121,
89,
22,
-112,
6,
-120,
7,
-54,
10,
-80,
53,
-127,
-24,
48,
-90,
-122,
-12,
75,
41,
13,
102,
38,
16,
-27,
105,
-104,
-100,
46,
-10,
31,
-90,
83,
76,
35,
9,
-106,
-99,
122,
83,
-73,
118,
45,
28,
25,
100,
6,
-37,
-42,
-109,
15,
94,
-98,
3,
-25,
55,
125,
112,
-113,
54,
93,
99,
49,
-101,
-50,
-9
] |
Wood, J.,
(after stating the facts.) The statute upon which this action was founded does not come within the scope of the statute of limitations of two years. That statute is as follows: ‘All actions upon penal statutes, where the penalty, or any part thereof, goes to the state, or any county or person suing for the same, shall be commenced within two years after the offense shall have been committed, or the cause of action shall have accrued.” Sand. & H. Dig., § 4826.
First. The prime object of every statute strictly penal is to enforce obedience to the mandates of the law by inflicting punishment upon those who disregard them; and, in statutes primarily aud properly penal, the provision for punishment never rests in uncertainty, is never based upon a contingency. The general public is supposed to be injured by the violation of every penal statute, whether any special injury results to any particular individual or class of individuals or not. The punishment is provided as a sanction to .the law, and is imposed for the public good, to deter others from the commission of like offenses. It would, therefore, be palpably incongruous to call a statute penal which did not contain a definite and certain provision for punishment in every case where the duties enjoined by it were ignored. Black, Law Diet. “Penal Statutes,” “Penal Laws;” Bouvier, Law Dict. “Penal Statutes;” Potter's Dwarris on Stat. & Con. 74. Measured by these simple but infallible tests, the statute upon which this action was based is not penal. Here the behests of the law may be ignored re peatedly by the officers failing to file the certificate required, and still no unpleasant or severe consequences would be visited upon them unless there were creditors who had debts contracted with the corporation during the period of such disobedience. And even then the officers could be made to pay only at the instance of these creditors, and not by them if the debts had already been paid by the corporation. This shows conclusively that the public in general is not one whit interested in the enforcement of the duties enjoined by this statute, and that punishment of the officers for failure to perform the duties it prescribes is not the dominant idea. The duty which the statute enjoins upon, and the liability which it creates against, the officers is in favor of creditors. The measure of the liability is the amount of the debts which the corporation has incurred. There is no arbitrary amount fixed as a pecuniary mulct against the officers for each failure to file the certificate required. The amount is fixed, for compensation and indemnity, at the actual amount due the creditors. No additional sum is allowed them against the officers. They are only required to pay to prevent a loss which would otherwise result, directly or indirectly, from their neglect or failure. “By the principles of the common law,” says Judge Thompson, “all men are answerable out of their estates for the debts which they contract by themselves or their agents. Now, when the legislature says that the managing officers of corporations shall not enjoy this granted immunity, provided * * * they fail to make and publish certain reports to apprise the public of its financial condition, it is no more than to say to them that these things which it requires of them are conditions precedent upon which alone they shall enjoy this granted immunity.” 3 Thompson, Corp. § 4164; National New Haven Bank v. Northwestern Guaranty Loan Co. 61 Minn. 375. The liabilities created, and the remedies provided, by this statute are private and civil. There is nothing in the mere wording to give it even a penal semblance, which, of itself, is persuasive. We conclude, from these considerations, that the statute is not penal, but highly remedial, even when construed independent of the statute of limitations
Second. But when viewed, as we must view it here, in connection with that statute, the correctness of the above conclusion seems all the more obvious. The statute of limitation was modeled after the 31st of Eliz., c. 5, § 5. According to the familiar rule, which we have often followed, where a statute is borrowed from another jurisdiction in which it has received definite construction, it is taken with the construction which has there been placed upon it. Up to 1838, when our statute of limitation was passed, penal statutes in England were limited to actions brought either for the government by the public prosecutor, or to qui tam actions brought, not by the party injured or aggrieved, but by any one else who prosecuted both for himself and the queen — the common informer. Qui tam pro domino rege quam' pro se ipso in hac parte sequitur. But statutes which gave the remedy to the party aggrieved were never regarded as penal, but as remedial, even though such party might have been given damages beyond indemnity or mere compensation. Woodgate v. Knatchbull, 2 Term Rep. 148; Ward v. Snell, 1 H. Blackst. 10; Bones v. Booth, 2 W. Blackst. 1226.
But, whether our statute was borrowed from England or not, it is very similar to 31st of Eliz. and the distinction supra, between penal and remedial statutes, under it was correct then, and, under the peculiar wording of our statute, it is correct now; for, in our opinion, the phraseology of our statute indicates that the legislature had in mind only those statutes which imposed a pecuniary mulct for the doing or not doing of some act commanded or forbidden by the law for the benefit of the public, and for which pardon might be granted, and for which the government alone, or its designated agent, or the common informer, might bring an action; in other words, penal statutes in the strict and proper sense, and not statutes creating private rights and remedies. The words, “or- person,” mean simply any other person who sues as a common informer, and not one having a special interest by reason of any injury or grievance. The words, “or cause of action shall have accrued,” refer to those numerous penal statutes where the cause of action does not accrue to the state or county until the common' informer lias been, given an opportunity to sue for the penalty, or vice versa, or to eases where an opportunity is given to the offender to make compensation or restitution, before he can be proceeded against. In all such cases, of .course, the cause of action accrues after the commission of the offense.
We are aware that there is quite an array of respectable authorities holding that statutes similar to the one sued on here are penal, and subject.to the statute of limitations for suits based on penal statutes. See brief of counsel for appellee.
Much depends, of course, upon the language of the respective statutes as to the construction to be given them and the correct application of the decisions.construing them. Many New York cases are cited as authority for holding our statute penal. The New York limitation statute is as follows: “An action upon a statute for a penalty or forfeiture when the action is given to the person aggrieved, or to that person and the peo - pie of the state, except where the statute imposing it prescribes a different limitation, shall be brought -within three years.” Other cases based on statutes embodying similar language are cited. We do not consider cases based upon such statutes as in conflict with the view we have expressed, it matters not in what language the opinions may be couched; for the words, “when the action is given to the person aggrieved,” may have been considered by those courts as tantamount to a legislative determination that actions by aggrieved parties to recover on statutes similar to ours are penal.
With due deference to all authorities which hold that statutes similar to ours are penal, we are constrained to believe that such views are erroneous, and we fully agree with Mr. Morawetz that “it is not quite clear what the courts mean to express by saying that statutes of this character are penal, and that they impose upon the directors a penal liability.” 2 Mor. Corp. § 908. The better view, as Judge Thompson says, is that expressed by the supreme court of Georgia, in the early case of Neal v. Moultrie, 12 Ga. 116. This opinion is usually clear and strong. The following authorities also support the view we have taken. Goodridge v. Rogers, 22 Pick. 495; Adams v. Palmer, 6 Gray, 338; Norfolk v. American Steam Gas Co. 103 Mass. 160-162; Nickerson v. Wheeler, 118 Mass. 298; Mokelumne Hill &c. Co. v. Woodbury, 14 Cal. 265; Davidson v. Rankin, 34 Cal. 505; Cady v. Sanford, 53 Vt. 632; Seeley v. Smith, 45 N. W. 922; Stanley v. Wharton, 9 Price, 301; Coy v. Jones, 47 W. W. 208; Wolverton v. Taylor, 23 N. E. 1007; Fitzgerald v. Weidenbeck, 76 Fed. Rep. 695; Huntington v. Attrill, 146 U. S. 567. The decision in the last case was put upon the ground that the statute under consideration was not penal in the international sense. Still, what is said in the opinion decidedly supports the view we have expressed. The authorities above cited are all found in the brief of counsel for the appellant, and we may say, in this connection, that it would be a work of supererogation to attempt to go beyond the reasoning and research of the most excellent briefs of counsel on both sides. They seem to have exhausted the subject. We have agreed with the counsel for appellant, and this opinion, couched in my own language, reflects, in the main, though in a less forceful and attractive form, the arguments which they have presented.
Having reached the conclusion that this is a statutory liability, and not a penalty, the statute of limitations would be that applicable to “all actions founded upon any contract or liability, expressed or implied, not in writing” (sec. 4822, Sand. & H. Dig.; Rev. Stat. c. 91, § 6); for, before the forms of action were abolished, debt was the proper action for enforcing a statutory liability of the kind under consideration. Lewis v. Stein, 16 Ala. 214; Bullard v. Bell, 1 Mason, 243; Stockwell v. U. S. 13 Wall. 531; Chaffee v. U. S. 18 Wall. 516; Cross v. U. S. 1 Gall. 26; Reed v. Davis, 8 Pick. 514; Rockwell v. State, 11 Ohio, 130; Strange v. Powell, 15 Ala. 452; Blackburn v. Baker, 7 Port. 284; Kelly v. Davis, 1 Head, 71; 18 Am. & Eng. Enc. Law, 274; Wood, Limitations, § 25.
The finding of facts by the court being correct, there is no reason for sending the cause back for retrial. The judgment of the circuit court is reversed for the error in finding the actions barred by the two years1 statute of limitations, and judgment is entered here for the appellant. | [
116,
122,
-36,
-2,
11,
98,
-70,
58,
83,
-29,
-93,
118,
-19,
-61,
20,
127,
-31,
101,
85,
72,
21,
-74,
35,
64,
-10,
-77,
-35,
-43,
51,
77,
-10,
-4,
4,
48,
-118,
-11,
-25,
66,
-47,
-42,
74,
-125,
27,
109,
-16,
64,
116,
107,
16,
15,
-15,
-116,
-85,
42,
20,
79,
105,
40,
72,
37,
-64,
49,
-103,
37,
123,
22,
-95,
-121,
-99,
103,
-24,
62,
-120,
49,
-111,
-22,
122,
-74,
-122,
84,
109,
9,
-115,
66,
98,
-95,
69,
125,
-104,
-104,
-114,
-26,
31,
-122,
-112,
88,
11,
45,
-66,
-105,
6,
20,
38,
108,
-26,
69,
85,
100,
3,
-117,
-44,
-77,
95,
103,
-6,
3,
-50,
35,
50,
81,
-50,
-94,
93,
-113,
123,
27,
30,
-35
] |
Riddick, J.,
(after stating the facts.) The defendant was indicted and tried for an unlawful sale of beer to one Williams. His defense was that he did not sell the beer he was accused of selling, but purchased it for Williams at his request and with money that he owed Williams. It is not disputed that he owed Williams fifty cents, and the question for the jury to determine was whether he sold Williams the beer in payment of his debt or purchased it for him at his request and as his agent. If he purchased the beer and delivered it to Williams in payment of his debt, it would constitute a sale, and he would be guilty of violating the law. But if, at the request of Williams, the defendant expended the fifty cents he owed Williams in the purchase of beer for Williams, which he afterwards delivered, there would be no violation of the law against selling beer without license by defendant, for the reason that in such a ease there would be no sale by him. We do not doubt that the presiding judge fully comprehended the law on this point, but we are of the opinion that the oral instruction given by him was calculated to mislead the jury. The first portion of that instruction seems to lay stress on the fact that no money was paid by Williams to defendant at the time he requested defendant to get the beer, and the last paragraph lays stress on the fact that Williams did not direct defendant to purchase the beer at a licensed saloon. Now, such circumstances may be considered by the jury, along with other facts in evidence, in determining whether the defendant sold the beer or not, but the trial judge cannot in his charge make such circumstances the criterion by which to determine the guilt of defendant. To do so would be to invade the province of the jury.
The defendant may not have been paid money by Williams, and Williams may not have directed him to purchase the beer at a licensed saloon, and yet defendant may have been innocent of the crime charged, for he may have in good faith purchased the beer as the agent of Williams at his request with the money he owed him.
It should be remembered that the defendant was not accused of purchasing intoxicating liquor for another in a prohibited district or from an unlicensed dealer. He was accused of selling, not of buying, intoxicating liquor. Even had it been shown that he purchased the beer as the agent of Williams from an unlicensed dealer, he could not have been convicted under an indictment charging an unlawful sale of beer. But it is not disputed that he purchased the beer which he delivered to Williams from a licensed dealer, and for this reason the reference to the question of a purchase from an unlicensed dealer in the instructions, both those asked by the defendant and those given by the court, was unnecessary, and tended more or less to confuse the issue, which was whether defendant had sold beer, not whether he had made a purchase for another in a prohibited district.
For the error indicated the judgment is reversed, and the cause remanded for a new trial.
Bunn, C. J., and Hughes, J., dissent. | [
-79,
-6,
-55,
-98,
10,
96,
42,
-72,
0,
-29,
-9,
83,
-23,
66,
0,
121,
-95,
-1,
116,
88,
-97,
-89,
39,
67,
-10,
-77,
-55,
-59,
-75,
73,
-28,
-43,
29,
-76,
-62,
85,
98,
-53,
-31,
-100,
-86,
4,
57,
64,
-15,
-127,
48,
27,
69,
3,
49,
-115,
-61,
46,
31,
79,
45,
44,
107,
29,
-64,
-24,
-40,
-115,
127,
6,
-93,
52,
-99,
39,
-38,
62,
-104,
-79,
9,
-24,
123,
-76,
2,
116,
15,
-119,
-120,
102,
103,
32,
49,
-5,
-28,
-87,
39,
122,
-99,
-89,
-48,
80,
9,
41,
-65,
-97,
62,
80,
22,
-12,
-22,
-35,
-39,
100,
18,
-49,
-106,
-79,
-113,
116,
14,
18,
-49,
-89,
17,
101,
-49,
118,
92,
69,
120,
-101,
-116,
-43
] |
Wood, J.,
(after stating the facts.) The defendant concedes that the title to the lands in controversy is deraigned through Mrs. N. M. Huffman. Plaintiff, Cooper, by his quitclaim deed from Mrs. N. M. Huffman, shows a prima facie perfect title to the lands claimed in his complaint, which gives him the right to recover same, unless there is proof that defendant has a better title. There is no proof whatever of any title in Newton to lot 6 in block 1. No proof of the allegations in the answer as to the purchase of this land from Skinner is adduced, no deed is exhibited from N. M. Huffman to Skinner or other grantee, nor from Skinner to Newton.
As to lot 5 in block 2, Newton testified that it was sold to Newton & Co. by Nee Anderson on the 13th of June, 1891; that the company took immediate possession, and held same until it passed to him by dissolution of the firm, and that he had held exclusive and adverse possession until the institution of this suit. A deed, executed June 13, 1893, from Anderson to Newton & Co. was exhibited, but no title whatever is shown from N. M. Huffman to Anderson. This suit was begun September 22, 1896. It is not shown how long Anderson had been in possession, nor the character of such possession. There is therefore no proof of title to this tract by adverse possession.
As to lot 6 in block 2, Newton testifies of its purchase by Newton & Co. on June 13, 1891, from A. J. Widener and wife. A deed from them is exhibited, and Newton shows that the firm went into immediate possession of same under this deed. He also shows that Widener had been in the exclusive possession of this lot prior to his conveyance to Newton & Co. for about one year. Here, again, there is a missing link in the chain of title from N. M. Huffman, the common source of title. No deed is shown from her, or any grantee of hers, to A. J. Widener, defendant’s grantor. Proof of the possession of this lot by Newton and his immediate grantor is shown for a period of more than seven years before the institution of this suit. But, Mrs. Huffman being a married woman, the statute of limitations did not begin to run as to her. Fox v. Drewry, 62 Ark. 316; Rowland v. McGuire, 64 Ark. 412. The deed from Mrs. Huffman to Cooper was executed on the 12th day of August, 1896. The statute of limitations therefore as to this lot did not begin to run against Cooper before that date. Under the pleadings and proceedings here, the doctrine of estoppel and laches as against Mrs. Huffman, and Cooper as her grantee, cannot be applied. Newton himself, having no title or right to the possession of these lots, so far as the record discloses, is not in a position to invoke the doctrine of estoppel or laches, nor to question the dona fides of one who does show a perfect record title.
The decree of the court as to the other tract is as follows: “As to the 3.05 acres tract, lying in said Huffman’s addition, and north of block 2 therein, the deed thereto from Mrs. N. M. Huffman is a nullity as a conveyance; but the evidence shows that the defendant orally purchased this particular tract from Mrs. N. M. Huffman or her agent, and paid her for the same; was in possession thereof ever after-wards, and at the time plaintiff purchased.” The court was correct in finding the deed void for patent ambiguity. It would be impossible to locate or identify the lands from the description contained in the deed,nor is there any reference therein to any map, plat, record, or any extraneous objects or boundaries,by the aid of which the lands might be definitely ascertained. If, as alleged in the answer, the lands had been described in the deed as 3.05 acres in unplatted lands in Huffman’s addition to Grurdon, situated on the east side of the southwest quarter of-southwest quarter section 28, etc,” the description in the deed might have been aided by reference to the plat of Huffman’s addition, and might have been effectual to convey the title, if the 3.05 acres could have been located by reason of said plat. But an inspection of the deed shows that there is no mention in it of “unplatted lands in Huffman’s addition to Gurdon,” but only of “unplatted lands of Gurdon.” The plat of Gurdon in evidence shows unplatted lands, or lands not laid off into town lots or blocks, in other additions than Huffman’s. The deed was a nullity as a conveyance because of the imperfect description of this 3.05 acres. Fuller v. Fellows, 30 Ark. 657; Dorr v. School Dist., 40 Ark. 237, 41; Freed v. Brown, 41 Ark. 495; Tatum v. Croom, 60 Ark. 487.
The only question, then, is, did the defendant have equities in the land superior to the rights of the plaintiff under his quitclaim deed? There is no controversy here, as we understand it, but what the tract of land (other than the lots) for which Cooper sues, and which is described by a correct and definite description in his quitclaim deed from N. M. Huffman, is the identical tract of land which was attempted to be conveyed by N. M. Huffman to Newton & Co. under the imperfect description above mentioned. Cooper himself testified: “I know the lands in controversy in this action. I remember about the time that a deed from N. M. Huffman to Newton & Co. was executed, conveying certain lots in the Huffman’s addition to the town of Gurdon. Prior to the time Mrs. Huffman made said deed to Newton & Co., she had a three-acre fractional tract lying on north end of said Huffman’s addition enclosed. My impression is that all the rest of the land in*controversy was not enclosed at the time said deed from N. M. Huffman was made to Newton & Co.” And on cross - examination: “I have known the land in controversy sincel881. Mrs. Huffman was the owner and in possession of the land in controversy about that time. I know of no change of possession of ownership of said land from that time until the purchase of Newton & Co.” This testimony shows clearly that Cooper knew that the tract of land we are now considering was purchased byNewton&Co.of Mrs. Huffman. He had actual knowledge of it, according to his own proof, and that there was a change of possession by virtue of such sale from Mrs. Huffman to Newton & Co. ilis language plainly implies this. What' more is necessary to determine this case? The answer alleges that Cooper was not a bona fide purchaser. It would be a fraud to permit Cooper, who had actual knowledge of the purchase of this very tract of land by Newton & Co. from Mrs. Huffman, and who, the proof shows, knew of the deed in which the land was imperfectly described, to take advantage of the imperfect description, buy the same land for almost a nominal consideration from Newton & Co.’s grantor, and, under a quitclaim with a perfect desei’iption, to oust the one whom he knew had been in possession for several years under a bona fide purchase.
Not only does Cooper’s own testimony show the purchase of this tract of land from Mrs. Huffman by Newton & Co., but T. D. Huffman testified “that in the making of the said deed I acted as the agent of my wife, and conducted all the negotiations leading up to said deed as her agent.” The deed here refereed to was the deed of Mrs. Huffman to Newton & Co. of November 30, 1891, which was intended to convey the tract of land now under consideration. In one place in his testimony, Huffman states that he never put Newton & Co. in possession of the lands sued for, except to turn over the deed, and again he says: “I know I only sold Newton & Co. or A. W. Newton the lands contained in that deed, and did not put tiim or either of them in possession of any other lands.”
Newton testified in part as follows: “About two years prior to the date of the deed from N. M. Huffman and T. D. Huffman, I made a contract verbally with T. D. Huffman, the the husband of N. M. Huffman, fqr the purchase of a portion of the land described in the deed from said Huffman to Newton & Co., as '3.05 acres in unplatted lands in Gurdon. Later, on the 30th day of November, 1891, said Huffman and wife executed and delivered their deed to said lot, together with other lots, to said Newton & Co., and authorized said company, through me, to take immediate possession of the same, which was done within two or three days after the execution of said deed. Two or three days before said deed was executed and delivered, T. D. Huffman went with me to the land, and showed it to me, with the metes and bounds. This lot was at the time enclosed under a fence, the fence running practically with the line or boundary of the lot." After the dissolution of said firm [Newton & Co.] said lot, together with other landnamedinsaid deed to Newton & Co. as part of the assets of said firm, immediately passed into my possession. ’ ’ This proof, together with the deed itself, which the court properly held might be taken to show a receipt of $150 from Newton & Co. to Mrs. Huffman, shows clearly, we think, that Mrs. Huffman sold the land in controversy to Newton & Co., and that the purchase money was paid, and that under such sale Newton & Co. took possession. The deed was void as an instrument to convey the title to the land, but it was good as an evidence of the receipt of the purchase money, and that such purchase money was for land. What land the parties intended to convey is shown clearly by the proof. We are of the opinion that the evidence was sufficient to show a contract for the sale of this particular tract of land; that possession was obtained solely under such contract, and with reference exclusively to it, taking the case out of the statute of frauds, under our decisions. Keatts v. Rector, 1 Ark. 391; Cain v. Leslie, 15 Ark. 312; Rhea v. Puryear, 26 Ark. 344; Pindall v. Trevor, 30 Ark. 249; Pledger v. Garrison, 42 Ark. 246.
Certainly, under the facts disclosed by this record, Mrs. Huffman could not be permitted to eject Newton & Co., or A. W. Newton, who succeeded to the firm’s equities in this land. Cooper purchased with full knowledge of all the facts, and is in no sense an innocent purchaser. He has no greater equities than Mrs. Huffman herself would have.
If the deeds made in the firm name were void at law (Percifull v. Platt, 36 Ark. 456-64; Riddle v. Whitehill, 135 U. S. 634), still, in equity, the real parties in interest and in possession may retain same until they can have the deed reformed to carry out the intention of the partners to the contract of purchase. Percifull v. Platt, supra; Silverman v. Kristufek, 162 Ill. 222.
Under the prayer that the conveyance from N. M. Huffman to plaintiff be declared a cloud upon defendant’s title, and for all other relief, the court was justified, under the proof, in refusing to disturb defendant’s possession of the 3.05 acre tract of land. To have gone further, and reformed the deed of H. M. Huffman to Newton & Co., and annulled and cancelled the deed of Cooper, would have required additional parties and pleadings. Finding no error, the decree is in all things affirmed. | [
120,
111,
-40,
45,
-40,
-32,
40,
-70,
106,
-18,
37,
83,
-83,
-48,
24,
53,
-30,
125,
81,
106,
-42,
-73,
67,
-93,
-46,
-105,
91,
77,
-79,
77,
-10,
-42,
76,
32,
-126,
-43,
-62,
32,
-57,
92,
-50,
4,
-117,
68,
-55,
-16,
52,
59,
66,
75,
113,
30,
-77,
45,
17,
71,
105,
46,
-17,
-67,
80,
-8,
-101,
-123,
63,
6,
33,
87,
-68,
-127,
-56,
-120,
-112,
56,
4,
-24,
123,
-90,
-122,
84,
9,
-119,
40,
34,
103,
35,
125,
-19,
48,
-104,
47,
-2,
13,
-90,
-14,
64,
67,
41,
-65,
-99,
117,
0,
-30,
126,
-8,
-51,
92,
124,
47,
-113,
-106,
-127,
13,
58,
-120,
-121,
-9,
-117,
-76,
112,
-49,
-14,
93,
102,
48,
27,
15,
-16
] |
Per Curiam.
Sid Wilkins was indicted for murder of one James Stephens. On a trial of such charge he was convicted of murder in the second degree, and his punishment assessed at ten years in the penitentiary. From this judgment he appealed.
The main question presented by this appeal is raised by the contention that the court erred in permitting counsel for the state to read to the jury the testimony of John Poteet, a witness absent from the state, but whose testimony in the examining court had been reduced to writing and signed by him. The clerk who reduced this testimony to writing was not sworn, but the writing was identified by the examining magistrate as the testimony of the witness, John Poteet, as given on the examining trial at a time when the defendant and his counsel were present and had opportunity to cross-examine. He also testified that the testimony was taken down in writing, read over and signed by the witness Poteet.. The writing of itself, standing alone, might be inadmissible, but it rests in this ease on the testimony of the examining magistrate. He heard Poteet testify in the examining court, and, after his testimony had been reduced to writing, he heard it read to Poteet in that court. This was during the trial before the examining magistrate, and we infer from the statements of the magistrate on the stand that the testimony of Poteet, after being reduced to writing at the examining trial, was read to Poteet in the presence of the defendant and the magistrate, and was then signed by the witness Poteet. Before testifying in the circuit court, the magistrate had again examined this written testimony, and testified, not only that it was the copy of the testimony of Poteet which was made and signed at the examining trial, but that it correctly stated the testimony as given in that court. This testimony of the magistrate was not contradicted. The defendant himself testified on his trial, but he did not dispute those statements made by the magistrate, and we think this evidence was sufficient to identify the written copy of the testimony read in evidence as a correct and true copy of the evidence of the absent witness Poteet. It is true that the person who reduces the testimony to writing'is generally the proper witness to establish the correctness of the writing, but this may also be shown by the magistrate or other person having sufficient knowledge of the fact.
The facts in the case of Payne v. State, 66 Ark. 545, to -which counsel for defendant refer in support of their contention that this evidence was improperly admitted, were very different from those in this case.- The magistrate in that case did not testify that the minutes correctly stated the testimony of the absent witness. He was only asked to identify the writing as the copy of the evidence made by the clerk at the examining trial. His statements on that point were not very positive. Having stated that one Pheener acted as clerk, and reduced the testimony of the absent witness to writing, he was shown the writing, and asked if it was the testimony taken down by Pheener, and to this he replied, “I think it is. It looks just like it. * * * I wouldn't swear that is Mr. Pheener's writing, but believe it is.” Even if this was sufficient to identify the copy of the testimony, it did not show that it was the full or correct testimony of the witness, and it was properly rejected as evidence in that case. The facts on this point are not very fully stated in the opinion in that case, but an examination of the transcript will leave no doubt as to the correctness of the decision in that case. Some of the statements in the opinion of the court in that case may seem to support the contention of appellant here, but those statements must be construed in the light of the facts in that ease, which were very different from those here. Our conclusion is that the court committed no error in the admission of this evidence.
The contention that the court committed prejudicial error in instructing the jury that the written evidence of John Poteet was “to be treated and considered in all respects the same as if Poteet had given his evidence in person upon the witness stand,” must also be overruled. Abstractly considered, that instruction was not proper, for it was a question for the jury to say whether the writing introduced was a true copy of the testimony of Poteet, and the testimony seems to take this question away from them. In other words, the court assumes in this instruction that the writing was a true copy of Poteet’s testimony before the examining court. If there had been any conflict in the evidence on that point, the instruction would have been prejudicial, but there was no conflict on that point. The examining magistrate testified that it was the testimony of Poteet, and no one disputed his statement. The defendant himself was sworn as a witness, but neither he nor any other witness questioned the accuracy of the testimony of the magistrate on that point. We therefore conclude that this testimony was true, and that the defendant was not prejudiced by the instruction in which its correctness was assumed.
On the whole case, our conclusion is that there was no prejudicial error, and the judgment is therefore affirmed. | [
48,
-24,
-20,
-99,
43,
97,
40,
-70,
-48,
-125,
100,
115,
47,
87,
9,
123,
35,
43,
84,
107,
-50,
-73,
6,
65,
-94,
-13,
107,
-42,
-13,
77,
-3,
-39,
76,
-32,
-62,
-47,
-26,
-56,
-25,
88,
-50,
17,
-71,
112,
82,
-112,
48,
49,
16,
15,
49,
-106,
-29,
42,
30,
78,
-23,
44,
75,
-66,
80,
33,
-98,
15,
45,
5,
-77,
38,
-98,
4,
-40,
46,
-100,
49,
0,
120,
115,
-106,
66,
-12,
41,
-103,
8,
98,
-30,
32,
108,
-54,
-88,
-123,
47,
126,
-100,
-89,
-104,
72,
73,
77,
-76,
-67,
110,
16,
14,
118,
-12,
21,
28,
110,
3,
-49,
-122,
-127,
13,
124,
-106,
107,
-21,
-123,
16,
113,
-51,
-22,
92,
71,
59,
-45,
-122,
-108
] |
Battle, J.
The voluntary settlement or compromise of doubtful claims, made in good faith, without litigation, is highly favored and encouraged by the courts. The agreement to. abide by such a settlement, and the avoidance of the expense and annoyance of a suit at law, are a sufficient consideration to support the promise to pay the amount agreed upon. Courts will not investigate such settlements or compromises for the purpose of setting them aside, “it being sufficient if the parties entering into the compromise thought at the time that there was a question between them.” Burton v. Baird, 44 Ark. 556; 1 Parsons on Contracts (8 Ed.), 453.
In this case there was a disagreement between Thomas Lee and Burton Swilling as to the amount of damages the former had suffered by failing to acquire the land the latter had undertaken to sell to him. The damages were variously estimated by many witnesses from $65 to $400. Swilling estimated them at $65 and Lee at $400. Through the intervention of arbitrators they compromised at $375, Swilling agreeing to pay and Lee to accept that amount in full settlement of’ their differences. Swilling delivered to Lee the notes sued on in part payment of that amount, leaving $50.80 unpaid, which he promised to pay. The notes were canceled by consent of both parties. Swilling is still owing Lee the $50.80 and six per cent, per annum interest theron from the 25th day of October, 1897. The settlement or compromise was entered into and made in good faith. Swilling testified that Lee took no advantage of him. He promised to pay the balance found owing by him to Lee. His promise is supported by a sufficient consideration, and is valid.
The decree of the circuit court is therefore reversed, and the cause is remanded, with directions to the court to dismiss appellee’s complaint, and enter judgment against him in favor of Lee for the $50.80 and six per cent, per annum interest thereon from the 25th day of October, 1897. | [
-13,
109,
-104,
77,
-56,
96,
10,
-38,
95,
-85,
103,
87,
-7,
-51,
0,
51,
-26,
121,
81,
106,
113,
-109,
38,
90,
-14,
-109,
-45,
69,
-79,
111,
96,
-33,
76,
36,
74,
-35,
102,
-62,
-63,
-48,
78,
-127,
41,
100,
-37,
66,
48,
83,
16,
27,
97,
-122,
-29,
38,
56,
-43,
105,
44,
-17,
41,
-63,
48,
-114,
-58,
111,
4,
-127,
38,
-100,
51,
-34,
108,
-100,
53,
12,
-24,
114,
54,
6,
84,
73,
41,
-116,
98,
39,
0,
97,
-21,
-128,
-104,
47,
-66,
13,
-90,
-41,
88,
66,
72,
-67,
-99,
52,
6,
39,
118,
-3,
21,
20,
32,
55,
-118,
-106,
-30,
-99,
92,
-99,
3,
-5,
5,
49,
64,
-49,
-90,
92,
99,
58,
-101,
29,
-100
] |
Riddick, J.,
(after stating the facts.) We are of the opinion that the defense of usury has not been established by the evidence. Our law visits on a lender who contracts for usurious interest,'however small, a forfeiture of his entire loan and the interest thereon. It follows from the plainest principles of justice that such a defensa should be clearly shown before the forfeiture is declared. For this reason, usury will not be inferred where, from the circumstances, the opposite conclusion can be reasonably and fairly reached. Berdan v. Trustees, 47 N. J. Eq. 8, 21 Atl. 40; Webb, Usury, p. 481. In this case it is claimed that Pettit acted as agent of Leonhard in making the loan, and that the Floods agreed to pay him for his services, in addition to the interest reserved .in the note, and this made the loan usurious. The evidence shows that Pettit had been acting generally as the agent of Leonhard, assisting him to loan money and looking after his other interests. We must take it as true that he acted for Leonhard to a certain extent in making this loan to the Floods, for it is so stated in the complaint; but it is clearly shown that he also acted for the Floods. This is shown by his conduct when Leonhard, not being satisfied with the security offered by the Floods, refused to make the loan. Pettit then, in order to obtain the loan for the Floods, signed the note for the Floods, and also induced Swanson to sign it. Pettit and Swanson thereby became liable with the Floods for the payment of the note. This indisputable fact conclusively shows that Pettit did not act altogether as the agent of Leonhard in procuring the loan. He certainly did not sign the note as agent of Leonhard; for this would, in effect, be Leonhard becoming surety on a note to himself. The contract by which the Floods agreed to pay Pettit for his services recites that Pettit had negotiated a loan for them, secured in part by his indorsement of their note, for which services the contract states they were to pay him a specified sum, but they have paid nothing. They did not agree to pay him for services performed for Leonhard, but for services performed for them. The circumstances do not satisfy us that there was usury in the loan, and we are of the opinion that such defense should be overruled.
The complaint states, and the evidence shows, that the mortgage was made mainly to protect the sureties on the note of the Floods. Leonhard declined to make the loan on the mortgage security offered by the Floods. He made the loan on the credit of the sureties, Pettit and Swanson, and the mortgage was executed and delivered to him to protect the sureties. The pleadings of both parties state this to be true. Under these cmcumstances, Pettit was directly interested in the mortgage given for his benefit, and the acknowledgment taken before him was void. This being so, the mortgage could not legally be recorded, and the record thereof was without effect. Penn v. Garvin, 56 Ark. 511.
But, though the acknowledgment was void, the mortgage was good between the parties, and valid against a voluntary conveyance; for, while an unrecorded mortgage, in this state, constitutes no lien as to third parties, still the mortgagor cannot relieve his property of a valid lien which exists on the property as to him by giving it away. As to one holding the property by a conveyance entirely voluntary, it would be presumed that the conveyance was made subject to the mortgage. Now, plaintiffs allege that the conveyance made by Henry and Catherine Flood to the Flood Brick & Tile Company and to Harry Flood were without consideration, and made to defraud the creditors of the Floods. A consideration is recited in each of these conveyances, but there is no other evidence thereof; and the question presented is whether the burden rested on the grantees to show a consideration for such conveyances, and, if so, whether the recitals in the deed, to which neither of the plaintiffs was a party, can be used as evidence against them. It has been several times decided by this .court that when the creditors of a vendor attack his conveyance as fraudulent, and introduce proof making out a prima facie case of fraud against the vendor, the burden of showing a consideration is on the vendee, and that in such a ease the recital in the deed is regarded as only res inter alios aeta, and not competent to prove a consideration as against the creditor of the vendor. Valley Distilling Co. v. Atkins, 50 Ark. 289; Foster v. Haglin, 64 Ark. 505, 43 S. W. 763. An examination of these cases will show that, as to the vendor, in each of them a prima facie case of fraud had been made out by the evidence. The court, applying the law to the case in hand, held that the burden of showing a consideration was on the vendee. It was not called on to consider whether evidence tending to cast suspicion on the conveyance, though not sufficient to establish fraud on the part of the vendor, would not put the burden on the vendee to show that there was some consideration for the conveyance. The court cannot be said to have expressed an opinion on that matter, for the question was not before it. Now, in this case it was not shown that Mood or his wife was insolvent at the time of the conveyances; but it was shown that they were in debt, and that there were many unpaid judgments against Flood. He and his wife could not borrow money on their own notes or on the mortgage offered by them, but were compelled to hire third parties to become sureties on their note in order to obtain a loan. After obtaining this loan, they sold the property mortgaged as security for the loan, in part to their son, and in part to a corporation of which Flood was president, and of which the only stockholders were himself, wife, and three sons. They have not paid the loan, but they and their vendees are now seeking to defeat the collection thereof on various grounds. The circumstances surrounding these conveyances to his son, and to a corporation owned and controlled by himself and family, are certainly sufficient to arouse suspicion and throw doubt upon them as legitimate transactions. We therefore think that the burden was on these vendees to show that their conveyances were based on a sufficient consideration. Whether or not there was such a consideration was a matter peculiarly within their knowledge, and when, under such circumstances, they offer no proof, the presumption arises that there was no consideration. There are cases that go further, and hold that, as against creditors of a grantor, his deed is regarded as voluntary until the payment of a consideration is shown. The rule of these courts is that a prima facie case is made for the party attacking the conveyance by showing that he was a creditor of the grantor at the time the deed was made, and the burden of showing a consideration is then cast upon party holding under the deed. “These decisions,” says Mr. Jones in his work on Real Property, “tend to the suppression of fraud.” Prescott v. Hayes, 43 N. H. 593; Lipscomb v. McClellan, 72 Ala. 151; Jones, Real Prop. § 310, and cases cited. We are not required to go so far as these cases go, but we do hold that, where the evidence not only shows that the plaintiff was a creditor at the time of the conveyance, but the circumstances are such as to raise a suspicion of fraud, and cast doubt upon the legality of the transaction, the burden is on him holding under the deed to show a consideration.
Leaving out the question of fraud, our conclusion is supported in this case by another reason. Leonhard, by the note and mortgage, showed that he had a valid lien on the property as against Henry and Catherine Flood. The defendants, who claim as purchasers from them after the execution of the mortgage, must, in order to sustain their claim, show facts making such purchase superior to the rights of Leonhard, and to do this they must show a consideration for such purchase. The case of Challis v. German National Bank, 56 Ark. 88, is not in conflict with this ruling, for in that case the party claiming against the mortgagee proved a consideration, and there was no dispute on that point. As no proof was offered in this case tending to show a consideration for these conveyances except deeds, the recitals in which are not evidence against plaintiffs, we must presume that these conveyances were voluntary, and the grantee therein held subject to the lien of the mortgage.
As to the claim against Searan, we think the chancellor rightly held that plaintiffs have no lien on the bi’icks sold by the Floods to him. The judgment as to him is affirmed. In other respects it is reversed and remanded, with an order to enter a decree forelosing the mortgage, and for other proceedings not inconsistent with this opinion. | [
112,
-8,
-48,
-17,
74,
32,
42,
-102,
113,
-24,
-25,
121,
105,
-57,
0,
125,
-27,
-27,
-16,
34,
87,
-93,
39,
65,
-14,
-109,
-7,
77,
-80,
125,
-28,
85,
12,
56,
-64,
-43,
38,
-117,
-43,
80,
46,
5,
42,
-31,
-4,
65,
48,
121,
64,
77,
117,
-116,
99,
38,
29,
79,
-83,
46,
106,
61,
-64,
113,
-99,
-123,
93,
5,
-93,
101,
-100,
97,
-38,
46,
-104,
49,
1,
-24,
122,
-74,
-114,
84,
5,
25,
13,
102,
102,
32,
32,
-23,
-10,
-108,
46,
-1,
-113,
-122,
-111,
88,
3,
41,
-75,
-97,
114,
25,
38,
-10,
-14,
-99,
-101,
-19,
19,
-113,
-44,
-93,
-67,
124,
-101,
-125,
-26,
-109,
33,
112,
-50,
34,
92,
71,
122,
-101,
-98,
-3
] |
Hughes, J.,
(after stating the facts.) In the opinion of a majority of the court, the appellee assumed the risks incident to his employment, and was not entitled to a recovery in this case. We think this case comes within the principles heretofore aunouuced by this court in similar cases.
In Emma Cottonseed Oil Co. v. Hale, 56 Ark. 237, it is said by Judge Battle, in delivering the opinion of the court, that “it is well settled that when one enters the service of another he takes upon himself the ordinary risks of the employment in which he engages. On the other hand, the employer takes upon himself an implied obligation to provide the person employed with suitable instruments and means with which to do his work, and to provide a suitable place in which such person, when exercising due care himself, can perform his duty safely, and without exposure to dangers that do not come within the obvious scope of his employment. But the servant can dispense with this obligation. If, having sufficient intelligence and knowledge to enable- him to see and appreciate the dangers to which he will be exposed, he knowingly assents to occupy a place set apart to him by the master, and does so, he thereby assumes the risks incident thereto, and dispenses with the obligation of the master to furnish him with a better place. It is then no longer a question whether such place could not with reasonable care and diligence be made safe. Having vol untarily accepted the place occupied by him, he cannot hold the master liable for injuries received by him because the place was not safe.” Little Rock, M. R. & T. Ry. v. Leverett, 48 Ark. 346; Davis v. Ry. 53 Ark. 117; Fones v. Phillips, 39 Ark, 17; Coombs v. New Bedford Cordage Co. 102 Mass. 572; Sullivan v. India Mfg. Co. 113 Mass. 396. This doctrine seems to accord with sound reason and principle, as well as with the weight of the adjudications on this question, and we see no reason to justify a departure from it.
It is shown by the evidence of the plaintiff (the appellee) that he was perfectly familiar with the employment he engaged in; that he had much experience in it, and knew the dangers incident to it; that he was a man 40 years old; and that he voluntarily entered the employment without complaint, and without any promise by the master that the place in which he was to work would be made safer. If the master was under obligation to furnish him a safer place in which to exercise his employment, he waived this obligation by accepting the employment to be exercised in the place assigned, and was not entitled to recover for injury caused by reason of the fact that the place was not as safe as reasonable care and diligence of the master could have made it.
Reversed and remanded for a new trial.
Riddick and Wood, JJ., dissent. | [
-80,
-6,
-40,
-99,
24,
97,
58,
-102,
81,
-124,
39,
-13,
-23,
-57,
13,
105,
-29,
127,
81,
15,
-43,
-93,
23,
3,
-14,
-97,
-111,
-43,
-71,
75,
-14,
-36,
77,
49,
74,
-43,
-26,
64,
65,
-104,
-62,
5,
-118,
-23,
121,
16,
32,
59,
-108,
75,
97,
31,
51,
42,
1,
-49,
44,
46,
75,
45,
-48,
-15,
-102,
-115,
111,
20,
-77,
5,
-100,
39,
-54,
12,
-104,
49,
9,
-88,
82,
-74,
-126,
84,
47,
-119,
13,
98,
98,
32,
25,
-25,
-8,
-112,
62,
-14,
29,
-90,
-112,
120,
11,
11,
-97,
-99,
122,
4,
22,
124,
-9,
29,
94,
36,
19,
-113,
-10,
-78,
15,
100,
-76,
-121,
-49,
7,
-111,
101,
-42,
-86,
93,
65,
118,
31,
-97,
-34
] |
Battle, J.
On the 23d day of February, 1898, H. Arndt brought this action against Ike Less on two promissory notes and an account. One of the notes was executed by Less to Arndt for the sum of $501.61 and ten per cent, per annum interest thereon from the 28th day of March, 1892, the date of the note, until paid; and the other was executed by the- defendant to the plaintiff, on the same day, for the sum of $256.99 and ten per cent, per annum interest from date until paid. Both of them were made payable on or before the 15th day of November, 1892. The former was credited, on the 11th of November, 1894, with the proceeds of the sale of seven bales of cotton, amounting to the sum of $139.23; and the latter was credited, on the 9th of November, 1894, with the proceeds of six other bales of cotton, amounting to $149.53. The account was for goods, wares and merchandise sold and delivered, and for cash advanced by the plaintiff to the defendant at divers and sundry times in the years 1893 and 1894, the total indebtedness for which amounted to the sum of $3,089.04, which was reduced by various credits to the sum of $608.88, the last credit being given in October, 1895. The defendant answered, and alleged that the action was not brought within five years after the right of action accrued upon the notes, and within three years after the account became due and payable, and that plaintiff was barred from maintaining the action by the three and five years’ statutes of limitation. The evidence adduced at the trial shows that the defendant sold and delivered to the plaintiff thirteen bales of cotton in the month of November, 1894, and credited the defendant with the proceeds of the sale on the notes as above stated; and that defendant demanded pay for the cotton, and was informed by plaintiff that the notes were credited as stated, and that the defendant made no further objection, but acquiesced in the action of the plaintiff; and also tended to prove that plaintiff, in the month of October, 1895, collected rents which the defendant had authority to collect and use, and credited the account of the defendant with the same as of the day of the collection, and informed defendant what he had done, and that defendant did not object, but acquiesced. The court rendered judgment in favor of the plaintiff against the defendant for the balance due on the notes and account, after deducting the credits on the same. We see no error in the judgment of the court. The action was not barred by the statutes of limitation. Chase v. Carney, 60 Ark. 491.
Judgment affirmed.
Bunn, C. J., and Riddick, J., did not participate. | [
-16,
100,
-8,
14,
26,
96,
42,
58,
66,
1,
54,
115,
-23,
-57,
64,
125,
-9,
25,
112,
104,
110,
-77,
51,
75,
-29,
-77,
-21,
-59,
52,
79,
-18,
86,
12,
116,
10,
21,
-30,
-32,
-63,
28,
-114,
-128,
-85,
-52,
-13,
64,
48,
61,
68,
105,
113,
46,
-69,
45,
29,
90,
105,
45,
111,
57,
-64,
-7,
-102,
13,
-3,
22,
-79,
70,
-102,
20,
-54,
46,
-112,
55,
-123,
-23,
122,
-90,
-122,
116,
39,
-119,
13,
98,
35,
51,
-91,
-17,
88,
-88,
39,
126,
-97,
-90,
80,
64,
3,
109,
-66,
-100,
54,
18,
-90,
-42,
-67,
13,
16,
108,
7,
-113,
-108,
-110,
-81,
118,
-98,
-113,
-21,
55,
49,
117,
-113,
-126,
92,
69,
54,
-101,
-122,
-74
] |
Riddick, J.,
(after stating the facts.) We think the evidence sufficient to support the finding of the jury that the employees of the company in charge of'the train were guilty of negligence causing the death of plaintiff’s child. We are also of the opinion that a right of action survived to the personal representative; for the survival of the action- depends upon whether the injured child lived after the act constituting the cause of action, and it is not material whether she was conscious or not. If she lived after her right of action was complete, this right, which she possessed, passed by virtue of the statute to her personal representative. Davis v. Railway, 53 Ark. 127; Hollenbeck v. Berkshire Rd. Co., 9 Cush. 478; Mulchahey v. Washburn Car Wheel Co., 145 Mass. 281.
But when the administrator sues for the benefit of the estate to recover for the pain and suffering endured by the deceased, the period for which damages.can be assessed ends with the life of the deceased. Davis v. Railway, 53 Ark. 127. The administrator can recover only such an amount as the deceased might have recovered had she been miraculously restored to life and health at the moment of her death. If plaintiff seeks to recover more than nominal damages, he must show that the deceased, as a result of the injury, underwent conscious pain and suffering. The cases, with few exceptions, hold that, for injury causing instantaneous death, no recovery can be had for pain and suffering. And the same rule is applied when, though life remains a few moments, unconsciousness instantly follows the injury; for in such a case no conscious suffering is shown. Some of the cases go further, and hold that, although a moment’s interval of conscious suffering be proved, if this be a mere incident to the death, no recovery can be had for pain and suffering. This question was considered in the case of The Corsair, 145 U. S. 335. In that case the person for whose pain and suffering damages were sought was a passenger on the tug Corsair, which was negligently run against the bank of the Mississippi river, and sunk in about ten minutes after the collision. It was contended in that case that the deceased suffered great mental and physical pain and shock, and endured the tortures and agonies of death. “But,” said the court, “there is no averment from which we can gather that these pains and sufferings were not substantially contemporaneous with her death, and inseparable as a matter of law from it. Had she suffered bodily wounds and bruises, from the result of which she lingered and ultimately died, it is possible that her sufferings during her illness would give a separate cause of action; but the very fact that she died by drowning indicates that her sufferings must have been brief, and, in law, 'a mere incident to her death. Her fright for a few minutes is too unsubstantial a basis for a separate estimation of damages.” Kennedy v. Standard Sugar Refinery, 125 Mass. 90; Moran v. Hollings, 125 Mass. 93; note to Brown v. Electric Ry. Co., 70 Am. St. Rep. 667.
There are however cases seemingly in conflict with this decision. The supreme court of New Hampshire, in a case where damages were sought for death occasioned by drowning, held that the circumstances showing death by drowning in muddy, stagnant and slimy water were such that “the jury might legitimately infer, not only that the death was not instantaneous, but that it was attended with both physical and mental pain and suffering.” Clark v. Manchester, 64 N. H. 471. Of course, these cases turn, to some extent, upon the statute giving the right of action; for at common law there was no right of action for injui’ies causing death. By a strange fiction the extremity of the wrong precluded the redress. Goodsell v. Hartford R. Co., 33 Conn. 55. But whichever view we should adopt as to death by drowning, or when some brief interval of conscious suffering before death was shown, we do notthinkajudgmentforfourthonsanddollars on the first count of the complaint can be sustained, under the facts of this case; for no appreciable interval of conscious suffering was proved, or, if any was proved, it is not shown to have extended beyond a moment. The burden’of showing this suffering was on plaintiff, but we see nothing in the evidence to establish it, unless it may be inferred from the fact that the train was not running rapidly. No witness saw the child at the time she was struck. No one heard any cry or groan, or testified to any act such as might indicate conscious suffering. Those who saw her after the train passed say that she did not move or appear to be conscious. After they reached her she breathed once or twice, and was dead.
Counsel for appellee contends that she was not killed or rendered unconscious by the engine, but by the cars behind the engine, and this, no doubt, was the view taken by the jury in estimating the damages. But plaintiff’s case is based on the theory that the child was struck and run over by the engine, and, as no witness saw her after she was struck, until the entire train had passed, the argument that she received her mortal injuries, not from the engine, but from the ears behind, is based on conjecture only. It is pure guess work, and not sufficient to sustain the judgment.
The cases decided by the Supreme Court of Iowa, and cited by counsel for appellee on this point, do not conflict with this conclusion. Those cases hold that a right of action survives to the administrator of the person injured, though the deceased survived the injury only for a moment. But in that state no damages are allowed for pain and suffering unless the action is commenced by the injured party himself. If the action is brought by the administrator, compensation for pecuniary loss to his estate is alone considered, and the courts then hold that bodily pain and suffering in no manner affect the estate, and that in such actions there is no basis for such damages. Dwyer v. Railway Company, 84 Iowa, 479. So in [this state an action will lie for the benefit of the next of kin to recover damages suffered by them on account of the wrong, jthough the death be instantaneous. But, when plaintiff seeks to recover for pain and suffering borne by deceased, there must be evidence to show such suffering, before a judgment can be sustained on that ground. In assessing damages for wrongs causing death, the law does not undertake to find a sum equal to the value of life to the deceased, or for which the person killed would have voluntarily suffered death. That would be impracticable; for to most persons life is a priceless gift, which would not be surrendered for the value of an entire railroad paid to their estate. Nor, in allowing a recovery for pain and suffering, does it aim to fix a sum that would lead one willingly to endure such pain; for few would consent to have a leg crushed off, and bear the loss for many times the sums allowed. Union Pacific Ry. Co. v. Milliken, 8 Kas. 647. “In the absolute sense,”said the Supreme Court of Georgia, “damages equivalent to all the assets of a railroad company might not be excessive, nor even adequate, for a serious personal injury resulting from its negligence; but in any practical sense the damages in either case must be graduated, so that there may be railroads left in existence, and so that all like injuries occasioned by their use may be compensated in some reasonable degree.” Western & Atl. R. Co. v. Young, 83 Ga. 512. The injury being irreparable and already suffered, the jury, after hearing the evidence, are allowed to assess a sum which in their judgment they deem a reasonable compensation, having regard for the severity and duration of the pain and suffering. On this paragraph of the complaint, the only damages sought are for pain and suffering, and this is not shown to have lasted longer than an instant. The jury in such cases are given great latitude, for courts do not undertake to measure pain and suffering; but their judgment is not altogether uncontrolled, and, when such questions are brought before the judge on motion for new trial, in determining whether the proper bounds have been exceeded, he must, to a large extent, be governed by the practice of courts in such cases, as shown in the decision.
In view of these decisions, all of which, so far as we know, hold that in cases of instantaneous death nothing can be recovered for pain and suffering, the judgment on the first count, even if the evidence justifies more than nominal damages, must be regarded as excessive, and probably allowed by the jury on the theory argued here that the child continued to suffer conscious pain aud mental agony after the engine had passed over h.er, of which, as we have stated, there is no evidence. The argument on this point, and the amount of the verdict, convince us that the jury based their assessment of damages on a view of the facts not supported by the evidence, and we think it should be set aside.
On the second count, brought by the father as the personal representative of the deceased, and for his benefit as next of kin, the jury assessed the damages for injury sustained at the sum of $500. The evidence showed that the deceased was a bright, healthy child, between six or-seven years of age, and, in view of this and other circumstances in proof, we think, if defendant is liable, the verdict was moderate. But on the trial the court refused to instruct the jury that the plaintiff could not recover on this count if it was shown that he was guilty of negligence contributing to his injury. While the negligence, of the parent will not be imputed to the child, and the administrator of its estate, if dead, may recover damages for pain and suffering caused by negligence of defendant, notwithstanding the parent himself was guilty of negligence contributing to the injury, yet the rule is different when the parent sues, not for the estate, bnt for his own benefit. In such a case the rule that no one can recover damages for any injury caused by his own negligence applies. If this rule is sound when applied to eases where one sues for an injury to himself, there are stronger reasons to support it when he asks damages for injuries to another. Love of life and dread of pain would usually restrain one from subjecting himself to injury for the purpose of basing thereon an action for damages, even if contributory negligence did not bar a recovery. But it might be different with regard to injuries to others, and it would be specially unwise and dangerous to remove this restraint in such cases. We therefore think that the instruction asked should have been given.
The child was too young to be guilty of negligence, and we do not say that the father was guilty in that regard. But he allowed his young child to go visiting when he knew she would have to pass the railway tracks. The train at that time was overdue, and might be expected at any moment. She was allowed to go unattended, and without having been specially cautioned to avoid the trains. Under these circumstances, itwas a question for the jury to say whether he was guilty of contributory negligence, and the instruction asked by appellant'on this point should have been given.
For these reasons, the judgment on the whole case must be reversed, and a new trial ordered. | [
-16,
110,
-36,
-82,
59,
98,
42,
26,
83,
-13,
-27,
115,
-83,
-117,
1,
47,
115,
-89,
-47,
41,
83,
-77,
87,
-93,
-14,
51,
121,
-52,
-77,
74,
100,
-3,
76,
50,
-54,
-11,
-26,
74,
-43,
80,
-54,
20,
-86,
-23,
17,
18,
48,
122,
-48,
15,
49,
-34,
-93,
42,
17,
71,
73,
43,
107,
-91,
-64,
32,
-114,
-123,
127,
2,
-95,
4,
-66,
-89,
-56,
24,
8,
-79,
1,
-4,
114,
-74,
-122,
-12,
97,
-119,
8,
98,
97,
32,
5,
101,
-8,
-104,
47,
-86,
47,
-90,
10,
89,
43,
109,
-73,
-3,
26,
20,
13,
124,
-2,
92,
77,
36,
69,
-117,
-106,
-79,
-49,
100,
-98,
-85,
-61,
41,
54,
117,
-36,
50,
93,
69,
122,
-109,
-97,
-98
] |
Riddick, J.,
(after stating the facts.) We are of the opinion that the judgment against the railway company for a penalty cannot be sustained under the facts of this case. The statute imposing a penalty upon railway companies for refusing to deliver freight upon payment or tender of the freight charges due, as shown by the bill of lading, does not apply to a company not a party to the bill of lading, which has not carried the goods under the bill of lading, and has neither authorized nor accepted it. It applies only to railway companies “that are bound by the bill of lading, either as having made, authorized or accepted it ” Loewenberg v. Railway Co., 56 Ark. 439; Fordyce v. Johnson, 56 Ark. 430.
The language of the statute elearly shows this to be its meaning ; for it makes it unlawful for any railroad in this state to collect from any owner or consignee of freight a greater sum for transporting the same “than is specified in the bill of lading.” Sand. & H. Dig., § 6254. And it is evident from this language that the act applies only to a company which carries the goods under the bill of lading, and afterwards endeavors to impose greater charges than are authorized by the contract. Some company carrying the goods under the bill of lading, and whose charges are regulated by it, must refuse to deliver the goods, before the statute applies. If the goods in reaching their destination pass beyond the point named in the bill of lading, and to which the charges are specified, into the possession of a carrier not acting-under the bill of lading, and whose charges are not governed by it, the statute does not apply; for the language of the act does not include such a carrier, and the act, being penal, must be strictly enforced, and cannot be extended by implication.
If the act applied to the defendant company in this case, and if it could collect only what was shown in the bill of lading, the result would be that it would get nothing for hauling the whiskey from Little Rock to Hope, for the bill of lading specifies the freight charges only to Little Rock. It is admitted that the defendant company had the right to charge its usual local freight rates for transporting the whiskey from Little Rock to Hope in addition to the charges specified in the bill of lading, and this, of itself, shows that this ease is not within the statute; for, to quote the language of the court in Fordyce v. Johnson, the penalty cannot be recovered “when the bill of lading does not represent the amount of charges that are legally demand-able by the carrier to whom the tender is made.”
If the defendant company, without right, paid excessive charges to another carrier, and then, in order to compel plaintiffs to pay such charges, withheld their goods, it may be that it thereby subjected itself to an action for damages, but that is a different matter. In order to recover a penalty, plaintiffs must bring their case within the statute by showing that the defendant carried the whiskey under a bill of lading specifying its charges for suph carriage, and then refused to deliver upon the payment or tender of the charges named. The complaint shows on its face that such was not the ease; for it states that the whiskey was shipped from Louisville to Little Rock under a bill of lading guarantying the rate to the latter point, and then shipped over defendant’s line.
There are other points raised which would probably be equally conclusive against the right of plaintiffs to recover, but we find it unnecessary to discuss them. For the reasons stated, the judgment will be reversed, and the case dismissed. | [
-12,
-5,
-36,
-99,
90,
104,
42,
-70,
83,
99,
-89,
83,
-51,
-26,
0,
115,
-89,
127,
-15,
58,
-15,
-89,
7,
99,
-45,
-105,
-39,
-49,
-77,
75,
-24,
71,
12,
32,
-22,
-11,
102,
-53,
-47,
28,
-18,
32,
59,
-19,
-15,
1,
48,
123,
4,
15,
17,
-114,
-13,
40,
24,
-47,
41,
62,
105,
45,
-64,
113,
-38,
-113,
119,
4,
-111,
100,
-103,
5,
-56,
30,
8,
17,
11,
-8,
115,
-92,
-123,
84,
45,
-55,
9,
106,
-29,
-127,
5,
-17,
-100,
-120,
38,
-6,
-115,
-121,
16,
25,
67,
73,
-74,
-107,
30,
4,
-121,
-2,
-6,
-115,
-39,
36,
-123,
-49,
-76,
-94,
-83,
101,
22,
119,
-54,
-91,
49,
117,
-58,
-126,
92,
5,
48,
27,
-113,
-35
] |
Battle, J.
On the 21st day of August, 1883, Saul Salinger died intestate, leaving surviving him Mittie Salinger, his widow, but no children. He died seized and possessed of personal property and lauds. Letters of administration were granted by the Monroe probate court to Louis Salinger and Mittie Salinger, authorizing them to administer his estate. One-half of the personal estate was set apart, by order of the probate court, to the widow as dower.
Among the lands which belonged to the estate of Saul Salinger at the time of his death were the following: The north half of the southeast quarter, and the southeast quarter of the southwest quarter, and the south half of the southeast quarter, and the north half of the southwest quarter, of section 8; the southwest quarter of section 9; the northeast quarter of the northwest quarter, and the northeast quarter, and the north half of the southeast quarter, of section 17, — in township 4 north, and in range 2 west. These lands were incumbered by mortgages, which were executed by Saul Salinger, in his lifetime, to Furstenheim & Wellford, to secure a debt he owed to them. Mrs. Salinger joined in the execution of the mortgages, and relinquished her dower in the lands. On the 14th of April, 1884, Mrs. Salinger and her co-administrator filed a petition in the probate court of Monroe county, representing that it would be to the interest of the estate of Saul Salinger, deceased, and not to the injury of the creditors, to use the general assets of the estate to redeem the lands. On the same day the petition was granted by the court, and the administrator and the administratrix were authorized and directed to pay the debt secured by the mortgages out of the general assets of the estate; and they thereafter, at different times, paid in discharge of the debt, out of the assets of the estate, no part of which constituted the dower of the widow, the: sum of $31,-. 859.72. The debt so paid had been previously probated against the estate. At the time The order to redeem was made the debts other than the mortgage debt,' which had been probated against the estate, amounted to only $968; and the estate appeared to be solvent.
On the 14th day of November, 1885, commissioners appointed by the Monroe probate court set apart and allotted to Mrs. Salinger, as a part of her dower, the following lands: The southeast quarter and the southeast quarter of the southwest quarter, and the north half of the southwest quarter of section 8, the southwest quarter of section 9, and the northeast quarter of the northeast quarter of section 17, in township 4 north, and in range 2 west, which were a part of the lands incumbered by the mortgages and redeemed as before stated. They reported their proceedings to the probate court, and it approved their action.
On the first day of June, 1887, the administrator and administratrix sold, under an order of the probate court, the following among other lands: The northwest quarter of the northwest quarter, and the northeast quarter of the northwest quarter, and the south half of the northeast quarter, and the north half of the southeast quarter, of section 17, in township 4 north, and in range 2 west; and I. T. Andrews purchased them, he being the highest bidder. On the 18th day of April, 1890, the administrator and administratrix, under the same authority, sold, at vendue, to the- same purchaser, the lands assigned to the widow, described above, subject to her dower. Both sales were reported to and confirmed by the probate court, the former at its October term, 1887, and the latter at its April term, 1891, The administrators conveyed to Andrews the lauds sold to him on the 1st of June, 1887, by deed bearing date the 1st of March, 1888, which has been recorded. They also conveyed to him the reversionary interest in lauds which he purchased on the 18th of April, 1890. On the 30th cf May, 1888, Andrews conveyed to Mrs. Salinger the lauds purchased by him on the 1st of June, 1887, receiving for the same three hundred dollars more than it cost him. She filed her deed for record on the 19th of June, 1888, and immediately after her purchase took possession of the land, and held it adversely to all persons, and cultivated and improved it as her own.
The administrators filed as many as six annual accounts current, showing their debits to the estate and the credits to which they are entitled. The administration of the estate is still open.
On the 27th of October, 1893, certain creditors of the estate and the heirs of Saul Salinger, deceased, commenced a suit against Mittie Salinger (Louis Salinger having died) and I. T. Andrews, alleging that the purchases of real estate by Andrews on the first day of June, 1887, and on the 18th of April, 1890, were made for the use and benefit of Mrs. Salinger, and asked that Mrs. Salinger and Andrews “be decreed to hold said lands in trust for the creditors and heirs of Saul Salinger, deceased; that an accounting be had of rents and profits, to the end that the debts of said estate may be paid, and distribution of any surplus made to heirs.” In May, 1894, they filed an amendment to their complaint in which they alleged the foregoing facts as to the mortgage of land to Furstenheim & Well-ford, the redemption of the same, and the assignment of dower to widow in a part of the same; and asked that they be subrogated to the rights of Furstenheim & Wellford under the mortgages, and for the foreclosure of the same to the extent it may be necessary to pay the claims probated against said estate. They filed many other amendments, alleging that the settlements filed contained many errors, and asked that the same be surcharged and falsified. The defendants answered, and denied that Andrews purchased the real estate for the use and benefit of Mrs. Salinger, and alleged that he purchased the same in good faith for himself, and pleaded the five and seven years statutes of limitation in bar of the action.
After hearing the evidence adduced at the hearing, the court found that the lands sold on the 1st of June, 1887, wei-e purchased by Andrews for Mrs. Salinger, and that she holds the title to the same for the benefit of her intestate’s estate; that the purchase of real estate by Andrews at the sale on the 18th of April, 1890, was made in good faith and valid; that Mrs. Salinger was not. entitled to dower in the lands mortgaged to Furstenheim & Wellford, and is responsible for the rents she has received for the same; and that the mortgages in favor of them be foreclosed for the benefit of the plaintiffs, and that the life estate assigned to the widow in the lands thereby incumbered as dower be sold to satisfy the same; and decreed that the creditors of the estate of Saul Salinger, deceased, be subrogated to the rights of Furstenheim & Wellford under the mortgages in their favor, and that the lands purchased by Andrews at the sale on the 1st of June,' 1887, and the life estate set apart to Mrs. Salinger as dower in the lands mortgaged to Furstenheim & Wellford, be sold at public sale to pay the unpaid debts probated against said estate»‘and for other purposes. And the defendants appealed; and from so much of the decree as found the purchase of the reversionary interest in the lands by Andrews at the sale on the 18th of April, 1890, to be in good faith and valid the plaintiffs appealed.
It appears from the allegations in the complaint of the plaintiffs that Mrs. Salinger has been in the possession of the lands sold on the first of June, 1887, and purchased by Andrews, at all times since the sale controlling the same and enjoying the profits thereof; ,and, although it is not expressly alleged, it clearly appears from the complaint that she has been in the open and adverse possession of the same for more than five years before the commencement of this suit. The defendants having pleaded the five years statute of limita - tation, it devolved upon the plaintiffs to prove that their suit came within some exception to the general rule adopted by the statute. They claim they were prevented from suing at an earlier day by the fraud of the defendants. To maintain their suit upon that ground, they should have shown by evidence how they came to be so long ignorant of their rights, and the means used by the defendants to fraudulently keep them in ignorance, and how and when they first came to a knowledge of the fact, if it be a fact, that the lands were purchased by Andrews for Mrs. Salinger. Having failed to do this, they are barred by the statute pleaded from maintaining this suit. McGaughey v. Brown, 46 Ark. 25; 2 Greenleaf on Evidence (16th Ed.) § 448, and cases cited; 2 Wood on Limitations (2d Ed.) § 276, and cases cited.
But the plaintiffs contend that the five-years’ statute of limitation has no application to this case. What was said in Hindman v. O’Connor, 54 Ark. 641, in response to a like contention, may be appropriately said' in response to plaintiff’s contention in this case. In the case cited this court said: “Mrs. O’Connor relies on the five years’ statute of' limitation to sustain her title. That statute provides: ‘All actions against the purchaser, his heirs or assigns, for the recovery of lands sold at judicial sales shall be brought within five years after the date of such sale, and not thereafter; saving to minors and persons of unsound mind the period of three years after such disability shall have been removed.’ Appellants insist that that statute has no application to an action like this, the object of which is to set aside a sale of land for fraud. So McGaughey v. Brown, 46 Ark. 25, was an action to set aside a sale of land for fraud. The prayer of .the bill in that case was that the sale be set aside; that a master be appointed to take an account of the rents and profits; that the conveyances of the land, which were alleged to be fraudulent, be removed as a cloud upon the title of plaintiffs; and that they be put into the possession of the land. This court held that the object of the bill was.to get possession of the land, and that the action was barred by the five years’ statute. In this case (Hindman v. O’Connor) the prayer of the complaint is that the sale beset aside; that an account be taken between the plaintiffs and defendants as to the rents and profits of the block in question and the sums paid by defendants for the benefit of plaintiffs; and that ‘the correct and true balance be ascertained between them;’ and that said property be sold for purposes of partition and to satisfy the balance found by the master; and for other relief. One of the obvious objects of the complaint was the recovery of the land. That was necessary to accomplish the purpose of the action. The statute applies.”
In the case before us the prayer of the complaint is that the defendants, Mittie Salinger and I. T. Andrews, be decreed to hold said lauds in trust for the creditors and heirs of Saul Salinger, deceased; that an accounting be had of the rents and profits, to the end that the debts of said estate may be paid, and. that, the distribution of any surplus may be made to the heirs; and for other relief. One Of the obvious objects of the suit was the recovery of the lands. How could the possession of the laud held by Mrs. Salinger in her own right be-transferred to the defendants as trustees? How could they be used for the purpose of paying the debts of the estate unless they were recovered? That ivas necessary to accomplish the purpose of the suit. The statute applies.
We see no sufficient reason for disturbing the finding of the court as to the validity of the purchase by Andrews of the reversionary interest in lands at the sale on the 18th of April, 1890. It is presumed to be dona fide until the contrary is -shown. The burden of showing that it was fraudulent was upon plaintiffs. They have failed to do so.
The circuit court erred in holding that Mrs. Salinger was not entitled to dower in the lauds mortgaged to Furstenheim •& Wellford. She was entitled to dower therein subject to the mortgages, but she was not entitled to an appropriation of the personal estate to relieve the lands from the incumbrance upon them. Hewitt v. Cox, 55 Ark. 225.
When the interest in the land which wras assigned to her •as dower was redeemed by the payment of the mortgage debts, she received more than she was entitled to. At the time the probate court directed the administrators to redeem the lands from the mortgages, the estate of Saul Salinger,'deceased, appeared to be solvent, but the reverse- proved to be true. The result was, assets that should have been used in paying the debts of the estate were appropriated to the redemption of the lands. The creditors virtually redeemed the lands, including the widoAv’s dower in the same, and are entitled to be reimbursed in some manner and to some extent on account of moneys expended in the redemption.
Mrs. Salinger should not be required to pay the whole of the mortgage debt in order to redeem the interest in the lands ■mortgaged which Avere assigned to her as. dower. She was •under no personal obligation to do so. The mortgages were a burden upon the lands, and the payment of them by her was mot a personal debt. But, the creditors having redeemed in the manner stated, and all the estate in the lands incumbered, except her dower interest, having been sold, and the proceeds of the sale having been appropriated to the part payment of their claims, and the debts of the estate being still unpaid, she is not entitled to hold dower in the lands free of charge, unless she pays her proportionate and equitable share of the sum paid to redeem. That share can be ascertained by finding out what part of the total value of all the lands encumbered by the mortgages the value of the estate in fee in so much thereof as was assigned to the widow is, and by setting apart such part of the sum paid to redeem to the lands allotted to the widow. Her part of the sum so paid will be equal to the sum of an annuity of the amount of one-half of the interest upon the sum so set apart, at the time of such payment, for the residue of her life. To illustrate: If the value of the fee in the lands assigned to her was one-half of the total value of the lands mortgaged, and the sum paid to redeem was $30,000, her share of this amount will be a sum which will be equal to the value of an annuity of the amount of one-half of the interest upon fifteen thousand dollars, at the time of the payment, for the residue of her life. Bell v. Mayor of New York, 10 Paige, 49, 71; House v. House, 10 Paige, 158, 164; 1 Scribner, Dower, (2d Ed.), pp. 537, 539.
The administrators of Saul Salinger, deceased, who represented the creditors, having redeemed the lands, are subrogated to the right of the mortgagees to collect so much of the mortgage debt as is equal to the widow’s share of the amount paid to redeem, by causing the interest assigned to her as dower to be sold for the purpose óf foreclosing the mortgages to that extent. They hold this right for the benefit of the creditors, without any assignment or act of transfer, as quasi assignees, for the purpose of compelling contribution. Sheldon on Subrogation (2d Ed.) § 45, and cases cited; 3 Pomeroy’s Eq. Jurisprudence, §§ 1222,1223.
The defendants argue that the lands were redeemed in pursuance of an order of a court having jurisdiction to make it, and therefore cannot be again charged with the mortgage debt. There is no occasion for disregarding or setting the order aside. It was made under a mistake of fact. At the time it was made it was thought that the estate was solvent, and that it could be made without injury to the creditors. But this was afterwards discovered to be a mistake. Treating the 'redemption as having been lawfully made, the question is, ought the widow or her dower, under the circumstances, to be made to contribute any part of the sum paid to redeem? In Wilson v. Harris, 13 Ark. 559, the administrator made a final settlement, and delivered the residue of the assets in his hands to the widow and heirs of his intestate, and was discharged by the court. At the time the order discharging him was made, a demand which had been duly probated against the estate remained unpaid, and was overlooked. This court held that the unpaid creditor had the right to file a bill against the widow and heirs for contribution and payment of his demand. So in this case the widow has received the benefit of assets which should have been appropriated to the payment of creditors, and she should restore to the creditors her proportion of such assets. In both cases the order was made by a court of competent jurisdiction, in an ex parte proceeding, under a mistake of fact; and the result is the same. While the facts in the two cases are different, the principle upon which each rests is the same.
Defendants further say that the right to foreclose the mortgages, as to the estate assigned to the widow as dower in the lands incumbered thereby, was barred by the statute of limitation before the commencement of this suit. But they are in error. So much of the statute which provides when actions to foreclose mortgages shall be brought as is applicable to this case is as follows: “In suits to foreclose or enforce mortgages or deeds of trust, it shall be a sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given.” Sand. & H. Dig., § 5094. The debt secured by the mortgages in this case were evidenced by promissory notes, and the period of limitation within which the statute provides actions shall be brought on promissory notes is five years after the cause of action shall accrue. But if the maker of promissory notes shall die before an action upon the notes is barred, and letters of administration are granted upon his éstate, the five-years statute ceases to run as to him, because, under our law, it is displaced at once by the two-years’ statute of non-claim, which runs against all subsisting claims against the estate of the maker not barred, not from the accrual of the cause of action, but from the grant of letters upon his estate. In the case at bar the promissory notes secured by the mortgages were not barred by the statute of limitation at the death of Saul Salinger, their maker, and were duly probated within the time prescribed by the statute. After this no statute of limitation ran against them until after the close of the administration of the estate of the deceased, which was open at the commencement of this suit. Biscoe v. Madden, 17 Ark. 533, 539; Walker v. Byers, 14 Ark. 256; Bennett v. Dawson, 18 Ark. 336; Bennett v. Dawson, 15 Ark. 412; Worthington v. DeBardlekin, 33 Ark. 651; Mays v. Rogers, 37 Ark. 155; Fort v. Blagg, 38 Ark. 474; German Savings & L. Society v. Hutchinson, 68 Cal. 52.
Defendants say that the court erred in refusing to allow Mittie Salinger, as administratrix of Saul Salinger, deceased, a credit for the rents of the farm attached to the mansion or chief dwelling house of her late husband, for the years 1883, 1884 and 1885, amounting, without interest, to about $2,500. ' Their reason for this contention is, she was entitled to the use and possession of such farm, free of charge, from the date of her husband’s death until her dower was assigned, which was the 11th day of January, 1886. It is true that the statute provides: “If the dower of any widow is not assigned and laid off to her within three months after the death of her husband, she shall remain and possess the mansion or chief dwelling-house of her late husband, together with the farm thereto attached, free of all rent, until her dower shall be laid off and
assigned to her.” Sand. & H. Dig., § 2537. But she has chained herself with these rents in her annual settlements with the estate of her deceased husband, and thereby waived her right to the same under the statute. This course of conduct was calculated to lead the heirs and creditors of the estate to believe that she would continue to charge herself with the rents of such farm, and to postpone the assignment of her dower in the lands on account of it, believing that they had lost and would lose nothing by the postponement. It would be unjust and inequitable to allow her credit for the rents after she had for so many years waived her rights under the statute, and after the parties interested had probably suffered her to remain in possession of the farm for many years under the belief that she had waived her rights under the statute quoted, and would continue to do so until her dower was assigned.
They further contend that Mittie Salinger, as administratrix, is entitled to additional credits for $1,285 and $1,181.57. These are amounts for which the probate court has authorized her to take credit in some future settlement to be filed by her. It appears that she has not asked for a credit for the same in any settlement, and that her administration is still open. Under these circumstances, the proper place in which to ask for them is a settlement filed by her as administratrix in the probate court. Hankins v. Layne, 48 Ark. 544.
The decree of the circuit court is, therefore, reversed as to the land sold on the first day of June, 1887, and the plaintiff’s complaint-is dismissed as to the same; is affirmed as to the reversionary interest in lands sold on the 18th of April, 1890; and is reversed as to the dower set apart in lands mortgaged to, Furstenheim & Wellford; and this cause is remanded with instructions to the court to ascertain Mrs. Salinger’s portion of the amount paid to redeem the land so mortgaged, and to render a decree directing the interest assigned her' as dower in the lands redeemed, or so much as may,be necessary, to be sold, and the proceeds of the sale to be appropriated to the payment of- her said portion, if the same be not paid within a specified time, and to change'*and conform its decree to this opinion, and for other proceedings.
Wood, J., did not participate. | [
-96,
109,
-40,
94,
-8,
-96,
10,
58,
114,
75,
49,
95,
-53,
-33,
85,
33,
48,
-87,
81,
105,
-74,
-73,
71,
-126,
81,
-5,
-79,
-41,
-78,
125,
-19,
-57,
76,
32,
-38,
29,
-57,
-93,
-63,
80,
6,
71,
-119,
61,
-37,
64,
49,
107,
82,
-115,
81,
110,
-78,
45,
53,
113,
76,
56,
93,
-69,
-112,
-96,
-65,
30,
-1,
23,
-128,
83,
-104,
-125,
72,
10,
-112,
21,
-124,
-24,
115,
54,
-106,
86,
2,
-87,
-128,
98,
-30,
16,
-91,
-3,
-16,
-103,
14,
-10,
-115,
-121,
-55,
89,
-128,
76,
-75,
-99,
124,
-48,
7,
-12,
-2,
-106,
-115,
42,
47,
-102,
-106,
-111,
11,
124,
-100,
2,
-1,
-57,
96,
81,
-51,
2,
93,
102,
113,
-101,
-116,
-111
] |
Battle J.
Two questions are presented in this cause for decision:
Fii’st. Did the court err in requiring appellant to go into trial before W. Y. Davis, a co-defendant, was acquitted, convicted, or finally discharged?
Second. Was the verdict of the jury sustained by evidence?
First. The appellant insists that the court erred in requiring him to go into trial before his co-defendant, W. Y. Davis, was again tried, after he (Davis) had been on trial, and the jury impaneled to try him had failed to agree as to his guilt or innocence, and had been discharged. He cites a statute to sustain his contention, which is as follows: “When jointly indicted for a felony, any defendant requiring it is entitled to a separate trial, and, when the trials are severed, the defendants may elect the order in which they shall stand upon the doeket for trial; but if no such election is made, they shall stand in the order in which their names appear upon the indictment.” Sand. So H. Dig., § 2189. The statute does not provide that they shall be tried in any particular order, without regard to circumstances, but prescribes the order, as to themselves, in which they shall stand on the docket. When they elect in what order they shall stand for trial, they stand in court as they would, had they been indicted separately, and the indictments against them had been docketed in the order they elected. The statute provides only how their cases shall be called for trial. If one is not ready or is not tried when his ease is reached, the next in the order of succession stands for trial, like all other cases upon the criminal docket of the court. Because one case stands first on the docket, all other eases coming after it are not postponed when it is continued or passed until after it is tided, yet it stands first upon the docket for trial. The statute fixes only the order in which the cases of defendants jointly indicted shall be called for trial after they have severed, and elected the order in which they shall stand upon the doeket for trial, and provides that, if no such election is made, they shall stand in the order in which their names appear upon the indictment.
Second. 'We have carefully examined the record, and find sufficient evidence to sustain the verdict of the jury.
Judgment affirmed. | [
-80,
120,
-3,
-97,
10,
-32,
42,
-72,
-127,
-125,
39,
83,
45,
-61,
80,
101,
57,
-1,
85,
91,
-51,
-121,
7,
-63,
-10,
-109,
91,
-105,
55,
-19,
-3,
125,
76,
-80,
-62,
-11,
70,
106,
69,
20,
-114,
-115,
-72,
97,
-112,
-102,
48,
115,
118,
7,
117,
-34,
-13,
42,
18,
-45,
75,
40,
75,
63,
-62,
56,
-126,
5,
77,
4,
-77,
-90,
-101,
-121,
-40,
62,
84,
16,
2,
-22,
114,
-108,
-126,
84,
105,
25,
44,
66,
96,
1,
21,
-19,
-72,
-127,
62,
38,
31,
-90,
25,
121,
-55,
61,
-74,
-35,
115,
116,
-90,
126,
-19,
-59,
57,
108,
3,
-113,
-66,
-13,
-97,
52,
-86,
-109,
-61,
1,
16,
48,
-50,
-22,
92,
98,
81,
-37,
-116,
-42
] |
Hughes, J.,
(after stating the facts.) Section 6238 of Sandels & Hill’s Digest is as follows: “It shall be the duty of all railroad companies organized under the laws of this state, which have constructed, or may hereafter construct, a railroad which may pass through or upon any enclosed lands of another, whether such lands were enclosed at the time of the construction of such railroad, or were enclosed thereafter, upon receiving ten days’ notice in writing from the owner of said lands, to construct suitable and safe stock guards on either side of said enclosure where said railroads enter said enclosure and to keep the same in good repair.” Section 6239 provides for a penalty of not less than twenty-five nor more than two hundred dollars for failure to comply with the 'statute, to be recovered in a civil action by any person aggrieved thereby. There is no evidence of the service of the notice, save the constable’s return thei-eon not sworn to. There is no provision in this statute as to who may serve the notice provided for, nor as to how the service shall be proved. We find no statute making the return of the constable, who served the notice, proof of the fact of service; and we think the fact of service should be proved like any other fact, the proof of which is not provided for by statute. 16 Am. & Eng. Enc. of Law, 827 and cases cited in note 4.
Section 5890, Sandels & Hill’s Digest, provides that “notices mentioned in the code shall be in writing, and may be served by a sheriff, constable, coroner or marshal of a town or city, whose return shall be proof of the service.” But the notice provided for in section 6238, Sand. & H. Dig., is not mentioned in the code, because section 6238 was passed long after the adoption of the code. Besides, the code provision quoted relates to notices in proceedings or suits in courts, which the notice provided for in section 6238 cannot be said to be.
Reversed, and remanded for a new trial. | [
-76,
122,
-36,
-3,
-85,
-31,
59,
-104,
115,
-27,
-89,
83,
-17,
-62,
17,
35,
-30,
127,
117,
43,
-42,
-94,
35,
99,
82,
-45,
-109,
-59,
-73,
79,
110,
-42,
76,
32,
-54,
85,
71,
72,
-59,
92,
-118,
37,
10,
-55,
-13,
65,
52,
105,
70,
79,
49,
-34,
-77,
10,
24,
-61,
40,
44,
-17,
-83,
-63,
113,
-74,
93,
62,
6,
-93,
68,
25,
35,
-56,
27,
-100,
53,
17,
-8,
115,
-90,
7,
118,
41,
41,
9,
42,
-30,
1,
13,
-17,
-100,
-84,
14,
-16,
-115,
-89,
-80,
24,
35,
46,
-105,
-107,
20,
20,
38,
-2,
-26,
4,
27,
100,
1,
-49,
-76,
-89,
-1,
100,
-100,
71,
-53,
49,
48,
117,
-50,
-74,
94,
71,
52,
27,
-114,
-66
] |
Hughes, J.,
(after stating the facts.) Though there are several assignments of error in this case, yet, as the case must be reversed for the error in admitting certain testimony which a majority of the judges think was prejudicial, we do not think it necessary to notice any other.
Over the objection of the defendant, Robert Hawkins, a justice of the peace, was permitted to testify that some three or four months before the trial, John Gayton (the deceased) requested him to go to the defendant, and request him to let his wife alone, and that he told Ossejr, Allen, from what he had heard he had better let John Gayton and his wife alone. If he did not, there would be trouble between them. On cross-examination, witness stated that when he told Ossey Allen this, Ossey Allen replied that he would. This testimony was inadmissible. The defendant saved proper exceptions to this testimony, and embodied his exceptions in his motion for anew trial, which being overruled he excepted and appealed to this court. In view of the fact that there was testimony which tended to prove an alibi for the defendant, this evidence might have prejudiced the jury.
For the error of its admission,, the judgment is reversed, and the cause is remanded for a new trial. | [
48,
104,
-24,
63,
10,
-96,
42,
-88,
7,
1,
-14,
115,
-81,
90,
4,
43,
-78,
73,
84,
99,
-43,
-73,
23,
67,
-14,
-13,
-31,
-43,
-79,
-20,
-10,
-35,
76,
96,
-54,
81,
98,
72,
-51,
82,
-122,
31,
-72,
-28,
-38,
80,
48,
62,
-106,
15,
97,
30,
-93,
42,
55,
-49,
104,
40,
111,
-71,
80,
48,
-100,
15,
-49,
0,
-77,
38,
-98,
15,
90,
46,
-112,
49,
1,
-72,
115,
-106,
2,
116,
109,
-71,
25,
98,
98,
1,
-51,
-49,
-79,
-120,
63,
62,
-99,
-89,
-16,
97,
73,
108,
-74,
-35,
118,
16,
46,
124,
-16,
-36,
28,
96,
8,
-49,
-110,
-79,
-51,
52,
-98,
-109,
-13,
17,
16,
113,
-51,
-30,
93,
69,
18,
-101,
-113,
-43
] |
Battle, J.
On the 13th of September, 1899, the grand jury of the Sebastian circuit court for the Greenwood district returned into said court an indictment in the words and figures following:
“The grand jury accuses the defendant of failing to ring a bell or sound a whistle at a road crossing in this: On August 18, 1899, defendant being a corporation organized under the laws of Missouri, doing business in the state of Arkansas and complying with her laws providing for the doing of business in this state by foreign corporations, unlawfully did fail to ring a bell and fail to sound a whistle at or near or within 80 rods of the crossing of the railroad belonging to defendant running from Fort Smith to Greenwood, and the Fort Smith and Waldron wagon road, at road district No. 3 in Marion township, at which time and place defendant did run and cause to be run southward over said railway and across said road district a locomotive engine and train of cars, said engine bearing a number which is unknown to the grand jury, but which is believed to be “62,” against the peace and dignity of the state o£ Arkansas.”
On the third day of January, 1900, it being the third day of the January term, 1900, of the Sebastian circuit court for the Greenwood district, the state of Arkansas, by its prosecuting attorney, demanded a trial of the St. Louis, Iron Mountain & Southern Railway Company, in said court, under the indictment against it, which was ordered; and, the defendant not being present in person or by attorney, a plea of not guilty was entered for it, and a jury was impaneled to try the issues thereby joined; and the plaintiff introduced witnesses, who testified substantially as follows:
That the defendant failed to ring a bell and failed to sound a whistle at or near or within 80 rods of a crossing of the railroad belonging to the defendant, running from Fort Smith to Greenwood, and the Fort Smith and Waldron wagon road in district No. 10, in Marion township, at which time and place the defendant did run and cause to be run southward over said railroad and across said road district a locomotive engine and train of cars, said engine being a number unknown to the grand jury, but which is believed to be “62.”
The plaintiff introduced also a mortgage executed by the St. Louis, Iron Mountain & Southern Railway Company, which on its face showed that the St. Louis, Iron Mountain & Southern Railway Company was a consolidated corporation, duly organized under the laws of Missouri and Arlcansas, and the plaintiff thereupon rested its case.
The court instructed the jury, and they afterwards returned a verdict in favor of the plaintiff against the defendant for two hundred dollars, the penalty allowed by the statute for the failure specified in the indictment, and the court rendered judgment accordingly.
On the 5th day of January, 1900, the defendant filed a motion to arrest the judgment as follows: “Comes the defendant, the St. Louis, Iron Mountain & Southern Railway Company, and moves the court to arrest the judgment in this cause rendered on the 3d day of January, 1900, and for cause says: (1) That there was no sufficient indictment pending against this defendant upon which this defendant could be tried. (2) That the alleged indictment against this defendant did not state facts sufficient to constitute a public offense under the laws of this state. (3) That the facts stated in the alleged indictment do not constitute a public offense within the jurisdiction of the court.”
The court overruled this motion; and the defendant thereupon filed a motion for a new trial, which, omitting its caption, is as follows: “Comes the defendant, the St. Louis, Iron Mountain & Southern Railway Company, and moves the court to set aside the verdict in this cause rendered, and grant it a new trial, and for cause says: (1) The court erred in forcing the defendant to trial in the absence of counsel for the defendant on the first day of the term of this court. (2) The court erred in overruling defendant's motion in arrest of judgment in this cause. (3) The verdict of the jury is contrary to the law. (4) The verdict of the jury is not supported by sufficient evidence. (5) The verdict of the jury is against both the law and the evidence. (6) The court erred in admitting illegal and incompetent evidence against the defendant upon the trial of the cause.''
The motion for new trial was -filed on the 20th of January, 1900, and was on the same day overruled by the court; and the defendant appealed.
Appellant’s first contention is that appellee sought to recover the penalty sued for by an indictment, which could be recovered only in a civil proceeding, and that the court below was therefore without jurisdiction. It is true that the penalty can be recovered only by a civil action. Railway Company v. State, 55 Ark. 200; Kansas City, Springfield & Memphis Railroad Company v. State, 63 Ark. 134. The statement of the facts constituting plaintiff’s cause of action, though in the form of an indictment, could have been properly treated as a complaint. It contained allegations which were intended to disclose a violation of the statute, and was intended to serve as a demand for the penalty for such violation. “It was prepared and signed by the prosecuting attorney, and its prosecution was subject to his discretion and control as fully as if he had filed an ordinary complaint.” “For all practical purposes, the suit was as much a suit by the prosecuting attorney as though it had been begun by formal complaint expressed in the aptest technical phraseology.” Railway Company v. State, 55 Ark. 200.
Appellant insists that the complaint in this action is defective because it does not state that the failure to ring a bell or sound a whistle was within this state or the Greenwood dis trict of Sebastian county. We find'no defect in tliis respect. It is alleged in the complaint that “defendant * * * doing business in the state of Arkansas, and complying with her laws providing for the doing of business in this state by foreign corporations, unlawfully did fail to ring a bell, and fail to sound a whistle,” etc. The obvious meaning of this allegation is that the failure occurred while the defendant was doing business iu this state. At this time it is alleged that the “defendant did run and cause to be run southward, over said railway and across said road district, a locomotive engine and train of cars ” Taking these allegations together, we understand the complaint to mean that the defendant, while running a train of cars over a railway in this state, failed to ring a bell or sound a whistle at the time and place mentioned. If this be true, the failure was within this state. The place mentioned was at least eighty rods from the place where the railroad belonging to the appellant and running from Fort Smith to Greenwood crosses the Fort Smith and Waldron wagon road. We take judicial notice of the fact that the places of Fort Smith and Greenwood iu this state are towns in Sebastian county , the former being the county seat of the Fort Smith district, and the latter of the Greenwood district, in said county. But the county is divided into these two districts, and each one, for judicial purposes, is constituted a county, and actions for penalties must be brought in the county where the cause, or some part thereof, arose (Sand. & H. Dig., § 5685). Did the cause in this case arise in the Greenwood district, in which this action was brought?
The failure to ring the bell or sound the whistle, it is alleged, was at “road district No. 3, in Marion township.” Can we take judicial notice of the fact that Marion township is within the Greenwood district? In Bittle v. Stuart, 34 Ark. 227, this court held that “the courts take judicial notice of the United States system of land surveys, with the base lines, meridians, townships and ranges thereby established, and the relative positions of the sections in the townships; also of the division of the state into counties, and the boundaries of these counties as described in public acts; and also of the principal geographical features of the state, including the navigable rivers.” In Wilder v. State, 29 Ark. 293, it was held that the jui’y could take notice of the fact that Richmond, a small town, was in the county of Little River; and in Webb v. Kelsey, 66 Ark. 180, it was held that “courts must take judicial notice of who are justices of the peace within their territorial jurisdiction.”
The division of counties into townships is made necessary by the constitution of the state, which ordains that the qualified electors of each township in the state shall elect at least two justices of the peace, who shall be commissioned by the governor, and a constable. It is made the duty of these justices of the peace to sit with and assist the county judge in levying the county taxes, and in making appropriation for the expenses of the county. A majority of them is made necessary to constitute a quorum for that purpose. In many ways such townships are important and necessary'in the enforcement of the laws of the state. This being true, and courts taking judicial notice of the fact that a small' town is in a certain county, of the principal geographical features of the state, and who are justices of the peace within their territorial jurisdiction, it seems that they ought to take notice of the division of counties into townships within their territorial jurisdiction, a matter of as much importance and as well known as many of those of which they do take notice. It follows, then, that the court below should have taken judicial notice of the fact that Marion township in Sebastian county was and is in the Greenwood district; and, being a matter of which judicial notice is taken, it need not have been stated in the complaint. Sand. & H. Dig., § 5751.
It is next contended by appellant that the judgment rendered against it is void because no process was served upon it, and no appearance was entered by it .before the rendition of the judgment. While the transcript in this case purports to be a full and complete copy of all the record entries, of the indictment, and of the original papers, and. is certified to be such, it contains no copy of a summons or other process. In the judgment it is stated that the defendant came not, and the court ordered a plea of not guilty to be entered. Nowhere in the transcript is it shown that notice of the pendency of the action was served upon the appellant, or that it appeared in the action before the judgment. This being true, the judgment should be set aside. Baskins v. Wylds, 39 Ark. 347, 352.
The judgment of the court below is therefore reversed with costs, and the cause is remanded to be proceeded in as if the appellant was duly served with process in this action. | [
-80,
107,
-96,
-34,
-86,
-64,
34,
-70,
-29,
-63,
-27,
-41,
-19,
65,
17,
37,
-21,
15,
81,
122,
-26,
-106,
23,
115,
-110,
-45,
-3,
-59,
-65,
77,
-82,
-9,
77,
48,
-54,
85,
-28,
104,
-51,
28,
-114,
42,
-7,
-28,
17,
-112,
36,
127,
86,
47,
53,
-82,
-5,
-86,
30,
-37,
73,
56,
-17,
-87,
-48,
114,
-102,
69,
116,
20,
-127,
68,
-103,
7,
96,
60,
-104,
53,
5,
-72,
119,
-94,
3,
85,
33,
-7,
12,
38,
98,
35,
-107,
-33,
-88,
-88,
55,
118,
-99,
-89,
-96,
104,
67,
109,
-66,
-107,
90,
87,
6,
-2,
-19,
-123,
81,
104,
-127,
-49,
-76,
-125,
29,
-90,
-106,
51,
-21,
-67,
52,
112,
-52,
114,
95,
6,
58,
-101,
-113,
-76
] |
Bunn, C. J.
On the 20th September, 1893, the plaintiffs, Winter & Schott, a firm of merchants, composed of Joseph Winter and Max Schott, doing business in Texarkana, Arkansas, sued the defendants, J. F. Kirby & Co., a firm of saw-mill men, composed of J. F. Kirby, J. G. Brinkley and J. J. Kirby, doing business in Bowie county near the city of Texarkana, on two promissory notes, — the one dated 13th June, 1893, and due 60 days after date, for the sum of $910, with interest at the rate of ten per centum per annum from maturity until paid, upon which there was a credit of $266.40, dated August 22, 1893; and another promissory note for the sum of $456.10, dated July 14, 1893, due 60 days after date, and bearing interest at the rate of ten per centum per annum from maturity until paid, upon which nothing had been paid. Both notes were made payable at the Texarkana National Bank, Texas. Both provided for the payment to the holder of reasonable attorney’s fees, in ease it should be necessary to bring suit theron for its ■collection, and both were shown to be Texas contracts, in which state it was alleged and shown that such provision for attorney’s fees was allowable.
At the same time an affidavit for an order of attachment was filed by plaintiffs, bond given, and the order issued and in due course levied upon certain real estate in Arkansas belonging to the defendant firm, and to J. F. Kirby, the principal member thereof and manager of its business. Said affidavit, ■omitting unnecessary parts, is„as follows: “The claim in this action against the defendants, J. F. Kirby & Co., is for money due upon two certain promissory notes; that it is a just claim; that plaintiffs, as they believe, ought to recover thereon the sum of $1,210.19; and that defendants have removed a material part of their property out of this state, not leaving ■enough thei’ein to satisfy plaintiff’s claim and the claims of defendant’s creditors.”
Nothing more appears to have been done in this suit until the 11th day of December, 1894, about fifteen months after the institution thereof, when defendants filed their motion to discharge the attachment, and at the same time answered, denying ■the truth of the affidavit of plaintiffs, and averring that some of the property attached was the individual propei'ty of J. F. Kirby; that he was manager of the defendants’ business, and that defendants had been damaged in the sum of $5,000 by the wrongful issuance of the attachment, and prayed judgment; that said firm was not indebted to plaintiffs in any sum as claimed; that J. F. Kirby himself had fully settled all of said indebtedness by agreeing to judgments, with attachment liens sustained, for the sum of $2,946.57, in a suit of plaintiffs against them in the Bowie county, Texas, district court; and securing said sum by his notes secured by his property in Miller county, Arkansas, and by paying all costs in this and the said Texas suit, in consideration that this suit be dismissed, and these defendants had fully complied with their part of said agreement. Wherefore defendants prayed j udgment for the disso - lution of the attachment, for damages claimed, and for general relief. At the same time defendants filed their motion to strike out “the motion of plaintiffs to re-instate and to dismiss.” The record does not state what was done with this motion, nor does it disclose that there was ever such a motion by the the plaintiffs to re-instate, and the motion to strike out has no-explanation in the record, and no further notice was taken of it. Nor does the record show that such agreement was made, but on the contrary that a judgment by confession in the Texas-case was entered on the 4th of April, 1894, and a stay of execution was entered for six months.
On the 13th December, 1894, plaintiffs filed an amendment to their original affidavit for the order of attachment, in-the following words, to-wit: “That defendant J. F. Kirby,, prior to the institution of this suit, had removed a material part of his property out of the state of Arkansas, not leaving-enough therein to satisfy plaintiffs’ claim and the claims of' said defendants’ creditoi's.” To which the defendant J. F. Kirby filed his counter affidavit on the 7th February, 1895.
On the 6th June, 1895, a jury trial was had on the question of the debt, and the same resulted in a verdict and judgment for the plaintiffs in full amount of their claim, and the-defendants excepted, prayed and were granted an appeal, but nothing further was done in the prosecution of this appeal. No bill of exceptions was filed, and the term of the trial court lapsed. The judgment on the debt having been rendered, the trial of the issue in the attachment part was postponed, and on the 9th September, 1895, plaintiffs filed a second amendment to their affidavit for the order of attachment, assigning the following ground for attachment, to-wit: “That, immediately prior to the institution of this suit, defendants were about to sell, convey or otherwise dispose of their property with the fraudulent intent to cheat, hinder and delay their ci’editors.” To this defendants filed their controverting affidavit on the 12th September, and re-iterated, in substance, their defense to the action on the debt, suggesting a filing of a bill of exceptions at the proper time, it tis said with the approval of the court. On the 10th September, 1895, plaintiffs filed their supplemental complaint, reciting in substance the proceedings in the Bowie county, Texas, district court, referred to by defendants in their answer to the complaint in this action, and seemingly declare upon said Texas judgments.
The trial court appears to have ignored all these efforts to reopen the controversy over the debt, and at the November term following a trial was had on the issue made by the affidavits in attachment, resulting in a judgment by the court in favor of the defendants, and a dissolution of the order of attachment, from which plaintiffs in due form and in due time appealed, and the assessment of damages was postponed until the next succeeding term of the court.
The only question, therefore, before us is the rightful or wrongful issuance and levy of the order of attachment, and this issue is further narrowed by the abandonment by the plaintiffs of the first ground of the attachment, or rather the ground assigned in the original affidavit, and thé first amendment thereto, and the only question remaining is whether or not, immediately prior to the institution of this suit, the defendants were about to dispose of their property with the fraudulent intent to cheat, hinder and delay their creditors.
The evidence shows that on the 20th September, 1893, sometime during the day, the defendants’ milling plant near the city of Texarkana, in Bowie county, Texas, was destroyed by fire; that upon this property defendants held policies of insurance aggregating the sum of $5,000, which appears the only cash assets in the firm of any particular consequence; that between 7 and 8 o’clock p. m. of that day the defendants, with some of their creditors, had a meeting in the office of the Texarkana (Texas) National Bank, for the purpose of determining what to do under the circumstances. It was shown that there were debts amounting to more than $18,000 at the time, and that the assets of the firm and[of the members thereof consisted of a considerable quantity of timber lands, from which the merchantable timber had largely been cut, and some railroad track, etc.
It was finally determined that the best thing to be done was the making of a general assignment, by the firm and[all the members thereof, of all their property, real, personal and mixed, including choses in action and evidences of debt, to a trustee for the benefit of their creditors, which was accordingly done, an assignee being named. In this assignment all the property of the firm and of the members thereof was assigned, except the individual exemptions of the several members, which were claimed. This assignment was duly executed, acknowledged and prepared for record, but in fact was never delivered nor recorded, but seems to have been withdrawn, for the reason, as given by J. F. Kirby, that, the firm’s assets being sufficient to pay the debts, it was finally thought better to settle directly with the creditors than to go through the trouble and expense of effecting the same purpose through the medium of an assignment and a trustee. The assignment appears to have been executed and acknowledged between 12 and 1 o’clock on the night of the 20th September, and as a result of the meeting aforesaid.
While the negotiations and discussion of this matter were in progress, sometime between 7 and 8 o’clock p. m. of the 20th of September, the disposition of the insurance policies was sprung as a subject of discussion. First, J. W.' Harris, of the produce company of Texarkana, one of the creditors of J. F. Kirby & Co., proposed that one of the insurance policies should be assigned to his firm in payment of its debt. This was declined by J. F. Kirby, speaking for defendant firm, on the ground that the produce company’s debt was not equal to any one of the policies. Next, the Texarkana National Bank proposed that the policies should be assigned to it in payment of its debt. But this was declined, because, as stated by J. F. Kirby, the debt of the bank had already been sufficiently secured. But, the matter having been opened in this manner, the consideration thereof was continued until an agreement was reached (which was in the early part of the night) to the effect that the policies would be assigned and transferred to O’Dwyer & Ahern, J. C. Kirby, Jr., J. E. Kirby, H. W. Kirby and Joshua Kirby, whose claims against J. F. Kirby & Go. aggregated the sum of $2,999.66.
J. E. Kirby testified: “On the morning after the fire which destroyed the saw-mill, witness went to Winter & Schott, and to O’Dwyer & Ahern, and told them that the mill had been destroyed by fire, and that witness’ father had gone out to the mill to see the extent of the injury; that all the property, individual as well as that of the firm, was subject to the debts; that his father would convey it to any one the creditors might name, or do with it whatever the' creditors thought best, and that his father had instructed him to say this to them.”
W. F. Kirby, a witness for defendant, testified as follows: “I am the son of J. F. Kirby, one of the defendants in this suit. I am an attorney at law at Texarkana, Arkansas. On the 20th September, 1893,1 was in the bank where the conference was had between my father and certain of the creditors. All present seemed to think that a general assignment was the best thing that could be done, and as we left the bank I told father that he would better make a general assignment of what the company had, and we set about doing it at once. In the conference at the bank it was suggested that the insurance policies be assigned to the bank, and my father refused absolutely to do any such thing, saying that the bank was amply secured already, and that it was his and the company’s purpose to pay all the creditors. J. W. Harris, of the produce company, then tried to get him to assign one of the policies to him to pay his company’s debt, and father told him that J. F. Kirby & Co. did not owe the amount of the policy, and he would do no such thing. On the evening of September 20th, between 7 and 8 o’clock, the assignment of the insurance policies, covering the mill property destroyed by fire, which have been introduced as evidence, was prepared by myself and executed as shown by the [their] assignment. When the assignment of the policies of insurance was being discussed in our office just prior to the execution of the assignment, my father, J. F. Kirby, and J. J. Kirby were present. The purpose was to assign these policies of insurance to some creditor or creditors of J. F. Kirby & Co. who would be willing to take the assignment in full satisfaction of their claims against Kirby & Co., and would agree to let Kirby & Co. have back the money which was collected on these policies of insurance, when collected, to enable Kirby & Co. to re-establish and rebuild their mill plant and continue their saw-mill business. To this view several creditors were considered, among them O’Dwyer & Ahern and DeMaree. We decided that the Kirby boys, mentioned in this assignment of insiwance policies, would be more likely to take an assignment of the insurance policies in absolute payment of their debts, and then let Kirby & Co. have back the insurance money, when collected, or enough of it to enable them to rebuild their saw mill, than strangers would be. This is the reason the policies of insurance were assigned to the Kirby boys, named in the written assignment of the policies. I instructed J. F. and J. J. Kirby that the policies must be transferred in absolute payment of the claims of the creditors to whom they were assigned, to keep it from furnishing ground for the attachment. Harry Kirby did accept the assignment in payment of his claims, and if the said company concluded bo rebuild, he would let them have what money he got out of it to use for that purpose, and to pay little debts due laborers, and no security or repayment was mentioned. Our whole object .was to transfer the policies to some one in absolute payment of debt, who, it was thought, would most likely let Kirby & Co. have the money back to start up their business. All refused to let the company have any part of their money realized out of the policies except Harry W. Kirby. At the time this deed of trust was made to DeMaree in which H. W. Kirby’s claim was secured (October 25, 1893) I told my father that if J. F. Kirby So Co. expected to use H. W. Kirby’s part of the insurance when collected, it was nothing but right that his claim should be put in the trust deed. H. W. Kirby was in Michigan University at the time, and knew nothing about his claim being thus secured.” On cross-examination, witness said: “This was to place the policies beyond the reach of process by attachment or garnishment, which might be issued in suits brought by the creditors of Kirby So Co. in Texas. It was in absolute payment of the debts mentioned. The policies of insurance were not collected in full. There was only $2,550 insurance collected. This was divided among the creditors of J. F. Kirby & Co., to whom the polices had been assigned and accepted in full payment of their debts. Harry’s part of the insurance money was used by Kirby So Co. and by J. F. Kirby to pay taxes and the little debts due laborers, and some other expenses. His (Harry’s) debt was included in the deed of trust executed on October 25, 1893, to DeMaree as trustee, which deed of trust was not executed until after this suit was fully settled, as we thought.
It is not altogether clear whether these policies were assigned at the office of the witness, W. F. Kirby, before or after the conference at the bank. However, for the reason that some matters were talked of at the law office that were not mentioned at the bank, and for other reasons, we conclude that the assignment of the policies was made immediately after leaving the bank and returning to the office, when only J. F., J. B. Kirby and W. F. Kirby were present, others having been present at the conference at the bank. The general assignment to the trustee for the benefit of creditors, determined upon at the bank conference, appears to have been signed and acknowledged at a later hour in the night, probably between 12 m. and 1 a. m. Whether this was *done at the. bank or elsewhere does not appear, but the assignment was agreed upon, we infer, before 8 or 9 o’clock p. m. of the 20th September. After this conference had agreed upon an assignment, the plaintiff’s attorneys were informed by one of the witnesses as to what had taken place at the bank, in part at least. When the witness gave this information, plaintiffs’ attorneys were preparing the papers in this case, as he thought, having doubtless been previously informed. At all events, the order of attachment was placed in the hands of the sheriff sometime during the night. So we cannot escape the conclusion that the general assignment, the assignment of the policies and the attachment proper were contemporaneously made, and the latter at once placed in the hands of the sheriff, who proceeded to levy the same early the following morning.
On the trial of the attachment issue, the plaintiffs asked the court to declare the law as follows, to-wit: “1. The court declares the law to be that if the defendants, at the time of the suing out of the attachment in this case, were about to dispose of their property, or a material part thereof, with the fraudulent intent to cheat, hinder and delay their creditors, and such intended transfer would only amount to a legal or constructive fraud, and not to a fraud in fact, then the attachment should be sustained.” This declaration the court refused to make, but in lieu thereof made the following: “3. The court declares the law to be that if, at the time of the suing out of the attachment in the case, the defendants were about to dispose of their property with the fraudulent intent to cheat, hinder or delay their creditors, the attachment should be sustained.”
The second declaration was made as asked, but, as that was applicable to the first ground of the attachment only, and that ground seems to have been virtually abandoned, we deem it unnecessary to make further reference to it. Whether there is any real difference between the first declaration as asked, and as made by the court, we shall not stop to discuss. The principle that every one is presumed to know the law may be a fiction only, but it is a fiction necessary to be kept up. Otherwise, all government would be subverted in the futile efforts to execute its mandates. The kindred principle that every one is presumed to intend the consequences of his own acts is equally important for its purposes. If, then, one acts in violation of law, and thereby injures another, the presumption is that he intended the injury, and his error is not one of fact but of law. The affidavit in attachment upon which this case turns was, it is true, made long after the original affidavit was filed, and long after the order of attachment was issued and served. This is allowable under section 331 of Sand. & H. Digest, and has the force and effect, if sustained, as therein provided. At the time the order of attachment was sued out, the defendants are charged with being about to dispose of their property with the fraudulent intent to cheat, hinder or delay their creditors. There is no question but that at that time they were about to dispose of their property. They admit this, but contend that the disposition of their property they were about to make was altogether lawful, and not to cheat, hinder nor delay their creditors. It makes little difference that the general assignment agreed upon, and signed and acknowledged as stated, was left unexecuted in full, and in fact abandoned as a plan of settlement. Nor does it matter for what cause it was. abandoned. It was, in itself, the exponent of intentions existing in the minds of the parties to it at the time when it was agreed upon and until it was abandoned. And it maybe urged with reason that, of itself and in itself, this deed of general assignment furnished no ground for an attachment, but the contemporaneous act of assigning the policies of insurance puts a very different phase upon the whole transaction, which seems to have been one transaction, so far as the assignors and the creditors (who were the assignees of the policies, and therefore the assignees in both conveyances) are concerned.
The fact that the policies were assigned after the general assignment was agreed upon, and that, too, in the absence of the other creditors, if such was the fact, can only make a stronger case against the bona fides of the whole transaction, for the assignment of the policies was certainly against the interest of those creditors who had agreed to the general assignment, but were not made beneficiaries in the assignment of the policies. The discovery of this fact and their objection to the proceeding, so far as we can know, may have been the efficient occasion, if not the real cause, of the abandonment of the general assignment. Under the circumstances, we are to consider all the reasonable probabilities arising upon the evidence, and to so declare and administer the law as to allow of the least opportunity to commit what is termed by the parties mere legal frauds.
It is a well-settled principle that, in making a general assignment for the benefit of creditors, one cannot reserve a benefit to himself. It is, of course, a principle that he cannot do in secret an act which counteracts or contradicts what is said in the written assignment. Regarding the whole plan as a single transaction, so far as the assignors and their privies are concerned, and as constituting an attempt to make a general assignment for the benefit of creditors, and that plaintiffs at the time of suing out their attachment could reasonably so regard it, what is there in the assignment of the insurance policies but to make a species of preferences contrary to the stipulations in the deed of general assignment. It was nothing more nor less than a plan to have the beneficiaries by name in the assignment of the insurance policies empowered to collect the insurance money for the use of the assignors. That is the effect of it, and the plan was earned into effect as to Harry W. Kirby’s part.
It may be conceded, and we are inclined to think from the evidence that such was this case, that the defendants acted in what they thought to be the best of good faith iu this matter, but the law puts a different construction upon their acts. In this there was no mistake or misapprehension of facts, but only of the law, and that cannot excuse.
There are indications that the whole case of the defendants is not contained in the transcript. But of this we cannot say. For the reason stated in the foregoing, the judgment is reversed, and the cause remanded for a new trial.
Wood, J., not participating. | [
-16,
111,
-96,
62,
90,
96,
40,
-70,
59,
-32,
52,
83,
-23,
-43,
13,
125,
103,
89,
-16,
120,
-9,
-89,
55,
106,
-62,
-109,
-7,
-59,
48,
76,
-28,
-43,
76,
60,
-54,
-51,
-122,
-22,
-63,
-100,
-114,
0,
-85,
96,
-35,
0,
52,
-81,
82,
3,
49,
44,
-14,
44,
53,
-54,
77,
44,
-43,
56,
-47,
-103,
-102,
-57,
-1,
23,
-95,
70,
-100,
23,
-56,
60,
-112,
61,
-64,
-88,
114,
52,
6,
-11,
37,
9,
5,
98,
98,
50,
-107,
-85,
-52,
-84,
39,
-9,
-115,
-90,
-29,
64,
3,
9,
-66,
29,
-5,
21,
-125,
-38,
-18,
85,
25,
104,
7,
-102,
-106,
-125,
23,
102,
-100,
19,
-17,
-81,
48,
117,
-113,
-78,
93,
71,
48,
-101,
-114,
-80
] |
Battle, J.
On the 11th day of July, 1898, L. D. Rozelle commenced (not filed) an action against E. D. Matthews in the Mississippi circuit court on an account for $495.70. On the same day he sued out an order of attachment, which was served on the 12th day of July, 1898, by attaching certain lumber as the property of Matthews. On the 7th of December following, Anderson-Tully Company filed a complaint in the action instituted by Bozelle, claiming the lumber attached. A jury was impaneled to inquire into the facts. In the trial which followed, the following facts, substantially, were shown by the undisputed evidence: On the 24th of November, 1897, Anderson-Tully Company contracted with Matthews for one million feet of cottonwood lumber, and agreed to pay for the same at the rate of eight dollars a thousand feet. The company agreed to send an inspector to the mill of Matthews to make an estimate of the lumber sawed, as often as once in every thirty days, and agreed to advance to Matthews five dollars for every thousand feet of the lumber contained in the estimate, and to pay the remainder of the price when the lumber was delivered by Matthews on barges at Luxora, Arkansas. About the first day of July, 1898, the company sent its inspector to Luxora to receive lumber from Matthews. 220,000 feet of lumber were found loaded on a barge, and were received. The company then made a statement of Matthews’ account with it, and found, after crediting him for the lumber delivered, he was still indebted to it in the sum of $1,995 for advances upon their contract. There was then in the mill yard of Matthews one hundred and fifteen piles .of lumber, estimated to contain 373,625 feet. To collect the amount due it, the company caused Matthews to execute to it a bill of sale for the 115 piles of lumber, and to deliver the possession of the same to it in the yard where it was placed. The lumber was delivered to and received by the company as its own property, and the purchase money was paid, except sixty-five dollars, which was garnished in the hands of the company. This was done on the 5th of July, 1898. Matthews agreed to load the lumber on barges in the Mississippi river, convenient to his mill, at his own expense, and, in the meantime .and until this was done, to protect and take care of the same. When the lumber was loaded, it was agreed that, if it contained more feet than was estimated, the company would pay for the excess at the price agreed upon. The reason given for the last transaction was the protection of the company, but there was no agreement that the lumber should, upon any condition, ever become the property of Matthews.
Upon this evidence, the jury returned a verdict in favor of the plaintiff, Rozelle. The company filed a motion for a new trial, which the court denied, and the company appealed.
According to the evidence, the lumber in controversy was the property of the company. All that was to be done to complete the sale according to the agreement of the parties was performed. The lumber was delivered. The fact that Matthews was to haul it to the barge did not affect the transfer of title. That was no condition upon the performance of which the sale was to become complete. Lynch v. Daggett, 62 Ark. 592.
The judgment of the circuit court is reversed, and' the cause is remanded, with direction to the court to enter a judgment in favor of the company for the lumber. | [
-14,
125,
-104,
-115,
42,
-32,
42,
-102,
27,
3,
-28,
115,
-17,
-25,
1,
97,
-25,
125,
-15,
58,
-28,
-93,
2,
115,
-45,
-109,
-29,
-41,
-79,
-19,
-28,
85,
-52,
32,
10,
-111,
-29,
32,
-59,
28,
70,
9,
-72,
-18,
-3,
121,
52,
15,
68,
78,
97,
-114,
-1,
41,
20,
75,
109,
47,
109,
41,
-47,
49,
-126,
21,
15,
20,
-80,
86,
-104,
1,
72,
60,
-112,
49,
-109,
-23,
123,
-74,
-122,
117,
33,
-99,
76,
34,
-29,
66,
-51,
-81,
-120,
-100,
55,
-2,
-103,
-121,
-64,
88,
19,
124,
-74,
-107,
114,
80,
-106,
114,
-17,
-107,
25,
124,
3,
-121,
22,
-126,
-97,
110,
-108,
19,
-53,
-105,
50,
113,
-51,
-78,
92,
71,
50,
27,
-121,
-47
] |
J. Seaborn Holt, Associate Justice.
January 5, 1953 appellant, McKnight, entered into a written lease contract with appellee, Ellis, under the terms of which he leased 600 acres of land to Ellis to be farmed for rice in 1953. McKnight, in addition to furnishing the land for one-half the crop produced and delivered at the drier, further agreed to furnish “All pumps, motors, and other necessary, proper and adequate equipment to provide water for said rice, including seed rice necessary for planting said acreage . . . one-half the cost of all bean poison, . . . The lessor will build and construct all necessary canals to and on said lands so that said land may be properly watered in accordance with good rice farming practice . . . ”
Ellis brought this suit March 29, 1954, seeking damages against McKnight in the amount of $72,990.88 for breach of said contract. Ellis alleged in his complaint in effect that McKnight had breached the lease agreement in that he failed to furnish 600 acres of land, and in fact furnished only 300 to 325 acres of land; failed to furnish the equipment necessary to supply water in proper time to care for and make the crop and failed to build proper and adequate flumes for canals in time to seasonably furnish a proper and adequate water supply for the rice crop; failed to furnish one-half of the bean poison; failed to provide fuel; and failed to furnisli seed rice at proper times and in proper quantities, and by an amendment alleged that tbe defendant failed to furnish a power unit and a connecting unit at the well; that the same should have been furnished during' the first fifteen days of April; that the flumes and canals were never completed in time to properly water the crop of rice; and that they should have been built prior to March 10 in order to permit same to settle and compact in order to hold and move a head of water.
McKnight answered, denying all material allegations in appellee’s complaint and in a cross-complaint sought $19,000.00 damages for alleged failure on appellee’s part to perform the lease agreement.
A jury trial resulted in a verdict for Ellis of $11,-500.00. From the judgment awarding Ellis this amount, and directing that McKnight ‘‘ Take nothing by reason of his cross-complaint,” is this appeal.
For reversal appellant relies on the following points.
“1. The Court erred in overruling the request of the appellant for a directed verdict at the conclusion of the plaintiff’s testimony in reference to the plaintiff’s claim for damages by reason of the alleged breach of the contract to permit the plaintiff to work the Norfleet lands.
“2. The Court erred in including in the Court’s instruction No. 5 over the objection of appellant the following language: ‘together with such a sum of money as you find from a preponderance of the evidence will compensate the plaintiff for his work and labor, if any, upon the Norfleet lands in readying them for cultivation and unless you do so find your verdict will be for the defendant on this count.’
‘‘3. The Court erred in refusing appellant’s requested instruction No. 1 as follows: ‘ The jury are instructed that the plaintiff in his complaint does not claim that the well furnished by the defendant was not capable of delivering an adequate amount of water to the rice crop and that you will disregard and consider for no purpose whatever testimony as to the construction of another well in the year 1954 on the lands of the defendant. ’
“4. The Court erred in overruling appellant’s motion to strike the testimony relative to another well having been placed on the McKnight lands.
‘ ‘ 5. The Court erred in permitting the introduction in evidence, over the objections of appellant, of changes and improvements made in reference to the lands subsequent to the year 1953. ’ ’
POINTS 1 and 2
It appears undisputed that McKnight took 300 acres of the leased land (known as the Norfleet Place) away from Ellis the last of May, and farmed it himself. It was McKnight’s theory that he was justified in so doing because he (Ellis) had failed to perform his part of the contract. It was for the jury to say, under proper instructions, whether Ellis was entitled to (nominal) damages from McKnight under this alleged breach. We hold that there was substantial evidence to support damages for at least $200.00. Ellis testified, without any objection by appellant, that of $300.00 he spent in ditching and burning on the leased land, $200.00 was spent on the Nor-fleet place above mentioned.
He further testified that he had the tractors, combine, disks, dike plows, seeders, harrows, trucks, grain buggies and equipment necessary to work the Norfleet land; and the necessary labor; that he had done some ditching on the land and burning off the fields; was ready to start work on this Norfleet land the day McKnight took over during the planting season; that McKnight did not contend that Ellis had failed to perform, but said that “we would work out something . . . but never did.” Other witnesses tended to corroborate Ellis. On this testimony the Court was justified in instructing the jury as above indicated that their verdict be for “such a sum of money as you find from a preponderance of the evidence will compensate the plaintiff for his work and labor, if any, upon the Norfleet lands in readying them for cultivation.” We therefore conclude that these two alleged errors are untenable.
POINTS 3 and 4
Appellant next contends that the Court erred in refusing his instruction No. 1 as set out above in Point 3 in his points relied upon, and in refusing his request to strike certain testimony relating to construction of another well subsequent to the 1953 season. It appears that in 1954, following the 1953 rice crop season, appellant had constructed another well on higher land adjoining that here involved and that proof of construction of this new well was allowed to go to the jury. In considering these points we must bear in mind that appellee Ellis concedes that the 16" well on the 600 acres in 1953 was adequate to furnish sufficient water if all flumes and canals had been in proper working condition to carry and spread the water. Appellant’s son-in-law, Jack Ray, testified that he watered the 320 acres in 1954 which Ellis farmed in 1953 with the same flumes and canals used by Ellis but two of appellant’s employees testified that the old flumes would not carry the water over the land and new flumes and a relift pump had to be used.
There was also evidence that, due to unprecedented dry weather in 1953, the flumes and canals cracked in places and absorbed more water than usual, thus reducing the amount of water necessary for the rice crop. Ellis’ complaint did allege that he was not furnished enough flumes and water. The following colloquy between Court and Counsel occurred during the trial: Court: “Now, I don’t find in the complaint where there was insufficient water coming from the well. Mr. Hale: From the well itself? Have not so plead, don’t claim that. The Court: All right. Mr. Rieves: May I ask the Court, if counsel is contending the well furnished him wasn’t sufficient and didn’t supply an adequate amount of water to the flume? The Court: Insofar as the issues in the case are concerned, as the jury will get it to determine when it is presented to them, they will be limited to the allegations in the pleadings, Avhich do not include any statement as to the inadequacy of the water coming from the well. Mr. Nieves: If there is any such contention, I want to plead surprise. Mr. Hale: We have made no such contention, if the Court please, and still don’t. Mr. Nieves: Then, I should like the jury to be instructed at this time not to consider any evidence relative to another well to put on the 160 acres. The Court: Motion to strike the testimony is denied. May consider it together with all the other evidence in the case regarding the issues left them for consideration. Mr. Nieves: Will Your Honor note our exceptions, please. ’ ’
Here the evidence tends to show that the elevations, location of canals, flumes, and direction of slopes in 1953 of the lands involved were unchanged in 1954 from that condition in 1953 and that the new well (which was 12") was constructed on high ground. The 16" well would have been adequate but for improper and inadequate flumes and canals as alleged in the complaint.
The general rule is that evidence of a prior condition may be shown by evidence of a condition subsequent where the condition has not changed and where the lapse of time was not of sufficient duration to make any material difference . . . “Where, from the nature of the situation, the condition is of such a permanent character that the lapse of time would not make material difference, and it would be improbable that change had occurred, testimony as to conditions after the happening of an event is relevant to show the conditions existing at the time.” 80 A. L. N., page 441, § 2.
POINT 5
As to appellant’s final contention that the Court erred in admitting evidence “of changes and improvements made in reference to the lands subsequent to 1953,” what we have already said relative to appellant’s points and contentions above applies with equal force to this last contention and therefore, we hold that it cannot be sustained.
On the whole case we conclude that there was substantial evidence to. support allegations in appellee’s complaint of a breach of contract on the part of appellant, and the damages awarded appellee. Affirmed. | [
-16,
108,
56,
-51,
-120,
40,
104,
-104,
75,
-94,
-26,
87,
-3,
71,
28,
97,
-25,
125,
64,
-71,
7,
-93,
70,
98,
-13,
-13,
-29,
-35,
-72,
77,
-52,
87,
76,
4,
-62,
23,
-62,
-126,
-55,
-40,
-114,
-120,
45,
-18,
-3,
2,
52,
59,
116,
79,
113,
-115,
-13,
44,
29,
71,
-83,
36,
-53,
45,
65,
-16,
42,
-116,
95,
20,
-80,
38,
-122,
5,
74,
46,
-112,
-79,
8,
-24,
122,
36,
-122,
-12,
3,
-101,
12,
38,
102,
0,
77,
-51,
-6,
-39,
36,
-34,
-83,
-92,
-59,
88,
99,
64,
-98,
-99,
114,
20,
-74,
124,
-3,
-107,
91,
104,
3,
-53,
-44,
-77,
15,
-70,
-112,
26,
-17,
35,
49,
113,
-51,
-90,
92,
71,
114,
-97,
-113,
-102
] |
Minor W. Millwee, Associate Justice.
On January-26, 1955, appellant was convicted in the Municipal Court of Rogers, Arkansas, as a second offender, of driving an automobile while under the influence of intoxicating liquor in violation of Ark. Stats., Secs. 75-1027 and 75-1029, and his punishment was fixed at a fine of $250 and a jail sentence of 90 days. On appeal to the Benton Circuit Court, there was a jury trial on March 25, 1955 resulting in the same judgment as in municipal court. There was no appeal from this judgment.
On August 5, 1955, appellant filed in this court the instant petition to quash on certiorari the circuit court judgment on the ground that the information failed to charge a previous conviction thereby rendering said .judgment void.
The information, omitting its formal parts, alleges: “The said Ray Nail, in the said County of Benton, State of Arkansas, on or about the 8th day of October 1954, did wilfully and unlawfully operate a motor vehicle upon a public highway, while, he, the said Ray Nail, was under the influence of intoxicating liquor, this offense being the second offense of driving while under the influence of intoxicating liquor committed by the said Ray Nail within one year of the first offense of driving while under the influence of intoxicating liquor committed by the defendant. ’ ’
Ark. Stats., Sec. 75-1029, supra, is section 3 of Act 208 of 1953. After providing the punishment for a first conviction of driving an automobile while under the influence of intoxicating liquor, or drugs, as set forth in sections 1 and 2 of the act, the statute provides: ‘ ‘ On a second or subsequent conviction for an offense committed within one [1] year of the first offense of a violation of this Act, he shall be punished by imprisonment for not less than ten days (10), nor more than one year, and a fine of not less than two hundred and fifty dollars ($250.00) nor more than one thousand dollars ($1,000.00) and his privilege to operate a motor vehicle shall be revoked for one [1] year. ...”
Since such issues are not raised, we will assume, without deciding, that certiorari is available to appellant as a remedy, and that the contents of the information alleged to be defective are apparent from the face of the record. When so considered, we hold the information sufficient, in the absence of a motion for bill of particulars, to charge a prior conviction and to clearly apprise appellant that the state was claiming the particular offense charged to be his “second offense” within the meaning of the statute.
Appellant relies upon the general rule followed in Robbins v. State, 219 Ark. 376, 242 S. W. 2d. 640, to the effect that, in order to subject an accused to the enhanced punishment for a second or subsequent offense as a habitual criminal, it is necessary to allege in the information or indictment the fact of a prior conviction or convictions. In that case, we held an information insufficient to sustain the defendant’s conviction of a felony for a third offense of selling liquor where the information only alleged a misdemeanor and one offense under a statute that provided increased punishments for second and third “convictions.” It is appellant’s contention that the information here was fatally defective because the words “convicted” or “conviction” were not used in reference to the first, or prior, offense. It should be noted that the prosecuting attorney, in drafting the instant information, simply followed the language of the statute by charging appellant with a second offense committed within one year of the “first offense,” which latter term the Legislature clearly meant to be synonymous with first, or prior, 1 ‘ conviction. ’ ’
In the Robbins case, we said: “If the information in the case at bar had charged the prior convictions of appellant only in general terms, then it might have been sufficient under our liberal rules of procedure, at least in the absence of a motion for bill of particulars. But the information here embraces no charge of a prior conviction nor any other allegation calculated to put appellant on notice that he was charged with a felony. ’ ’ What was lacking there is clearly present in the instant case. Here a prior conviction was sufficiently alleged in the absence of a motion for bill of particulars.
While the fact of conviction should be sufficiently averred in an information or indictment seeking to charge accused as a second or subsequent offender, it is not essential to use the word “convicted” if its equivalent is otherwise sufficiently alleged. 42 C. J. S., Indictments and Informations, Sec. 145 b(b). The term “second offense,” as it is used in habitual criminal statutes, has been generally defined by the courts as, ‘ ‘ one committed after conviction for a first offense.” See, Black’s Law Dictionary (4th Ed.) p. 1233, and cases there cited. As the court said in Holst v. Owens, (C. C. A. Fla.) 24 Fed. 2d. 100: “It cannot be legally known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense. ’ ’ See also, Carey v. State, 70 Ohio St. 121, 70 N. E. 955; State v. Gielen, 54 N. D. 768, 210 N. W. 971. _ While the holding in these cases is contrary to that of the Michigan court in People v. Buck, 109 Mich. 687, 67 N. W. 982, upon which appellant relies, we think it represents the more reasonable view and one that is in keeping with the liberal rules relating to the form, sufficiency and construction of words used in indictments and informations as set forth in Ark. Stats. Secs. 43-1007 to 43-1024.
The petition for writ of certiorari is denied. | [
112,
-22,
124,
28,
11,
64,
26,
-108,
82,
-57,
-27,
82,
-17,
86,
5,
33,
-21,
127,
117,
123,
-39,
-73,
23,
65,
-62,
-109,
91,
71,
-67,
73,
-20,
-7,
14,
112,
-54,
-107,
-60,
72,
-63,
92,
-50,
2,
73,
116,
72,
-100,
52,
43,
0,
15,
49,
-98,
-61,
46,
26,
-53,
41,
108,
89,
61,
-56,
-72,
-102,
31,
-17,
22,
-95,
4,
-99,
-123,
112,
57,
-100,
49,
25,
-8,
115,
-74,
-126,
-44,
111,
-103,
13,
32,
98,
32,
21,
-49,
-4,
-120,
30,
122,
-115,
-123,
-72,
113,
75,
13,
-98,
-107,
110,
22,
12,
-2,
107,
-43,
89,
96,
3,
-49,
-76,
-111,
-19,
61,
20,
86,
-49,
103,
52,
117,
-49,
-10,
84,
21,
83,
-101,
-122,
-106
] |
Mehafft, J.
This is a suit to contest the certificate of nomination for the office of senator of the twenty-ninth district, composed of the counties of Poinsett, Mississippi and Jackson. This is the second appeal.
When the case was here on appeal before, it was reversed because the trial court had held that Nelson was not entitled to amend his complaint because ten days had elapsed. But this court held that it was a contest against the total vote of the entire district composed of three counties, and not against the total vote cast in one county, and that, since it was a contest of the vote in the district, the contestant had twenty days in which to file his complaint from the date of the certification, and that he therefore had twenty days in which to amend, instead of ten.
The opinion on former appeal is on p. 427 ante. The case was reversed and remanded, and on the second trial in the circuit court the appellee, Nelson, was declared the nominee.
It was contended on former appeal, and is contended now, that the complaint should he dismissed because it was not supported by the affidavit of ten reputable citizens. While this question was not discussed in the opinion when the case was here before, this contention must have been overruled, because, if we had not held against this contention, the complaint would have been dismissed.
At the second trial in the circuit court, evidence was taken, and the court, of its own motion, made the following declaration of law:
“Section 3777 of Crawford & Moses’ Digest of the Statutes of Arkansas was complied with in no respect or in the case of no ballot; that the purported official list of qualified electors was not prepared, authenticated and filed in substantial compliance with § 3740, Crawford & Moses’ Digest, of the statutes of the State of Arkansas, and that no legal votes were cast in Poinsett County in the election in question.”
The court was correct in holding that § 3777 of Crawford & Moses’ Digest was not complied with, and also in holding that the official list of qualified electors was not prepared, authenticated and filed in substantial compliance with § 3740 of Crawford & Moses’ Digest. This section provides that the collector - shall file with the county clerk a list of all persons who have paid their poll tax, etc.
The court was in error, however, in declaring as matter of law that no legal votes were cast in Poinsett County in the election. The failure to comply with the law by election officers, whether the result of carelessness, ignorance or negligence, destroys the integrity of the returns, but it does not have the effect of disfranchising the voters of the district, and does not make the election void.
In such case the integrity of the list, and of other acts in connection with the election, which are not in substantial compliance with the law, is destroyed, but the legal votes cast at such election are not void, but may be proved by other evidence.
When it is shown that the law has not been substantially complied with, all confidence in the official acts is destroyed, and persons claiming anything under an election conducted in this manner must prove the votes cast for him by evidence other than the official acts, which, if performed in compliance with the law, would themselves be evidence. McCrary on Elections, 423 et seq.; Paine on Elections, 105 et seq.
It is contended by the appellee, however, that no voter in Poinsett County complied with § 3777 of Crawford & Moses’ Digest.
The judges of election had a list of the voters prepared by the collector, although not prepared in compliance with the above section. The election officers used this list to determine who was entitled to vote. While this list was not prepared as it should have 'been, yet it was a list by the collector of persons who had paid their poll tax, and thereby became entitled to vote at the election. No question was raised at the time about the insufficiency of the list, and the voters themselves did not violate the law. Therefore they are entitled to have their votes counted for the candidate for whom they voted. Having been permitted to vote upon a showing- that their names were on the list of poll taxpayers, they were prima facie entitled to vote. There is no contention: that the ballots had been tampered with.
It was said by this court in a recent case: “The record shows that the collector did not file with the county clerk a list of poll taxpayers duly authenticated by Ms affidavit as required by § 3740 of Crawford & Moses’ Digest, and this fact is conceded by tbe contestant. Tbe record shows that thirty-six votes were cast in the manner provided in § 3777 of the Digest by persons who have attained the age of 21 years since the time of assessing taxes next preceding the election, and that of these votes, 26 were cast for Tucker, and 10 for Meroney. It is the contention of counsel for appellant that these were the only legal votes cast, and that, inasmuch as a majority of them were cast for Tucker, he should have been declared the nominee, and that the certificate of nomination should have been issued to him. We do not agree with contestant in this contention. The official returns of the election are quasi records, and are prima facie correct. The burden is upon the contestant to show by affirmative proof that they do not speak the truth.” Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631.
Here it is contended that no votes cast in Poinsett County are legal, and here, as in the case last cited, the collector did not file a list as required by law. But the official returns of the election, as said in the case last cited, are quasi records, and prima facie correct.
The proceeding to contest the nomination in a primary election is statutory, and the statutes must be substantially complied with. There is, however, a presumption that the election was conducted according to law, and this presumption cannot be overcome by mere charge of fraud and illegality. Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319.
The contest of the certificate of nomination is intended to determine or ascertain which candidate received a majority of the legal votes cast. The ballots themselves are prima facie correct, and the burden is upon one contesting an election to show that he received a majority of the legal votes.
The votes of a township or a county will not be thrown out, where the legal votes can be separated from the illegal votes, and in the instant case it appears that this can be done.
It is also contended that contestant was not a candidate, and therefore not entitled to contest the election. We do not agree with appellant in this contention. The contestant evidently reached the conclusion that he would not be a candidate, and so announced, hut, after talking to friends, he concluded to continue in the race. He was a candidate, and entitled to contest the election.
The right to contest a primary election is statutory, and it was evidently the intention of the Legislature to provide a method by which it could he determined what candidate had received a majority of the legal votes, and it was also the intention, of the Legislature that the candidate receiving a majority of the legal votes should he entitled to the nomination.
For the error indicated above, the judgment is reversed, and the cause remanded for a new trial. | [
116,
-20,
-16,
29,
40,
-128,
16,
-100,
-110,
-125,
-28,
83,
-23,
-46,
20,
121,
-5,
47,
113,
106,
-58,
-77,
3,
96,
34,
-73,
-85,
87,
-79,
107,
-4,
-3,
76,
56,
-62,
-43,
70,
66,
-49,
-36,
-30,
2,
43,
-27,
89,
-61,
44,
-81,
82,
15,
117,
-66,
-16,
-88,
19,
75,
-51,
44,
-37,
43,
64,
-15,
-98,
15,
125,
6,
-79,
54,
-101,
3,
88,
46,
-104,
53,
64,
-8,
115,
38,
-126,
84,
41,
-71,
12,
102,
99,
32,
41,
-17,
-84,
-119,
7,
54,
31,
38,
-109,
41,
75,
10,
-74,
-107,
103,
-112,
-113,
122,
100,
-59,
21,
108,
38,
-114,
-48,
-95,
5,
32,
-116,
3,
-29,
83,
-108,
80,
-52,
-13,
92,
71,
49,
-101,
-122,
-110
] |
Butler, J.
Suit was instituted by tbe appellee in the court below to recover on a promissory note executed by the appellant, due six months after date, with interest thereon at the rate of 10 per cent, per annum from date until paid. The answer admitted the execution of the note, but set up usury as a defense thereto. The case was submitted to the court sitting as a jury on the following agreed facts:
“That on November 17, 1931, the defendant, J. P. Hogan, applied to the plaintiff, Anne Thompson, for a loan of $100. That the plaintiff was engaged in the loan business in Little Bock, Arkansas, and that she was also the agent of the Merchants’ Coupon .Service Company of New York, a large firm dealing in all kinds, of jewelry, radios, washing machines, and other merchandise.
“That the plaintiff agreed to make the defendant a loan of $100 if he would purchase a $10 coupon at the cost of $7.50, which he could use for $10 cash in the purchase of $40 or more merchandise from the Merchants’ Coupon Service Company.
“That the defendant agreed to purchase said coupon, and gave his note for $100, due six months after date and hearing interest at the rate of 10 per cent, per annum, as evidenced by the note filed with the complaint. That defendant received $92.50 cash and a $10 coupon.
“Defendant admits that the coupon may be used for $10 cash upon the purchase of any article of $40 or more, but states that he has not used, or does not intend to use, said coupon, and that he agreed to purchase it in order to obtain the loan.
“It is further agreed that the plaintiff did not know at the time the loan was made that the defendant did not intend to use the coupon in the purchase of merchandise. ’ ’
The conventional rate of interest in this. .State is 10 per cent., and, by § 13 of article 19 of the Constitution, all contracts for a greater rate of interest are declared to be void. This constitutional inhibition cannot be avoided by any trick or device, and the courts will closely scrutinize every suspicious transaction in order to ascertain its real nature; and if it appears that the contract is merely one for the loan of money with the intention on the part of the lender to exact more than the lawful rate of interest, the contract will be declared usurious and void. Ellenbogen v. Griffey, 55 Ark. 268, 18 S. W. 126; Reeve v. Ladies’ Building Ass’n, 56 Ark. 320, 19 S. W. 917; Dickerson-Reed, etc., Co. v. Stroupe, 169 Ark. 277, 275 S. W. 520.
The principles by which the usury laws are to be applied in any given case are well settled. The burden rests upon the party pleading usury to establish it by a fair preponderance of the testimony, and it must appear that there was an intent by the lender to exact more than the lawful rate of interest, and usury will not be inferred where the opposite conclusion can be reasonably reached. Citizens’ Bank v. Murphy, 83 Ark. 31, 102 S. W. 697; Bauer v. Wade, 170 Ark. 1020, 282 S. W. 359; Cammack v. Runyan Creamery Co., 175 Ark. 601, 299 S. W. 1023. Collateral contracts entered into contemporaneously with a contract for the lending and borrowing of money, where the .collateral agreement is in itself lawful and made in good faith, will not invalidate the contract for the loan of money as usurious, although its effect might be to exact more from the borrower than the sum which would accrue to the lender from a legal rate of interest. This is based on the principle that, since the law forfeits the entire loan and interest thereon for an exaction of usurious interest, however small, the intent to exact a usurious interest must be clearly shown and will not be inferred where, from the circumstances, the opposite conclusion can be reasonably and fairly reached. In the application of that principle, it was held in the case of Citizens’ Bank v. Murphy, supra, that a loan of money was not usurious although the lender received certain commissions for collecting money which was applied to the payment of the debt, which commissions with the interest charged exceeded 10 per cent.
In Simpson v. Smith Savings Society, 178 Ark. 921, 12 S. W. (2d) 890, the court quoted with approval the general rule stated in 27 ft. C. L., § 31, at page 230, to the effect that an agreement for a loan is not usurious, even though the lender refused to make it unless the borrower would enter into another contract from which the lender might gain advantage, if the collateral agreement was fair and legal.
In the case at bar the appellee was engaged in the loan business, and was also the agent of a mercantile firm which dealt in various commodities. The $10 coupon which the appellee required the appellant to purchase as a condition precedent to her making the loan could be applied in payment at its face value upon the purchase price óf any article of merchandise amounting to $40 or more purchased from the mercantile company. In the absence of a showing to the contrary, we must infer that the articles in which the mercantile company dealt were such as the company purported them to he, and the price for which they would be sold would be such as was usual and customary for such articles, and that they were worth the price demanded. The borrower did not intend to purchase any of the articles of merchandise or to use the coupon, but only bought it in order to obtain the money. The lender, however, at that time did not know that the borrower did not intend to use the coupon in the purchase of the merchandise. Therefore there can be no presumption that she intended the sale of the coupon as a device by which she might extort a sum greater than the legal rate of interest from the buyer, and, applying to the transaction the principles heretofore announced, we conclude that the court correctly found there was no usury shown, and that the appellee was entitled to recover her debt and interest.
Affirmed. | [
-16,
-20,
-8,
110,
10,
96,
40,
-102,
-62,
-128,
-89,
83,
-23,
70,
4,
93,
-9,
125,
68,
106,
-107,
-93,
37,
106,
-46,
-77,
-39,
-43,
-76,
95,
-28,
-9,
76,
48,
-30,
-43,
-26,
-62,
-31,
28,
-118,
9,
9,
96,
-3,
72,
48,
91,
16,
11,
49,
-121,
-29,
34,
21,
73,
109,
46,
-53,
57,
-48,
-31,
-70,
-115,
127,
23,
-112,
37,
-100,
69,
-6,
30,
-100,
53,
32,
-24,
114,
-74,
6,
84,
101,
57,
12,
98,
102,
-128,
33,
111,
-68,
-116,
38,
-17,
-99,
-121,
-110,
120,
11,
45,
-66,
-97,
126,
20,
-121,
-2,
-6,
-35,
27,
108,
3,
-98,
-12,
-77,
-65,
118,
28,
-117,
-9,
-89,
-80,
101,
-52,
-96,
92,
103,
58,
-109,
-114,
-71
] |
Wood, J.
The question on this appeal is: “Are counties liable for costs in misdemeanor cases tried in justices’ courts where the defendants are acquitted?”
This court held in Wilson v. Fussell, 60 Ark. 194: “That the right to recover costs did not exist at common law. It rests upon statute only, and it is to the statute we must look for the authority to recover costs in any given case. ” See also Buckley v. Williams, 84 Ark. 187; Buchanan v. Parham, 95 Ark. 81.
The appellee contends that he is entitled to his costs under section 6338 of Kirby’s Digest, giving authority to the prosecuting attorney in certain cases to file information before a justice of the peace, and making it the duty of the justice of the peace in those cases to issue a warrant for the arrest of the offender; and providing, “In such cases no bond shall be required for costs of prosecution.”
The appellee contends that, inasmuch as he was required to perform the services under the above statute, and as he did not have authority to require bond in such cases, the county is liable for his services, since, if the offender had been convicted, the county would have received the benefit of the fine.
Appellee insisted that the statute, by fair intendment, makes the county liable for the costs where there has been an acquittal. The statute does not expressly nor by fair intendment make the county liable for costs where there has been an acquittal in the misdemeanor cases mentioned therein. See Logan County v. Trimm, 57 Ark. 487.
Section 1458 of Kirby’s Digest prohibits the county court from allowing “to any officer any fee not specifically allowed such officer by law, and in no case shall constructive fees be allowed to or paid officers by any county of this State.” See Logan County v. Roady, 56 Ark. 581; Prairie County v. Vaughan, 64 Ark. 203.
Section 3534 of Kirby’s Digest provides that “officers required to perform any duty for which no fees are allowed shall be entitled to such pay as would be allowed for similar services. ” But section 1458, supra, was enacted after section 3534, and therefore expressly takes counties out of the operation of the latter section. Logan County v. Trimm, supra. Moreover, section 3534, supra, can have no application to counties, for counties are not mentioned therein, and it is a general statute. It is a well settled rule of law “that in the construction of statutes declaring or affecting rights and interests, general words do not include the State or affect its rights, unless it be especially named, or it be clear by necessary implication, that the State was intended to be included. Counties are civil divisions of the State for political and judicial purposes, and are its auxiliaries and instrumentalities in the administration of its government.” Cole v. White County, 32 Ark. 45.
The services performed by appellee which the statute required, but for which no allowance is made, is one of the burdens attached to the office which appellee took when he was elected thereto.
The judgment of the circuit court allowing the fees is erroneous, and is therefore reversed, and the cause dismissed. | [
84,
-18,
-8,
61,
-55,
-32,
51,
12,
-45,
-93,
-25,
-45,
-83,
-64,
3,
115,
-30,
-1,
117,
104,
-57,
-73,
35,
98,
-72,
-70,
27,
68,
-71,
79,
-26,
-12,
68,
52,
74,
-43,
39,
66,
-59,
80,
-50,
14,
-117,
81,
105,
66,
52,
104,
22,
11,
49,
-97,
-5,
41,
48,
99,
73,
44,
91,
-87,
80,
51,
-38,
-115,
95,
28,
1,
119,
-103,
7,
120,
40,
-72,
57,
0,
-20,
123,
-90,
-122,
-44,
109,
-103,
-120,
106,
98,
49,
-76,
-1,
-124,
-95,
62,
-66,
31,
-89,
-119,
72,
75,
13,
-73,
29,
111,
20,
7,
-4,
-32,
-92,
93,
108,
-85,
-34,
-112,
-95,
-113,
100,
-12,
-46,
-49,
33,
116,
113,
-60,
-30,
92,
-57,
114,
-37,
-122,
-43
] |
McCulloch, C. J.
Appellant sued the railroad company to recover damages on account of injuries received while in the latter’s service, and he appealed from an adverse judgment, the trial court having given a peremptory instruction to the’ jury to return a verdict in favor of the company.
Appellant was working in the railroad yards at Texarkana as switchman, and was injured while attempting to couple a car to the switch engine. The engine was equipped with an automatic coupler, which was found to be out of repair; and when appellant called his foreman’s attention to this condition, he was directed to remove the knuckles from the coupler of a box car, and place same in the engine coupler. The engine was taken over to a sidetrack, where the box car was, and appellant, assisted by the foreman, took the knuckles out of the coupler on the box car and placed them in the coupler of the engine. The foreman then said: "All right; go ahead.” He was directed to couple certain cars, and when he attempted to do so the knuckles were still found to be out of order, so that the coupling could not be made automatically by the impact of the cars coming together. The first and second attempt failed, and in the third attempt, appellant tried, with his left foot, to push the drawhead over so that the coupler would connect, but the drawhead on the engine and the car had too much play, and by reason thereof caught his foot and crushed it. The first joint of his big toe was crushed so that it had to be amputated, and all the other toes on that foot were mashed off. He was given attention that night by the local surgeon, and the next day sent to St. Louis and placed in the hospital operated for the benefit of employees of the company. This was on July 4, 1907, and he remained in the hospital until November 2 of the same year. On that day he applied to Doctor Vasterling, the surgeon in charge, for a discharge or “clearance,” assigning as a reason that his wife was about to be confined, and that he could secure proper attention at home with his family. Doctor Vasterling objected to his discharge, but finally acceded to appellant’s wishes, and gave him a letter of introduction to the claim agent of the company at St. Louis, and also gave him the following letter (omitting address), addressed to the claim agent, as his discharge:
“J. E. Francis, switchman, the bearer hereof, has this day been discharged from the St. Louis Hospital upon request, where he has been under treatment since July 4 for injuries inflicted at Texarkana on July 2, as follows: Loss of all toes left foot amputation through first phalanx great toe and at metatarso phalangeal articulations other toes, extensive loss of skin structure, dorsal and planter surface of same foot, which we consider permanent. As he is now convalescent, we send him to you for such consideration as his case seems to merit. Judging from his present condition, it will probably be..............before he is able to resume his old employment. Since he has been under our care, his conduct has been O. K. Please furnish him with transportation from St. Louis to Texarkana.
“Remarks: Francis states that his wife will be confined this month and wants to be with her now. A large granular area still remains unhealed which will probably require two to four months’ treatment; says his sister is a professional nurse at a sanitarium at Texarkana, who will undertake to dress his foot at regular intervals under advice of his physician. Francis, assumes all risks in going before wound is healed; also assumes all bills for expenses for medicine, dressing and treatment. He has read this clearance.”
This letter was read to appellant by Doctor Vasterling, and and delivered to him to be handed to the claim agent, Mr. Jones, which was done. The claim agent offered appellant $600 in settlement, or, as appellant stated, to pay for his loss of time, and this he at first declined, but on the next day accepted it and executed to the company a written release reciting that he accepted the sum of $600 in full release of all claims against the company by reason of his injury.
He returned to his home in Texarkana, and was there treated by other surgeons, and it was afterwards found necessary to amputate the foot, which was done and he was unable, on the account of the loss of his foot, to secure satisfactory employment.
Appellee denied the allegations of negligence with respect to the coupling of the engine, and also pleaded contributory negligence and assumption of risk on the part of appellant, and pleaded said release in bar of appellant’s right to recover any more damages.
Appellant, by an amendment to his complaint, alleged that'“his signature was obtained to said release through the fraudulent representations of the defendant’s surgeon and the claim agent as to the extent of his injuries, that he would be ready for service in two months, and employment would be waiting him at Texarkana, and, relying upon these statements, he was induced to sign the release. ”
The case was tried before the jury, and, as before stated, the court gave a peremptory instruction in favor of appellee.
Learned counsel for appellant attempt to bring the facts of his case within the rule laid down by this court in St. Louis, Iron Mountain & Southern Ry. Co. v. Hambright, 87 Ark. 614, where it was held that a settlement with an injured employee, based upon untrue representations made by the company’s surgeon as to the extent of the injuries, was not binding on said employee, who subsequently repudiated the settlement and sued for damages. The letter of Doctor Vasterling, when read in the light of the attending circumstances, can not be construed to amount to a representation as to the extent of his injuries. In the Hambright case it appeared that the plaintiff’s injury was a very grievous one, and that the extent of it, as to permanency, was well known to the surgeon, but the jury found that the surgeon represented to the plaintiff that the injury was slight and that he would be well in a short time. There was a positive and affirmative representation that the injury was very slight. In the present case the surgeon merely stated that the unhealed area would require from two to four months’ treatment, and added that appellant’s sister, being a professional nurse at a sanitarium in Texarkana, could dress the foot at regular intervals. In the portion of the letter, which appeared to have been written upon a printed blank, where there was a space for stating the probable duration of the injury, the blank was left unfilled, which shows that the surgeon was not through with the case, and did not attempt to give an opinion as to the full extent of the injury. Appellant was not finally discharged as a well man, and the surgeon was not holding out to him that he was cured, but the letter is more in the nature of an excuse or a reason why he should be allowed to leave the hospital before he recovered. The letter expressly stated that appellant assumed all risk in going— leaving the hospital before his wounds were healed. It should not, and can not, we think, be made the basis of a charge of untrue representations concerning the state of his injury. The fact that appellant’s injury did not heal as rapidly as he anticipated, and that it was later found necessary to amputate his foot, does not prove that there was a misrepresentation of facts by Doctor Yasterling, or even a fiiistake as to his diagnosis.
No other attack is made upon the release, and we are of the opinion that the circuit court was correct in holding that this attack was not sustained by the evidence.
Other questions in the case need not be discussed, for appellant was bound by his release, and could not recover any more damages.
Affirmed. | [
-80,
98,
-72,
-51,
10,
97,
34,
26,
113,
-91,
37,
-45,
-115,
-116,
21,
101,
99,
125,
-15,
59,
-1,
-109,
6,
99,
-125,
-109,
-13,
-57,
-77,
75,
-16,
87,
77,
56,
74,
81,
-26,
64,
-59,
60,
-50,
-92,
-24,
-24,
25,
24,
52,
122,
84,
46,
17,
-98,
-53,
42,
28,
-17,
44,
56,
-21,
-67,
-47,
121,
-125,
13,
117,
21,
35,
6,
-98,
7,
-40,
30,
-104,
21,
20,
-4,
114,
-90,
-125,
-11,
105,
-71,
4,
98,
98,
33,
29,
-17,
8,
-72,
31,
-70,
-99,
-123,
-94,
33,
-69,
67,
-70,
31,
66,
86,
31,
-2,
-4,
77,
24,
44,
7,
-117,
-80,
-126,
127,
116,
-44,
3,
-21,
-83,
54,
113,
-52,
-78,
92,
6,
58,
-101,
78,
-106
] |
McCulloch, C. J.
Plaintiff’s intestate, F. A. Weedman, was run over and injured by defendant’s switch-engine at its station in the city of Helena, and he instituted this action to recover damages resulting from such injury. He died before the trial below, and the cause was revived in the name of plaintiff as administrator of his estate. On the trial of the case before a jury, after the testimony was all in, the court gave a peremptory instruction to the jury to return a verdict in favor of the defendant, and a judgment was accordingly entered in defendant’s favor, from which plaintiff appealed.
Stating the facts in their strongest light favorable to plaintiff’s cause of action, they are about as follows: Defendant’s passenger station at Helena faces east, and is situated a short distance within the levee which runs along the bank of the Mississippi River. The tracks run north and south between the station and the levee. Missouri Street runs east and west and intersects the tracks at right angles a short distance — a car’s length or two — north of the station. North of Missouri Street the tracks are only used for the storage of cars. The first track next to the station is called Track No. 1, and the next one further east is called Track No. 2. There is a space of about thirty inches between coaches standing on these two tracks. The station is used by the Iron Mountain trains from Wynne, and also by the Arkansas Midland trains which come from Brinkley over another of defendant’s branch roads. The Midland train comes in on Track No. 1, and the Iron Mountain train on Track No. 2, the latter being due at 9:50 A. M. and the former about ten minutes later. When the trains are in at the same time, it becomes necessary for debarking passengers from the Iron Mountain trains to walk along the narrow space between the trains and go clear around the Midland train. Weedman was about sixty-two years of age, and lived with his daughter over somewhere near the bank of the river, and came to the station that morning to meet his stepson, who was expected on the Iron Mountain train, and who was crippled and needed assistance in getting off the train. He reached the Missouri Street crossing just as the Midland train came in. The Iron Mountain train, though past due, was not in at that time, nor is there any evidence as to when it was expected or that it was in sight. The Midland engine, which was on track No. 1, was still attached to the train, and there was a switch-engine standing on track No. 2, north of the street. Plaintiff has two theories as to the way in which Weedman got on the track, either of which counsel contend is sustained by the evidence. We do not think the difference is very important, so far as the result is concerned, but the facts will be stated according to both theories. One witness, who was on the Midland train as it came in, testified that Weedman, com ing from the east, stepped upon track No. 2, ten or fifteen feet in front of the switch-engine, and turned south with his' back to the engine, and in this situation was struck by the moving engine. The, other witness testified that Weedman was standing on track No. 1 when the Midland train came in, and to avoid it he stepped over on track No. 2 with his face to the south, and in that situation was struck by the moving switch-engine coming from the north on track No. 2. We do not, as before stated, deem it very material to determine which of these theories should be accepted. It is undisputed that the switch-engine was in plain view, and that Weedman could have seen it approaching if he had looked. The fact that he did not see it, and that while his back was turned he was struck by the engine, is conclusive that he did not look. There is no contention in the case that the engineer or fireman saw Weedman’s perilous position in time to have prevented the injury. So, there is no question of discovered peril in the case. The right to recover is based solely upon negligence of the engineer in failing to keep a lookout, and the evidence is sufficient to warrant the finding that the bell was ringing, but that no lookout was kept, and that if the engineer had kept a lookout he would have discovered Weedman’s perilous position in time to have prevented injuring him.
It has been ruled in numerous decisions of this court that it constitutes negligence per se for a person to go upon a railroad track without looking and listening for approaching trains, except where there is an implied invitation to, go upon the track without taking these precautions, or where the situation is such that the person is, in the exercise of reasonable care, misled into believing that no engine or cars are expected. The first exception is stated by this court in the case of St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489, and counsel for plaintiff seek to bring the case within the rule there stated. In that case Judge Riddick, speaking for the court, said:
"The rule that one should look and listen for approaching trains before attempting to pass a railway track is often applied in cases for injuries to travellers on highways atrailway crossings. In such a case, where there is no invitation on the part of the company for the traveller to cross, the courts can say, as a matter of law, that he should look and listen for approaching trains; and if he fails to do so, and by reason of such failure is injured, he can recover nothing by way of damages; for, even if the company be negligent, his own negligence contributes to his injury. But the case is different where the injured person comes on the track by the invitation of the railway company. In such a case he must still exercise ordinary care, but, as he has the right to rely to some extent upon an implied assurance of the company that the way is safe, the courts, not knowing to what extent his acts may be influenced by the conduct of the company, can not in such a case say as a matter of law that the mere failure to look and listen is such negligence as precludes a recovery. If, then, a passenger or his escort is injured while attempting to pass an intervening track to reach a depot or train when the circumstances justify him in believing that he is invited by the company to pass over the track, it becomes a question for the jury, after considering all the circumstances, to say whether or not he is guilty of a want of ordinary care.”
That was a case where a passenger’s escort was run over and killed while, in returning from a coach, he was crossing an intervening track. The plaintiff’s case does not fall within that rule, for the Iron Mountain train was not coming in at that moment, it was not in sight, and there is no evidence of when it was expected, and there was no implied invitation for him to walk down track No. 2, as he did, and therefore no assurance that the way was clear for him to do so. His. place, while waiting for the train, was at the station. Under the testimony in the case, he is bound to have seen the switch engine when he came on the track, and it was negligence for him to turn his back to it and start down the track. If the Iron Mountain train had been coming iii at the time, and it was necessary for him to go to the coach entrance to meet the passenger, then there would have been an implied assurance that the way was clear, and it could not be said, as a matter of law, that he was bound to look and listen, for the invitation to go to the coaches to meet the passenger amounted to an implied assurance that the way was safe, and that no train would interfere with his safe passage.
Nor can the case, under the evidence adduced, be brought within the other exception. Weedman necessarily, as before stated, saw the switch engine when he came on the track, and, as no other train was approaching on that track at the time, there was nothing to mislead him into believing that the switch engine would not be moved. If the Iron Mountain train had been, approaching from the south, then the circumstances would have been such as to induce in his mind a belief that the switch engine would not be moved down the track, and under those circumstances, it could not be said, as a matter of law, that he was guilty of negligence.
The facts of the case do not either bring it within the case of Choctaw, Oklahoma & Gulf Rd. Co. v. Baskins, 78 Ark. 362, as insisted by counsel. It is unnecessary to discuss the difference between the two cases, for the points of difference are too obvious for comparison.
In any view of the case, plaintiff’s intestate was, according to the undisputed facts, guilty of contributory negligence, and there can be no recovery of damages. The peremptory instruction was therefore correct, and the judgment is affirmed. | [
-12,
96,
-68,
-82,
74,
96,
10,
-102,
97,
-109,
100,
83,
-19,
-109,
17,
33,
-22,
29,
-47,
41,
-28,
-109,
6,
-94,
-109,
-41,
35,
-57,
55,
73,
124,
-41,
77,
88,
-118,
85,
-60,
72,
-59,
28,
-114,
36,
-56,
104,
11,
-64,
52,
123,
4,
47,
49,
-98,
-65,
42,
81,
-18,
109,
63,
-53,
-87,
-47,
-15,
-126,
71,
103,
6,
-95,
54,
-70,
3,
104,
56,
-112,
53,
16,
-68,
115,
-94,
-122,
-44,
105,
-39,
76,
102,
102,
33,
85,
-81,
-83,
-88,
71,
-70,
-97,
-89,
62,
73,
99,
71,
-74,
-99,
94,
21,
14,
-8,
122,
-115,
17,
104,
7,
-113,
-106,
-127,
-17,
52,
-106,
35,
-53,
3,
52,
112,
-52,
-46,
92,
6,
56,
-101,
-49,
-105
] |
Ed. F. McFaddin, Associate Justice.
The issue posed on this appeal is whether the appellee has engaged in the practice of architecture in violation of Act 270 of 1941 (now found in § 71-301 et seq., Ark. Stats.)
Appellant, Arkansas State Board of Architects (hereinafter called “Board”), filed suit to enjoin appellee, Bank Building & Equipment Corporation of America (hereinafter called “Building Corporation”), from continuing to engage in certain activities which the Board alleged to be the practice of architecture and in violation of said Act 270. The Chancery Court held that the activities of the Building Corporation did not amount to the practice of architecture and dismissed the complaint; and. from that decree the Board brings this appeal presenting the issue as first stated above.
The evidence established that the Building Corporation is domiciled in St. Louis, Missouri, and qualified as a foreign corporation in this State; but is not licensed to engage in the practice of architecture under Act 270 of 1941 (§ 71-301 ei seq., Ark. Stats.); that the Building Corporation specializes in constructing bank buildings and planning and constructing the interiors thereof, and has an architectural department as an integral part of its business; that Mr. W. G. Knoebel — licensed as an architect in Arkansas — is the Chief Architect of the Building Corporation, and is the head of a staff of about two hundred persons in the architectural department of the Building Corporation; that none of these two hundred — ■ except Mr. Knoebel — is licensed in Arkansas; that the general plan used by the Building Corporation, in obtaining and performing its contracts, is as follows: it solicits a bank that contemplates constructing a building or rearranging the interior thereof, and persuades the bank to sign a ‘ ‘ survey agreement ’ ’ in which the bank is designated as “owner” and the Building Corporation as “company”; and that the contract provides in part:
“1. Company shall consult with and advise Owner, and shall furnish suggestions and recommendations for proposed improvements.
“2. Company shall designate a qualified and registered architect to perform all architectural services that may be necessary in connection with the proposed work and improvements, and Company shall pay the architect for such services.
“3. Architect shall perform all architectural work, including preparation of all preliminary and working drawings, plans and specifications, and shall furnish Company all necessary data for preparation of survey.
“4. Periodic inspection trips shall be made as required, but not less than once each month during the progress of the job. These without charge and in addition to the trips for the awarding of contracts.
“5. Architect shall prepare Proposals and Contracts incidental to the work, issue certificates of payment, and keep proper and adequate records.
“6. The fee payable by Owner to Company shall be ......per cent (.........) of all Architectural Work planned, including building improvements, mechanical work, interi- or equipment, furnishings and vault equipment . . . ”
Here are excerpts from the testimony of the President of the Building Corporation regarding its activities under the contract:
“. . . we go into a bank . . . and make a complete analysis of their entire operation; after we have completed that analysis we make the necessary recommendations to improve the work flow, the type of equipment that might be more efficient, and that is an extensive part of that survey agreement . . . then the architect takes over and makes the necessary plan to show the man what can be done to give them efficient work space.
“Q. When does the architect first come into the picture ?
“A. He comes into the picture immediately on the necessity of any plan being done . . . The architectural department then has a meeting with our planning-board, which consists of five men in the organization, of which the architect is one, and we make a complete analysis of what is going to be required . . . Then it goes into the architectural department to make the plans along the lines of that budget so when it is completed it will be practical for the bank to proceed with the operation . . .
‘ ‘ Q. Suppose the owner at that point decides to take competitive bids?
“A. We step out and continue to operate under our survey agreement . . .
“Q. If the owner decides to open it up to competition, you do not compete in the bidding?
“A. No, we step out of the picture and retain our status and Mr. Knoebel then takes over and performs the architectural services . . .
“Q. What is Mr. Knoebel’s full name?
“A. Wilbur G-. Knoebel. . . .
“Q. In what capacity is he employed?
“A. Chief architect of the Architectural Department.
“Q. Is he a full time employe?
“A. Yes, sir.
‘ ‘ Q. How many architects does he have working under him, licensed architects? You said he had 200 in his department ... Do you know how many are licensed in Arkansas ?
“A. Just one.
“Q. Mr. Knoebel?
“A. Yes . . .
££Q. Does Mr. Knoebel go personally — does be come personally to Arkansas on each of your jobs, or would he send one of the men under him?
<£A. In most cases he would send a man-under him. He does make trips in many cases.
££Q. You pay Mr. Knoebel a salary, I presume?
££A. He works on a salary and a fee basis; he gets a percentage of fees, depending on the volume.
££Q. Nevertheless, he can be discharged by your company at any time, couldn’t he?
“A. If his services AArere unsatisfactory, yes, sir . . .
££Q. Who Avould receive his fee?
££A. Our survey agreement Avould provide for us getting the fee.
l£Q. Your company would get the fees and your company would pay Mr. Knoebel according to your arrangements with him?
££A. That is right.”
Under the above testimony of its President, it is clear that the Building Corporation is contracting in this State to furnish architectural services for constructing banks and rearranging the interiors thereof; that it has a staff of about two hundred architects to perform such service; that only one of these — Mr. Knoebel — is licensed in Arkansas to practice the profession of architecture; that he works for the Corporation as an employee; and that he details the inspection and supervision work to his subordinates, none of whom is licensed under the Arkansas law.
The Act 270 of 1941 provides in Section 2:
£ £. . . no person shall practice architecture in this State, or engage in preparing plans, specifications, or preliminary data for the erection or alteration of any building located within the boundaries of this State, or use the title'architect’ . . . unless such person shall have secured from the Examining Body a certificate of registration and license in the manner hereinafter provided . . . ”
The appellee, Building Corporation, does not come within any exemption provided in Sub-section 2 of said Section II of'the Act; and sub-section 3 of Section II of the Act provides:
“No corporation shall be licensed or registered to practice architecture in this State unless the principal of such corporation whose name appears in the corporation’s name is a registered architect, and providing also that each such principal is so registered.”
Thus the appellee, Building Corporation, as such, could not be authorized to practice architecture in this State, since Mr. Knoebel’s name does not appear in the name of the Corporation. An architect is one whose occupation it is to form and devise plans and designs and draw up specifications for buildings or structures and to superintend their construction. In the case of McGill v. Carlos, Ohio Com. Pl. 81 N. E. 2d 726, one of the Ohio courts, in discussing the practice of architecture, used this pertinent language:
“Primarily, an architect is a person who plans, sketches and presents the complete details for the erection, enlargement, or alteration of a building or other structure for the use. of the contractor or builder when expert knowledge and skill are required in such preparation. The practice of architecture may also include the supervision of construction under such plans and specifications. See Webster’s New International Dictionary; the New Century Dictionary; 3 Ohio Jur., Sec. 1, page 115; Kansas City Southern R. Co. v. Wallace, 38 Okl. 233, 132 P. 908, 46 L. R. A., N. S., 112; 3 Amer. Jur. Sec. 2, page 998.”
The foregoing is exactly what the Building Corporation is doing under its contract and under the testimony of its President and it is, therefore, acting in violation of the Arkansas Legislative Enactment here involved.
In answer to the appellant’s contentions the appellee says: “We search the statute in vain for any language which would prohibit the appellee from agreeing to designate a qualified architect.” In other words, the appellee contends that all it does is to designate Mr. Knoebel and that he is licensed. But the appellee, Building Corporation, is doing far more than a mere designation. It contracts with the ‘ ‘ owner ’ ’ to furnish plans and specifications (and it has a staff of two hundred employees in its architectural section to draw these plans); and then it provides the supervision of the construction. In short, the appellee, Building Corporation, is agreeing to have its own employees do the architectural work. The fundamental legal principle of agency — “qui facit per alium, facit per se (he who acts through another acts by himself)” — when applied here, proves that the Building Corporation is not merely “agreeing to designate a qualified architect ’ ’: rather it is employing a staff of two hundred architects and it is engaged in the practice of architecture.
The appellee, Building Corporation, cannot hide behind the mask, that it has one architect licensed to practice in Arkansas; because the evidence shows that Mr. Knoebel acts in an advisory capacity over a staff of two hundred persons in the architectural department, and that he designates some of them — each of whom is unlicensed — to help fulfill the contracts that the appellee, Building Corporation, has in this State. We held in Arkansas Bar Assn. v. Union National Bank, 224 Ark. 48, 273 S. W. 2d 408, that if a bank should furnish the services of attorneys to its customers, the bank would be engaging in the practice of law. By the same token, appellee, Building Corporation, by furnishing the services of architects to its customers, is engaging in the practice of architecture.
Appellee cites cases from other States to justify its activities in Arkansas. Some of these cases are: Joseph v. Drew, 36 Cal. 2d 575, 225 Pac. 2d 504; Walter M. Bal lard Corp. v. Dougherty, 106 Cal. App. 2d 35, 234 Pac. 2d 745; Baer v. Tippett, 34 Cal. App. 2d 33, 92 Pac. 2d 1028; Castaldi v. Reutermann, 345 Ill. App. 510, 104 N. E. 2d 115; and Continental Paper Grading Co. v. Howard T. Fisher & Associates, 3 Ill. App. 2d 118, 120 N. E. 2d 577. But each of these cases from another State is based on a Statute different from our own. For instance, the California Statute, on which the cases from that State were based, allows a corporation to be licensed as an architect (see Sec. 5535 of the Business and Professional Code of California). The California Code also allows an unlicensed person to draw plans, specifications and drawings, provided such unlicensed person informs the other party in writing that the unlicensed person is not an architect (see Sec. 5537, Business and Professional Code of California). Thus the cases from other States are of little value to us in passing on our particular Statute as it is not shown or claimed that our Statute was borrowed from any other State.
It is not for this Court to consider the wisdom of the Arkansas Legislative Enactment in going as far as it did: since no constitutional question is urged here ■ — • and none raises itself — our duty is to measure the act in the present case by the yardstick of the statutory language. When so measured it is clear that the appellee, Building Corporation, is violating the Arkansas Statute.
The decree is reversed and the cause is remanded for further procedure not inconsistent with this opinion.
Justice George Rose Smith not participating.
Justice Ward dissents.
Whether injunctive relief would be proper need not be considered because the parties have not raised the question and because the pleadings and record present a proper case for a declaratory judgment which could have brought the issue to a focus. See Culp v. Commissioner of Revenues, ante page 749, decided December 19, 1955.
So far as our search discloses, this is the first case before us involving the said Act 270. Since neither side has raised any question concerning the constitutionality of the Act, we likewise by-pass that potentiality; but it is appropriate to mention that in 3 Am. Jur. 998, in discussing the licensing of architects, the text states the holdings of cases in these words: “In many States statutes are enforced which regulate architects in the practice of their profession. . . . It is well settled that the State may, in the exercise of the police power, thus regulate the profession. . . . ” | [
52,
-22,
-36,
-4,
10,
-62,
48,
-102,
80,
-87,
-91,
-45,
-19,
-54,
-124,
75,
-57,
13,
-48,
112,
-43,
-78,
87,
106,
-46,
-5,
-13,
-59,
-72,
79,
-12,
30,
72,
49,
-54,
-43,
-58,
-64,
-51,
-36,
14,
4,
11,
77,
-39,
64,
48,
-7,
82,
15,
21,
-99,
-13,
40,
25,
67,
108,
46,
77,
-84,
113,
-71,
-54,
29,
125,
21,
33,
36,
-38,
5,
-8,
60,
-104,
-80,
21,
-103,
115,
-90,
-122,
36,
75,
-39,
8,
48,
98,
10,
1,
-53,
-120,
-72,
38,
-2,
61,
-89,
-109,
25,
75,
41,
-65,
-100,
120,
0,
6,
124,
-2,
-43,
83,
108,
15,
-113,
-26,
-95,
-121,
113,
-99,
3,
-17,
-125,
18,
117,
-114,
-22,
95,
-50,
59,
91,
-114,
-47
] |
MiNoe. W. Millwee, Associate Justice.
This suit arose in January, 1955, when appellee caused a citation to be issued against appellant, her former husband, charging him with contempt of court for failing and refusing to comply with an order made on March 7, 1950, directing him to pay $50.00 monthly for the support of their son, who is now 9 years old. In response to the petition, appellant pleaded his inability to make certain payments because of his diminished income and consented that judgment be rendered against him for delinquent payments of approximately $110.00 then due. He also asked that the monthly payments be reduced to $10.00 until an increase in income enabled him to pay more. It was agreed that appellant should be required to pay monthly support payments of only $25.00 pending a hearing which was set for March 14, 1955.
The chancellor on exchange found appellant guilty of contempt of court and fixed his punishment at 30 days in jail but the sentence was suspended for six months to give him time to pay an arrearage of $152.00 for which judgment was rendered. The court denied any reduction in the amount of the monthly support payments and appellee was allowed an attorney’s fee of $50.00.
According to the pleadings and proof, the parties were married in 1941 and entered into a separation agreement in 1946 which gave custody of the child to appellee and provided that appellant pay appellee $50 monthly for the child’s support, “until the circumstances of the parties change to an extent warranting a change.” The payments were to be made in semi-monthly installments. The terms of this agreement were made a part of a decree rendered March 7, 1950, in appellee’s suit for separate maintenance of the child.
On March 18, 1950, appellee filed suit for divorce on the ground of general indignities in which she alleged that the right of custody and the amount of support money for the child had previously been fixed by order of the court. A divorce decree was granted in said suit on April 20, 1950. Separate petitions for contempt citations were filed by appellee on the dates of September 5, 1950, June 19, 1953, and August 25, 1954, prior to the filing of the instant petition on January 17, 1953. There were no hearings on any of these except the 1953 petition which resulted in the assessment of a ten-day suspended jail sentence.
In March, 1950, appellant was earning $265.00 monthly, after deduction of withholding taxes, as a core driller for Ozark Dam Constructors in building Bull Shoals Dam. In addition he received a disability allowance of $50 per month from the U. S. Government on account of shrapnel wounds suffered in World War II. On completion of the Bull Shoals work in 1951, appellant worked for U. S. Engineers for 15 months at approximately the same rate of pay. When his disability prevented him from continuing this work in the latter part of 1952, ho worked in Colorado for 2 months receiving $88.00 per week. On completion of the Colorado job he returned to Arkansas and started working with his uncle in the well drilling business in and around Mountain Home and was still so engaged at the time of the trial. He is an experienced driller and is paid 65 cents per foot on all wells he drills but the work is seasonal. During 1954, his net earnings from this work amounted to $784.00 and he received $147.00 from January 1, 1955, until the date of trial on March 14, 1955.
Appellant has remarried and his present wife earned $240.00 in 1954. They rent their home for $35.00 per month and own no property except a 1951 automobile which is mortgaged for $575.00 and is not being operated because of inability to pay personal taxes and a license to operate. Appellant sold his household furniture in J anuary, 1954, to pay the support money and part of the proceeds from the car mortgage were also used for that purpose. Appellant is in debt to his uncle for moneys borrowed to make support payments and owes other accounts which he is unable to pay, and groceries and other household expenses run from $75.00 to $90.00 per month.
According to the record of semi-monthly payments made by appellant since March, 1950, he was $65.00 in arrears for the year 1950 and overpaid by $50.00 in 1951. He was also in arrears' $35.00 in 1952 and $157.35 in 1953 but overpaid in the amount of $66.35 in 1954. Thus ap pellant actually paid more than $50.00 per month for the calendar year immediately prior to the filing of the instant petition despite the fact that his net income had been reduced from $315 monthly in 1950 to $120 in 1954. He stoutly denied any intentional or willful violation of the court’s order in failing to pay the overall arrearage of $91.00 accumulated by January 1,1955, and stated that his decreased income had rendered it impossible for him to do so, or to continue such payments at the rate of $50.00 per month. He denied that he had made any recent purchases of intoxicants or that he had stated that he would pay nothing for his son’s support unless he was made to do so, as appellee testified.
Appellee still owns the former home of the parties in Mountain Home hut she and her son live in a rented home in Springfield, Mo. She has never sought alimony from appellant, is unemployed and is supported by her mother. Although she stated that she was physically unable to work she could not remember when she had last seen a doctor and was evasive as to the amount of support received from her mother.
It is well settled by our cases that imprisonment of a divorced husband for a failure to pay alimony or support money is justified only on the ground of willful disobedience to the orders of the court. Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096; Hervey v. Hervey, 186 Ark. 179, 52 S. W. 2d 963. In the recent case of Griffith v. Griffith, 225 Ark. 487, 283 S. W. 2d 340, we held that inability to pay on the part of the defendant is always a complete defense against enforcing payment from him by imprisonment in a civil contempt proceeding. In our opinion a preponderance of the evidence shows that appellant’s failure to pay the arrearage here arose from his financial inability and that it was not in willful disobedience of the court’s orders.
We are also of the opinion that, from the date of trial, the monthly support payments should be modified and reduced to $25.00 per month until such time as appellant’s income will warrant a further change in the amount of such payments.
Appellant also contends that the court was without authority to allow a fee to appellee’s attorney. Appellant points to Ark. Stats., § 31-1210 [§ 1 of Act 271 of 1915] which, in amending Pope’s Digest, § 1388, failed to specifically authorize attorney fees in separate maintenance suits as did a previous amendment of the same statute by Act 25 of 1911. It is true that prior to the adoption of either amendment we held that a divorced wife who petitioned for a change in the custody of children after rendition of a final divorce decree was not entitled to attorney’s fees. Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619. However, in that case, the wife was held to be a mere volunteer in supporting the children whose custody had been awarded to the husband. It was also held that the divorce decree was, in the peculiar circumstances, a final adjudication of his liability for her attorney’s fees.
In Tilley v. Tilley, 210 Ark. 850, 198 S. W. 2d 168, we held that the allowance of attorney’s fee to the wife in her separate suit for maintenance of herself and child was a matter within the sound discretion of the chancellor under § 31-1210, supra. Also, in Waller v. Waller, 220 Ark. 19, 235 S. W. 2d 814, we approved an allowance of an attorney’s fee to a divorced wife in her separate action for the support of the child of the parties in a habeas corpus proceeding. In contempt proceedings for failure to comply with an allowance for child support it is held generally to rest within the sound discretion of the trial court as to whether attorney fees of the injured party should be assessed against the defendant. 27 C. J. S., Divorce, § 325. Regardless of the effect of the amended statute, we think it is within the inherent jurisdiction of equity to allow an attorney’s fee in cases of this kind and that the court did not abuse its sound discretion in doing so. As a matter of practice we have repeatedly made such allowances in this court.
That part of the decree finding appellant guilty of contempt of court and refusing to modify the monthly support payments is accordingly reversed. In all other respects the decree is affirmed. | [
-112,
-24,
60,
93,
10,
-79,
27,
-104,
122,
-95,
-75,
-43,
-21,
70,
20,
109,
124,
45,
96,
122,
-63,
-77,
54,
64,
123,
-13,
-7,
-43,
-15,
125,
-3,
-41,
77,
56,
-126,
-43,
98,
-62,
-51,
-108,
-114,
-125,
-87,
-12,
89,
-126,
48,
113,
16,
15,
49,
-113,
-93,
46,
61,
122,
40,
44,
95,
122,
-64,
-12,
-113,
-124,
127,
102,
-79,
22,
22,
6,
88,
47,
-104,
49,
0,
-23,
50,
-122,
-126,
116,
67,
-103,
1,
96,
98,
16,
-27,
-4,
-4,
-120,
46,
-38,
-115,
-90,
-97,
112,
10,
4,
-66,
-100,
100,
-108,
14,
118,
73,
5,
61,
96,
2,
-118,
-44,
-77,
-114,
62,
-116,
16,
-17,
-93,
17,
97,
-49,
-78,
92,
71,
123,
-101,
-50,
-94
] |
MmoR W. Millwee, Associate Justice.
Appellees, hereinafter called plaintiffs, are 15 laborers and mechanics who were employed by either or both the appellants, H. B. Deal & Company, Inc., and McG-raw Construction Company, Inc., hereinafter designated as defendants, in the construction of the Ozark Ordnance Works at El Dorado, Arkansas, at various times in the years 1942 and 1943. The construction was under a fixed-fee written contract between the H. B. Deal & Company as principal contractor and the United States of America, which required said company and its subcontractors to pay all laborers and mechanics on the job at a rate of not less than one and one-half times the basic rate of pay for all hours worked by them in excess of eight hours in any one calendar day. The defendant, McGraw Construction Co., operated under a written subcontract Avith II. B. Deal & Company in the construction of the government facility.
On April 12, 1943, part of the plaintiffs brought an action against the McGraw Company to recover overtime pay for work done at various times in the construction project over the period in question. A similar action was brought by the other plaintiffs against both defendants on December 16, 1946. The two cases were eventually consolidated for trial before the circuit judge sitting as a jury. In response to certain interrogatories filed by plaintiffs the court required defendants to set out the number of hours each plaintiff worked each day and the amount of money paid each, plaintiff at each weekly pay period as disclosed by the original time records. The information so furnished was accepted as true by most of the plaintiffs and formed the basis for the judgments rendered in their favor. Other plaintiffs offered independent proof of the number of hours worked each day in conflict with the time records. After taking the cases under advisement the court rendered separate judgments in each case for the several plaintiffs in varying amounts on November 16, 1954.
The first assignment of error relates to the applicable statute of limitations. It is urged that the trial court erred in sustaining plaintiffs’ demurrer to that part of the defendants’ answers which pleaded the three-year statute of limitations [Ark. Stats., § 37-206] as a bar to the actions. Both actions were filed within five years, but not within three years, of the last work performed by the plaintiffs. Thus, the effect of the court’s action was to sustain plaintiffs’ plea that the actions were based on a written contract and controlled by Ark. Stats., § 37-209, which provides that all actions on written contracts shall be instituted within five years after the cause of action accrues.
The actions by plaintiffs are on the written contract between the United States Government and H. B. Deal & Company for the construction of the ordnance plant, and particularly Art. 10, Sec. 2, thereof which reads: ‘ ‘ The Constructor shall compensate laborers and mechanics for all hours worked by them in excess of eight hours in any one calendar day at a rate not less than one and one-half times the basic rate of pay of such laborers and mechanics and shall include a stipulation in each subcontract that laborers and mechanics will be paid at a rate not less than one and one-half times their basic rate of pay for all hours worked by them in excess of eight hours of any one calendar day.” A copy of this contract was made a part of the subcontract between the defendants under which the McGraw Company, as subcontractor, assumed all the' obligations placed on the Deal Company by the principal contract with reference to hours and rate of pay of the workmen. In H. B. Deal & Co., Inc. v. Marlin, Judge, 209 Ark. 967, 193 S. W. 2d 315, we held that the foregoing provision was placed in the contract for the benefit of the laborers who were entitled to maintain an action thereon as third party beneficiaries. Again in H. B. Deal & Co., Inc. v. Head, 221 Ark. 47, 251 S. W. 2d 1017, we affirmed a judgment in favor of plaintiff laborers for overtime pay in an identical action based on this provision of the written contract.
Defendants argue that the instant actions are either founded on separate oral contracts of employment, or, that said written contract was in legal effect oral because it was necessary to introduce parol evidence to identify the parties and maintain the action. The case of Kordewick v. Indiana Harbor Belt R. Co., 7 Cir., 150 Fed. 2d 753, supports this contention although it was based upon a different type labor contract between a union and a management committee. The court held that under Illinois law there was no written contract within the meaning of a ten-year statute of limitations unless the parties thereto could be ascertained from the instrument itself. This holding is in conflict with the rule generally followed in those jurisdictions where the question has arisen. Actions by third persons based on written contracts which are made for their benefit are generally held to be within the statute of limitations governing-actions on wx-itten contracts. 53 C. J. S., Limitation of Actions, § 60; 34 Am. Jur., Limitation of Actions, § 91.
In Stover v. Winston Bros. Co., 185 Wash. 416, 55 P. 2d 821, there was involved a written contract between a city and a contractor for the construction of a dam at a fixed wage scale. In a laborer’s action against the contractor for the difference in wages actually paid and wages specified in the third party written contract, the court held that it was not essential that the plaintiff be named in the contract or that his identity be ascertained at the time the contract is made so long as he is one of the class for whose benefit the contract is made. This is the effect of our own holding in the previous Deal cases, supra. See also, Moore v. Illinois Central R. Co., 180 Miss. 276, 176 So. 593; Union Pac. R. Co. v. Olive, 9 Cir., 156 Fed. 2d 737; Bogart v. George K. Porter Co., 193 Cal. 197, 223 P. 959, 31 A. L. R. 1045. These cases are in line with the general rule to the effect that the necessity of introducing evidence extrinsic to a written contract to identify a party named therein, to show performance, or to establish the amount of money to which plaintiff is entitled under such contract where there is an obligation to pay some amount, does not render inapplicable a statute of limitations pertaining to written contracts. See Anno: 129 A. L. R. 603 and cases there cited. The fact that oral proof was required to identify plaintiffs as third party beneficiaries under the written contract and to establish the amount due each thereunder does not prevent the five-year statute of limitations [Ark. Stats., § 37-209] from applying here. It follows that the trial court correctly sustained plaintiffs’ demurrer to defendants’ plea of the three-year statute as a bar to the actions.
Defendants next say there was an accord and satisfaction of the claims sued upon by reason of plaintiffs’ endorsement of weekly pay checks upon the back of which was printed: “Endorsement of this check by payee constitutes receipt in full of the sum appearing under the heading of ‘net amount due’ for wages covering the period and the class of work performed on the face of this check.” It should first be noted that the endorsement in question does not provide that it is in full satisfaction of all claims of the payee, as is usually the situation in those cases upon which defendants rely. Moreover, it is also undisputed that defendants did not purport to make the payments represented by said checks in full satisfaction of their claims for overtime pay under the written contract. According to the pleadings and proof, plaintiffs accepted the checks without any knowledge of the provisions of the written contract relating to overtime pay while such provision was at all times well known to defendants, who failed to apprise plaintiffs thereof or to post a copy of said contract at tbe work site as required under its terms. According to the endorsement recital, it is a receipt for certain sums appearing on the faces of the checks. None of the checks were introduced but it is undisputed that the sums stated on the face thereof did not purport to cover overtime pay and that plaintiffs did not accept them in satisfaction of their claims for overtime labor under the provisions of the written contract. Since there was no controversy as to the sums appearing on the face of the checks which were not received in satisfaction of the claims for overtime pay, the trial court correctly refused to hold there had been an accord and satisfaction by reason of the endorsement. McGehee v. Cunningham, 181 Ark. 148, 25 S. W. 2d 449.
Defendant, H. B. Deal & Co., next insists that the court erred in rendering judgment against it in favor of the plaintiffs, Bolding and Purifoy, for overtime wages earned during a period when each was employed by defendant, McGraw Construction Co. Aside from the fact that this question was not raised below, it appears that defendant, H. B. Deal & Co., failed to include a provision for overtime pay in the subcontract with McGraw Construction Co. as required by the principal contract with the U. S. Government. H. B. Deal & Co. will be reimbursed by the U. S. Government for any judgments against it herein. Of course, plaintiffs can have only one satisfaction of their respective judgments and, under all the circumstances, we cannot say the court erred in rendering judgment against both defendants for overtime wages earned during the periods in question.
It is next argued that the trial court did not have jurisdiction of the person of the intervenor, Glendel Cloud. The record reflects that Oliver L.'Cloud was a plaintiff in the original action against H. B. Deal & Co. and that summons was duly served on said defendant. Thereafter, Cloud mad.e an oral assignment of said claim to. his wife, Glendel, prior to his death in February, 1951. Mrs. Cloud then intervened in the action as assignee ,of her deceased husband’s claim and counsel for defendant was notified by registered letter of such intervention and received a copy thereof. There was no dispute as to the amount of the claim and the only purpose of the intervention was to substitute the widow as plaintiff instead of her deceased husband. IT. B. Deal & Co. is a non-resident corporation and contends that it was necessary that a copy of a summons upon the intervention be served upon the Secretary of State in compliance with Ark. Stats. § 27-340 in order to acquire jurisdiction over the person or intervenor. Counsel overlook the fact that the intervention did not involve a new cause of action or an independent proceeding. It is only where a supplemental pleading asserts a new cause of action that it is incumbent upon a plaintiff to obtain a new service of process. Nance v. Flaugh, 221 Ark. 352, 253 S. W. 2d 207. No new cause of action resulted from the filing of the instant intervention.
Defendant Deal & Company also contends the court erred in rendering judgment in favor of plaintiff Hawk because of insufficient evidence to show that he worked more than eight hours a day. While Hawk accepted the time record as showing the dates he worked, he denied that it correctly showed the number of hours worked. He repeatedly testified that he worked at least 10 hours every day during the periods in question. This was substantial evidence and sufficient to support the judgment of the trial court sitting as a jury.
There was no error in allowing 6% interest on the amount found owing to each plaintiff from the date of his last work to the date of judgment. In their argument to the contrary, defendants say the long delay in the trail of the case was due to the fault of the plaintiffs. The record clearly reflects that the delay was occasioned by' a number of circumstances, including the filing of numerous motions and other pleadings over a long period by both sides. Defendants did not file their answers until January, 1954, and the cases were tried at the next term of court five months later. It also appears that counsel on both sides and the court deemed it advisable to await the outcome of some cases pending in other appellate courts which involved some questions also raised in the instant cases before proceeding with the trial. Defendants did not request an earlier hearing and stipulated that no objection was ever made to the trial court’s methqd of handling the cases. In Lyle v. Latourette, 209 Ark. 721, 192 S. W. 2d 521, relied on by defendants, we held that when interest once begins to run on a claim, it continues to run pending decision by the courts, if the delay is not the fault of either party. The record here does not warrant a finding that the delay was due to plaintiffs’ fault.
Defendant, McGraw Construction Co., contends the court erred in rendering judgment in favor of intervenor, Lora Hodnett, because a written assignment of the claim of her deceased husband showed it was against H. B. Deal'& Co. There is no dispute in the amount of said claim nor that the work was done for the McGraw Company. Mrs. Hodnett testified that her husband made an oral gift of his claim to her prior to his death in June, 1951. In drafting a written assignment of the claim as previously directed by the husband, counsel inadvertently and erroneously described the claim as one “against II. B. Deal & Co., Inc. ’ ’ Even if the written assignment was ineffective to bind the McGraw Company in the circumstances, there was substantial evidence to support a finding that intervenor was the lawful owner of her deceased husband’s claim under an oral gift.
The judgments are affirmed. | [
16,
106,
-12,
-4,
-120,
-32,
56,
-102,
81,
-119,
39,
83,
-19,
-57,
85,
117,
-17,
45,
-48,
122,
101,
-93,
35,
82,
-45,
-77,
-5,
-63,
57,
75,
-76,
-42,
76,
112,
-62,
-43,
-30,
-62,
-59,
28,
-50,
4,
-98,
110,
121,
64,
48,
122,
60,
79,
49,
-124,
-5,
42,
16,
79,
108,
62,
111,
106,
65,
-15,
-110,
5,
127,
5,
-95,
71,
-102,
71,
-8,
28,
-100,
52,
-95,
8,
114,
-74,
-58,
100,
97,
-71,
8,
32,
98,
34,
-96,
-121,
-4,
-80,
22,
-2,
-115,
-91,
-78,
56,
11,
-53,
-66,
-108,
120,
2,
-123,
126,
-10,
5,
95,
41,
11,
-113,
-14,
-31,
-97,
-28,
-108,
-125,
-17,
3,
19,
116,
-49,
-94,
93,
71,
123,
-101,
-113,
-120
] |
Ed. F. McFaddin, Associate Justice.
The question to be decided is whether the Arkansas Public Service Commission (hereinafter called “Commission”) has the power to prohibit the Arkansas Louisiana Gas Company (hereinafter called “Appellee”) from selling and installing air-conditioning equipment in competition with appellants. The Commission held itself to be without power to make such order; the Circuit Court agreed with the Commission; and the case is here on appeal.
In May 1954 the Associated Mechanical Contractors of Arkansas, Refrigeration and Air-Conditioning Division (hereinafter called “appellants”), filed before the Commission a complaint against appellee. The complaint alleged: that the appellants constituted a mercantile association in the State of Arkansas; that § 73-216, Ark. Stats., allowed any “mercantile association” to file a complaint before the Commission against any public utility involving the “furnishing of service”; that appellee, as a public utility engaged in the sale of gas, was under the jurisdiction of the Commission (§ 73-218, Ark. Stats.); and that the Commission had the power to ascertain and fix the “service to be . . . furnished” by any utility. The complaint (therein referring to appellants as “complainants” and appellee as “defendant”) contained the following allegations:
“The defendant for a number of years has established and followed a practice of dealing in the retail sale and installation of appliances, including air-conditioning units and equipment. . . . Complainants assert that the merchandising of fixtures and appliances is properly a non-public utility operation. Defendant occupies the favored position of a protected monopoly in its public utility operations with an assured profit, part of which profit it is using in a destructive competition with private enterprise. It has sustained a loss of approximately seventy thousand dollars for each of the years 1952 and 1953 in said non-public utility operations through its practices of underbidding its business competitors. . . . ”
The prayer of -the complaint was that appellee be prohibited from engaging in private business. Appellee filed before the Commission a motion to dismiss, which said:
“(1) This Commission has no jurisdiction of the subject matter of the complaint.
“(2) This Commission has no jurisdiction or power to issue cease and desist order as prayed for by complainants. ’ ’
As aforesaid, the Commission sustained the motion to dismiss.
I. Jurisdiction of the Commission. The threshold question is whether the Commission has jurisdiction to grant relief in a case like this one. In the case of City of Ft. Smith v. Dept. of Pub. Utilities, 195 Ark. 513, 113 S. W. 2d 100, we said of the extent of jurisdiction of the Commission:
‘£ The Department is an administrative body, created by the Legislature, and, as such, it may perform only such duties and exercise such jurisdiction delegated to it by the Legislature as the law-making body itself could constitutionally exercise.” (Italics our own.)
Therefore we search our Statutes to see the power of the Commission. Over the years we have had a series of Legislative enactments which have been designed to regulate public utilities. Without going too far back into history or attempting to give all the Acts and amendments, we begin with Act No. 571 of 1919, which created the Arkansas Corporation Commission; Act No. 124 of 1921 amended the 1919 Act; Act No. 72 of 1933 created the Fact Finding Commission; Act No. 324 of 1935 was a comprehensive Act that created the Department of Public Utilities; and Act No. 40 of 1945 consolidated the Arkansas Corporation Commission and the Department of Public Utilities into the “Arkansas Public Service Commission,” which is the present name of the agency.
We give the foregoing list of some of the Acts for the purpose of pointing out that in Section 11 of Act 571 of 1919 there was a paragraph which said:
“The Commission shall have general supervision of all persons, firms or corporations having authority . . . to lay . . . pipes . . . for the purpose of furnishing and distributing gas. . . .”
The quoted “general supervision” paragraph in the 1919 Act was eliminated by § 8 of the Act No. 123 of 1921; and we do not find any such “general supervision” language in any of our subsequent legislation. Therefore, it seems clear that the Arkansas Public Service Commission does not have “general supervision” over all of the dealings of a corporation that is a public utility, but only has supervision within the Legislative grant of those dealings wherein the corporation, in fact, acts as a public utility.
Just as a municipal corporation may act in either a governmental capacity or a proprietary capacity, so also a public service corporation may act in some matters of business as a private corporation. In 73 C. J. S. 1003 cases are cited to sustain this rule:
“A public utility may act in a private capacity as distinguished from its public capacity, and in so doing is subject to the same rules as a private person. The fact that a business or enterprise is, generally speaking, a public utility does not make every service performed or rendered by it a public service, with the consequent duties and burdens, but it may act in a private capacity as distinguished from its public capacity, and in so doing is subject to the same rules as a private person.”
Appellee’s charter gives it the power to sell equipment, so it is not claimed that appellee is acting ultra vires; besides, injunction against ultra vires acts of a corporation is a matter for a court and not a point on which the Commission might bottom its jurisdiction. Whether the Legislature has the power to prohibit a public utility from acting in a private capacity is a question not before us; so we need not consider the arguments contained in the case of Capitol Gas & Elec. Co. v. Boynton, 137 Kan. 717, 22 Pac. 2d 958. The basis for our con elusion is that our present Statutes do not give the Commission authority to act in a case like this one involving the non-public utility business of a corporation.
II. Losses in Private Business Matters. Finally, appellants urge that the appellee is sustaining an annual loss in this private business of selling air-conditioning equipment, and that this loss is carried into the rate base for the public utility charges that the appellee makes. Such an argument is a matter that addresses itself to the Public Service Commission in fixing a rate base; but such argument cannot be used to confer jurisdiction on the Commission in a case like the appellants now have before us.
Affirmed.
The quoted language is in accord with the holdings of other courts on the same question, some of which are: West v. Sun Cab Co. (Md.), 154 Atl. 100; State ex rel. Utility Dist. v. Dept. of Pub. Serv. (Wash.), 150 Pac. 2d 709; and Taylor v. Mich. Pub. Util. Comm. (Mich.), 186 N. W. 485.
Sec. 19 (6) of the Act No. 324 of 1935 transferred to the Department of Public Utilities the powers of the Arkansas Corporation Commission over utilities.
The fact of this elimination is mentioned in the annotation following § 73-123, Ark. Stats.
See Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319; and Arkansas Valley Compress v. Morgan, 217 Ark. 161, 229 S. W. 2d 133.
As to injunction against ultra vires acts, see generally 32 C. J. 234 and 43 C. J. S. 605.
Cases from other Public Service Commissions are in accord with the holding of the Arkansas Public Service Commission on this point. See City Ice & Fuel Co. v. Consolidated Edison Co. (N. Y. Dept. of Public Service 1939), 29 P. U. R. (N. S.) 193; Master Plbrs. Assn. v. Brockton Gas Lt. Co. (Mass. Dept. of Public Utilities 1935), 36 P. U. R. (N. S.) 364; In Re Milwaukee Gas Lt. Co. (Wis. P. S. Com. 1942), 44 P. U. R. (N. S.) 194; and see also In Re City Ice & Fuel Co. (N. Y. Sup. Ct. App. Div. 1940), 37 P. U. R. (N. S.) 218 and 23 N. Y. S. (2) 376. | [
-80,
-24,
-44,
-100,
90,
96,
24,
-110,
87,
-29,
-19,
-45,
-83,
-44,
-108,
127,
-13,
127,
-16,
25,
-59,
-110,
1,
66,
-58,
-37,
-71,
-49,
-80,
95,
-12,
-18,
88,
32,
-54,
-43,
-58,
66,
-51,
-34,
-90,
33,
11,
104,
-7,
-62,
48,
41,
86,
11,
85,
-81,
-29,
44,
25,
-61,
109,
44,
121,
44,
89,
122,
58,
-99,
127,
4,
19,
36,
-104,
-123,
-24,
62,
-104,
17,
0,
-24,
115,
-94,
-124,
116,
15,
121,
8,
32,
99,
3,
0,
-25,
-20,
-24,
7,
-49,
-99,
-90,
-92,
9,
99,
1,
-73,
-108,
107,
-126,
-122,
-2,
-10,
-43,
91,
108,
3,
-114,
-98,
-95,
7,
99,
-100,
0,
-21,
-57,
48,
52,
-49,
-16,
93,
71,
55,
31,
-114,
-48
] |
Ned A. Stewart, Special Chief Justice.
The appellant and plaintiff below, Wood McArthur (hereinafter referred to as appellant,) proceeding as a taxpayer, filed this case in the Chancery Court of Pulaski County, Arkansas against the appellees and defendants below, J. M. Smallwood, C. G. Hall, J. V. Satterfield, Jr., Plarry W. Parkin and J: L. Shaver (hereinafter referred to as appellees), as members of the Arkansas Justice Building Commission, seeking to have Act 375 of 1955 declared unconstitutional and void and in violation of certain constitutional rights of the plaintiff and other taxpayers similarly situated, and seeking to enjoin the appellees from complying with, or in any manner carrying out, the provisions of the Act. The appellees waived service of summons, entered their appearance, and filed a demurrer to the complaint which was sustained by the Pulaski Chancery Court, and after appellant declined to plead further, that Court entered a decree dismissing the complaint.
The appellant duly perfected an appeal to this Court. Thereafter the regular Court disqualified itself and a Special Court (composed of the writer, J. G. Burke, Harry P. Daily, Surrey E. Gilliam, Harry L. Ponder, John Mac Smith and Edward L. Wright) was appointed to decide the case. In the public interest, this Special Court entered an order granting permission to any interested party in the State to file a brief with the Court covering any issue the party desired to raise concerning Act 375 of 1955. These briefs were to be filed by July 11, but none have been forthcoming, and the Court has proceeded to determine the appeal upon the record and briefs filed in Case No. 5-764 and upon its own investigation of the law.
Act 375 of 1955 creates the Arkansas Justice Building Commission and authorizes the Commission to construct a Justice Building on the capitol grounds in Little Bock, Arkansas, and to finance the construction by the issuance of bonds to be payable from and secured solely by a pledge of the funds in the Justice Building Fund, established by the Act. The funds therein will be derived from the rental of space in the building to the Workmen’s Compensation Commission, the Public Service Commission, and such other persons or agencies as may occupy space therein; from moneys received from various county treasurers from additional costs taxed by the Act; from appropriations on a current basis; and from gifts, bequests, donations or other sources. Authorization is granted for lease agreements between the Commission and the Workmen’s Compensation Com mission and the Public Service Commission, and provision is made for the payment of rentals thereunder from the Workmen’s Compensation Commission funds and Public Service Commission funds directly to the Commission without said funds first going into the state treasury. The funds derived from the additional costs taxed by the Act are also paid directly to the Commission and do not go into the state treasury. The bonds to be issued by the Commission shall be general obligations of the Commission only and shall in no event constitute an indebtedness for which the faith and credit of the State of Arkansas, or any of its revenues, are pledged. Appellant makes several attacks upon the constitutionality of the Act which will be hereinafter considered in order.
Delegation of Legislative Power
It is alleged that there is a delegation of legislative power to the Commission contrary to and in violation of Article 5, Section 1, as amended by Amendment No. 7, and Article 4, Sections 1 and 2, of the Constitution of the State of Arkansas. It is well settled that legislative bodies have no right to delegate the lawmaking power to commissions and boards established by the legislature, but it is equally well settled that the legislature may delegate the power to determine facts upon which the law makes or intends to make its own action depend and that general provisions may be set forth with power given to those who are to act under such general provisions to complete the details. See, among other cases, Fort Smith v. Roberts, 177 Ark. 821, 9 S. W. 2d 75; Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S. W. 2d 980; Currin v. Wallace, 306 U. S. 1, 59 S. Ct. 379, 83 L. Ed. 441. We have carefully examined Act 375 and find no unconstitutional delegation of legislative power. The Act is complete in itself and when placed into operation the objects accomplished necessarily will be those provided for and intended by the Legislature. The Commission will do no more than find the necessary facts, complete the necessary details, and exercise a discretion, within clearly defined limits, as to the execution, of the Act. We have considered the various grounds urged by the appellant as constituting an unlawful delegation of the legislative power and find them to be without merit.
Payment of Rent by the Workmen’s Compensation Commission and Public Service Commission and Payment of the Proceeds of the Costs Levied Directly to the Commission.
The Act provides that the rental payments under the lease authorized to be executed between the Workmen’s Compensation Commission and the Commission shall be paid directly from Workmen’s Compensation Commission funds to the Commission prior to the deposit of any of said moneys in the Workmen’s Compensation Fund in the state treasury. And, the Act authorizes the sale of the present Workmen’s Compensation Commission building and the deposit of the funds derived therefrom directly with the Commission to be applied to the rental payments in the manner provided in the Act. The Act contains a similar provision with reference to the rental payments by the Public Service Commission in that said payments are to be made from Public Service Commission funds prior to the payment of any of said funds into the state treasury. And, the costs collected pursuant to the provisions of the Act are also to be forwarded by the various county treasurers directly to the Commission, and none of the costs go into the state treasury. The appellant contends that these provisions of the Act are contrary to Article 5, Section 29 and Article 16, Section 12 of the Constitution of the State of Arkansas. In addition, appellant cites certain cases such as Moore v. Alexander, 85 Ark. 171, 107 S. W. 395; Jobe v. Caldwell, 99 Ark. 20, 136 S. W. 966; Dickinson, Auditor v. Clibourn, 125 Ark. 101, 187 S. W. 909; and others, for the propositions that one legislature cannot bind future legislatures concerning the expenditure of public funds by making continuing appropriations, that the life of an appropriation is two years, and that appropriations must state distinctly the maximum amount to be drawn in dollars and cents, and the pur pose for the authorized expenditure. These cases do not reach the issue raised since they deal with money' in the state treasury and it appears to be well settled' I that such moneys must be disbursed by specific appro- j priations of not to exceed two years in duration. The., real issue is whether these funds must be paid into the , state treasury. If there is no such constitutional requirement, then there is no violation of the provisions relied upon by appellant and no conflict with the law of • the above cited cases. This Court has held, Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, that there are certain public moneys, designated in that case “cash funds,” which may be controlled by the Legislature and in accordance with legislative directive need not be paid into the state treasury and need not be specifically appropriated. Appellant concedes that if the funds involved herein are “cash funds” within the Gipson v. Ingram case, supra, that decision is controlling. The Court in the Gipson v. Ingram decision, supra, defined “cash funds” as- follows (pages 816 and 817 of 215 Ark.):
“So, for purposes of this topic ‘cash funds’ are those received by the state agencies and institutions from sources other than taxes, as that term ‘taxes’ is ordinarily used.”
Appellant would distinguish the Gipson v. Ingram decision, supra, on the ground that the moneys involved herein are derived from “taxes” as that term is ordinarily used.
The Legislature has clearly designated the funds involved as “cash funds” and we find no express constitutional restriction upon the supreme power of the Legislature to deal with public revenues of any type prior to the time such revenues are placed in the state treasury. Therefore, since the Constitution is a restriction upon the otherwise supreme power of the Legislature rather than a grant of power to the Legislature, there would appear to be no sound constitutional reason for nullifying the express legislative action in this particu lar. Furthermore, these funds clearly qualify as moneys received from sources other than taxes, as that term is ordinarily used.
The Workmen’s Compensation Act establishes a special fund in the state treasury known as the Workmen’s Compensation fund and into that fund the various premium taxes and fees provided for by the Act are deposited. Original qualification fees are charged insurance carriers at the time of securing the first license to transact business and self-insurers at the time of qualifying as such, which fees are paid directly to the Workmen’s Compensation Commission. A premium tax in an amount calculated on the basis of the administration cost of the Act, but not to exceed 3% on all premiums received, is levied against each participating insurance carrier, and these fees are collected by the Insurance Commissioner. The Commission collects directly a comparable tax on self-insurers. Thus, it is seen that the Workmen’s Compensation Commission funds are collected from insurance carriers, who, by choice, participate in the writing of compensation, and from self-insurers, on the basis of financing the administration of the Act, and are segregated as a trust fund in the state treasury. These funds are collected and must be used for Workmen’s Compensation purposes and are not available for the general or other purposes of the State of Arkansas. The leasing of adequate facilities peculiarly designed for the functions of the Workmen’s Compensation Commission is obviously a proper part of the administration of the Compensation Act and a proper use of the funds collected therefor.
The cost of the operation of the Public Sex-vice Commission is financed by fees levied and charged against rail carriers, other carriers and utilities, and the amount of the fees collected is governed by the cost of the operation of the Public Service Commission. On receipt of the fees and charges provided for, the Secretax-y of the Public Service Commission pays the same into the state treasury and the amount so received by the treasurer is credited by him to the Public Sei-vice Commission fund therein. The deposits so made replace money appropriated out of the treasury for the operation of the Public Service Commission, and whether or not there is in the strict sense of the word a trust fund, the result is the same because the Public Service Commission funds are neither collected for nor used by the State for the general purposes or any other purpose thereof. Th.e leasing of adequate facilities for the functioning of the Public Service Commission is clearly a proper element of its operation and a proper use of the funds collected therefor.
The funds that will be realized from the additional' costs levied by the Act fall in the same category. They will be paid by those securing the services of our courts and, as in the case of other costs, are designed to help finance the services received. It seems too apparent for comment to observe that the proper housing of the Supreme Court, the Clerk, the Library and the Attorney G-eneral is essential to the administration of justice. Also, these funds are not and will not be available for the general or other purposes of the State. J
The funds involved, being special funds restricted in their use, are clearly moneys received from sources other than taxes, as that term is ordinarily used. Therefore, in our opinion, the Gipson v. Ingram decision, supra, is controlling and the legislative treatment of the funds involved is neither contrary to nor in violation of the Constitution of the State of Arkansas. This conclusion is entirely consistent with that reached by courts of other jurisdictions. See Ziegler, State Highway Commissioner v. Witherspoon, City Controller, 331 Mich. 337, 49 N. W. 2d 318; State ex rel. Fatzer, Atty. Gen. v. Kansas Armory Board, et al., 174 Kan. 369, 256 P. 2d 143; State v. Florida State Improvement Commission, 158 Fla. 743, 30 So. 2d 97. In the last cited case, there was pledged to the payment of revenue certificates issued to finance the construction of an office building, among other things, funds collected by statute for the administration of the Workmen’s Compensation Division of the Florida Industrial Commission. It was argued that this pledge amounted to the pledging of a state tax for the payment of rentals. Concerning such use of the Workmen’s Compensation fund, the court states (page 99 of 30 So. 2d) :
“Here we have a clear declaration that these funds are not the property of the state but that they shall be administered by the Commission, the State Treasurer being the mere custodian of them for that purpose. They are trust funds held in like category as funds held and administered by the Board of Commissioners of Everglades Drainage District in the drainage of the Everglades. Lainhart v. Catts, 73 Fla. 735, 75 So. 47. These funds never reach the state treasury as state funds; are never available for the general purposes of the state, but are solely for the use of the Florida Industrial Commission. They are similar to funds allocated to the Florida Improvement Commission that were discussed in State ex rel. Watson v. Caldwell, supra. Under such a state of facts we can conceive of no theory by which these funds could be called state funds, and thereby immunized by Section 6, Article IX of the Constitution, from use in servicing the revenue certificates.”
The Financing of the Building, Including the Execution of Leases and the Issuance of Bonds.
As previously pointed out, the Act authorizes the Commission to issue bonds to be payable from and secured solely by a pledge of the funds in the Justice Building Fund, and the Act expressly provides that the bonds shall be general obligations only of the Commission and in no event shall they constitute an indebtedness for which the faith and credit of the State, or any of its revenues, are pledged. Appellant challenges the provisions of the Act pertaining to the financing of the Justice Building as being in violation of Article 16, Section 1 as amended by Amendment No. 13, and Amendment No. 20. Article 16, Section 1 of the Constitution prohibits the state from lending its credit and from issuing any interest bearing treasury warrants or scrip. By the express language of Act 375, the credit of the State of Arkansas is not involved and this Court has held that Article 16, Section 1 did not even prohibit the State from issuing bonds. In Brown v. The Arkansas Centennial Commission, 194 Ark. 479, 107 S. W. 2d 537, this Court stated (page 482 of 194 Ark.):
“It is plainly manifest from this language that the bonds to be issued are not obligations of the State, but ‘shall be solely and exclusively the obligations of the Commission in its corporate and representative capacity. ’ This language is too plain to be misunderstood and is not open to construction. So the State is not lending its credit and it is not issuing any interest-bearing treasury warrants or scrip, and the provisions of said section of the Constitution are not invaded. State Military Note Board v. Casey, 185 Ark. 271, 47 S. W. 2d 23. Even where the State issued its own bonds to' borrow money for its own uses and purposes we held there was no violation of this provision of the Constitution. Bush v. Martineau, 174 Ark. 214, 295 S. W. 9; Connor v. Blackwood, 176 Ark. 139, 2 S. W. 2d 44; Tapley v. Futrell, 187 Ark. 844, 62 S. W. 2d 32; Sparling v. Refunding Board, 189 Ark. 189, 71 S. W. 2d 182.”
The pertinent provisions of Amendment No. 20 are that ‘ ‘ the State of Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the State or any of its revenues for any purpose whatever, except by and with the consent of the majority of the qualified electors of the State.” The Arkansas Justice Building Commission, although a public agency, is created as an entity with specified authority and powers and for purposes of Amendment No. 20, the Commission, in our opinion, is not the State of Arkansas. In similar situations this Court has authorized public agencies to issue bonds pledging for their payment revenues available to the particular agency and has rejected challenges of unconstitutionality under Amendment No. 20.
In Davis v. Phipps, 191 Ark. 298, 85 S. W. 2d 1020, 100 A. L. R. 1110, bonds were to be issued by the State Board of Education under Act No. 333 of Í935, which authorized the issuance of bonds to be secured by school district bonds which had been delivered to the State Board of Education as security for loans from the revolving fund. The court stated, page 303:
“But, aside from further speculation, we may say that Amendment No. 20 prohibits bonds or instruments issued by the State itself for the security of which is pledged the State’s faith and credit. A bond is a written promise to pay money, and we have said, in the foregoing discussion, that the State is not issuing these bonds, and it would not be bound for their payment. Therefore these bonds, which the State Board of Education is about to issue, are not within the prohibited class.”
And on page 304:
“Finally, it may be suggested that the pledges contemplated by the State Board of Education are not within the forbidden class for another reason; that is, under Amendment No. 20 it would seem that pledges of revenue are forbidden only when such pledges are to secure State bonds. This seems to be in accordance with the language of Amendment No. 20.”
In Jacobs v. Sharp, 211 Ark. 865, 202 S. W. 2d 964, there was involved Act No. 62 of 1947, which authorized the issuance of bonds by state institutions to finance buildings, the bonds to be obligations of the Board of Trustees of the particular institution only and not obligations of the State. The bonds were to be payable from revenues of the institutions, such as dormitory rental charges. The court upheld the validity of the Act and on page 870 of 211 Ark. stated:
“Therefore, it appears to us to be certain that the bonds to be issued by the Board of Trustees are not State bonds and that the faith and credit of the State are not pledged. Not being the obligations of the State of Arkansas, Amendment No. 20 has no application to them and is not violated because the prohibition therein relates only to State bonds.”
The moneys pledged to the payment of the bonds in the Jacobs v. Sharp decision, supra, were admittedly public revenues. Therefore, it seems to be well established by the decisions of this Court that the pledging of so-called state or public revenues is not prohibited by Amendment No. 20 unless the pledge is to the payment of State of Arkansas bonds. Thus, the real inquiry is whether the bonds that will be issued by the Commission, for purposes of Amendment No. 20, must be classified as State of Arkansas bonds regardless of the express provision in the Act that they are not. And, in making this inquiry, the Court must look to the substance of the transaction. Carpenter v. McLeod, Comptroller, 202 Ark. 359, 150 S. W. 2d 607; State ex rel. Attorney General v. State Board of Education, 195 Ark. 222, 112 S. W. 2d 18.
To properly determine the matter, it is necessary to analyze the funds that will be pledged to the obligations of the Commission. The Justice Building Fund is established as a trust fund by Section 15 of the Act. Subsection (a) of Section 15 covers the moneys that will be received from the various county treasurers from the additional costs taxed by Section 14 of the Act. Section 14 expressly provides that the costs will be collected only in the event the Legislature does not make an annual appropriation of at least $28,000 to the Justice Building-Fund for the payment of rent for space occupied by the Supreme Court, the Clerk of the Supreme Court, the Supreme Court Library, and the Attorney General. There is no obligation on the Legislature to make this appropriation and there is no attempt to bind future legislatures in this particular. The appropriations, being current in nature, present no constitutional problem because they will simply amount to a bestowing by the Legislature of its bounty, and in this regard it is supreme. Cone v. Hope-Fulton-Emmett Road Improvement District, 169 Ark. 1032, 277 S. W. 544; Grable v. Blackwood, 180 Ark. 311, 22 S. W. 2d 41; Page, State Treasurer v. Rodgers, Trustee, 199 Ark. 307, 134 S. W. 2d 573; Clayton, State Treasurer v. City of Little Rock, 211 Ark. 893, 204 S. W. 2d 145. Furthermore, there is no constitutional objection to the making by one legislature of a continuing levy. Moore v. Alexander, 85 Ark. 171, 107 S. W. 2d 395. The only other consideration necessary in the determination of whether there are sufficient obligations on the part of the State of Arkansas with reference to the additional costs levied to constitute this a State of Arkansas bond is whether the levy is irrevocable. There is no such express provision in the Act, but it does appear to be established under the decisions of this Court that the law in effect at the time of the making of a contract becomes a part of it, as if expressly referred to and incorporated in its terms. See Adams v. Spillyards, 187 Ark. 641, 61 S. W. 2d 686, 86 A. L. R. 1493; Hospelhorn, Receiver v. Burke, 196 Ark. 1028, 120 S. W. 2d 705; City of Little Rock v. Community Chest of Greater Little Rock, 204 Ark. 562, 163 S. W. 2d 522, 142 A. L. R. 1072; Liebe v. Sovereign Camp Woodmen of the World, 205 Ark. 540, 170 S. W. 2d 370; Gulf Insurance Company v. Holland Construction Co., 218 Ark. 405, 236 S. W. 2d 1003. And, see the Michigan case of Ziegler v. Witherspoon, supra, wherein the court stated on page 327 of 49 N. W. 2d:
“It is not disputed that when the bonds are issued a contract will be made between the bondholders and the issuing authorities, and that the contract will include the provisions of all relevant existing laws. 'It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to and incorporated in its terms.’ Von Hoffman v. City of Quincy, 4 Wall. 535, 71 U. S. 535, 18 L. Ed. 403. See Hammond v. Place, 116 Mich. 628, 74 N. W. 1002; City of Pontiac v. Simonton, 271 Mich. 647; 261 N. W. 103. Thus the contract will include those acts which authorize the collection of taxes for the State highway fund.”
Therefore, when bonds are issued by the Commission, the bondholders may well acquire contractual rights with reference to this and other provisions of Act 375 so that an attempt by a subsequent Legislature to abrogate or alter such provisions in such a manner as to impair the security of the bondholders would constitute an impairment of their contractual rights. Even so, in our opinion, there would he no violation of Amendment No. 20. The levy of additional costs creates a special fund in every sense of the word and the funds never reach the state treasury. An irrevocable levy of this nature places no obligation upon any funds of the State which have heretofore been or which would otherwise be available for the general or other purposes of the State. The bondholders can look only to those sources of revenue made available by the Act, and if they are insufficient, no claim of any nature can be asserted against the State. We have carefully considered the Carpenter v. McLeod, Comptroller, supra, and State ex rel. Atty. General v. State Board of Education, supra, decisions, and have concluded that they are distinguishable. Those decisions were dealing with funds in the state treasury and one legislature was attempting to bind another as to the disposition of state treasury funds. This is not true in the instant case and we have heretofore pointed out the supreme power of the Legislature to deal with these funds without the necessity of future legislative action. Furthermore, our conclusion is consistent with what we believe to be the correct interpretation of Amendment No. 20, as set out in the Davis v. Phipps, supra, and Jacobs v. Sharp, supra, decisions — that is, the irrevocable pledging of state funds is condemned only when they are pledged to full faith and credit obligations of the State. There was necessarily an irrevocable pledging of public revenues in the Jacobs v. Sharp decision, supra, but, as is the case here, the pledge was not of state-treasury funds, and, therefore, the bonds were not in fact State of Arkansas obligations. Our research reflects that this is the view taken by a substantial majority of courts of other jurisdictions.
The case of State of New Mexico ex rel. Capitol Addition Building Commission v. James J. Connelly, State Treasurer, 39 N. M. 312, 46 P. 2d 1097, 100 A. L. R. 878, is peculiarly in point from the standpoint of the additional costs levied by Section 14 of the Act. That case involved an Act of the New Mexico Legislature creating the Capitol Addition Commission and authorizing the issuance of debentures secured by an irrevocable pledge of the proceeds of a $2.50 levy upon each and every civil action filed in the offices of the clerks of the various district courts. Concerning the point immediately involved, the court stated:
“And so we conclude that the debentures in question, neither requiring nor warranting a resort to the general taxing power of the State for their retirement, but payable instead from proceeds of an imposition in the nature of an excise laid upon all civil actions, filed with the various district clerks of the state, in addition to the regular docket fee, to be converged into a special fund in the hands of the state treasurer, will not constitute a general obligation on the part of the State. Hence, they are not within the interdiction of article 9, Sec. 8. of the State Constitution.”
See the following New Mexico cases handed down subsequently in which that court adheres to the special fund doctrine: State Office Building Commission v. Trujillo, 46 N. M. 29, 120 P. 2d 434; Stone v. City of Hobbs, et al., 54 N. M. 237, 220 P. 2d 704.
In Ziegler v. Witherspoon, supra, there was a pledge of the income received from motor vehicle taxes — a special tax not available for the general purposes of the state. On page 326 of 49 N. W. 2d, the court stated:
“For these reasons we find that the constitutional debt limitation will not apply to bonds issued under Act No. 22, supra.
“This conclusion has been reached by a large majority of other courts which faced the same problem. In Gruen v. State Tax Commission, 35 Wash. 2d 1, 211 P. 2d 651, 679, the court said:
“The cases which we have considered state what must be held to be the unanimous view of the courts of this country upon the question of whether or not bonds payable out of a special fund, supplied by an excise tax, constitute a debt within the meaning of constitutional limitations fixing a general debt limitation. Based upon those cases and the cited cases decided by this court, which indicate an approval of the special fund doctrine' and, further, that excise taxes are not controlled by constitutional provisions, we hold that the issuance and sale of bonds provided for in this act do not in any way constitute a debt against the state of Washington. The bonds provided for are to be paid from a special fund and solely from anticipated revenues to he derived from the sale of cigarettes. They are not, and cannot he, a general obligation of the state. In the event the anticipated profits do not materialize and the fund becomes exhausted, the purchaser of the bonds has no legal redress against the state. He must look solely to the fund upon which they are drawn.
“ ‘Whether there would he a moral obligation to redeem the bonds is a matter which does not concern this court. It is sufficient to say there is no legal obligation to do so in the event the special fund is exhausted. In that event, there will he no additional tax burden by reason thereof; for, as just stated, there is no general obligation on the part of the state to redeem the bonds.’ ” See also the following cases: Nichols v. Williams, et al., 338 Mich. 617, 62 N. W. 2d 103; State v. Florida State Improvement Commission, supra, State v. Florida State Improvement Commission, 160 Fla. 230, 34 So. 2d 443; State ex rel. Fatzer, Atty. Gen. v. Armory Board, et al., supra; Guthrie, et al. v. Curlin, Com’r of Highways, et al., Ky., 263 S. W. 2d 240.
Turning to the other moneys that will he placed in the Justice Building Fund, Sub-section (b) of Section 15 of the Act covers rental payments under the lease agreement to be executed by the Workmen’s Compensation Commission and the Justice Building Commission, and the sums to he received from the sale of the Workmen’s Compensation Commission building. Section 11 of the Act expressly authorizes the Workmen’s Compensation Commission and the Justice Building Commission to enter into a lease for such term, containing such provisions, and for such amount as the said parties shall determine. It is contemplated that a lease will he executed and that the term thereof will extend over the life of the bonds to be issued by the Commission. There is express legislative authorization for the contemplated long term leasing and we see no constitutional objection to the action taken by the Legislature in this regard. Long-term contracts are necessarily involved in every bond issue of state agencies heretofore approved by this Court, and this Court has approved similar long term contracts dealing with other subject matter. A ten year contract under which the Board of Penitentiary Commissioners obligated itself to furnish convict labor, vTas upheld in McConnell v. Ark. Brick & Mfg. Co., 70 Ark. 568, 69 S. W. 559. In Chidester School District No. 50 v. Faulkner, 218 Ark. 239, 235 S. W. 2d 870, it was held that the board of directors of a school district might enter into a contract covering the employment of a teacher or other officer for a term extending beyond that of the board itself, and that such contract was binding upon succeeding boards. See annotations 70 A. L. R. 794 and 149 A. L. R. 336.
The Court stated on page 242 of 218 Ark.:
“In Gardner v. No. Little Rock Special School District, 161 Ark. 466, 257 S. W. 73, this court, approved the general rule announced in 24 R. C. L., page 579, as follows: ‘In the absence of an express or implied statutory limitation, a school board may enter into a contract to employ a teacher or any proper officer for a term extending beyond that of the board itself, and such contract, if made in good faith and without fraudulent collusion, binds the succeeding board. It has even been held that, under proper circumstances, a board may contract for the services of an employee to commence at. a time subsequent to the end of the term of one or more of their number and subsequent to the reorganization of the board as a whole, or even subsequent to the terms of the board as a whole. The fact that the purpose of the contract is to forestall the action of the succeeding- board may not, of itself, render the contract void. But a hiring for an unusual time is strong- evidence of fraud and collusion, which, if present, would invalidate the contract.’ See, also, School District No. 45, Pope County v. McClain, 185 Ark. 658, 48 S. W. 2d 841.
Similar leasing arrangements have been repeatedly approved by the highest courts of other jurisdictions. In Preston, et al. v. Clements, Governor, et al., 313 Ky. 479, 232 S. W. 2d 85, it was held that the Kentucky State Property and Building Commission could legally enter into contracts with other state agencies to rent the Capitol Annex Building when ready for occupancy. The building was to he financed by revenue bonds. In State v. Florida State Improvement Commission, 159 Fla. 338, 31 So. 2d 548, revenue certificates were to be issued to provide funds for the construction of toll roads to be payable from the income derived from fees and tolls. Before construction, it was agreed to lease the same to the State Road Department in lieu of the actual collection of tolls and the plan was upheld as being valid. In Loomis v. Keehn, et al., 400 Ill. 337, 80 N. E. 2d 368, an act authorizing the construction of armories and the renting of the same to the state was upheld. In State v. Florida State Improvement Commission, supra, in approving a somewhat similar lease arrangement, the court states (pages 99 and 100 of 30 So. 2d):
íí * * * State agencies generally have authority to contract with each other in so far as necessary to administer duties within the scope of their authority.
“ * * * It is also our view that the funds collected by the Florida Industrial Commission pursuant to Chapter 440.51 (b) Florida Statutes of 1941, F. S. A., are trust funds for the exclusive use of paying its administrative expenses, that it is a voluntary assessment paid by those who take advantage of the act, that it is not a state fund and that the Florida Industrial Commission was authorized to pledge said funds in payment of the lease contract with the Florida State Improvement Commission. ’ ’
See also State ex rel. Thompson, Atty. Gen. v. Giessel, Director of Budget and Accounts, 267 Wis. 331, 65 N. W. 2d 529; Dean v. Kuchel, 35 Cal. 2d 444, 218 P. 2d 521; State ex rel. Fatzer, Atty. Gen. v. Armory Board, supra.
From the above, we conclude that the contemplated long term leasing arrangement between the "Workmen’s Compensation Commission and the Justice Building Commission is valid. Furthermore, the Workmen’s Compensation funds are designated trust funds collected and used for a specific purpose and in no sense are they funds which have been or could otherwise be available for the general or other purposes' of the State, and, of course, that portion thereof to be used for rental payments under the lease never reaches the state treasury. Therefore, for the reasons heretofore set forth with reference to the additional costs levied by the Act, we find no violation of Amendment No. 20 even though the authorization set forth in Act 375 is irrevocable in the sense that it cannot be abrogated by a subsequent Legislature in such a manner as to impair the obligation of the bondholders ’ contract.
As to the contemplated sale of the present Workmen’s Compensation building and the placing of the proceeds thereof into the Justice Building Fund to be applied to the rent of the Compensation Commission, we find no diversion of funds because they will still be utilized for Workmen’s Compensation purposes, and, as previously pointed out, the Legislature can bestow its bounty where it wishes. Also, all objections to the disposition of state property appearing in the decision of this Court in Harris v. Emmerling, 224 Ark. 40, 271 S. W. 2d 618, decided October 11, 1954, appear to be fully complied with.
The situation existing with reference to the lease agreement to be executed by the Public Service Commission and the Justice Building Commission is the same as in the case of the Workmen’s Compensation Commission, and what has been heretofore said in this opinion with reference to the validity of the Compensation Commission lease is applicable and controlling as to the Public Service Commission lease. There is, in our opinion, no violation of Amendment No. 20 in either instance.
Any other funds that will be supplied by the State, covered by Sub-section (d) of Section 15, will be on a current basis and pursuant to no obligation on the part of the State to supply any such funds.
The only obligations of the State of Arkansas with reference to these bonds are entirely negative in form, being those in connection with the constitutional impairment of contract provisions, and since these obligations are with reference to clearly designated special funds, which never find their way into the state treasury, and which have not been and cannot be available for the general or other purposes of the State, and since there can be no obligation on the part of the State,with reference to these bonds if the funds specified in the Act prove insufficient, it is our considered opinion that the bonds are not state bonds within the contemplation of Amendment No. 20. The cases relied upon by appellant are easily distinguishable. In Opinion of the Justices, 146 Me. 183, 79 A. 2d 753, the act made the execution of a lease to the State of Maine mandatory and in Mc-Cutcheon v. State Building Authority, et al., 13 N. J. 46, 97 A. 2d 663, the leasing was restricted to state agencies. Furthermore, it appears that the obligations under the leases involved therein would have to be discharged from funds raised by general taxation which would otherwise be available for general or other state purposes. The obligations under the leases were not specifically restricted to designated special funds which would in no event, be available for general or other state purposes, as is the case under Act 375. And, leasing is not restricted to state agencies by Act 375. As appears from the admitted facts in this case and from the authorization of the Act itself, the Justice Building Commission will covenant to charge and collect rent from the occupants of the building, whoever they may be, which, together with such other revenue of the Commission as may be available therefor, will always be sufficient in amount to insure the prompt payment of the principal of and interest on the bonds when due and to maintain an adequate reserve for contingencies, and it is entirely possible that it may become necessary for tbe Commission to lease space to others.
The Additional Costs Levied by Section 14 of the Act
The appellant contends that this section of the Act violates Article 2, Section 13 of the Constitution, which provides in part that every person ‘1 ought to obtain justice freely and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.” This Court has held that it is within the power of the Legislature to make reasonable provisions for the payment of costs of litigation so as to help defray the expenses of the courts. Marshall v. Holland, 168 Ark. 449, 270 S. W. 609. The proper housing of the Supreme Court, the Clerk, the Library and the Attorney General is an obvious and necessary expense of the administration of justice and of our courts. These costs are levied at the circuit, chancery and probate court levels and appeals from those courts are directly to the Supreme Court. The mere fact that there are no appeals to the Supreme Court in a substantial number of cases filed in the circuit, chancery and probate courts, of which fact we take judicial knowledge, is immaterial. The right of appeal is a valuable asset to any litigant and is available to all litigants. The mere fact that these rights may not be utilized in every case does not detract from their importance and there is no constitutional objection to levying costs to contribute to the expense of the maintenance of those rights.
Exemption from Taxation
Section 16 (f) of the Act exempts the bonds to be issued by the Commission from all taxes, state, county and municipal, including income taxation and inheritance taxation. Appellant challenges this provision as being unconstitutional under Article 16, Sections 5 and 6 of the Constitution of the State of Arkansas. We agree with the contention of the appellant insofar as property taxation is concerned. This Court has held that these provisions of the Constitution prohibit any legislative attempt to exempt bonds from property taxation at least where the bonds are held by any person or agency whose property is not otherwise exempt from taxation. Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5; Ward v. Bailey, Governor, 198 Ark. 27, 127 S. W. 2d 272. However, the exemption from state income taxation is valid. Ward v. Bailey, Governor, supra; Fulkerson v. Refunding Board of Arkansas, supra; Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720; 4 Ark. L. Rev. 433, Property Tax Exemption in Arkansas. And, inasmuch as an inheritance or estate tax is not a property tax, that exemption is valid. State v. Handlin, 100 Ark. 175, 139 S. W. 1112; Gates v. Bank of Commerce & Trust Co., 185 Ark. 502, 47 S. W. 2d 806; Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 97.
The invalidity of the provisions of Section 16 (f) of the Act insofar as they purport to exempt the bonds from property taxation does not affect the validity of other provisions of the Act which we have herein sustained. Section 22 of Act 375, the separability provision; Jernigan v. Harris, supra.
CONCLUSION
The action of the lower court in sustaining the demurrer, and upon the plaintiff’s declining to plead further, in dismissing the complaint is affirmed. | [
116,
-22,
-8,
124,
43,
-64,
58,
-98,
83,
-77,
-91,
87,
-19,
86,
84,
87,
-29,
-3,
85,
105,
-59,
-73,
3,
106,
-110,
-5,
-21,
-59,
49,
77,
-12,
-73,
74,
113,
-62,
17,
-122,
70,
-51,
28,
-114,
-127,
11,
-44,
89,
64,
60,
-20,
16,
11,
113,
-114,
-13,
44,
20,
-53,
104,
44,
93,
-86,
65,
-77,
27,
-107,
95,
23,
33,
101,
-98,
3,
112,
56,
-104,
49,
0,
-24,
115,
-94,
-126,
116,
111,
-39,
9,
112,
98,
1,
33,
-65,
-96,
-120,
22,
-2,
-99,
-90,
-122,
121,
106,
13,
-106,
-99,
125,
-112,
14,
122,
-96,
-59,
89,
108,
-125,
-50,
-44,
-79,
-17,
57,
-98,
19,
-21,
-61,
50,
117,
-51,
-9,
94,
71,
51,
-37,
-114,
-16
] |
George Rose Smith, J.
By this suit for a declaratory judgment the appellants as plaintiffs and the appellee as defendant seek an interpretation of a warranty deed by which Joe H. Dowdle and others conveyed two acres of ground to School District No. 33 of Searcy County. The appellants have succeeded to the interest of the grantors; the appellee has acquired the grantee’s interest. The chancellor held that the deed conveyed the fee simple title, subject to a reservation of minerals. It is contended by the appellants that the deed conveyed only a defeasible estate and that the title has reverted to them.
In the deed in question, which was executed in 1935, the following language appears between the granting clause and the habendum:
“This land to be used for school purposes only.
“The intention of this instrument is to convey two acres of ground, with no easement, with all mineral rights reserved and to be used for school purposes only to school district No. 33 of Searcy County, Arkansas. The grantors are to receive for and in consideration of the above two acres, the plot of ground formerly used by the school, it being of like value and like size in area. For further description see Quitclaim Deed of even date. ’ ’
It is stipulated that District No. 33 huilt a schoolhouse on the land, that the district was consolidated with the appellee in 1948, and that the property has not been used for school purposes since the consolidation. The appellants insist that the appellee’s failure to devote the property to school purposes has effected a divestiture of title.
The chancellor was correct in his interpretation of the instrument. The question is whether this deed conveyed (a) a fee simple defeasible, which might be either a determinable fee or a fee simple on condition subsequent, or (b) the fee simple absolute, with a covenant binding the grantee to the specified use of the property. In the latter case a breach of the covenant might give rise to an action for damages but would not involve the extinguishment of the grantee’s title. Bain v. Parker, 77 Ark. 168, 90 S. W. 1000.
At the outset it must be noticed that the deed before us does not contain language unmistakably describing either form of defeasible fee. The language customarily used is familiar enough.. A determinable fee is ordinarily created by a provision that the grantee’s estate is to continue ‘ ‘ as long as ’ ’ the property is used for a certain purpose or “until” a given event occurs, or by similar words limiting the duration of the estate. A fee on condition subsequent is most effectively described by an express declaration of the condition and by the further reservation of a right of re-entry upon condition broken. Jewell, The Distinction Between a Determinable Fee and a Fee Simple upon Condition Subsequent in Arkansas, 11 Ark. L. S. Bull. 3, 12; Rest., Property, § 44, Comment l, and § 45, Comment j. In the case at bar the grantors ’ failure to employ language unequivocally creating a defeasible fee is a circumstance indicating that the parties did not have such an estate in mind.
This tentative view is greatly strengthened by another factor in the case. The courts, in construing language that lies in the borderland between a clearly defined defeasible fee and a plainly stated covenant, have given weight to several external circumstances that may indicate the parties’ intent. See Rest., Property, § 44, Comment m, and § 45, Comment p. In the present case one of these factors — the ratio between the worth of the consideration and the value of the property — is especially persuasive. It is a sensible rule that as the worth of the consideration approaches the full market value of the property there is a correspondingly stronger inference that a defeasible fee was not intended. If a man conveys land to a school district purely as a gift and declares that it shall be used for school purposes only, it is reasonable to believe that he means to condition his generosity upon obedience to his wishes; for his benevolence is the only motive for the conveyance. But if the land is sold to the district for its full value it is not reasonable to believe that a similar restriction is intended to carry the severe penalty of a complete loss of title. In the second instance the consideration is probably the principal inducement for the transfer. Hence in the latter case the restrictive language is more fairly regarded as a covenant, upon which the remedy in damages is deemed adequate. Here the deed recites that District No. 33 exchanged. for the tract in controversy a plot of like value. The fact that the grantors received full value for their conveyance confirms the conclusioii that a covenant rather than a defeasible fee was intended.
Affirmed. | [
-10,
-18,
-36,
124,
-101,
96,
-104,
-102,
-15,
-83,
103,
83,
-17,
0,
4,
61,
-89,
121,
101,
104,
-43,
-78,
82,
82,
80,
-77,
-41,
-59,
-67,
-51,
-26,
-42,
76,
32,
-54,
85,
70,
-126,
-51,
-104,
-114,
5,
-85,
77,
-45,
96,
60,
67,
80,
77,
113,
-2,
-13,
-92,
25,
67,
8,
46,
-119,
-83,
72,
-87,
-66,
-115,
127,
7,
-79,
101,
-104,
-61,
72,
-120,
-100,
57,
13,
-24,
114,
-74,
6,
116,
13,
9,
-88,
98,
102,
1,
33,
-1,
-80,
-120,
38,
-10,
29,
-90,
-122,
88,
98,
47,
-65,
-100,
125,
16,
71,
118,
-26,
-123,
30,
109,
27,
-54,
-42,
-77,
-115,
-4,
-102,
3,
-5,
51,
32,
84,
-54,
-118,
93,
71,
58,
19,
14,
-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.