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Hart, J.,
(after stating the facts). The sole reliance of the defendant for a reversal of the judgment is that the circuit court erred in admitting the testimony of T. B. Gilbert with reference to a division of profits upon a resale of the land. It appears that Gilbert bought the land1 from Coburn for $2,000. It was first agreed between them that the land should be resold, and that they should share equally in the profits. It is claimed by counsel for the defendant that the court erred in allowing this testimony to go to the jury. We do not-agree with counsel in this contention. The evidence referred to was only admitted by way of leading up to the contract which was made between the parties, with reference to the commissions to be received by the plaintiff for a resale of the land for the defendant. The testimony in question was not admitted for the purpose of establishing the claim of the plaintiff for commissions, but only as a narrative of what occurred between them leading up to the’contract they made. The plaintiff testified that the defendant finally persuaded him to take the agency for the sale of the ten-acre tract of land for a five per cent, commission. A written complaint was filed in the case, and the plaintiff only asks to recover the balance due him on a basis of a five per cent, commission for a sale of the ten-acre tract for the defendant. He procured a purchaser for this ten-acre tract for $2,500, and the defendant refused to sell. The plaintiff received $50 from the defendant, and this would leave a balance due him of $75. The jury returned a verdict for him in this amount, thus indicating that it believed the testimony of the plaintiff: to the exclusion of that of the defendant. No amount whatever was allowed the plaintiff for the sale of the five-acre tract. , i
The pleadings and the evidence introduced, when considered in connection with the verdict of the jury, show that it was in no wise misled by the evidence in question. No prejudice could have resulted to the defendant from admitting the evidence, and it is well settled in this State that a judgment will only be reversed for an error prejudicial to the rights of the appealing party.
It follows that the judgment will be affirmed. | [
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Robinson, J.
D. Y. and Blanche Dodd operate a garage and filling station. On November 4, 1944, they sold to Joe and Florence Jones an automobile for the sum of $850. The Joneses gave their note for the purchase price, secured by a deed of trust to real estate. T. M. Ellis, Trustee, filed this suit to foreclose the deed of trust alleging the note, though long past due, remains unpaid. The Joneses defended on the theory the note had been paid by returning the automobile to the Dodds, the sellers, as payment in full. The Chancellor made a finding of fact that the note had been paid, and from a decree to that effect comes this appeal.
The note given for the automobile by the Joneses was dated November 4, 1944, and was due one year from date. The following June or July Jones returned the car to Dodd who in turn sold it to James "Winfrey for $900. Dodd claims that the car, while Jones had it, was wrecked, and that he took it back from J ones under an agreement that he, Dodd, would furnish the necessary repairs to put the automobile in condition, then sell it and give Jones credit for the net amount the car brought after payment of the repairs; that it cost from $250 to $300 to repair the car, and this sum added to the $850 made a total of about “$1050” that Joneses owed Dodd when the car was sold; that he gave Florence Jones $450 of the money that he got from the sale of the automobile because she was sick and needed the money, and in addition he had a mortgage on the property to secure the indebtedness.
D. Y. Dodd is corroborated in his testimony by his wife, Blanche Dodd, and by evidence of repairs to the car. On the other hand Joe Jones (Florence Jones died after suit was filed but before the trial) is corroborated in his evidence of the transaction by the circumstantial evidence. Some of these circumstances are that Jones worked for Dodd for several years subsequent to the transaction and after the note was due, and Dodd made no effort to collect it or hold anything out of Jones’ pay to be applied on the note; and further that no demand was made on Jones for the payment of the note until suit was filed some four years after the note was due; and moreover, the fact that $450 was paid to Florence Jones at the time of the sale of the car to Winfrey. All of these circumstances corroborate Jones in his testimony to the effect that he turned the car back at Dodd’s suggestion as payment in full of the indebtedness, Dodd stating that he could sell it for more than was owed on it. The state of the testimony is not such that we can say the Chancellor’s finding in favor of Jones is contrary to a preponderance of the evidence.
The decree is therefore affirmed. | [
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Minor W. Millwee, Justice.
Sometime in 1918, Joseph A. Williams, while serving as a soldier in the U. S. Army, bought a Service Life Insurance policy and named his half-sister, Amelia Williams, as beneficiary. 'Joseph died intestate on October 18, 1918, and Amelia received installment payments on the insurance until her death in 1924. The federal law at that time, 43 Stats, at Large, 1310, Chapter 553, § 14, provided that if the beneficiary . . dies prior to receiving all the two hundred and forty installments or all such as are payable and applicable, there shall be paid to the estate of the insured, the present value of the mouthy installments thereafter payable . . . ”
After Amelia’s death, her mother, Myra E. Williams, brought suit against L. E. Purdy as administrator of Joseph’s estate, in which action she claimed to be the sole heir of Amelia Williams, ‘ who was the sole heir of Joseph Williams. The parties to that action stipulated that Myra was the wife of George J. Williams; that Joseph was the son of George Williams by a former wife; that Joseph died intestate leaving as his sole heir a half-sister, Amelia, born in lawful wedlock, the daughter of Myra and George Williams; and that Myra is the sole heir of Amelia.
At the November, 1929, term of the Dallas Circuit Court, a judgment was entered in favor of Myra, and in satisfaction thereof, the administrator paid her $8,069.66, Joseph’s entire estate.
On July 3, 1948, appellants herein, the collateral heirs of George Williams, sought to vacate the judgment obtained in 1929 against L. E. Purdy, administrator, on the ground of fraud in obtaining the judgment under the fourth subdivision of Ark. Stats. § 29-506. They filed an intervention in the 1929 action alleging that Myra was never married to George Williams; that Amelia was therefore illegitimate; and that both Myra and L. E. Purdy knew these facts to be true at the time they entered into the stipulation to the contrary. Appellants also alleged they were non-residents of Arkansas, that they had no notice of their right to said insurance, and that their cause of action was first revealed to them in the course of other litigation in July, 1945. It was further alleged that after the death of George J. Williams the non-resident families of the appellants tried to keep up correspondence with the family of George J. Williams in Arkansas but that such correspondence “failed at all times to show the status of Joseph A. Williams or Amelia Williams on account of the character of the correspondence which was either due to the illiteracy of Myra E. Williams or her desire to conceal the status of the lands belonging to George J. Williams at the time of his death.” There are other allegations in the form of conclusions that appellants had been defrauded of the insurance money by the fraudulent concealment of Myra E. Williams or certain unnamed persons acting in her behalf.
Appellants filed with their petition in intervention a cross-complaint in which they asked for judgment against: the executrix of the estate of L. E. Purdy, deceased, and the sureties on his administrator’s bond; the administrator of the estate of Myra .Williams, deceased, and his sureties; the distributees of Myra Williams’ estate, their administrators and their guardians; and the bondsmen on the refunding bonds required in the estate of' Myra Williams.
On the same day the intervention ivas filed, an almost identical complaint was filed by the same parties, the only difference being that the parties were designated “intervenors and cross-complainants” in one action and “plaintiffs” in the other. With the filing of every amendment to the intervention there was also filed an almost identical amendment to the complaint. In both cases, the trial judge sustained a demurrer on the ground that the action was barred by the statute of limitations. The cases have been consolidated for purposes of this appeal.
In the absence of any circumstances tolling the running of the statute of limitations, appellants’ cause of action is clearly barred either by the 5-year limitation imposed in Ark. Stats. § 37-213 or the 8-year limitation applicable to actions on the bonds of administrators and executors under Ark. Stats. § 37-211. It has repeatedly been held by this court that the statute of limitations may be raised by demurrer. Herpin v. Webb, 221 Ark. 798, 256 S. W. 2d 44. However, this rule has certain qualifications, for in State, use Glover v. McIlroy, 196 Ark. 63, 116 S. W. 2d 601, it is said: “ It is urged, and we think correctly so, that the plea of the statute of limitations cannot be raised by demurrer, unless the complaint shows not only that the time had elapsed so as to bar the action, but in addition thereto, it must appear also, from the complaint, the non-existence of any ground for the avoidance of the statute of limitations. St. L., I. M. S S. Ry. Co. v. Brown, 49 Ark. 253, 4 S. W. 781; Collins v. Mack, 31 Ark. 684; Rogers v. Ogburn, 116 Ark. 233, 172 S. W. 867; Mc-Collum v. Neimeyer, 142 Ark. 471, 219 S. W. 746.”
Mere ignorance of one’s rights does not prevent the operation of the statute of limitations, but where the ignorance is produced by affirmative and fraudulent acts of concealment, the statute of limitations does not begin to run until the fraud is discovered. Landman v. Fincher, 196 Ark. 609, 119 S. W. 2d 521; Kurry v. Frost, 204 Ark. 386, 162 S. W. 2d 48; State of Tennessee v. Barton, 210 Ark. 816, 198 S. W. 2d 512. Some affirmative act of concealment must be done; mere failure to reveal is not enough, unless there is a duty to speak. Arkansas Power and Light Co. v. Decker, 181 Ark. 1079, 28 S. W. 2d 701. As the court said in McKneely v. Terry, 61 Ark. 527, 33 S. W. 953: “No mere ignorance on the part of plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonably knowledge of it.” It has also been held that blood kinship alone does not constitute such relationship as requires revelation .of the facts. Stephens v. Walker, 193 Ga. 330, 18 S. E. 2d 537. Nor does the mere fact that the appellants were non-residents entitle them to preferred consideration, for Ark. Stats. § 37-230 provides: “This act and all other acts of limitation now in force, shall apply to non-residents as well as residents of this state.” This is also the general rule in the absence of a statute. 54 C. J. S., Limitation of Actions, § 208.
The applicable rule is stated in 34 Am. Jur., Limitation of Actions, § 166, as follows: “Unless the fraud was of such a character as necessarily to imply concealment, it is necessary, in order to postpone the running of the statute of limitations until the discovery of the fraud, that ignorance thereof shall have been produced by affirmative acts of the guilty party. In other words, the fact that the complainant was ignorant of the fraud until after the right to recover was barred is not per se sufficient to entitle him to the benefit of the exception under consideration, in the absence of any act or conduct on the part of his adversary calculated to mislead, de ceive, or Ml inquiry.” And in § 167, it is said: “To prevent the barring of an action, it must appear that the fraud not only was not discovered, but could not have been discovered with reasonable diligence, until within the statutory period before the action was begun. A plaintiff cannot excuse his delay in instituting suit if his failure to discover the fraud was attributable to his own neglect.”
When tested by these rules, it is our conclusion that the trial court correctly held appellants’ action barred by the statute of limitations. Insufficient facts are alleged in appellants’ complaint to sustain the assertion or conclusion that Myra E. Williams and L. E. Purdy fraudulently concealed a cause of action from the appellants. There are no allegations of such affirmative and positive acts of fraudulent concealment on their part as to toll the running of the statute of limitations nor is the fraud alleged of such character as necessarily implies concealment. Indeed it is alleged that. Myra E. Williams’ failure to notify appellants might just as well have resulted from her illiteracy as from anything else. By the exercise of reasonable diligence appellants could have ascertained the death of their kinsman, Joseph A. Williams, and the status of his estate. These and other facts pertinent to the 1929 judgment had been matters of public record for more than 18 years before the institution of the instant proceedings.
There is also another reason why the demurrer of appellees should have been sustained. In Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517, the court said: “The fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself.” The rule is stated in Hendrickson v. Farmer’s Bank and Trust Co., 189 Ark. 423, 73 S. W. 2d 725, as follows: ‘ ‘ The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. It is not sufficient to show mar the court reached its conclusion upon false or incompetent evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, in issue in the proceeding before the court which resulted in the decree assailed.” See also, Manning v. Manning, 206 Ark. 425; 175 S. W. 2d 982; Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234; Blankenship v. Montgomery, 218 Ark. 864, 239 S. W. 2d 272.
The fraud complained of in this case, i. e. the alleged false stipulation of facts showing Amelia Williams to be the sole heir of Joseph A. Williams, was not extrinsic of the issue actually tried and decided, for the determination of heirship was primary in the rendering of the judgment sought to be set aside. Hence, the ac'.ion of Myra E. Williams and L. E. Purdy in entering into a false stipulation in the original action would have amounted to intrinsic fraud and not the type of fraud required to vacate the judgment. It follows that the complaint failed to state a cause of action on the ground of fraud in the procurement of the judgment.
Affirmed. | [
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George Rose Smith, J.
Elva E. Bruce was found guilty of obtaining money and property under false pretenses and was sentenced to a year’s imprisonment. The only issue is whether the verdict is supported by substantial evidence.
On November 29, 1951, for a consideration of $4,800 in cash and a truck worth $1,200, W. C. Watkins purchased from Bruce the pine timber upon 320 acres of Oklahoma land. Bruce represented that he owned the land and timber, but in fact he did not. At the time of the timber sale Bruce was apparently negotiating for the property and had made a payment of $500 as earnest money. The land was owned by the heirs of Ira Dew, one of whom had written Bruce that he thought he could “manage” the other heirs and deliver title to the property. The jury were warranted in finding that Bruce’s unqualified assertion of ownership was false and that he knew it to be false. In other cases involving a vendor’s false representation of title convictions for obtaining money under false pretenses have been upheld. Shelton v. State, 96 Ark. 237, 131 S. W. 871; Holden v. State, 156 Ark. 521, 247 S. W. 768.
It is argued that Bruce settled Watkins’ claim by repaying $1,083.33 and by later obtaining an undivided 31/90ths interest in the land and conveying it to Watkins. But if the original transaction was criminal, as the jury found, the fact that restitution was made is not a defense to the charge. Donohoe v. State, 59 Ark. 375, 27 S. W. 226; Moss and Clark v. State, 194 Ark. 524, 108 S. W. 2d 782. It would at most have a bearing upon the issue of Bruce’s good faith in the first instance, and that question was for the jury.
Affirmed. | [
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Robinson, J.
Appellant Helen Sims Reed and appellee Kirby E. Reed married in 1935. In July, 1952, Helen filed suit for divorce. Kirby is a plumber and practiced that trade as an employee of others and also by working for himself from a shop at his home until the year 1944. At that time he had been out of work for about three months, and at Helen’s suggestion a plumbing shop was opened. Helen says that she is a partner in such business. Kirby maintains that Helen is not a partner but merely helped to the extent that wives usually assist their husbands'. In 1946 Kirby’s brother Mike came into the business as a partner.
Upon a trial Helen was granted a divorce which is not questioned on appeal; however the Chancellor made a finding that she is not a partner in the plumbing business, hut that Kirby owes her for money borrowed the sum of $2,000 with 6% interest thereon from February 16, 1945. The decree also provides for $35 per week alimony and for the disposal of some property held as an estate by the entirety which was acquired in 1947.
There is a sharp conflict in the testimony as to whether Helen is a partner in the plumbing business, and although there is substantial evidence to sustain the contention of such a partnership, there is also convincing evidence to the contrary; and we cannot say the Chancellor’s finding in that respect is against the preponderance of the evidence.
Although appellant was granted a divorce, the trial court did not make a personal property division as provided by Ark. Stats., § 34-1214. There is no showing that appellee owned any real estate other than his interest in the property held as an estate by the entirety; and Mrs. Reed would not be entitled to more than that vested in her by reason of such an estate. Roulston v. Hall, 66 Ark. 305, 50 S. W. 690; Woodall v. Woodall, 144 Ark. 159, 221 S. W. 463. But she is entitled to “% of the husband’s personal property absolutely.” Crosser v. Crosser, 121 Ark. 64, 180 S. W. 337; Dowell v. Dowell, 207 Ark. 578, 182 S. W. 2d 344. This would include % of any interest the husband may own in a partnership with his brother or anyone else. Such interest may be reached by a charge order. Ark. Stats., § 65-128.
According to the record, $35 per week alimony appears to be rather small; but whether alimony should be continued, and the amount thereof, depends on the financial condition of the parties after appellant receives % of appellee’s personal property in addition to the $2,000 and interest.
Reversed.
Mr. Justice George Rose Smith not participating. | [
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J. Seaborn Holt, J.
Appellees brought this suit under our Workmen’s Compensation Law (§ 81-1301— 1349, Ark. Stats. 1947) to recover compensation as a result of the injury and death of their son, A. Gr. Smith. Smith’s death occurred September 29, 1950, while he was employed by appellant, Little, and in the course of his employment. Appellees sought compensation award on claim of partial dependency.
A hearing, first before Commissioner Holmes, and later before the full Commission, resulted in findings that appellees had not filed their alleged claim within the statutory requirement of one year from the death of their son, and compensation was denied for this reason.
On appeal to the Bradley Circuit Court, the order of the Commission was reversed and judgment entered granting an award and attorney’s fee. This appeal followed.
The primary and decisive question here is whether there was a valid claim filed in accordance with the provisions of the Compensation Law. We have concluded that no such claim was filed and that the Circuit Court erred in holding otherwise.
§ 81-1318, Ark. Stats. 1947 (a) of the Compensation Law provides: “(3) A claim for compensation on account of death shall he barred unless filed with the Commission within (1) year of the date of such death. * * * (c) Failure to file. Failure to file a claim within the period prescribed in subsection (a) or (b) shall not be a bar to such right unless objection to such failure is made at the first hearing on such claim in which all parties in interest have been given a reasonable notice and opportunity to be heard.”
It is not disputed that appellants (respondents) at the first hearing before Commissioner Holmes (February 8, 1952, at Warren, Ark.) duly made objection to the claim because of appellees’ failure to file within one year from the death of their son.
Appellees say: “It is the contention of the claimants (appellees) that a claim was filed and processed in their behalf within the meaning of the Workmen’s Compensation Law and the facts and circumstances contained in the record support this contention.”
The record reflects the following events: After Smith’s (the employee) death September 29, 1950, the Secretary of the Commission wrote the following letter November 13, 1950: “Mr. A. G. Smith, Hermitage, Arkansas — RE: W. L. Little v. A. G. Smith — WCC No. A 023189 — Carrier’s No. C-105989 Ark. Dear Mr. Smith: We have received a report from the insurance carrier that Mr. Little was killed in the course of his employment but that he left no dependents. We always like to check this matter and will appreciate it if you will advise us whether or not he was supporting a mother, father, brothers or sisters. As we understand it, he was a single man. Kindly advise us at your earliest convenience.”
Little (Smith’s employer) replied November 20, 1950, to this letter as follows: “In regard to your letter of November 13-50, you have the wrong man dead. A. G. Smith is deceased, I am the contractor. Smith was single, but he was helping to support his father and mother, that is he turned them in on his Form W-4 Withholding Exemption Certificate. He was injured on Sept. 22, 1950. His father is Homer Smith, Address Winnfield, La. This boy was colored. Tour friend, W. L. Little.”
Following receipt of this letter, the Commission on November 22, 1950, wrote the Chambers Claims Service, which was making an investigation for the insurance carrier, as follows: “RE: A. G. Smith (Dec’cl.) v. W. L. Little, WCC No. A 023189 — Carrier’s No. C-105989— Ark. Dear Mr. Chambers: We liaise been advised by Mr. W. L. Little that the deceased in this case was helping to support his father and mother. The father’s name is Homer Smith, and his address is Winnfield, La. Kindly take notice. Very truly yours, John T. Jernigan, Secretary.”
December 1, 1950, Chambers Claims Service wrote the Commission: ‘ ‘ This will acknowledge receipt of your letter of November 22, 1950. We are making an investigation of this case and the Company’s representatives in Louisiana have been attempting to contact Homer Smith, father and alleged dependent of the deceased; however, they have learned that he has moved to some place near Monroe, Louisiana and we respectively ask for sufficient time to make the necessary investigation and determine if there were any dependents.”
December 5, 1950, the Commission wrote Chambers: “Tour letter of December 1, 1950, received. It will be satisfactory for you to take some additional time to locate the dependents, if any, in the above case.”
January 16, 1951, the Chambers Claims Service wrote the Commission that its investigation had been completed and “we must stand on our Intention to Controvert Claim as filed with you on November 8, 1950.”
The Circuit Court, in its consideration of this case, found that the above correspondence constituted a valid claim. The Court said: “The only question before this court is whether or not, as a matter of law, the foregoing letters between Mr. Little, the Workmen’s Compensation Commission and the insurance carrier constituted a claim under the Act. ’ ’
In the circumstances, the above communications from Little, the Commission, and the Chambers Claims Service, related to investigations following report of the employer, Little, to the Commission of Smith’s injury and death, and fell far short of constituting a valid claim. The employer’s letter to the Commission reporting Smith’s death was required of him under the Compensation Law. Sections 81-1333 and 81-1334, Ark. Stats. 1947 provide: “81-1333. Record of injury or death. — Every employer shall keep a record in respect of any injury to an employee. Such record shall contain such information of disability or death in respect of such injury as the Commission may by rules or regulations require, and shall be available for inspection by the Commission or by any State authority at such time and under such conditions as the Commission may by rule or regulation prescribe.
“81-1334. Reports.- — (a) Within ten (10) days after the date of receipt of notice or of knowledge of injury or death the employer shall send to the Commission a report setting forth (1) the name, address, and business of the employer, (2) the name, address and ocenpation of the employee, (3) the canse and nature of the injury or death, (4) the year, month, day and hour when, and the particular locality where, the injury or death occurred, and (5) such other information as the Commission may require, (b) Additional reports in respect of such injury and of the condition of such employee shall be sent by the employer to the Commission at such times and in such manner as the Commission may prescribe, (c) Any report provided for in subdivision (a) or (b) of this section shall not be evidence of any fact stated in such report in any proceeding in respect of such injury or death on account of which the report is made.”
These reports could not be used as evidence by appellees on a claim for compensation under the plain terms of the above sections. Notice clearly is for the purpose of affording an investigation.
The text writer in 71 C. J., § 779, p. 1000, says: “C. Claim for Compensation — 1. Necessity for Making or Filing. Although in some jurisdictions there is no such requirement, the statutes ordinarily provide that, in addition to the giving of notice of injury, a claim for compensation shall be made or filed within a specified time. The requirement for the making or filing of a claim is held to be jurisdictional and mandatory, the making or filing of a claim in accordance with the act being a matter going to the maintenance of the right of action and essential to the recovery of compensation, and a failure to make or file a timely claim is a bar to the recovery of compensation. * * * (§ 782) 4. a. Ordinarily no particular form of claim or demand is required, particularly where substantial compliance with the statutory provisions as to the claim or demand is all that is required. The claim for compensation is not a formal pleading, the same particularity of pleading not being required as to a claim in a compensation proceeding as is required in an action at law. Hence great liberality as to the form and substance of an application for compensation is to be indulged, especially where applicant is not represented by counsel. The claim must nevertheless be direct and unequivocal, and show that a claim for compensation is being made; be understandable, where filed with the commission it must call for some immediate action by the commission. It must apprise the employer that the employee has sustained injuries of such character as to entitle him to compensation and that the benefits of the act are being claimed.”
In Sanderson & Porter v. Crow, 214 Ark. 416, 216 S. W. 2d 796, we said: “The Workmen’s Compensation Law (§'18 [a]) imposes an absolute limitation on the time for filing a claim. In the Williams-Walker case we held that knowledge rendered notice unnecessary; but here we are presented with a case where no claim was filed within the statutory period. Thus, a jurisdictional matter is presented, and not a mere defensive provision of notice as in the Williams-Walker case.
“Appellee’s lack of knowledge of the law is no defense. He was in full possession of his mental faculties. However meritorious the claim may be, nevertheless, § 18 (a) of the Workmen’s Compensation is a bar, since the ‘latent injury’ cases do not apply. While our Compensation Law is liberally construed to effectuate its purposes, still the plain wording of that law is a mandate which we cannot evade.” See also, Kimpel, Guardian, v. Garland Anthony Lumber Co., 216 Ark. 788, 227 S. W. 2d 932.
Prom the above authorities, a claim for compensation must be clear, direct and definite, and call for immediate action by the Commission. It is undisputed that neither of the appellees signed a claim or authorized the signing of a claim for them by any one, which was filed with the Commission within the statutory limits of one year. We find nothing in the above correspondence or communications that requested or demanded payment of compensation or that would constitute a claim under the Compensation Law.
Under § 81-1325, it is provided: “The Court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds and no other:* * * 4. That there was not sufficient competent evidence in the record to warrant the making of the award.”
We cannot say, as a matter of law, that there was no substantial evidence to support the finding and order of the Commission. Accordingly, the judgment of the Circuit Court is reversed and the cause remanded to the Circuit Court, with directions to affirm the order of the Workmen’s Compensation Commission. | [
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Minor W. Millwee, Justice.
On June 23, 1952, the county court of Van Burén County, on petition of appellee, Arkansas State Highway Commission, entered its order prescribing the route and dimensions of a new road which would run through lands owned by Phil Koelsch, appellant, and condemning 2.2 acres of said land for use as right-of-way for the road. When appellant refused to allow entry upon his condemned property, appellee filed an injunction suit to restrain him from interfering with the contractor’s work, and on August 22, 1952, the chan- ■ eery court made such an order, after requiring that appellee deposit $1,000 to guarantee payment of any damages suffered by appellant due to the entry onto the property. After a hearing on June 23, 1953, the chancellor found that appellant was entitled to no damages for the taking of his lands, and ordered the $1,000 deposit returned to appellee after costs were deducted. This conclusion was apparently based on the court’s determination that the benefits resulting to appellant’s remaining lands equaled or exceeded the value of the lands taken and any damages to the remaining lands.
Appellant first argues, for reversal, that the benefits which will offset the loss of his 2.2 acres must be local, special, and peculiar to his land and not such benefits as accrue to the public generally. The proposition of law argued is true, but we have held that a benefit does not cease to be special even though other property along the new road receives benefits from the road. In Ball v. Independence County, 214 Ark. 694, 217 S. W. 2d 913, this court approved an instruction which stated that special benefits include both neighborhood and peculiar benefits, and that a benefit does not cease to be special because it is participated in by every lot or farm fronting on the highway or improvement. See also, Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051.
At the conclusion of the evidence offered by the parties, the chancellor on his own motion called three witnesses appointed by him on the day of trial to view the lands and testify as to comparable values before and after the taking of the right-of-way. None of these witnesses qualified as experts on land values. Appellant now contends that this procedure was wholly unauthorized and that error was committed in admitting the testimony of these witnesses. This contention would present a serious question if appellant had made any objection to such procedure or the testimony of said witnesses at the trial. We are committed to the rule that all objections to evidence and witnesses in chancery cases must be made in a timely manner in the trial court and, if not so made, such objections will be considered as waived when the case reaches us on appeal. Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495. Hence appellant has waived the objections he now urges for the first time.
The remaining issue is whether the findings of the chancellor are supported by the preponderance of the evidence. The lands involved are a part of appellant’s 75-acre farm which he purchased in 1946 for $3,500.00. The greater portion of said lands are rough, hilly, timbered lands of little value. There are about 20 acres of fertile creek bottom lands near appellant’s home and the highway with about 5 or 6 acres cleared and in cultivation. The 2.2 acres were taken out of the tillable bottom lands upon which appellant raised feed for his livestock. The old gravel highway ran conveniently near appellant’s home. The road was rerouted to make a long sweeping curve dividing appellant’s tillable lands and leaving approximately 2 acres across the new road from the rest of his property. The curve also resulted in the road in front of appellant’s home being relocated north of the old road so that there is a small strip belonging to a third party between the old and new roads. It was also necessary to construct a new bridge on the creek nearby about 20 feet downstream from the old bridge.
Appellant and four other witnesses in his behalf testified that his damages exceeded any benefits from the construction of the new road by amounts varying from $1,000 to $1,900.00. At the court’s insistence, these witnesses itemized the various elements of damage about which they testified. They estimated the value of the 2.2 acres taken at $175 to $225 per acre. L. M. Conner, a real estate dealer, roughly estimated that appellant’s damages amounted to $2,000 offset by $1,000 in benefits by reason of the construction of the new road. When asked to itemize the damages, he stated that the lands taken were worth $500; that the remaining lands were damaged to the extent of $500 from washing and overflow occasioned by relocation of the bridge and $400 because of inaccessibility of his cultivated lands northwest of the new highway which were severed from the rest of his lands; and $50 to $75.00 for a fence torn down by overflow. He also stated that appellant’s farm had a market value of $4,000 before, and $2,800 after, construction of the new road. Three farmers living in the vicinity corroborated the testimony of Conner as to the damages sustained and were of the opinion that little, if any, benefits accrued by construction of the new road.
Appellee’s first witness was its right-of-way engineer who examined the lands for about 45 minutes on the morning of the trial and described the general physical situation as altered by the new construction. He gave no testimony relative to monetary damages that appellant might have sustained by the taking of his land. The next witness for appellee was the county judge who, after stating that he was “not too familiar” with the lands in question or land values generally, replied when asked about appellant’s damage: “I guess he is damaged, but still on the other hand of course I am pretty strong for good roads.” It was at this point that appellee rested and the chancellor called the three witnesses appointed by him. The first witness was a former farmer, county treasurer and deputy sheriff. The second was a postmaster and former county assessor and sheriff. The third witness formerly farmed and stated that he had “considerable road experience” and was reasonably well acquainted with real estate values. In response to rather leading questions by the court these witnesses stated they had observed the various physical aspects of the property and that, in their opinions, the farm was worth as much after the land taking as it had been before. They were not asked to specify or itemize any damages or benefits and did not assign any reasons for the opinions given.
We have held that where witnesses give their opinions as to damages to the lands taken in cases of this kind, such testimony must be considered in connection with related facts upon which the opinions are based. Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738. We agree with the chancellor’s observation that neither the trial court nor this court can determine these cases to a mathematical certainty. However, after careful consideration of all the testimony, we have concluded that a preponderance thereof supports the conclusion that the value of the lands taken and the damages to the remaining lands exceeded the benefits thereto by the sum of $500. The decree is accordingly reversed and the cause remanded with directions to enter judgment in favor of appellant for that sum. | [
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Minor W. Millwee, Justice.
On January 19, 1953, appellant, J. M. Williams, brought this action in ejectment against appellee, Ivan Welch. In his complaint, appellant alleged title by mesne conveyances from Claude Coggins to a certain 3 acres of land in Fulton County, Arkansas; that appellee was in unlawful possession of the lands; and, that appellant had the right to possession. Appellant also asked $200 damages for injuries to the lands and fences surrounding the acreage.
In his answer, appellee admitted a common source of title, Claude Coggins, and admitted that appellee was in possession of the lands, but alleged his ownership by an unbroken record title stemming from Coggins. Further, the answer alleged appellant and his grantor, P. C. Goodwin, were estopped from claiming the lands in dispute because of an agreement between the parties that the property belonged to appellee. In addition, adverse possession of the disputed lands by appellee was alleged.
At the trial to a jury, each of the parties introduced conveyances tending to show an unbroken chain of record title in himself to the 3-acre tract in controversy. According to appellant’s proof, Claude Coggins and wife deeded the lands to B. F. Hall, appellant’s predecessor in title, on January 30, 1936, and the deed was recorded on October 25, 1952. According to the deeds which appellee introduced, Claude Coggins and wife conveyed the lands to Cuthbert Pickren, appellee’s predecessor in title, on October 16, 1943, and the deed was recorded December 23, 1946. One of the deeds in appellant’s chain of title was from B. F. Hall and wife to E. A. Manes dated May 11, 1942, and recorded September 27, 1945.
The Hall-Manes deed was introduced in evidence as an exhibit to appellant’s testimony. It appears that the deed was first written entirely in longhand, but that a piece of paper containing the typewritten description of the land had been pasted over the original description written in longhand. P. T. Yail, the justice of the peace who took the acknowledgment of the deed, was unable to recall whether the typewritten matter was pasted on the deed at the time he took the acknowledgment, though he remembers it was generally in evidence at that time. He stated that if the typewritten matter was then on the deed he did not notice it. Further, there was evidence tending to show that the typewritten description pasted on the deed had also been altered and that this might have taken place after the deed was recorded.
Appellee and his father also testified that shortly after appellee purchased the lands in 1950, they went to the office of attorney P. C. Goodwin who deeded the lands in question to appellant. Appellant was then present at a conference in which Goodwin took the deeds of the parties and drew a plat of their respective lands indicating that the lands in question belonged to appellee. According to the testimony of appellee and his father, it was then and there agreed that appellee had title and right to possession of the 3-acre tract. Appellant admitted the conference but denied the agreement. While Mr. Goodwin appeared as a witness for appellant, he made no denial of appellee’s version of the conference in his office. The plat which he allegedly drew at the conference was introduced by appellee.
Appellant correctly asserts that the only question raised as to the validity of his chain of title was whether there had been a material alteration, after delivery, in the Hall-Manes deed. We cannot agree with his further contention that the evidence is insufficient to show a material alteration of the deed. It is true that the title to support ejectment is not necessarily required to be shown by deeds which are absolutely perfect on their face. Faulkner v. Feazel, 113 Ark. 289, 168 S. W. 568.
It is equally well settled that a material alteration of a deed avoids it. In Arkansas-Louisiana Elec. Co-op. v. Randall, 205 Ark. 646, 169 S. W. 2d 874, the court said: “As early as Inglish, et al. v. Breneman, 5 Ark. 377, 41 Am. Dec. 96, this court, on the effect of a material alteration in any instrument, said: ‘The principle extracted from all the cases is that any alteration in a material part of any instrument or agreement, avoids it, because it thereby ceases to be the same instrument. It is a rule, founded in good sense and policy, and protects the integrity of such instrument from violation by refusing to alter them. Every sanction to their safety and uninterrupted circulation, free from alteration, should be afforded. ’ See, also, Woods v. Spann, 190 Ark. 1085, 82 S. W. 2d 850; Lea v. Bradshaw, 192 Ark. 135, 90 S. W. 2d 487: and Ouachita Rural Elect. Co-op. Corp. v. Bowen, 203 Ark. 799, 158 S. W. 2d 691.” In Phipps-Reynolds Co. v. McIlroy Bank and Trust Co., 197 Ark. 621, 124 S. W. 2d 222, the court, quoting’ from Gist, Admr. v. Gans, 30 Ark. 285, said: “But the practice of making erasures, interlineations and corrections in writings of all kinds is of such common occurrence that we do not think a presumption of fraud should be indulged and declared to exist because of their presence in a writing. The question is rather one to be determined by court or jury as the case may be in the light of all the evidence intrinsic and extrinsic, unaffected by any presumption. ” It is apparent from an inspection of the Hall-Manes deed that alterations were made. The question whether such alterations took place before or after delivery of the deed was correctly submitted to the jury under instructions which are not challenged, and the evidence is sufficient to sustain the finding in appellee’s favor on this issue.
Appellant also contends that it was error to admit into evidence deeds offered by appellee in an attempt to show title. He argues that since his own predecessor in title took a deed to the disputed lands in 1936, then Coggins had no interest left to pass to appellee’s predecessor in title by a deed dated in 1943. The able trial judge carefully and correctly instructed the jury that unless they found there had been a material altera tion in one of the deeds constituting appellant’s apparently complete chain of title, then appellant had the paramount title because the deed from Coggins to appellant’s predecessor in title was executed prior to the deed from Coggins to appellee’s predecessor in title. The universal rule, repeatedly reiterated by this court, is that the plaintiff in ejectment must succeed on the strength of his own title and not on the weakness of title of his adversary who is in possession. Dodson v. Thomason, 217 Ark. 747, 233 S. W. 2d 395. Thus, even though the deed from Coggins to appellee’s predecessor in title might be subject to defeasance, its invalidity would have no bearing on the jury’s finding that there had been a material alteration in one of appellant’s deeds which destroyed his chain of title. In 18 Am. Jur., Ejectment, § 56, it is said: “Since, in the absence of any element of estoppel, the defendant in ejectment may defeat recovery by showing title out of the plaintiff or right of possession in third persons, it necessarily follows that he may-defeat such recovery by showing title in himself; and the fact that the defendant’s title is insufficient is immaterial if the plaintiff is unable to show a complete and superior legal title.” See, also, 28 C. J. S., Ejectment, § 35.
Another rationale upon which the admission of appellee’s deed into evidence might be predicated is that the deed, though invalid, was properly introduced to support the “color of title” element essential to appellee’s plea of adverse possession. See Cofer v. Brooks, 20 Ark. 542. Then, too, the rule above that plaintiff must recover on the strength of his own title admits of one exception: where the defendant is a mere trespasser invading the actual possession of plaintiff, the plaintiff can recover on prior peaceable possession alone. Vanndale Special School Dist. No. 6 v. Feltner, 210 Ark. 743, 197 S. W. 2d 731. Here, introduction of appellee’s deeds was important to establish that he was not a mere trespasser and to maintain the appellant’s burden of proving good title in himself.
We find no error, and the judgment is affirmed. | [
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J. Seaborn Holt, J.
This appeal is from a judgment of the Johnson Circuit Court affirming the action of the Johnson County Board of Education annexing certain portions of United Rural District No. 19 to Lamar District and another portion to Oark, and from the further action of the court in voiding the Board’s order annexing certain territory of United District to the Lamar District, which had been previously offered to Clarksville District No. 17, and refused.
The United School District of Johnson County, called Rural District No. 19, comprised Ozone District and Ft. Douglas District and automatically came into existence as United District No. 19 on June 1,1949, under Initiated Act 1 of 1948, Acts of 1949, page 1414, (§ 80-426, et seq., Ark. Stats. 1947) since in the Ozone and Ft. Doualas Districts combined* there were less than 350 pupils enumerated. Littleton v. Union County Board of Education, 217 Ark. 268, 229 S. W. 2d 657.
Pertinent parts of Act 1 are: “Section 1. On June 1, 1949, there is hereby created in each county a new school district which shall be composed of the territory of all school districts administered in the county which had less than 350 enumerated on March 1, 1949, as reflected by the 1948 school enumeration. . . .
“Section 2. Within ten days after the creation of the new district as provided herein, the County Board of Education shall call a special election for the purpose of electing members of a school board to serve the new district. . . .
“Section 3. It shall be the duty of the newly elected school board and the County Board of Education not only to provide an accredited elementary school for every child as close to his home as possible, but also to provide every child access to an accredited high school. To accomplish this purpose, each County Board of Education shall study the entire school program of its county. If it is found that some or all portions of the new school District as created herein can be served more effectively and more efficiently by another district or districts, the County Board of Education with the consent of the Board of Directors of the school district to which such annexation is proposed, is hereby authorized and directed to make such annexation or annexations. . . .
“Except as otherwise provided in this Act, all matters of reorganization and annexation of school districts undertaken under the provisions of this Act shall be made in accordance with existing laws.”
On May 20, 1953, the Johnson County Board of Education ordered United District No. 19 dissolved and parts of its territory to be annexed to Lamar and Oark Districts, and also after having offered to annex other portions of the territory to the Clarksville District, which offer Clarksville refused, then later ordered this territory annexed to Lamar, Lamar having indicated its willingness to accept such annexation in case Clarksville should refuse. As indicated, the Circuit Court affirmed the Board’s actions, except its order annexing to Lamar the territory which had been refused by Clarksville.
For reversal, appellants say: “(1) The County Board of Education wrongfully disregarded Act 75 of the Acts of 1951, no notice having been given as to the intended actions of the County Board of Education herein complained of.
“(2) The several orders of the County Board of Education are not final judgments or orders, but are mere conditional statements by the Board and therefore void.
“ (3) The several orders of the County Board of Education involved in this litigation are void because based upon Initiated Act No. 1 of the Acts of 1949 which said act is unconstitutional and void. ’ ’
Belated cases in which we have considered certain phases of Act 1 of 1948 are: County Board of Education of Baxter County v. Norfork School District No. 61, 216 Ark. 934, 228 S. W. 2d 468; Stroud v. Fryar, 216 Ark. 250, 225 S. W. 2d 23; Littleton v. Union County Board of Education, supra; and Covington v. Prairie County Board of Education, 218 Ark. 65, 234 S. W. 2d 203.
(1)
As to appellants’ first contention, we hold it to be untenable. Act 75 of 1951 (§ 80-434, Ark. Stats., 1947) clearly had to do with re-zoning of new County School Districts (United) and not annexation, which is alone involved here. When the question of re-zoning is presented, notice required under Act 75 must first be given, but we hold that in matters of annexation, under Act 1 here, notice was not required, as we shall presently point out.
Act 75 provides: “The County Board of Education is hereby authorized at its discretion to re-zone or abolish all zones in the New County School District wherein changes or alteration in territory or population have been affected since the original zoning procedures. The County Board may establish such number of zones in said school district with the number of local board members to be elected in the respective zones; provided there shall be no more than five zones and no more or no less than five local board members.
“Section 2. The County Board of Education shall publish in two issues of a local paper at least twenty days before the time in which the Board shall consider the matter of re-zoning, stating the purpose of the meeting. At said meeting of the Board an opportunity for recommendations or suggestions by interested patrons shall be given. The action of the board shall also be published.”
As indicated, this act has to do with re-zoning only, and where there has been a population shift or changes from one zone to another, then the County Board “is authorized at its discretion,” after twenty days public notice and a hearing, to re-zone. The legislative purpose of this.act was “to authorize the County Board of Education to revise the re-zoning of new County School Districts.”
In annexation proceedings under Act 1 of 1948, we held, in effect, in Littleton v. Union County Board of Education, above, that the County Board of Education had power to annex a part of United District to the larger district on consent of the larger district only and that no notice was required. “Under Initiated Act providing for creation in each county of a united school district composed of all school districts within county with less than 350 enumerated, the County Board of Education had power to annex a part of united district to a larger district only on consent of such larger district and did not have to give notice or obtain consent of patrons of united district as a prerequisite to such annexation order. Ark. Stats., §§ 80-426 to 80-428.” (Headnote 2 of Littleton v. Union County Board of Education, 229 S. W. 2d 657).
In the body of the opinion, after referring to the following quoted language above in § 4 of Act 1: “Except as otherwise provided in this Act, all matters of reor ganization and annexation of school districts undertaken under the provisions of this Act shall be made in accordance with existing laws, ’ ’ we said:
“ ‘This quoted language gives the County Board of Education power to take any or all territory of the United District and annex such territory to any Large District or Districts, conditioned only on the consent of such larger Districts so affected. . . .’ In regard to the language of § 4, above-quoted, we further said in the Stroud case: ‘The italicized language thus clearly exempted from the provisions of the existing laws such reorganizations and annexations as might be accomplished under § 3 of the Initiated Act before the school directors could have been chosen in the United District. . . .’ In the case at bar, directors had not been elected for the United District, and the consent of the' Urbana-Lawson District had been obtained, which was the only condition imposed upon the County Board before ordering the annexation. ’ ’
(2)
As to the effect of the County Board’s orders, we hold that as to the annexation of the territory to Lamar and Oark, these annexation orders were certain and definite, subject only to acceptance by Lamar and Oark, and on acceptance became final. The record reflects that they were accepted by Lamar and Oark Districts, to which they were annexed. The trial court held these annexations valid and correctly so.
As to the territory offered to Clarksville by the Board in its order of May 20,1953, it appears undisputed that such order was conditioned on Clarksville’s acceptance by a certain time limit, and in the event that Clarksville refused to accept said territory, then the Board directed its annexation to Lamar by 10 a.m. of August 1, 1953. Lamar had previously indicated that it would accept such annexation.
We think in these circumstances that this part of the territory of District No. 19 could not, as the trial court found, be legally annexed under such uncertain and indefinite proceedings. The Board’s order lacked finality and was too indefinite to constitute a binding order of annexation.
(3)
Appellants’ final contention is that Act 1 of 1948 is “unconstitutional and void.” They appear, by their argument, to base this contention on the following ground, for they say “that Act 75 of 1951 was part of ‘existing law’ when the County Board acted in the instant case in March, 1953. Thus, the Board was required to give 20 days notice by publication in some newspaper, which it is agreed was not done, as required by Act 75. . . . Action of the County Board without the publication of notice required by the statute is void. Such is the plain ruling in many of the decisions of this court, one of those decisions is in Lyerley v. Manila School District, 214 Ark. 245, 215 S. W. 2d 733,” and that it contravenes the ‘ ‘ due process clause in § 8, Article 2 of our Constitution,” and that the “due process demands that provision for notice ... he made. ’ ’
The cited case is clearly distinguishable on the facts. We held in that case: (Headnote 1) “The County Board of Education may dissolve any school district and annex the territory thereof to any district within the county when petitioned to do so hy a majority of the qualified electors of the district to be dissolved or by an election held in the district to be dissolved where a majority of the votes cast are in favor of the dissolution and annexation and upon the consent of the Board of Directors of the district to which the territory is to be annexed. Pope’s Digest, § 11488, as amended by Act 235 of 1947.”
But here, we are dealing with a new and later statute, Act 1 of 1948, covering a new situation and a field of school law not heretofore in existence, creating “in each county a new school district which shall be composed of the territory of all school districts administered in the county which had less than 350 enumerated on March 1, 1949, as reflected hy the 1948 school enumeration.”
We agree that Act 75 was a part of existing law on May 20, 1953, when the Board here acted. However, as has been pointed out, it has no application to the present case, nor do we find that this Act No. 1 or any part thereof contravenes the Arkansas Constitution on any ground argued by appellants. Certainly, its constitutionality may not be attacked for lack of notice since, as indicated, none was required. No other ground is pointed out or argued.
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Robinson, J.
Act 53 of the General Assembly of 1951 provides for the employment of a deputy sheriff in the several counties “whose primary duties will be to work with and assist the Junior Deputy Sheriffs League”. A salary not exceeding $300 per month is authorized. The Quorum Court of Lafayette County appropriated $3,000 to pay an annual salary for such a deputy. The Sheriff of the county appointed appellee John E. Adkins as a deputy in connection with the Junior Deputy work; the county court refused to allow the claims for his salary, and Adkins appealed to Circuit Court. There the claims were allowed and the county court directed to approve them. A. B. Parker, the County Judge, has appealed from the order of the Circuit Court.
Act 53 of 1951, Ark. Stats.,- § 12-1116, provides:11 Hereafter, the Quorum Courts of the several counties of this State are authorized to employ and pay the salary of, and purchase necessary equipment for an additional Deputy Sheriff, whose primary duties will be to work with and assist the Junior Deputy Sheriffs League. Said Deputy Sheriff may be paid any sum not to exceed Three Hundred Dollars ($300.00) per month.”
It is the contention of appellant that only the County Court is authorized to employ a deputy sheriff in pursuance to Act 53. As a basis for this contention it is alleged that § 28 of Article 7 of the Constitution of Arkansas vests in the County Court the exclusive jurisdiction to make contracts for the county and that the employment of a deputy sheriff in the circumstances necessarily embodies a contract of employment. It is thus reasoned that the County Court has exclusive jurisdiction to enter into the contractual relation on the part of the County, and in this case since that court did not make such an agreement, appellee Adkins can not recover for the work he has done as an appointee to the position of deputy sheriff.
We believe a proper construction of Act 53, one which would give effect to the Act, is that the sheriff may appoint a deputy for certain purposes when the Quorum Court makes an appropriation to pay the salary of such deputy. This construction is compelling when all the ramifications and possible consequences of the employment of a deputy sheriff are considered.
The office of sheriff is constitutional; Arkansas Constitution, Article 7, § 46. Ark. Stats., § 12-1105 provides: “Each sheriff in the state may appoint one or more deputies, for whose official conduct he shall be responsible.” It is hard to believe that by Act 53 of 1951 the legislature intended that someone other than the sheriff would have authority to appoint a deputy sheriff for whose official conduct the sheriff would be responsible. If this were true, conceivably the sheriff’s worst enemy could be appointed as his deputy. Further, Ark. Stat. § 12-1106 provides: “Such appointment shall be in writing under the hand of the sheriff, and shall be filed and recorded in the Recorder’s Office in the county.”
It being determined that the legislature by Act 53 authorized the sheriff to appoint a deputy for the purpose stated in the Act and authorized the Quorum Court to make an appropriation to pay the salary of such deputy, the question arises: Is it necessary for the County Court to enter into a contract of employment on behalf of the -County with the deputy sheriff before the County must pay the deputy sheriff’s salary?
Appellant cites Watson and Smith v. Union County, 193 Ark. 559, 101 S. W. 2d 791, holding that the approval of the County Court is necessary to give validity to the contract of employment of county demonstration agents. It was held that such contracts of employment were exclusively within the jurisdiction of the county court, but because the county court has exclusive jurisdiction to employ county demonstration agents it does not necessarily follow that such court has exclusive jurisdiction to employ deputy sheriffs.
In Cain v. Woodruff County, 89 Ark. 456, 117 S. W. 768, it is said: “By § 46 Article 7 of the Constitution it is provided that: ‘The qualified electors of each county shall elect a sheriff, who shall he ex-officio collector of taxes, unless otherwise provided by law.’ . . . Now, the Constitution does not define the duties of the office of sheriff. That is left entirely to the Legislature to fix and determine; and it is also left to the Legislature to fix the amount of the compensation that shall he paid for services required of such officer . . . There is no provision in our Constitution that inhibits the Legislature from adding to or varying the duties of the office of sheriff.”
In the case at bar the legislature added to the duties of the sheriff by authorizing him to employ a deputy to work with the Junior Deputy Sheriffs League at a salary not exceeding $300 per month, and authorized the Quorum Court to make an appropriation to pay such a salary. In the Gain case the legislature authorized the sheriff to feed the prisoners of the county and fixed the compensation therefor to be paid by the county; and there it was held that the legislative act authorizing the sheriff to feed the prisoners and fixing the compensation therefor was not contrary to the Constitution.
In Jeffery, County Judge v. Trevathan, 215 Ark. 311, 220 S. W. 2d 412, this court in speaking of Cain v. Wood-ruff County, supra, said: “It was claimed that a legislative enactment, requiring the county to pay the sheriff seventy-five cents per day for feeding each prisoner, was void as violative of the county court’s power under said Art. VII, § 28 of the Constitution” and then the Court quoted with approval from the Cain case as follows: “The Legislature, unless restricted by the Constitution, has full and plenary powers to adopt such policies and prescribe the duties which it deems best for the peace and welfare of the People . . . The Constitution re-. gards the county courts as political and corporate bodies that are to be controlled and regulated in their discretion by the acts of the General Assembly, and not as independent of or superior to it. As political and corporate bodies, they are required to conform their action to the rule of the Legislature, and in the exercise of their jurisdiction to proceed in the mode and manner prescribed by law. County of Pulaski v. Irvin, 4 Ark. 473; Hudson v. Jefferson County Court, 28 Ark. 359.”
In Crawford County v. City of Van Buren, 201 Ark. 798, 146 S. W. 2d 914, the city filed a claim against the county for a portion of the expense of the municipal court. The county court disallowed the claim on the theory that the attempt to impose upon the county a portion of the expenses of the municipal court was in violation of §§ 28 and 30 of Article 7 of the Constitution. In that case, Mr. Justice Frank Smith said: “We do not think, however, that these sections of the constitution operate to deprive the general assembly of the power to impose duties upon counties and to require counties to pay therefor. Our cases are to the contrary. For instance, in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, there is an enumeration of various items of expenses imposed upon counties by legislative enactment. In the case of Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S. W. 2d 946, there was involved an act of the general assembly requiring all counties to pay salaries of circuit court and grand jury stenographers. This act was upheld, it being there said that these salaries must be paid as long as there is money in the county general fund to pay them, and that it was not discretionary with the county court to allow them, and that if it failed to do so the circuit court might compel the county court to perform this ministerial duty.”
In the case at bar the legislature authorized the sheriff to appoint a deputy for certain purposes, and authorized the Quorum Court to appropriate a salary to pay such deputy. In view of what has been said, we do not believe this was in violation of the constitutional provision prescribing the jurisdiction of the county court.
The circuit court’s action in directing that the salary of the deputy sheriff be paid is correct, and the judgment is therefore affirmed. | [
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Griffin Smith, Chief Justice.
Sarah Devlin Brittain, an octogenarian whose mental capacity to execute a will is not questioned, died in June, 1953, leaving an estate estimated to be worth a little more than $42,000. Her husband, E. P. Brittain, to whom she had been married for almost a quarter of a century, was provided for to the extent of from $11,000 to $16,000. Brittain filed with the executor — Clinton it. Barry — a claim, for $5,-145.94 for reimbursement of payments personally made covering doctor bills, medicines, nurses, hospitalization and items of a similar nature beginning with April 16, 1952. The claim was disallowed by the executor, but approved by the probate court with an order directing payment.
Determination of the appeal requires a construction of the words “just debts which I may owe” and their relation to Brittain’s contention that it was the purpose of the testatrix to charge her estate with all expenditures relating to the prolonged illness. The pertinent paragraph is “ I direct that all just debts which I may owe, including the expenses of my last illness and of my burial, be paid”.
Appellant’s position is that it was the husband’s primary duty to pay the charges incurred on account of Mrs. Brittain’s illness, that he recognized this obligation from time to time, and that in the absence of appropriate language in the will from which an intention to charge the estate with these items should be drawn, there was no indebtedness within Mrs. Brittain’s contemplation and no right of repayment.
It is conceded that a court’s function is to construe and enforce a will — not to make for the testator another which might appear to be more equitable “or more in accordance with what the court might believe to have been the testator’s unexpressed intentions”. Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546. We are cited to Morris v. Bosch, 194 Ark. 153, 106 S. W. 2d 159 as authority for appellee’s belief that Mrs. Brittain intended that her husband should be reimbursed for what he had spent; but in the Morris-Dorsch case the language of the will was: “After all expenses, burial, inheritance tax, etc., are paid, I want [the property to go as directed] ”. We held that inheritance taxes and certain other items were charges against the estate made so by express language.
We are also asked to apply a rule stated in Miller v. Oil City Iron Works, 184 Ark. 900, 45 S. W. 2d 36. An item of $1,522.65 was allowed in favor of the administratrix, covering last illness and burial expenses. But there the intestate decedent was responsible for his own bills. The administratrix was his widow and the obligations were of a fixed character. Excerpts from the opinion are: “Except for funeral expenses, no debts can be created against an estate after death. The debts must be existing at the time of death or arise out of obligations incurred by decedent. Only such claims can be presented for allowance, classification, and payment out of the assets found in the hands of the representative after settlement”. In Burns v. Wegman, 200 Ark. 225, 138 S. W. 389, we held that a widow had a right to pay the medical and funeral expenses of her husband and claim reimbursement as a creditor of the first class.
In Beverly v. Nance, 145 Ark. 589, 224 S. W. 956 it was said that “incident to the duty of a husband to maintain his wife is the corresponding duty of paying for her reasonable burial expenses”.
Two cases decided in 1949 — Simpson v. Thayer, 214 Ark. 566, 217 S. W. 2d 354, and James v. James, 215 Ark. 509, 221 S. W. 2d 766, reaffirm what Judge Kirby said for an undivided court in Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867: “. . . Where the husband purchased and paid for land, taking the deed therefor in the name of his wife, the presumption is that his money, thus used, was intended as a gift to her, and the law does not imply a promise or obligation on her part to refund the money or to divide the property purchased or to hold the same in trust for him. His conduct is referable to his affection for her and his duty to protect her against want . . .”
In the case before us Mrs. Brittain directed that “all just debts which I may owe” be paid, including the expenses of my last illness and of my burial”. Burial expenses are not included in the account.
Appellee testified that he had been employed gainfully for many years, that during the 24 years of his marriage to Mrs. Brittain he earned $80,000 or more, and that his savings from such receipts had been about $5,000.
We think the case here is much stronger in favor of the executor than the court’s language in Harbour v. Harbour, where the husband’s money paid for the land and the deed was made to his wife. There was no legal obligation that this be done, and it is entirely possible that the purchaser expected a reconveyance. This, of course, is speculative; but the fact remains that his purchase was held to have been an outright gift.
Brittain was legally obligated to make the payments he did, and when his wife died the estate was not under any duty to repay him. Mrs. Brittain had the financial ability to do so and the mental capacity to express the intent, but the language relied upon by appellee did not accomplish that purpose, hence the judgment must be reversed.
Justices Holt, Millwee, and Robinson dissent. | [
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J. S. Holt, J.
George Nunley, appellant, was found guilty by a jury September 17, 1953, of the crime of assault with intent to kill (§ 41-606, Ark. Stats. 1947) and Ms punishment fixed at a term of five years in the State Penitentiary. From the judgment is this appeal.
For reversal, appellant first contends that the evidence was not sufficient to support the jury’s verdict and that the trial court erred in refusing his request for a directed verdict at the close of all the testimony. We hold that there was ample evidence to sustain the jury’s verdict and that the court correctly refused appellant’s request for a directed verdict.
On May 7,1953, Nunley went to the home of his former wife’s parents with full knowledge that she, after having been divorced from Nunley, had remarried and was then the wife of P. J. Ross. He had armed himself with a loaded automatic pistol, a deadly weapon. Ross was there at the time with his wife and had been .there about five minutes when he noticed Nunley standing on the sidewalk in front of the house. Ross said to his mother-in-law : ‘‘ There is George, ’ ’ and she said: ‘ ‘ What does he want,” and Ross answered: “I don’t know.” Ross’s mother-in-law then called to Nunley and asked him what he wanted, whereupon Nunley walked to the front porch and asked if P. J. (meaning Ross) and Eunice were married. She told him that they were, and he replied: “That is all I want to know.” Ross then asked Nunley if he had been seeing Eunice since their divorce and Nunley told him to let Eunice answer the question, and she answered in the negative, whereupon Ross walked off the front steps and Nunley pulled a pistol and began firing at Ross. Six shots appear to have been fired, four taking effect. Ross was wounded in the left wrist, left arm and in the right and left hips. Some of the bullets entered from the rear.
Ross’s mother-in-law, an eye witness, testified: “Q. After the first shot what did P. J. (Ross) do? A. He turned and started walking off. Q. Then what happened? A. George (Nunley) shot again. Q. Then what did he do again? A. After he shot all the shots out of the gun he turned and went on. Q. P. J. did? A. George did. Q. Was anything said by George or P. J.? A. You mean before that started? Q. No, after George got through shooting? A. After George left he said he was going, but he would be back. Q. That is this defendant? A. That is right. Q. Was it dark then? A. It was pretty dark, it was around eight o ’clock. Q. But you could recognize George and P. J. from-standing distance? A. Yes, sir, because they were not too far from me. Q. Do you know how many times George shot at P. J.? A. Imagine he shot at least five or six times. Q. Did he empty his gun? A. I am sure he did. Q. Did he click the gun after he emptied it? A. I am sure it was once or twice. . . . Q. Did you see P. J. Ross with any kind of weapon at the time? A. No, sir, I didn’t see him with anything in his hand. ’ ’
Appellant argues that intent to kill was lacking, admitted the shooting, hut claimed that it was done in self defense. This presented a fact question for the jury, which found him guilty of assault with intent to kill. The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Herron v. State, 202 Ark. 927, 154 S. W. 2d 351; Waterman v. State, 202 Ark. 934, 154 S. W. 2d 813.
“While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to'reveal defendant’s state of mind. (Citing cases.) It is not essential that the intent should have existed for any particular length of time before the assault, as it may be conceived in a moment.” Davis v. State, 206 Ark. 726, 177 S. W. 2d 190.
Here Nunley’s actions, from substantial testimony, warranted the jury’s finding that he intended to kill Ross. Had he succeeded in killing Ross, the evidence would have warranted a conviction of murder.
As indicated, there was no error in the trial court’s refusal to instruct the jury to direct a verdict since the evidence was ample to take the case to the jury. “The trial judge may direct a verdict only where the evidence raises no material question of fact for the jury’s determination.” Paxton v. State, 114 Ark. 393, 170 S. W. 80, and Ruffin v. State, 207 Ark. 672, 182 S. W. 2d 673. See also, Keese and Pilgreen v. State, ante page 261, 265 S. W. 2d 542.
Finally, appellant contends that the court erred in refusing to sustain his objections to certain alleged leading questions propounded to witnesses, Euby Elder, Eunice Eoss and P. J. Eoss.
The record reflects that the trial court, in each instance, sustained appellant’s objections and where the questions appeared to be leading required the prosecuting attorney to rephrase his questions. We hold, therefore, that this contention is without merit.
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J. Seaborn Holt, J.
Appellee, Vivian Martin, brought suit against her brother, Harry Martin, and in her complaint alleged, in effect, and prayed, that Harry Martin be declared to be holding legal title to certain property (sis lots), appellee’s residence in the town of Trumann, as a trustee of a resulting trust, and further prayed that an alleged partnership between them, involving business property in the town of Trumann and farm land in Poinsett County, be dissolved and the partnership property partitioned.
Appellant answered with a general denial and affirmatively pleaded the defense of laches, estoppel and statute of frauds. In a cross complaint, appellant alleged that he “has an absolute interest in all of said property as the sole owner thereof,” etc. Thereafter, appellee answered appellant’s cross complaint and denied “each and every allegation” therein.
Voluminous testimony was taken in this case before the trial court. There were findings and a decree in favor of appellee. The case is here on direct appeal of appellant and cross-appeal of appellee.
At the outset, we are met with an order of this court, (on appellee’s motion) entered on March 8, 1954, striking the Bill of Exceptions in this case. This being-true, we are limited to a consideration of what appears on the face of the record. We find no error apparent on the face of the record presented.
Our rule is well established that evidence at the trial cannot be considered by this court on appeal without a proper bill of exceptions and in such circumstances, we must presume that the absent evidence was sufficient to support the trial court’s findings and decree. McKinney v. Caldwell, Executor, 220 Ark. 775, 250 S. W. 2d 117 and the decree of April 19, 1954 of Oather S. Blackburn, et al. v. Abraham Ford, ante, page 524.
On her cross-appeal, appellee “questions that part of the decree which found appellant to have an equal interest in the original capital of the partnership,” * * *. “She does not question the findings of fact, but contends that the Chancellor improperly applied the law to these facts.” We find no merit to this contention for the reason that the court’s decree here, —which was a part of the record proper,' —determined this issue along with all others, based on conflicting facts on matters joined by the pleadings above. These conflicting-facts were contained in the absent bill of exceptions and must be presumed to support the findings and decree, therefore, appellee is in the same position on her cross-appeal as appellant on his direct appeal.
Accordingly, the decree is affirmed on both direct and cross-appeal. | [
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Sam Robinson, J.
Appellee H. H. Finigan filed this suit against appellant Bob Hester to replevy two yearlings. The cause was filed in the municipal court where there was a judgment for Finigan. Hester appealed to the circuit court where the cause was tried before a jury and again there was a judgment for Finigan. On appeal to this court appellant argues there is no substantial evidence to sustain the verdict.
It was shown that Finigan had his cattle in a pasture; that two of them disappeared; that Hester had gone to the pasture without notifying Finigan and obtained two head of cattle. Hester claimed that the two cattle he obtained from the pasture belonged to him, hut on the other hand Mrs. J. C. Finigan testified that there were no cattle in the pasture other than those belonging* to appellee H. II. Finigan. Cecil Green testified that the two cattle involved in this litigation did not belong to Hester. All of this testimony considered together was sufficient to make a question for the jury as to whether the cattle removed from the pasture belonged to Hester or to Finigan, and the jury found that they belonged to Finigan.
Hester stoutly contends that the cattle he obtained from the pasture were his own, and that at no time did he have in his possession the two cattle belonging* to Finigan which were described in the complaint and order of replevin. However, Hester filed a cross-bond to retain possession of the cattle described in the action, and he is not now in a position to say he did not have possession. When he filed the bond to retain possession, he impliedly admitted that he had possession of the cattle involved in the suit; however, the filing of the bond to retain possession did not estop him from contending that he was the real owner of the property.
In Strahorn-Hutton-Evans Commission Co. v. Heffner, 74 Ark. 340, 85 S. W. 784, it is said: “While the defendant, having executed a retaining bond, was estopped from denying that he was in possession of the property seized by the officer, he was not estopped from denying that this property was included in the mortgage upon which plaintiff based its right to recover, nor from showing that it belonged to him individually and that plaintiff had no right to it. ’ ’ See also Sibeck v. McTiernan, 94 Ark. 1, 125 S. W. 136.
Therefore, in the final analysis, the question in this case is whether the cattle Hester took from the pasture belonged to him or to Finigan. There is substantial evidence to sustain the jury’s verdict that they were Finigan’s cattle.
In his statement of points to be argued on appeal, appellant mentions the giving of Instruction No. 3 requested by appellee. But it is not shown in what manner the instruction was erroneous nor is the point argued.
Affirmed. | [
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Minor W. Millwee, Justice.
Appellee, First National Bank of Huntsville, Arkansas, herinafter called “Bank,” was the garnishee in two separate writs issued in litigation in the Madison Circuit Court involving numerous parties and issues. One of the garnishments was issued at the instance of appellant, Sequoyah Feed and Supply Company, Inc., hereinafter called “Sequo yah,” and the other was issued in favor of Norris Counts, an intervenor in the action. Both garnishments were for the amount of $1,890.21 which the Bank held to the credit of Cotton Produce Company, a partnership composed of J. A. Bobinson, V. A. Ashworth and Tommy Weir, hereinafter called “Cotton” and a defendant and cross-complainant in the action. The present appeal is from the circuit court’s judgment holding that the Bank acted lawfully in paying the garnished funds to the Sheriff of Madison County under an execution issued pursuant to a judgment rendered in the action in favor of Intervenor Counts against Cotton.
A brief history of the litigation is necessary to an understanding of the present issue. Sequoyah brought the original action against Cotton on an open account on April 24,1951, and a writ of garnishment was issued and served on the Bank on the same day. Cotton answered and filed a cross-complaint against Sequoyah for damages in the sum of $25,000.00. On May 5, 1951, Norris Counts filed an intervention in the action seeking judgment against Sequoyah and Cotton and on the same date had a garnishment issued and served on the Bank covering the Cotton account. Counts also alleged there was collusion between Cotton and Sequoyah in the issuance of the first garnishment. Sequoyah answered the Counts intervention denying collusion and generally denying other allegations. Other parties and issues were involved in the action which it is unnecessary to mention here.
On March 10, 1952, proceedings were begun which resulted in a judgment, reading in part, as follows:
“Gomes on this the 10th day of March, 1952, for trial, the above styled cause, the plaintiff, Sequoyah Feed and Supply Co., Inc., appearing by its attorneys Green-haw and Greenhaw, and Pearson and Pearson, the defendants, J. A. Bobinson and V. A. Ashworth appearing in person and by their attorneys Jeff Duty, Bex Perkins, and Price Dickson; the defendant Tommy Weir being in default and not appearing, the Cross Defendant Pillsbury Mills, Inc., appearing by its attorneys Greenhaw and Greenhaw, and Pearson and Pearson ; and all parties and their respective attorneys announcing ready for trial, it was thereupon stipulated and so ordered by the court that said cause would be tried on the complaint of the plaintiff and the answer and cross-complaint of the defendants J. A. Robinson, and V. A. Ashworth, and that the interventions filed herein and the garnishment proceedings herein would be passed for hearing at a later date. . . .
“Thereupon, on 11th day of March, 1952, at the conclusion of all evidence and all parties having rested and closed, the court upon the motion of the defendant J. A. Robinson, then and there directed the jury to return a verdict for the defendant J. A. Robinson in the sum of $4,433.87 for commissions due the said J. A. Robinson by Pillsbury Mills, Inc. . . .
“It is therefore the order and judgment of this court, that judgment be, and the same is hereby rendered, in favor of the plaintiff Sequoyah Feed and Supply Co., Inc., and against the defendants V. A. Ashworth, J. A. Robinson, and Tommy Weir, individually and as partners doing business as Cotton’s Produce Co., in the sum of $5,062.24.
“ It is also the order and judgment of this court, that judgment be, and the same is hereby rendered in favor of V. A. Ashworth and J. A. Robinson, and against Sequoyah Feed and Supply Co., Inc., in the amount of $6,336.00.
“It is the further order and judgment of this court that judgment be, and the same is hereby rendered in favor of J. A. Robinson and against Pillsbury Mills, Inc., in the sum of $4,433.87.
“It is the further order and judgment of this court that the garnishment issued by the plaintiff, Sequoyah Feed and Supply Co., Inc., whereby the sum of $1,890.21 on deposit at the First National Bank, Huntsville, Arkansas, was impounded be, and the same is, hereby released, conditioned however that said funds shall not be paid by said bank to any of the parties herein or that said funds shall be released until further order of this court.”
On March 11, 1952, proceedings were had on the Counts’ intervention resulting in the following judgment:
“Now on this 11th day of March, 1952, this cause comes on to be heard the above styled action, and the Intervenor appearing in person and by his attorney, Clifton Wade, and the defendants, J. A. Robinson, Y. A. Ashworth, and Tommy Weir, d/b/a Cotton Produce Company, appearing in person and by their attorneys, Rex Perkins, Price Dickson, and Jeff Duty; thereupon the said Intervenor, Norris Counts, demanded a trial, and the cause was submitted to the Court upon the Complaint filed herein by the Intervenor, with exhibits attached thereto,'including the check herein sued upon, the Writ of garnishment and Allegations and Interrogatories and Summons issued herein against the defendant and garnishees, and the returns thereof, showing proper service for the time and in the manner required by law, the parties waiving a trial by jury and consenting and agreeing in open court that the cause might be submitted to the Court and judgment rendered herein, and from the evidence introduced by said Intervenor and other matters, proof, and things before the Court, the Court finds:
“That the defendants herein have failed to plead, and though present in open court, make no defense to complaint of intervenor;
“That defendants, Y. A. Ashworth, J. A. Robinson, (one and the same person as James A. Robinson), and Tommy Weir, d/b/a Cotton’s Produce, a partnership, are indebted to plaintiff, Norris Counts, in the amount of $2,166.64, on account of check dated April 17, 1951 drawn on First National Bank of Huntsville, Arkansas, payable to Intervenor, which check, though presented in due course, was returned unpaid;
“That said principal amount is due and unpaid to Intervenor, together with protest charges in the amount of $2.50 for all of winch the said Intervenor should have judgment.
“That a Writ of Garnishment was issued by the Circuit Clerk of Madison County, Arkansas, on the 21st day of May, 1951, and that said writ was thereupon on said day duly served by the Sheriff of Madison County upon said bank in the form and manner provided by law, that more than six (6) months has elapsed since said service, but that no answer or response thereto has been filed by said bank as provided by law, and that Norris Counts, as Intervenor should have judgment against the First National Bank of Huntsville, Arkansas, the garnish ee herein, in the amount of $2,169.14.
“It Is Therefore, by the Court, Ordered, Considered, and Adjudged, that Norris Counts, Intervenor herein do have and recover judgment from the defendants, V. A. Ashworth, J. A. Robinson, and Tommy Weir, d/b/a Cotton’s Produce Company, both jointly and severally, as partners, and the First National Bank of Huntsville, Arkansas, in the amount of $2,169.14, together with interest from this date until paid at the rate of six (6) per cent per annum, and the costs herein laid out, paid and expended, for which execution may issue. ’ ’
On March 20, 1952, Sequoyah filed a motion for new trial in its appeal from the first judgment above mentioned and one of the alleged errors was the action of the court in releasing the impounded funds held by the Bank from the Sequoyah garnishment. The motion was overruled March 25, 1952, and on March 28th Sequoyah filed bond to supersede the Cotton judgment. There was no mention of the garnishment or the bank in either the bond or the supersedeas issued by the clerk. On September 8, 1952, Sequoyah prayed and was granted an appeal out of this court from the first judgment and had a summons issued and served on Cotton. The Bank was not made a party to the appeal and no summons was issued for or served on it.
There was no appeal from the judgment in favor of Counts against Cotton and the Bank rendered on March 11,1952. On March 22, 1952, an execution was issued by the clerk pursuant to said judgment and levied against the Bank by the sheriff of Madison County. Acting on the advice of counsel, the Bank paid the garnished funds of $1,890.21 to the sheriff in satisfaction of said execution on the same date.
On February 23, 1953, we decided the appeal taken by Sequoyah from the judgment of Cotton against it in Sequoyah Feed and Supply Company, Inc. v. Robinson, 221 Ark. 660, 255 S. W. 2d 425. In reversing the judgment, we said: “The trial Court ordered that certain funds that had been garnished in the hands of the Bank, would be held until further orders. There were several interventions in the case which, as previously mentioned, were left for further consideration. As between Sequoyah and Cotton, the garnishment of the Bank was good; but we forego any discussion of the garnishment because there may be some rights of the intervenors yet to be adjudicated. ’ ’
On March 19, 1953, Sequoyah filed the mandate of this court in the circuit court and on the samé date filed a motion for judgment against the Bank in the sum of $1,890.21. In its response the Bank denied liability on the grounds: (1) that it had already paid the garnished funds to the sheriff for Counts’ benefit under the execution issued and levied pursuant to the unappealed judgment for Counts against Cotton; (2) that the order releasing the Sequoyah garnishment was never appealed from; (3) that when the Bank paid the funds out under the execution, no appeal had been taken; (4) and that when the appeal was taken from the Cotton Sequoyah judgment on September 8, 1952, the Bank was not made a party nor notified of said appeal. Sequoyah filed a motion to strike the response. After a hearing, the trial court denied Sequoyah’s motion for judgment, holding that the Bank lawfully paid the garnished funds on the execution issued pursuant to the garnishment and judgment in favor of Counts.
In seeking a reversal Sequoyah argues that it was unnecessary to make the Bank a party appellee or notify it on the first appeal; that the Counts judgment and execution issued thereon against the Bank were void; and that the Bank failed to use due diligence to protect its interest either by pleading the Sequoyah garnishment in answer to the Counts’ garnishment, or by appealing from the Counts’ judgment, or by paying the garnished funds into court. In support of the trial court’s judgment, the Bank insists that it was unaffected by the Sequoyah-Cotton appeal because it was never made a party thereto; and that it in good faith performed its duty as garnishee by paying over the garnished funds in obedience to the execution issued pursuant to the Counts’ judgment and garnishment. In connection with these contentions, Sequoyah insists that the Counts’ judgment was rendered prior to the Sequoyah judgment while the Bank contends that the Counts’ judgment was rendered the day after the Sequoyah judgment. Oral testimony adduced on this issue adds little to the record recitals which show the Sequoyah judgment entered first followed immediately by the Counts’ judgment. The judgment record indicates quite clearly that the first paragraph of the Sequoyah judgment which passed the interventions and garnishment proceedings for a later hearing was made and rendered on March 10, 1952, while that part of said judgment which ordered the release of the impounded funds from the Sequoyah garnishment on certain conditions was rendered March 11, 1952, the same date on which the Counts’ judgment was rendered. So, strictly speaking, the Counts’ intervention and both garnishment proceedings were in fact heard “at a later date” as directed by the court in the Sequoyah judgment.
In support of its contentions, the Bank relies on the cases of American Nat. Bank of Ft. Smith v. Douglas, 126 Ark. 7,189 S. W. 161, and Hot Springs Concrete Co. v. Rosamond, 180 Ark. 690, 22 S. W. 2d 368. Sequoyah relies on Citizens Bank v. Commercial National Bank, 107 Ark. 142, 155 S. W. 102; Hughes-Speith Pipe Line Company v. McWilliams Hdwe. and Furniture Co., 172 Ark. 79, 287 S. W. 580; and cases from other jurisdictions on the general proposition that a garnishee has a duty to perform to protect its interests as well as the interests of others. In none of these cases is a factual situation presented parallel to that in the instant case. We have considered the principles of these cases along with the general rule that, where funds of the principal debtor in the hands of the garnishee are taken from him by legal process after service of the writ, he is not chargeable in garnishment proceedings therefor. See: 38 C. J. S., Garnishment, § 186e; 5 Am. Jur., Attachment and Garnishment, § 678.
All parties to this involved litigation apparently had full knowledge of all the proceedings had on March 10 and 11, 1952, which culminated in the two judgments. A representative of the Bank appeared in the SequoyahCotton proceedings and admitted that the Bank held certain funds to Cotton’s credit. Sequoyah was a party to the Counts ’ intervention in which the validity of the two garnishments was put in issue and answered said intervention. Under the Sequoyah-Cotton judgment the Sequoyah garnishment was ordered released on conditions that were couched in ambiguous language. The Counts’ judgment ordered that execution issue on the judgment against the Bank as garnishee. Ten days after these proceedings the Bank was served with the execution by the sheriff of Madison County. It is true that the writ of execution was not an “order of court” in the strict sense but it did constitute “legal process” issued on the court’s order in the Counts’ judgment, which the Bank, with some justification, construed as a “further order” of the court. Subsequent to these proceedings there was no appeal from the Counts’ judgment and the Bank was not made a party to nor given notice of the Sequoyah appeal or the supersedeas issued thereunder which only superseded the judgment in favor of Cotton and did not mention the Bank. We concur in the trial court’s conclusion that it would work an injustice to require the Bank to twice pay over the garnished funds under all the circumstances, and the judgment is affirmed.
All italics supplied. | [
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Minor W. Millwee, Justice.
This appeal involves the reasonableness of an attorney’s fee allowed appellant under Art. Stats., § 25-301 and growing out of a settlement made by the parties litigant without the knowledge or consent of appellant. On January 23, 1952, S. M. Edwards retained appellant to collect an account against appellees totaling $715.00. It was agreed that appellant should receive as his fee $215.00 if recovery was obtained without suit being filed, and 50% if suit was filed. That same day appellant prepared a verified complaint against appellees, but the complaint was not filed until August 5, 1952. Appellee’s answer alleged that the account had been paid. On November 19, 1953, the court, sitting as a jury, rendered a judgment for the appellees, having found that the account sued upon was settled by appellees’ paying S. M. Edwards $520.00 on February 4,1952.
The same day the judgment was rendered, appellant filed a motion for an attorney’s fee for his work in the case and alleged that a reasonable fee would be $357.50. The motion set out that appellant had written a registered letter to Charles E. Travis as agent for appellees on January 23,1952, and forwarded it by special delivery mail with a return receipt requested and also forwarded by unregistered mail a copy of said letter to George James, another appellee. This letter, made an exhibit to appellant’s motion, informed appellees that appellant had been instructed to file suit against them. Appellant’s motion further alleged that because of this letter he obtained an attorney’s lien on the cause of action for his fee under the statute. On January 12, 1954, a judgment on the motion was rendered, awarding appellant a fee of $75.00.
By a stipulated narrative statement of the testimony it appears that Edwards called appellant and told him that Sonnell J. Felsenthal had contacted him and contemplated paying Edwards’ claim against appellees, but that Felsenthal wanted a letter of assurance setting out the amount of the demand and stating that payment of that amount would constitute payment in full and settlement of the claim. On January 28, 1952, appellant wrote Felsenthal a letter directing that payment of $520.00 to Edwards and $215.00 to appellant would constitute full and complete release of all claim against appellees. Appellant never received any money from anyone, and he filed suit on August 5, 1952, suspecting that a settlement had been made, but unable to confirm his suspicions. Appellant testified and the pleadings so indicate that his motion for attorney’s fees was based on a quantum meruit theory, and that between January 23, 1952, and February 4, 1952, the date the settlement was made, his activity in the matter had consisted of preparing a complaint and writing two letters for his client. G-. E. Snuggs, attorney and court reporter, testified that in his opinion a reasonable fee for the services outlined by the petitioner would be from $75.00 to $100.00. He thought appellant’s efforts were more extended than the circumstances required and stated that the reason for his modest estimate was that he considered the claim for attorney’s fee a secured one from the beginning.
Ark. Stats., § 25-301, supra, insofar as it is pertinent to this case, provides that an attorney shall have a lien on his client’s cause of action from and after service upon the adverse party of written notice by registered mail, or, in the absence of such written notice, from and after the filing of suit. If the adverse party then compromises the claim without the attorney’s consent he is liable to the attorney for a reasonable fee. The present case seems to be clearly within the purview of this statute, and the trial court was correct in holding appellant entitled to a reasonable fee for his services. See Slayton v. Russ, 205 Ark. 474, 169 S. W. 2d, 571 146 A. L. R. 64.
Thus, the case devolves into the single consideration of what is a reasonable fee. Mr. Snuggs and appellant were the only witnesses who testified on this issue. Ap pellant testified that $357.00 would be reasonable under the circumstances but that if he were compensated for everything he had done a reasonable fee would be $1,000.00. But such estimates are not necessarily controlling. As we said in Shackelford v. Arkansas Baptist College, 181 Ark. 363, 26 S. W. 2d 124: “Neither the trial court, nor this court on appeal, is bound by the testimony of appellant and his expert witnesses in determining the value of his services. ’ ’ And, as the court said in Lilly v. Robinson Mercantile Company, 106 Ark. 571, 153 S. W. 820: “It may be conceded that the opinion of the attorney familiar with the subject was entitled to great weight, but it was not to be blindly received, it was to be intelligently examined by the court trying the case in the light of his own general knowledge of the subject of inquiry and should control only as it was found to be reasonable, otherwise the opinion of the witness would be substituted for the judgment of the court.” In St. Louis-San Francisco Ry. Co. v. Hurst, 198 Ark. 546, 129 S. W. 2d 970, 122 A. L. R. 965, we set out the rules for determining the reasonableness of a fee awarded an attorney. There the only testimony as to the value of the attorney’s services estimated it as $1,000.00 to $1,500.00. In reducing an award of $1,000.00 to $500.00 we said: “Although this testimony [as to a reasonable fee] was not directly contradicted by appellants, the trial court, and this court on appeal, are not required to lay aside their general knowledge and ideas of values of such services, and are not entirely controlled by testimony of this nature.” We further said in that case: “In determining what would' be a reasonable fee we take into consideration the amount of time and labor involved, the skill and ability of the attorneys, and the nature and extent of the litigation.”
Under the facts and circumstances presented, we have concluded that $175.00 would be a reasonable fee to appellant for his services. The judgment is accordingly modified to that extent and, as so modified, is affirmed.
The Chief Justice would affirm -without modification. | [
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'Ward, J.
This appeal challenges the decision of the trial court which held that appellee had acquired by prescription a road over lands belonging to appellants. Appellants and appellee are adjoining landowners, with appellee’s land located south and east of appellants’ land. Appellants bought their land in 1946 from W. C. Dean who owned the land for many years previous thereto. Appellants do not live on their land which is mostly woodland, a small portion of which has at times been in cultivation. Appellee’s land is what is known as the old “Polk Place” and was the home of William Polk for many years. For some 35 years the occupants of appellee’s land have used a road which runs north from the dwelling approximately 248 feet, thence west approximately 130 feet, and thence northwesterly approximately 524 feet (across appellants’ land) to intersect with a public road which runs in a northeasterly direction, and is designated as road “A.” The road just described as used by appellee and her predecessors is designated as road “B.”
In the latter part of 1948 appellants built a fence along the east side of public road “A” across road “B.” After some conversation with appellee in which no definite agreement was reached appellants in 1951 placed a gate where the fence crossed road “B.” Later appellants again obstructed road “B” and this suit was instituted by appellee to remove said obstructions and to reopen the road.
Upon final hearing, after both sides had introduced their testimony, the chancellor found “that the plaintiff (appellee) proved that road‘B’ . . . has been established by prescription for many years. ’ ’ The chancellor also stated that “it would be equitable to allow the defendants (appellants) to furnish an alternate route, no more inconvenient to the plaintiff, and the defendants would be allowed 60 days in which to furnish such alternate route if they so desire . . .” Appellants did not choose to furnish the alternate route, and have prosecuted this appeal.
Appellants’ principal contention for a reversal is based upon the principle of law announced in the case of Boullioun v. Constantine, et al., 186 Ark. 625, 54 S. W. 2d 886, to the effect that the use of a passageway over uninclosed lands is presumed to be permissive and not adverse to the owners of the land over which the passageway is used. As stated by appellants, this same principle was announced in the case of Birdwell v. Arkansas Power & Light Company, 191 Ark. 227, 85 S. W. 2d 712, and in LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461. In the case under consideration the testimony shows that road “B” ran through the timber land, and there is no contention that this land was fully inclosed. The evidence does show that many years ago there was a fence on the southern portion of the land and there is evidence to the effect that people at different times went onto the land to work. On the whole however we agree that the facts and circumstances in this case make applicable the rule of law heretofore stated.
This court, however, in dealing many times with the acquisition of passageways over land, has recognized what might be deemed a variation or exception to the rule before mentioned. One such case is McGill v. Miller, 172 Ark. 390, 288 S. W. 932, where the general rule was recognized and an exception thereto was stated in this language:
“It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use, so as to ripen into title by a limitation.” (Citing other cases.) In this same case the court further said:
“We give full recognition to principle of law to the effect that a permissive use cannot ripen into a legal right merely by lapse of time, but we think the evidence is sufficient to show that this use was made of the alley as a matter of right, and in hostility to the right of the original owner to close the strip and prevent its use.”
In the case of Kimmer v. Nelson, 218 Ark. 332, 236 S. W. 2d 427, where a question similar to the one here involved was under consideration this court recognized that permissive usage of a passageway may become adverse usage, or that the permissive usage may be considered abandoned, by lapse of time. This court after noting the passageway was across wooded and undeveloped land but had been used for a period of 40 years without question or objection, stated:
“In these circumstances the original restriction in the nature of a permissive use in favor of particular persons was abandoned through the long lapse of time.”
The reason for the rule that a passageway over uninclosed and unimproved land is deemed to be permissive is sound and also easily understandable, as was explained in the Boullioun case, supra. It assumes that the owner of such land in many instances will not be in position to readily detect or prevent others from crossing over his land, and, even if he did, he might not enter any objection because of a desire to accommodate others and because such usage resulted in no immediate damage to him. Also in such instances the landowner would probably have no reason to think the users of the passageway were attempting to acquire any adverse rights. On the other hand there would be no reason or basis for such inference of permission on the part of the landowner if someone tore down his fence or destroyed his crops by reason of such usage. These acts alone would be calculated to put the landowner on notice that others were using his land adversely to his own interest and right of occupation. The right of a person to acquire a passageway over the land of another is somewhat analogous to the right to acquire land by 7 years adverse possession. The headnote in the case of Clay v. Penzel, 79 Ark. 5, 94 S. W. 705, reads:
“Private Way — Adverse Use. A private way over the land of another may be acquired by open, continuous and adverse use for seven years under a claim of right.” The opinion, written by Judge Riddick, states:
“It is clear from the evidence that this strip has been continually used by plaintiffs as an alley or passageway for ten or twelve years at least before it was obstructed by the defendant.”
The headnote in Scott v. Dishough, 83 Ark. 369, 103. S. W. 1153, reads:
“Adverse Possession — Alley.—Where the owners of adjacent property have used an alley openly, continually, peacefully and adversely for seven years they acquire an easement therein.”
After commenting on the evidence in the short opinion Judge Battle, speaking for the court, said:
“This is sufficient to vest them with an easement therein; seven years adverse possession being sufficient for that purpose.” (Citing other cases.)
A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear, in our opinion, that no real conflict exists. All our opinions are in harmony on one point, vis.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowedge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.
In our opinion, in the case under consideration, the weight of the testimony supports the finding of the chancellor that appellee and her predecessors in title used road “B” for more than seven years after appellants and their predecessors in title knew or should have known that the road was being used adversely. The great weight of the testimony shows that road “B” has been in use as a well defined roadway since 1917 or 1918 and there is testimony that it was in use prior to said dates. Appellants ’ predecessors in title had knowledge of this usage without any objection on their part and they also knew that this was the only outlet appellee and her predecessors had to the county highway. The evidence shows that work was done on this road from time to time and that it was used as a passageway not only by appellee and her predecessors but by the general public. Alva Cloud, 59 years old, said that road “B” has been in existence ever since he could remember, that he traveled the road all that time and that it was open for wagon travel as a common road. R. E. Polk, 73 years old, said road “B” had been open at least 35 years and that others used the road regularly. L. E. Cloud, age 62, gave testimony to the same effect. Ben Watkins, age 73, knows that the road has been open for more than 20 years. S. L. Black, age 85, knows the road has been in existence over 45 years — that he traveled the road before his daughter was born 48 years ago. W. C. Dean, who owned appellants’ land from 1917 to 1946, said road “B” was in existence in 1917 and that he went over the road in a buggy in 1912.
From the above testimony it clearly appears that the owners of appellants’ land have known of the existence and continuous usage of road “B” at least since 1917 or a period of over 30 years. Thus the weight of the testimony supports the chancellor’s finding that the road has been used by appellee and the public openly and adversely for more than 7 years and that the constant usage of said road for some 40 years under the circumstances of this case overcomes the presumption that said usage was permissive.
The contention is also made by appellants that appellee has abandoned any rights she may have acquired to road “B” because of non-use, but this contention is not supported by the evidence. Appellants call attention to the fact that they closed road “B” some four or five years before this suit was filed by appellee, and cite Clinton Chamber of Commerce v. Jacobs, 212 Ark. 776, 207 S. W. 2d 616. In the cited case we held that where' a fence had been maintained for seven years by the landowner across a roadway acquired by prescription the easement would be terminated. It is undisputed that here appellants had not maintained an obstruction for seven years prior to the filing of this suit by appellee.
No error appearing, the decree of the trial court is affirmed. | [
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Minor W. Millwee, Justice.
Appellee, Robert B. Snowden, recovered a verdict and judgment against appellant, The Home Indemnity Company, for $8,533.85 which appellee had paid to settle a damage suit filed against him in the United States District Court of Arkansas by Mrs. Fred Lingner for the alleged negligence of appellee and his agents resulting in the death of Mrs. Lingner’s husband while working in a frozen food locker plant belonging to appellee at Wharton, Texas.
At the conclusion of all the evidence in the case appellant moved for a directed verdict in its favor on the grounds: (1) that there was no evidence that appellee was guilty of any negligence that caused the death of Fred Lingner; (2) there was no evidence that appellant or its agents were guilty of bad faith in refusing to settle the suit pending against appellee in the United States District Court of Arkansas. Appellant’s principal contention on this appeal is that the trial court erred in refusing to sustain the motion for a directed verdict on either or both grounds. In testing the sufficiency of the evidence to support the verdict on these issues we are required to consider the evidence in the light most favorable to appellee, and in support of the verdict, under our well settled rule.
Appellee, a resident of Crittenden County, Arkansas, owned a number of frozen food locker plants in 1947. One of these plants was located at Wharton, Texas, and was under lease to L. M. Guffey. In April, 1947, appellant issued to appellee its public liability insurance policy against injury or death, limited to $5,000 for any one person and $10,000 for any one accident, arising out of operation and maintenance of the said locker plant.
In May, 1947, appellee entered into a contract to sell the locker plant to L. M. Guffey, conditioned upon the installation of certain equipment and the making of certain repairs by appellee. Appellee agreed to send Joe Tirello, his construction foreman in locker plant work, to Wharton to install two locker doors and fix obvious insulation leaks. He also agreed to order and pay for one 5 HP Frigidaire compressor and authorized Guffey to make a contract with a competent refrigeration man to install the compressor at appellee’s expense.
Guffey entered into a contract with Fred Lingner, a refrigerator contractor, to install the compressor, and Lingner employed E. B. Van Hoesen, another refrigerator man, to assist him in performing the work. Van Hoesen testified that during the course of the work, Tirello made an additional oral contract with Lingner to disconnect a certain unit theretofore in use and to connect two of the three units that had theretofore been used to operate two vaults, to one vault only, the 5 HP unit operating the other. Tirello directed Lingner to blow the old gas out of the line by the use of air. The blowing of the old gas out of the lines was done by opening the lines and letting the compressors pump air from the open air into the lines; the atmosphere was humid and moisture was pumped into the lines. Methyl chloride, a toxic gas marked dangerous on the container, was used to refill the lines. The system was apparently working all right, so Tirello left and returned to Memphis. The moisture in the lines condensed, froze up, and stopped circulation of the refrigerators. Lingner and Van Hoesen opened valves in an attempt to let gas blow moisture out and dry the system, and the gas got into the room. The gas made both men sick and Lingner died on June 2, 1947, from methyl chloride poisoning.
When appellee was notified of the incident he sent Tirello back to Wharton and another contractor was hired to correct and complete the repair work. Guffey declined to go through with the purchase, but after Snow-den agreed to indemnify him against any liability for the death of Lingner another contract of sale to Guffeywas agreed upon in July, 1947. About this time, Mrs. Lingner called on Richard B. Cole, an attorney of Houston, Texas, who began to investigate the matter and later took a statement from Van Hoesen. Snowden had purchased his insurance from an agent named Blount, and some time after the incident and before November 27, 1947, he reported it to Blount. As a result, the attorneys for appellant in Memphis wrote to Mr. Snowden on the latter date requesting a letter from Snowden setting out the details of the occurrence and asking for a copy of any agreement with Lingner’s widow as to a settlement, in order that they might complete their file and investigation. On December 2, 1947, appellee answered the request. In this letter, Snowden stated certain facts in connection with Lingner’s death which led him to believe Lingner was an independent contractor and that his own errors caused his demise. He also expressed the belief that a claim would in all probability never arise, but recommended an accurate assembly of the facts while they were still fresh in the minds of all concerned and the taking of Guffey’s deposition. Appellant’s Memphis attorneys acknowledged appellee’s letter on December 10, 1947, and advised that A. A. Nowlin, appellant’s claim manager at Dallas, Texas, had been asked to handle the matter since the accident occurred in Texas.
On May 26, 1949, Mrs. Fred Lingner, as administratrix of the estate of her husband, filed separate suits against appellee in the United States District Court of Arkansas and the District Court of Wharton County, Texas, through her attorneys Richard B. Cole and Gordon & Gordon of Morrilton, Arkansas. The complaint alleged damages in the sum of $83,950 on account of the death of Fred Lingner which allegedly resulted from the negligent acts of appellee and his representative and agent, Tirello, who was also joined as a party defendant.
After receipt of appellee’s letter of December 2, 1947, and before the filing of the suit by Mrs. Lingner on May 26, 1949, appellant made no investigation of the case. No effort was made to “assemble the facts” or take the statement of Guffey or any other prospective witness until June 23, 1949, when an answer was about due in the Lingner suit. On that date, R. B. Fades was sent to Wharton from appellant’s Dallas office to make an investigation.
Shortly after the suits against appellee were filed, he was advised by counsel for appellant that “while all necessary steps will be taken for tbe protection of our mutual interests, this is to advise you that you may, if you care to do so, and at your own expense, employ personal counsel to protect your interests over and above the limits of your policy.” Snowden employed Davis, Brown, McCloy and Donelson of Memphis.
On June 13, 1949, appellee’s personal counsel and appellant’s attorneys held a conference to discuss the defense of the case. Appellant’s attorneys, as on other occasions, urged the proposition that appellant would not be liable under its policy if it were shown that Lingner was an employee of appellee as alleged in Mrs. Lingner’s complaint. During this time, attorneys for appellee began negotiating with counsel for Mrs. Lingner for a settlement, and requested that appellant contribute to such a settlement. Attorneys for appellant denied this request both orally and in letters of June 18 and June 25, 1949, and again asserted their contention that the policy excluded coverage of liability to employees of Snowden. This contention was alleged in the answer, and it was not until the trial of the instant case that appellant admitted that Lingner was an independent contractor.
Attorneys for appellee investigated the case thoroughly and ascertained that a serious question would be presented as to whether Tirello, as appellee’s agent, had told Lingner the details of how the job was to be done and that his instructions could have been a possible cause of Lingner’s death, and being a question of fact for a jury to determine, the damages could have been most substantial, the deceased being a relatively young man with a good earning capacity, leaving a widow and two minor children.
After considerable negotiation, appellee’s attorneys obtained offers of settlement from Mrs. Lingner’s attorneys in the amount of $8,000. A conference with reference to the proposed settlement was held on June 22, 1949, at which the appellant refused to contribute to a settlement. On June 24, 1949, appellee submitted his check for $3,000 to appellant’s attorneys and demanded that they settle the claim. The same day appellee’s attorneys received a letter from appellant reiterating that there was no liability under the information furnished by appellee and that if deceased were an employee of Snowden, there would be no liability against the appellant. In another letter from appellant’s attorneys on June 25, 1949, the settlement offer was again rejected. On- July 1, 1949, Snowden wrote the home office of the appellant in New York, outlining in detail the dealings with the company’s attorneys and demanding settlement of the claims. No reply was received to this letter.
Mrs. Lingner’s attorneys pressing the matter, Snow-den gave his check for the full settlement August 16, 1949. On August 26, 1949, releases were executed by the Lingners, and the case disposed of in Wharton County, Texas, and the ease was dismissed in Arkansas on September 8, 1949. On October 14, 1949, appellee demanded that appellant reimburse him in the amount of the full settlement of $8,467.77. This demand was refused on February 15,1950, and thereafter this action was brought on March 29, 1953.
The policy involved here contained the usual provisions that insurer should have the right to make such investigation and settlement of any claim or suit as it might deem expedient, and that no action would lie against insurer until the amount of insured’s obligation to pay shall be determined by judgment or by agreement of the claimant, insured and the insurer.
In support of their respective contentions on this appeal, counsel on both sides have cited numerous cases from other jurisdictions involving the questions under consideration. The facts in none of these cases are exactly parallel to those in the instant case. Some of them are similar to our own case of American Fidelity and Casualty Co. v. McKee, 198 Ark. 601, 130 S. W. 2d 12, where this court held that the insured was authorized to make a settlement of the injured persons’ claims, and entitled to reimbursement from the insurer, if the latter unjustifiably refuses to defend a suit, even though the policy purports to avoid liability for settlements made without the insurer’s consent. From the many cases involving suits similar to this one, certain principles and rules have been formulated which are applicable here.
In 29 Am. Jur., Insurance, § 1077, it is said: “Under liability or indemnity policies in which the insurer assumes the duty of defending or settling suits against the insured, this obligation is one requiring due care and a strict performance in utmost good faith. In such case, the insurer owes the duty to exercise reasonable care in conducting the defense, and is liable for damages resulting to the insured by reason of its negligence in performing such duty.” In § 1079, the author further says: “It is generally agreed that under policy provisions giving the insurer the right to defend and settle claims against the insured, the insurer may be held liable to the insured for any damage to the insured ensuing where the insurer acts with bad faith toward the insured and improperly refuses or fails to compromise the claim involved. Moreover, there is authority to the effect that this liability of the insurer to the insured also obtains if the insurer negligently fails to settle a claim against the insured.”
While the insured is generally prohibited from making a settlement of a claim under policies giving that right to the insurer, a different rule obtains where the insurer itself, in bad faith, breaches the contract by arbitrarily refusing to settle. As is stated in 45 C. J. S., Insurance, § 937b: “The provision against settlement by insured cannot be taken advantage of by insurer, where it unreasonably delays to take any action, after notice of the claim, or where it breaches its contract, by refusing to defend or settle and denying liability, or by withdrawing from the ease, in either of which cases insured is released from its agreement not to settle, and has the right, provided he acts in good faith and with due care and prudence, to make a settlement of the claim or suit; and the amount paid in such settlement, if reasonable, may be recovered from insurer.” See, also, Appleman, Insurance Law and Practice, § 4690.
The trial court in its instructions submitted the respective contentions of appellee and appellant to the jury as to whether appellee, or his agent Tirello, was guilty of any negligence that caused the death of Fred Lingner; also as to whether appellant was guilty of bad faith in defending and refusing to settle the suits pending against appellee. We have carefully examined these instructions and find that they fairly submitted these issues to the jury under the principles announced above, and other rules applicable in such cases. We are also of the opinion that the evidence adduced by appellee was substantial and sufficient to sustain the jury’s conclusion on the issues of appellee’s negligence and the bad faith of appellant. It follows that the jury’s determination of liability against the appellant must be affirmed.
However, a majority of the court are of the opinion, in which the writer does not concur, that the trial court erred in refusing to instruct the jury that if they found for appellee, they would assess his damages at not more than $5,000, the policy limit. This error may be cured by reducing the judgment to $5,000. With this modification, the judgment is, therefore, affirmed.
Robinson, J., dissenting. The majority has affirmed this case on the theory that there was sufficient evidence to go to the jury on the question of bad faith and negligence on the part of the insurance company; but no evidence is pointed out which indicates the appellant at any time acted in any manner other than a fair-minded and reasonably prudent person would have acted in the circumstances. In the first place, the insured did not notify the insurance company of the happening of the accident for about six months after it occurred. The appellant company, according to the terms of the policy, could have seized upon the late notice to deny liability on its part, but did not do so and waived the policy provision specifying the time in which notice must be given. This certainly does not indicate bad faith. In my opinion there is not a line of testimony in the record from which an inference can be drawn that the insurance company was negligent or did not act in the utmost of good faith.
When Mr. Snowden gave notice, six months after the date of the mishap, he stated that Lingner was an independent contractor and died by reason of his own negligence. According to the record, Snowden gave the correct information. The deceased, Fred Lingner, was a refrigeration contractor; he was an expert in that capacity and so held himself ont to the public; that is the reason he was employed in the first instance. It is true the evidence shows that Tirello, an employee of Snowden, directed Lingner to use air in blowing out the pipes; but such act injured no one; and by no process of the imagination can it be considered that this method of removing old gas from the pipes was the proximate cause of the injury to Lingner. In fact, one could with as much logic contend that the manufacturer of the plant was liable. Lingner, a contractor employed because he was an expert engaged in repair work on refrigerators, used poisonous gas to refill the refrigeration system; when Tirello left Wharton to return to Arkansas, the refrigeration plant was working in a satisfactory manner; and it was after he left that Lingner of his own accord opened the valves permitting the poisonous gas to escape, thereby causing his own death.
Although the majority stresses the fact that the insurance company made no investigation, nothing is pointed out that could have been discovered by an investigation which would have caused a revaluation of the case. The failure of the company to make an investigation was not due to negligence nor bad faith; it was simply due to the fact that when it received notice of the mishap more than six months had expired. Nothing had been said or done that would indicate that anyone contemplated filing a lawsuit. It was the opinion of the insurance company that it had received correct information from Mr. Snowden as to how the accident occurred, and that to begin an investigation at that late date would serve no purpose other than possibly to stir up a lawsuit.
The majority appears to make a point of the fact that the insurance company advised the insured that he could select a lawyer of his own choice to represent him in the matter if he cared to do so; this was not a suggestion that the insurance company would not defend the case according to the best of its ability, but there was only $5,000 in insurance and Snowden had been sued for $83,950; and in these circumstances it was natural and proper that the insurance company suggest that perhaps Mr. Snowden would want his own lawyers as well as the insurance company lawyers to see after the case.
Mrs. Lingner had also alleged in her complaint that Lingner was an employee of Snowden; the insurance company made no contention that this allegation was true, and sought no evidence to show that it was true; but it merely called Snowden’s attention to the fact that if this allegation was true, the insurance company would not be liable as the policy did not protect Snowden in the event of injury to employees.
Mr. Snowden employed counsel and they immediately started negotiations for a settlement; and in a very short time reached an agreement with the plaintiff that the case be settled for about $8,000. Immediate demand was made upon the insurance company that it pay its full liability on the policy, $5,000. Undoubtedly the insurance company would have been willing to contribute a portion of the limit of the policy to a settlement of the cause, not because it was considered that Mrs. Lingner had a case and could recover or that there was any danger of a recovery, but purely to retain the good will of a policyholder, plus the nuisance value of a case of this kind. Snowden had been sued for $83,950 and his policy of insurance protected him only to the extent of $5,000. The premium on the policy was only $10; he could have had more protection if he had wanted it. When he was sued for such a large sum and had such small protection, he became extremely apprehensive; apparently he would be good for a judgment for the entire amount and rather than take that chance, he personally paid the $8,000 as settlement in full.
All of the evidence points to the fact that there was no liability, and in all probability no jury case could be made; and no experienced lawyer representing the insurance company in this case would have advised the company to pay to the fullest extent of its liability. In my opinion the insurance company was neither negligent nor acting in bad faith in refusing to pay the full amount for which it was liable under the terms of the policy.
It is hard to imagine a case where the plaintiff would be less likely to recover than the one filed against Mr. Snowden; and to say that he is entitled to indemnity in the case at bar is to say that in all cases where one who is good for a judgment is sued for a large sum and only has a small amount of insurance, the insurance company must pay by way of a- settlement the full amount of the policy, at the insistence of the insured, regardless of the merits of the case. I cannot subscribe to that doctrine. In my opinion the cause should be reversed and dismissed.
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Minor W. Millwee, Justice.
Appellant, Clarence Long, was charged with and convicted of murder in the first degree for the killing of Henry Allen; the jury fixed his punishment at life imprisonment. At the conclusion of all the testimony, appellant by proper motions challenged the sufficiency of the evidence to sustain a verdict of guilty of murder in either the first or second degree or manslaughter. It is now insisted that the state failed to prove the malice and premeditation on the part of appellant requisite to a conviction of first degree murder.
The evidence disclosed that on Sunday morning, August 9, 1953, appellant drove his two-door sedan automobile from Altheimer, Arkansas, to Pastoria, Arkansas, carrying five other passengers. After remaining in Pastoria a few hours, the group started back. Deceased, who had come to Pastoria in another car, wanted to ride back with them, and though there were protestations that the car would be too crowded, he did get into the back seat. After driving a short way, appellant complained that he would be arrested by the police for overloading the car. Appellant stopped the car; deceased got out, walked around to the driver’s side, opened the door, and attempted to pull appellant from the car. The defense witnesses testified that deceased had a knife out and tried to use it on appellant, while the State’s witnesses insist that there was no knife involved in the fracas. The deceased was restrained by the other passengers, and appellant drove off leaving deceased and two others in the road.
The shooting occurred later that day in the Busy Bee Cafe in Altheimer, and the testimony as to what happened there is in sharp conflict. Defense witnesses testified that appellant was in the cafe inquiring about his watch, which had apparently been lost in the earlier scuffle, and that deceased came in afterwards. They stated that appellant started backing from him toward the door, and that deceased advanced on him with his hands in his pockets, a position which suggested to appellant that deceased was preparing to pull a knife.
Opposed to this testimony, Lee Withers, a witness for the State, testified that deceased was already in the cafe when appellant entered, and that the shooting occurred immediately upon appellant’s entrance. Neither defense nor State witnesses testified to hearing any argument preceding the shooting, and no one saw a knife either in deceased’s hand or about his body, though no one searched his pockets.
Appellant argues that even when considered in the light most favorable to the verdict the foregoing evidence is insufficient to show the malice, premeditation and deliberation required by Ark. Stats. § 41-2205 for a conviction of first degree murder.
It is a rule of long standing and repeated application in this state that when the homicide is without provocation and done with a deadly weapon, the law will imply malice. McAdams v. State, 25 Ark. 405; Wooten v. State, 220 Ark. 755, 249 S. W. 2d 968. Here, the lethal character of the weapon is unquestioned. When this fact is considered with the evidence that no argument or threats preceded the shooting, and that appellant began shooting immediately upon entering the cafe, the July’s finding of malice on the part of appellant was amply sustained.
The requirement of premeditation and deliberation presents a more difficult problem, for this court has held that these two elements of first degree murder will not be inferred or presumed from the mere fact alone that the killing was done with a deadly weapon. Weldon v. State, 168 Ark. 534, 270 S. W. 968. However, recognizing the difficulty of establishing by proof the existence of a mental process and a state of mind, this court has approved the rule that premeditation and deliberation may be inferred as a matter of fact from the circumstances of the case, such as the character of the weapons used, the nature of the wounds inflicted, and the accused’s acts, conduct, and language. Bramlett v. State, 202 Ark. 1165, 156 S. W. 2d 226. According to the evidence adduced by the State in the case at bar, appellant had had trouble with deceased earlier in the day and had lost a watch which he prized very highly in the struggle. He then procured a loaded .32 calibre pistol and proceeded to a crowded cafe on Sunday afternoon in search of the deceased. Immediately upon entering the cafe he began shooting and killed the deceased. This testimony was sufficient to warrant the court in submitting to the jury the question of whether or not the appellant acted with premeditation and deliberation when he killed Henry Allen and the jury’s finding on this issue is conclusive.
Appellant also argues that his plea of self-defense was fully established and that-deceased was the aggressor at the time of the shooting. In this connection it is contended that certain witnesses for appellant were in a better position than Lee Withers to observe what occurred at the time of the shooting. Under our system of jurisprudence these were matters within the exclusive province of the jury. Since there was a sharp dispute in the testimony as to what occurred immediately preceding the shooting, it was for the jury as the sole judges of the credibility of the witnesses to determine the verity and weight to be given the testimony. The law of self-defense and other issues were presented to the jury under instructions which have been repeatedly approved by this court.
The record presents no reversible érror, and the judgment is affirmed. | [
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Ed. F. McFaddin, Justice.
From a judgment in his favor for $100.00, the plaintiff has appealed; and claims errors to have been committed which caused the Jury verdict to be much less than the plaintiff thinks it should have been. We will refer to the parties as they were styled in the Trial Court.
Plaintiff Stair sued Willie Jones and his son, Herman Jones, for damages for cutting and removing timber from plaintiff’s lands; and in aid of the damage suit, plaintiff had a writ of attachment levied on personal property of the defendants. The- defendants filed (a) a general denial to the complaint, and (b) a motion to dismiss the attachment, claiming damages of $500.00 for wrongful levy. The case was submitted to the Jury on both issues — i.e., the unlawful cutting of the timber, and the attachment question — and. resulted in a verdict for the plaintiff for $100.00. On appeal to this Court, the plaintiff lists for reversal the three assignments which we now discuss:
I. Testimony and Instructions About Defendants’ Tax Certificates. In accordance with Peek v. Render-son, 208 Ark. 238, 185 S. W. 2d 704, the Trial Court instructed the Jury as to the three separate measures of damage available to one who seeks to recover for timber taken from his land by a trespasser — i.e., treble damages under what is no.w § 50-105, Ark. Stats.; double damages under what is now § 54-203, Ark. Stats.; and the common law rule of simple damages. The correctness of these instructions is not questioned. In the evidence, the defendants admitted that they cut approximately 5,311 feet of timber from Stair’s land, and that such timber had an actual value of approximately $20.00 per thousand. Under the rule of Sturgis v. Nunn, 203 Ark. 693, 158 S. W. 2d 673, the defendants would not be liable for treble damages if they honestly believed they owned the timber and had a right to cut it. Under the rule of Rosengrant v. Matthews, 55 Ark. 440, 18 S. W. 541, the defendants would not be liable for double damages if they had probable cause to believe and did believe that the land was their own.
The defendants testified that they thought they were cutting timber from a 40-acre tract immediately east of the plaintiff’s land, and that they were innocently mistaken in getting on the plaintiff’s lands. In support of such claim of innocence, the defendant, Willie Jones, testified that the forty acres immediately east of the plaintiff’s land had been owned by Koppers Company; and Jones had talked to representatives of Koppers, and “they told me if I wanted it, it was mine, I considered that good enough.” Thereupon, Jones learned that the Koppers ’ 40-acre tract was delinquent, and purchased it at the County Clerk’s sale for taxes. To the above testimony there was no objection. When defendants offered to introduce the Certificate of Purchase, dated November 10,1952, the plaintiff objected. The Court sustained the plaintiff’s objection, and the Certificate of Purchase was not introduced; but later, when Willie Jones was on the witness stand, he gave the following evidence without objection:
‘ ‘ Q. At the time you cut the timber on the Koppers land, state whether or not you honestly believed you owned it and had a right to cut it.
“A. I absolutely did.
“Q. You had a certificate of purchase where you bought it at a delinquent land tax sale?
“A. I sure did.
" Q. You honestly thought you had a right to cut it?
"A. Yes, sir.”
Because the plaintiff allowed the foregoing testimony to be admitted without objection, he is in no position to claim that the Court committed any error in the admission of evidence about the tax certificate.
The plaintiff’s requested Instruction No. 6 read:
“There has been some testimony introduced here about a tax sale purchase. This will instruct you that the purchaser at a tax sale has no right to cut the timber on a tract that he purchased at such sale.”
The Court modified the Instruction, and gave it as follows:
“You are further instructed, there has been some testimony introduced in this ease with reference to purchase of the property involved at a tax sale and the payment of taxes; this evidence will be considered by you only in determining the willfullness or intention of the defendants. ’ ’
Of course, the tax certificate gave Jones no right to cut the timber. (See Hendrix v. Black, 132 Ark. 473, 201 S. W. 283.) But the question was not whether Jones had a right to cut the timber, but whether he acted willfully and with no cause for honestly believing he had a right to cut the timber. The fact that he had the conversation with Koppers Company (admitted without objection, as heretofore copied), coupled with the fact that he had a tax certificate (which fact was admitted without objection, as heretofore copied), together justified the Court in submitting to the Jury the issue contained in the modified Instruction No. 6, in regard to Jones’ good faith. The finding of the Jury, awarding plaintiff only simple damages, shows that the Jury evidently believed that Jones had not acted willfully, or without probable cause. Because of the issues here concerned, we find no error in the Instruction as given.
II. Refusal to Admit Photographs. Plaintiff, Stair, had five photographs, which the Court refused to admit in evidence, and such refusal is assigned as error. Pour of these photographs depicted the blaze marks on the South boundary of Stair’s 40-acre tract. The fact that there were blaze marks on the South line of Stair’s land would not have clarified the issues in this case, because the trespass was not from a North to South direction, but from an East and West direction. The South line of Stair’s land was an extension of the South line of the 40-acre tract that Jones thought he was on when he cut the timber. So these four photographs in no way clarified the issues. The fifth photograph offered by Stair showed the stumps of two or three trees. The cutting was admitted, so these photographs added nothing to clarification.
We have repeatedly held that the admission or rejection of a photograph is a matter which rests largely in the discretion of the Trial Court. Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79, and Powers v. Long, 221 Ark. 400, 253 S. W. 2d 359, and other cases therein cited. In the case at bar, it is not shown that the Trial Court abused its discretion in rejecting the tendered photographs.
III. Submitting the Attachment Issue to the Jury. In Ward v. Nu-Wa Laundry, 205 Ark. 713, 170 S. W. 2d 381, we said:
“In this connection, we point out that the better practice is for the trial court to determine the existence of the ground of attachment rather than to submit that issue to the jury. As was stated in Von Berg v. Goodman, 85 Ark. 605, 109 S. W. 1006: ‘The statute contemplates the trial before the court of the issue raised as to the existence of grounds for attachment, and not by trial by jury. It was not reversible error, however, to submit this issue to the jury, though it is the proper practice for the court to determine this issue, instead of submitting it to a jury. Holliday v. Cohen, 34 Ark. 707.’ See, also, Bank of Wynne v. Stafford & Wimmer, 129 Ark. 172, 195 S. W. 397; Ford v. Wilson, 172 Ark. 335, 288 S. W. 712.”
In the case at bar, as in Ward v. Nu-Wa Laundry, the Jury verdict sustained the attachment, and the Court rendered judgment in accordance therewith; so we fail to see how the plaintiff, Stair, has shown prejudicial-error to have been committed against him. He claims that when Jones testified as to how much he was inconvenienced by the levy of the attachment on his truck, the effect was to arouse the sympathy of the Jury in Jones’ favor, and to materially reduce the plaintiff’s verdict. That argument is highly speculative: the main issue was whether the plaintiff was entitled to single, double, or treble damages. The Jury awarded, him single damages, and we see no sound foundation on which to base an argument that the verdict for single damages was caused by the evidence as to the defendants’ inconvenience because of the attachment. At all events, the Jury sustained the plaintiff’s attachment, so certainly the “sympathy” did not go far enough to give the defendants a verdict. It would have been far better for the Court to have settled the attachment issue, without submitting it to the Jury; but in view of the verdict for the plaintiff, we do not see how the plaintiff can now be heard to claim prejudicial error on the attachment issue.
Affirmed.
This quoted testimony appeared on Tr. 105, and was admitted without objection. There had previously been objections to other portions of the testimony, but there was no objection to this.
The plaintiff’s objection was:
“Plaintiff objects to the introduction of the certificate or to questions relating to it generally and for the following specific reasons: 1. A certificate of purchase conveys no interest in either land or timber and would be no justification for cutting timber. 2. A certificate of purchase is redeemable within the period of redemption and in this particular case, F. F. Mobley and Son Lumber Company did properly redeem this land and therefore defendant’s certificate of purchase would convey no right, either to title to the land or timber on the land.” | [
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Ed. F. McFaddin, Justice.
This is an appeal from a default judgment.
On October 10, 1952, Bond (appellee here) filed suit in the Chancery Court against Manhattan Credit Company (appellant here) and James Hampton. Both defendants were duly and personally served with summons.
The allegations of the complaint will be subsequently stated. Both defendants wholly made default; and on April 1, 1953, the Chancery Court rendered a decree granting the plaintiff the prayed relief. Then on September 12, 1953, the Manhattan Credit Company prayed an appeal out of this Court by filing a transcript containing (a) the complaint; (b) the statement as to serv ice of summons; and (c) the decree. Hampton has not appealed, but in view of the result to be reached here, we need not consider the effect — if any — of such failure on the rights of Manhattan Credit Company.
We have several cases which state the extent of review in this Court when the appeal is from a default judgment. Some of these cases are: Benton v. Holliday, 44 Ark. 56; Sproull v. Miles, 82 Ark. 455, 102 S. W. 204; Euper v. State, 85 Ark. 223, 107 S. W. 179; Neimeyer v. Claiborne, 87 Ark. 72, 112 S. W. 387; Koons v. Markle, 94 Ark. 572, 127 S. W. 959; Thompson v. Hickman, 164 Ark. 469, 262 S. W. 20.
In Neimeyer v. Claiborne, supra, we said:
“ ‘When a judgment is entered by default, it will be presumed that whatever proofs were necessary to support it were duly presented and taken. ’ 23 Cyc. 763. The only question here is, were the allegations of the complaint sufficient to authorize the judgment? Benton v. Holliday, 44 Ark. 56; Euper v. State, 85 Ark. 223.”
Under the above stated rule as to review, we examine the complaint in the case at bar to see if its allegations were sufficient to authorize the decree rendered. The complaint alleged: that in February, 1952, the plaintiff purchased an automobile from both defendants for a total of $1,595; that $400 was paid by delivery of another car, and $135 was paid in cash, leaving an unpaid balance of $1,060; “that the defendants fraudulently and without knowledge of the plaintiff changed the selling price of the car to $1,957”; “that the difference between $1,595 and $1,957 was added on and charged by the defendants as interest”; and that the said unlawful interest made the contract usurious and null and void. The prayer of the complaint was that the contract be declared void because of the “fraudulent and usurious interest charges.”
The decree recites the default of the defendants and also that “said cause was submitted to the Court upon the complaint of the plaintiff, together with documentary exhibits showing the amount paid by the plaintiff on said conditional sales contract and also invoice statement from the defendant.” Then, after making factual findings, the decree granted the plaintiff the prayed relief. Thus, it is clear that the complaint alleged a cause of action that authorized the decree rendered.
Manhattan urges in this Court that the transaction occurred in February, 1952, which was before our decision in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973; and that Manhattan is entitled to prevail because of our decisions in Crisco v. Murdoch, 222 Ark. 127, 258 S. W. 2d 551; and Pacific Finance Corp. v. Tinsley, 222 Ark. 723, 262 S. W. 2d 282; the effect of the two last cited cases being that conditional sales contracts entered into and valid under existing authorities before Hare v. General Contract Purchase Corp. would not be declared void by the Hare opinion. But the burden in the case at bar was on Manhattan Credit Company to appear and defend in the Trial Court and offer facts that would bring the case at bar within the purview of the Crisco and Pacific cases. Such was not done. Bond’s complaint alleged fraudulent conduct as well as resulting usury. For aught that here appears, the evidence offered in the Trial Court might have established facts entirely at variance from those in the Crisco and Pacific cases. Furthermore, the allegation of fraud, when coupled with the resulting usury, did not require that Bond offer restitution, as a prerequisite to relief under our usury laws.
We conclude that the allegations in Bond’s complaint authorized the decree rendered in his favor. That is the test in an appeal from a decree rendered on default after due service.
Affirmed. | [
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Griffin Smith, Chief Justice.
Stroud and Watkins sought to enforce a lien for $332 representing the amount claimed to be due them by Montgomery for drilling a well, completed Nov. 11, 1950. The notice was filed with the clerk of the circuit court February 5, 1951. This was followed by a suit in equity to foreclose.
The defendant first demurred, then answered, but finally elected to stand on his demurrer. Reliance is placed upon §§ 51-613, 614, and 615, Ark. Stat’s. Specifically it is contended that jurisdiction to foreclose the lien is confined to circuit court.
The language of § 51-615 is that all liens created by virtue of the Act of 1895 [§ 17], Ark. Stat’s, § 51-615, shall be enforced in the circuit court of the county wherein the property on which the lien is attached is situated.
Wording of the Act lends substance to appellant’s contentions, but our decisions are in harmony with Rockel on Mechanics ’ Liens, § 198, where it is said the Act usually provided by statute is not regarded as an exclusive remedy. Mr. Justice Hart, in Martin v. Blytheville Water Co., 115 Ark. 230, 170 S. W. 1019, wrote the court’s opinion approving the statement that legislation of this nature is merely cumulative, ‘ ‘ and the debtor may pursue whatever other remedy he may have to secure payment.” Judge Hart’s opinion was written in 1914, nearly twenty years after the Act of 1895 went into effect, and it cited Murray v. Rapley, 30 Ark. 568, and Kizer Lumber Co. v. Mosely, 56 Ark. 544, 20 S. W. 409.
The decision in Carr v. Hahn & Carter, 126 Ark. 609, 191 S. W. 232, goes directly to the point and is unaffected by collateral considerations. “The controlling issue”, said Mr. Justice Humphreys, “is whether the chancery court had jurisdiction and whether, having jurisdiction, personal service outside of Lincoln County, where the suit was instituted, was sufficient. Our court has held that the chancery courts of this state have concurrent jurisdiction in the enforcement of our mechanics ’ lien law”.
An illustration of concurrent jurisdiction where by statute circuit court alone is named is to be found in Judge Hart’s opinion (Adams v. State, 153 Ark. 202, 240 S. W. 5). It was there said that “there are many instances of the circuit court and other courts having concurrent jurisdiction. [An example is] that chancery courts have concurrent jurisdiction with that given by statute to the circuit courts in the enforcement of the mechanics’ lien laws of the state”.
The precise question was expressly decided in Sims v. Hammons, 152 Ark. 616, 239 S. W. 19, where it was said that equity has jurisdiction under its general powers to enforce liens. Attention was called to the annotated section relied upon by appellant. There is this state ment: “. . . We have frequently held that [mechanics’] liens are enforceable in equity, notwithstanding the remedy given at law”.
Affirmed.
In the Blytheville Water Co. case equity had acquired jurisdiction through appointment of a receiver, but Judge Hart’s opinion made no distinction on that account. | [
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Robinson, J.
A petition to set aside an order admitting to probate the will of Gr. H. B. Noblit was denied, and petitioner has appealed. Both the will and the codicil are written in longhand, and may have been written by the testator; however, neither was admitted to probate as a holographic will or codicil.
The will proper leaves both the real and personal property to the widow, and does not mention the testator’s daughter, Maude; but the codicil bequeaths to her the sum of $1.00. There is an attestation clause to the will, but none to the codicil. However, the codicil is signed by two witnesses with the word “witness” following each signature. Of course, if the codicil which names the daughter is not valid, she would inherit the same as if there were no will, since she is not mentioned in the will. Ark. Stat. § 60-507. Yeates v. Yeates, 179 Ark. 543, 16 S. W. 2d 996, 65 A. L. R. 466. However, the codicil is valid although it has no attesting clause.
“A will is perfectly valid though there is no attestation clause.” Atkinson on Wills, page 297.
In an annotation on the subject in 76 A. L. R. 617, there is cited a long list of cases from numerous states holding that there is a presumption of proper execution even though there is no attestation clause where the attestation is merely by subscription or followed by the word “witnesses.”
“Although there is some authority to the contrary, the better rule is that a presumption of due execution may arise on proof of the genuineness of the signatures of the testator and the attesting Avitnesses, notwithstanding the attestation clause of the will is incomplete or defective in failing to recite to observance of some formality required by statute in the execution of wills. In fact, according to many authorities, a due and proper execution of a will may he presumed on proof of the circumstances stated above, even though there is no attestation clause, as where the witnesses are merely indicated to be such by the word ‘witnesses’ appended to their signatures.” 57 Am. Jur. 577.
Appellant argues that on the authority of McPherson, Executor, v. McKay, Admmistrator, 207 Ark. 546, 181 S. W. 2d 685, a duly attested will can not be superseded by a holographic codicil. Here, however, there are attesting witnesses to the codicil and it is therefore not to be classed as holographic.
Affirmed.
Mr. Justice Ward not participating. | [
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George Rose Smith, J.
This dispute centers upon the question of whether the appellee, W. J. Hunter, had a deposit of $1,200 in the Bank of Dierks when it was found to be insolvent. By an arrangement with the Federal Deposit Insurance Corporation (FDIC) the liabilities of the insolvent bank were assumed by the appellant, Horatio State Bank. This suit was brought by Hunter to recover the sum of $1,200 after the appellant had refused to recognize his status as a depositor. At the trial below the verdict and judgment were for the plaintiff.
It is contended that the defendant was entitled to a directed verdict, but we think a jury question was presented. Hunter testified that when he closed his account with the Bank of Dierks about a year before its failure, he was dissatisfied with the conduct of the bank officials and with their statement of the amount to his credit. He believed that he then had on deposit at least $1,200 more than the amount shown by the bank. The bank failed in August, 1952, and the FDIC undertook to make good the losses to insured accounts. It appears from the testimony that the FDIC concluded from its investigation, the details of which are not shown, that Hunter had a deposit of $1,200 at the time the bank closed its doors. Apparently the FDIC re-established a credit to Hunter in that amount. Thereafter the liabilities of the defunct institution were assumed by the appellant, which took over all sound assets and received from the FDIC cash equal to the excess of insured liabilities over these assets.
On September 2, 1952, the appellant wrote a letter to the appellee, stating that “your deposit in the sum of $1,200 in the Bank of Dierks, as appearing on the records of that bank at the close of business on August 16, 1952, has been assumed by this bank.” The appel lant’s president testified that the records which he received from the FDIC showed the balance in Hunter’s account to be $1,200. In March of 1953 the FDIC apparently decided that it had been in error in setting up the $1,200 credit to Hunter. It requested the appellant to refund that sum, and, since Hunter had allowed the credit to remain on deposit, the appellant extinguished his account by paying the $1,200 to the FDIC. That action resulted in the present suit.
Thus the jury had a choice of three grounds for finding that Hunter had a $1,200 deposit in the Bank of Dierks: (a) Hunter’s testimony to that effect, (b) the appellant’s letter of September 2, and (c) the testimony of the appellant’s president. It is now argued that Hunter’s testimony is not as positive as it might be and that the FDIC re-established Hunter’s account solely on the basis of information supplied by Hunter himself. One flaw in this argument is that on the evidence the jury was not required to infer that the FDIC relied only on Hunter’s statements in allowing him a credit of $1,200. No one who participated in the FDIC investigation was called as a witness. The record does not disclose why the FDIC set up the credit now in dispute, nor why it later decided that it had been mistaken. Hunter’s proof made a prima facie case, shifting to the appellant the burden of going forward with evidence to the contrary. It cannot be said that Hunter’s proof was incontrovertibly overcome.
Even though a case was made for the jury the judgment must be reversed for the giving of this instruction, at the plaintiff’s request: “The court instructs the jury that the statement that defendant bank furnished plaintiff on March 30, 1953, shows conclusively that plaintiff had a balance of $1,200.00 on March 21, 1953. It therefore devolves upon the defendant bank to prove by a preponderance of the evidence that the plaintiff authorized the defendant bank to pay the $1,200.00 to the FDIC and charge it to plaintiff’s account, and that the defendant bank did so under and by virtue of such authority. So you are told in this connection, if you find from a preponderance of the testimony that the defendant bank furnished plaintiff a statement showing that on or before March 21, 1953, the plaintiff had a balance of $1,200.00' in his account and that it was withdrawn without any authority from the plaintiff, or without his knowledge and consent, then you must find for the plaintiff. ’ ’
The vital question in the case was whether the FDIC acted under a mistake of fact in crediting Hunter’s account with the sum in dispute. This instruction in effect decided that question in the plaintiff’s favor, by stating that the appellant’s action in sending out a bank statement some six months later “conclusively” showed that blunter’s bank balance was correct. Since there was no proof whatever that Hunter authorized the appellant to pay the money to the FDIC, this instruction was in substance a peremptory charge for the plaintiff. It is true that a similar instruction was approved in Bank of Hatfield v. Chatham, 160 Ark. 530, 255 S. W. 31, but in that case the amount of the depositor’s account was not in controversy, while here that was the main issue to be determined by the jury.
Beversed and remanded for a new tidal.
Justices MoFaddin and Millwee think the judgment should be affirmed. The Chief Justice and Justice Holt think the judgment should be reversed and the cause dismissed. Thus a majority vote to reverse the judgment but not to dismiss the cause. | [
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Bobinson, J.
The question is whether a usurious rate of interest was charged for a loan of money. Appellant, Arthur H. O’Brien, filed suit in Pulaski Chancery Court alleging that on the 2nd day of March, 1952, he applied to appellee, Atlas Finance Company, for a loan of $100; that the finance company agreed to make the loan but required him to execute his note in the sum of $114.04 due one year from date, and to secure the note by a chattel mortgage on a Plymouth automobile; in addition he was required to purchase a savings or investment certificate bearing interest at the rate of 2% per annum issued by the finance company in the sum of $114.04 and he was to pay for this certificate in 12 equal monthly installments; that as a matter of fact he did not want to purchase a savings certificate or make an investment in defendant’s company, but only desired a loan of money; and the requirement of the loan company that he purchase an investment certificate was a mere cloak to cover a usurious loan. O’Brien alleged that the interest exacted of him amounted to usury and asks that the note and mortgage be cancelled. On a hearing the Chancellor held the loan was not usurious, and O ’Brien has appealed.
No one contends the loan would not be usurious if no investment certificate had been issued, and the agreed monthly installments were made in repayment of the loan. The evidence is convincing that in dealing with the loan company, O’Brien’s sole purpose was to obtain a loan of $100 to enable him to purchase a television set, and the evidence is equally clear that appellee, Atlas Finance Company, is in the money-lending business. The sale of the investment certificate to O’Brien was merely a part of the loan transaction; the effect was to enable the loan company to collect from O’Brien monthly installments in repayment of the loan without crediting such payments to the loan; thus it would appear that O’Brien had the use of the $100 for the full 12-month period when as a matter of fact he had the use of the whole $100 for only one month. If this transaction is not usurious, then any transaction can be dressed up so as not to constitute usury although it would be clear that it was merely a scheme to evade the usury laws.
In Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, the court quoted from Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516, as follows: “Yet it is apparent that if giving this form to the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter. Courts, therefore, perceived the necessity for disregarding the form, and examining into the real nature, of the transaction. If that be in fact a loan, no shift or device will protect it.”
In Winston v. Personal Finance Co. of Pine Bluff, 220 Ark. 580, 249 S. W. 2d 315, we quoted from German Bank v. DeShon, 41 Ark. 331, as follows: “The 13th section of Article 19 of the Constitution of this State declares that ‘all contracts for a greater rate of interest than ten per centum per annum shall be void as to principal and interest. ’ This section is clear and unambiguous. With the wisdom and policy of it the courts have nothing to do. It is their duty to carry it into effect according to its true intent, to be gathered from its own words, without regard to the hardships incident to the faithful execution of such laws. ’ ’
In the Winston case it was further reiterated that investment certificates or stock certificates could not be used as a cloak for usury, and that transactions in any guise whatever, which are contrary to the Constitution, are null and void.
Appellee places great reliance on the cases of Simpson v. Smith Savings Society, 178 Ark. 921, 12 S. W. 2d 890, and Hickingbotham v. Industrial Finance Corp., 192 Ark. 429, 91 S. W. 2d 1023. We agree that both cases are in point and justify the loan company in using the plan here involved. In each of these two cases we held the loan and purchase of the certificate were, in legal contemplation, two separate transactions; but further study and observation now convince us that the loan and the purchase is only one transaction, and that the result is usurious. Many people, however, have dealt on the strength of the two aforesaid holdings which have become a rule of property and must not be overruled retrospectively. While the language in Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S. W. 2d 1009, might have been considered as casting a doubt on the Simpson case and .the Hickingbotham case, nevertheless the Simpson case was subsequently cited in Winston v. Personal Finance Co., supra.
Therefore in the case at bar we are confronted with the same kind of situation that confronted us in Hare v. General Contract Purchase Corp., supra . . . that is, we cannot overrule retrospectively the holding in cases directly in point which have become a rule of property; so we affirm the judgment in the case at bar, but we hereby give the public this caveat.'
In any transaction entered into after the date of this opinion we will consider a course of dealings like that in the Simpson case, the Hickingbotham case, and the case at bar to be one transaction, and we will test it by the constitutional mandate against usury.
The caveat in the Hare case was not broad enough to apply to a transaction like the one in the case at bar; but the present caveat is to apply to all kinds of loans. However, we do not mean to impair our cases such as Reeve v. Ladies’ Bldg. Assoc., 56 Ark. 335, 19 S. W. 917, 18 L. R. A. 129; Black v. Tompkins, 63 Ark. 502, 39 S. W. 553; and Farmers’ Savings & Bldg. & Loan Assoc. v. Ferguson, 69 Ark. 352, 63 S. W. 797, holding that loans made by true building and loan associations are not usurious; but there is a vast difference between the plan used by appellee and that of building and loan associations, although the plans are similar in form.
The judgment is affirmed with the caveat as above stated.
Justice George Eose Smith not participating. | [
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Ward, J.
This appeal involves the acquisition of a passageway over occupied land by public usage for more than seven years.
On May 15, 1952, appellee, Light Gin Association, filed a petition in the Chancery Court alleging that appellant, Vance Cupp, without right blocked the road in dispute by placing an obstruction of four steel posts therein on or about May 7, 1952. The prayer was that Cupp be ordered to remove the obstruction and that he be permanently enjoined from further obstructing the road. There was also an allegation of and a prayer for damages, but none was allowed by the trial court and this issue is not raised here. An answer was filed denying that the road in question was a public road, that appellee had suffered any’ damages, and that he had any right to maintain the action. After hearing testimony introduced by both sides the chancellor found the issues in favor of appellee, ordering appellant to remove the obstructions and enjoining him from interfering with the use of the passageway. From this ruling of the chancellor appellant has appealed.
In' order to facilitate an understanding of the issues and the relevancy of the testimony we will attempt to create a mental picture of the physical surroundings as disclosed by the record.
Highway No. 25 runs east and west and the property here involved lies along the south side of said highway and is a part of the East half of the NW% of the NE14 Section 34, Township 17 North, Range 3 East. Beginning at a point on the said highway near the northeast corner of the property a WPA road runs southwest at an angle of 45 degrees and forms the east and principally the south boundary of the property here involved. Appellant owns a strip of the said land along the south side of Highway No. 25 approximately 200 feet wide from north to south, and appellee owns the rest of the land south of appellant’s land. On a plat introduced in evidence there are certain buildings, roads and lines indicated which we will attempt to describe. There is a blue line running east and west dividing the two pieces of property. The road in dispute, approximately 25 feet wide, leaves Highway No. 25 and runs south across appellant’s property on down to the blue line and, as appellee contends, thence due south to connect with the WPA road, but, as appellant contends, after the road in dispute leaves the blue line going south there are other ways that can be and are used to get to the WPA road. On appellant’s property there is a house just east of the disputed road, another house just west of the road, and still another house further west. Appellant also has a chicken house on the south side of his property near the WPA road. On appellee’s property the plat shows the following buildings: Just south of the blue line and near the WPA road is a store building, some 200 or 300 feet south of the blue line and slightly to the west is a gin, near the gin on the west side is a cotton house, and just to the south of the gin is a seed house. From the plat it appears that the distance from Highway No. 25 south to the WPA road is some 500 to 600 feet.
All of the East half of the NW% of the NE% described above was owned by D. S. Robinson for some years prior to Ms death in 1938. In 1943 Robinson’s heirs deeded to Gramling, et al. by an indefinite metes and bounds description all of the land south of the blue line; a few years later Gramling, et al. deeded the same land to Kennemore; and on April 14, 1952, Kennemore deeded to appellee. Appellant received a deed to Ms land January 6, 1947, from Robinson’s heirs.
As stated by appellant, “There is little conflict in the testimony of the witnesses in this case.” There has been a gin on the present location since before Robinson died in 1938 and before that time there was a stave mill located at the same place. As early as 1930 and perhaps before that the disputed road was used by people leaving Highway No. 25 to get to the mill and the gin, and there is testimony by several witnesses that the road has been used more than seven years by people in general to travel from Highway No. 25 to the WPA road and vice versa. At first there was a tram road on the location of the present disputed road for the benefit of the mill but it was later abandoned and then the public began using the same passageway. Kennemore who has managed the gin since 1943 says that he graveled the disputed road several times and paid for the gravel; that the county grader graded the road a few times— sometimes when he requested it and at least one time when he didn’t. Others testified that the road had been graded by the county machinery. Appellant admits putting gravel on this road and also on other passageways leading from his property to the WPA road. All the witnesses agreed that the road had been used frequently and without any objections being raised and all agreed they had not gotten permission from anyone to use the road. Appellant himself testified the public has been using this passageway day and night for a period of 25 or 30 years, and he didn’t know of anybody questioning their right. The pictures introduced in evidence show clearly that the road is well defined particularly from Highway 25 to the blue line but south of the blue line it appears that traffic could reach the WPA road by at least one other route. We think the weight of the testi mony shows that most of the traffic particularly from Highway No. 25 to the WPA road was in a direct south line and the pictures show that this passageway was open and of course the shortest route. There is some testimony on the part of appellant indicating that the disputed road was originally established and maintained by Robinson and his successors in title solely for the purpose of accommodating people who desired to reach the gin and the mill by way of Highway No. 25. While the evidence does show such customers did use the road there was other testimony that the people in general also used the road.
Appellant ably contends that under the above fact situation the use of the disputed road by the public should at law be considered permissive. If this rule is to be followed it also follows, according to many decisions of this court, that seven years of such permissive usage would not create a road by prescription or adverse usage. In support of this contention appellant calls attention to the rule many times announced by this court as stated in the case of Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986, to this effect:
. . where the easement received is against property that is uninclosed it will be deemed to be by permission of the owner and not to be adverse to his title.” (emphasis supplied).
The record discloses that the land across which the disputed road runs is not and has not been inclosed.
In answer to the above contention appellee points out another rule also many times announced by this court, as also stated in the above cited case, which is as follows:
“. . . where the claimant has openly made continuous use of the way over occupied lands unmolested by the owner for a time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right.” (emphasis supplied).
In the case under consideration the record discloses that the land in question was occupied and that the usage of the road was unmolested by the owners.
Thus arises the difficulty of applying both rules to the facts of this case.
This same difficulty was noted in the case of Martin v. Bond, Trustee, 215 Ark. 146, 219 S. W. 2d 618. In an apparent effort to harmonize the two rules the court there interpreted language in the Boullioun case as meaning that “uninclosed” lands referred to lands that were open or “unoccupied.” Following this reasoning the court then held, in effect, that a question of fact was presented regarding the nature of the usage. The last sentence in the opinion reads:
“While the testimony is conflicting as to whether use of the road since 1938 has been adverse and under claim of right, or permissive, we cannot say that finding of the trial court is against the weight of the evidence as a whole.”
The holding in the above case is in harmony with the announcement in the recent case of Fullenwider v. Kitchens, 223 Ark.........., 266 S. W. 2d 281, which involved the same difficult question here presented, arid where we said:
“Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.”
Applying here the same reasoning used in the last two cited cases, we cannot say the finding of the trial court as to the character of the usage was against the weight of the evidence.
Finally, appellant argues that appellee, individually, has no right to maintain this action because it suffered no damage different from that suffered by the general public, but the answer to this argument is found in Langford v. Griffin, 179 Ark. 574, 17 S. W. 2d 296. It was there held that special damages accrued to one whose property abutted the closed road or alley way.
Affirmed.
Justice Bobinson dissents. | [
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Robinson, J.
This is an appeal from an order of the St. Francis Circuit Court dismissing an appeal from the municipal court of Forrest City because appellant failed to make or file with the municipal court an affidavit stating “that the appeal is not taken for the purpose of delay, but that justice may be done,” as required by Ark. Stat. § 26-1302. It is the contention of appellant, Chicago, Rock Island & Pacific Eailroad Company, that Ark. Stat. § 22-707 is controlling and that this section does not require the filing of the affidavit mentioned in § 26-1302.
Section 22-707 is § 7 of Act 60 of 1927 as amended by Act 280 of 1941; it does not provide for the making of the affidavit mentioned. However § 22-708, which is § 8 of the 1927 Act, provides: “All provisions of the general laws applying to Police Courts in cities of the first class, and to the judges thereof, not inconsistent with the provisions of this Act, and all provisions of the general laws applying to Justices of the Peace not inconsistent with the provisions of this Act, or with the provisions of the general laws to Police Courts in cities of the first class and the judges thereof, shall apply with like force and effect to Municipal Courts and the Judges thereof. ’ ’
In Arkansas Brick & Tile Co. v. Crabtree, 172 Ark. 752, 290 S. W. 361, the court said: “The law requires an affidavit for an appeal from a justice court to the circuit court as a prerequisite to the circuit court’s jurisdiction to entertain an appeal, and, unless waived, is ground for dismissal . . . This is likewise the law as to appeals from municipal courts. Act 87 of the Acts of 1915, § 9, page 342-347.” It is the contention of appellant that the Crabtree decision, rendered January 31, 1927, was prio.r to the adoption of the 1927 Act as amended hy Act 280 of 1941, and that the opinion only deals with- the 1915 Act; thus appellant says the decision in the Crabtree case is not controlling. However, that part of the 1915 Act on which the Crabtree case is based is identical with the 1927 Act, nor did the 1941 Act amend this section of the 1927 Act, there being no change with reference to requiring an affidavit as a prerequisite to an appeal from the municipal court to the circuit court. Neither Act specifically mentions the necessity of making such an affidavit; however, § 9 of Act 87 of 1915, § 8 of Act 60 of 1927, and Ark. Stat. § 22-708, quoted above, are identical; and as construed in the Crabtree case, require the affidavit as provided by Ark. Stat. § 26-1302. None of these sections are mentioned in the 1941 Act, but appellant contends they were repealed by implication insofar as requiring an affidavit for appeal.
Act 280 of 1941 amends Act 60 of 1927, Ark. Stat. § 22-707, by making it clear that the Act only applies to civil cases, and further that before the appeal can be lodged in circuit court certain costs must be paid, and that within five days after the payment of such costs the clerk of the municipal court shall lodge a transcript in circuit court. The appellant maintains that this amendment does away with the requirement of the affidavit as provided in § 26-1302; that $ 22-707 sets out all the steps necessary to perfect an appeal; and that hence § 26-1302 is repealed by implication.
We have held that where an act of the legislature deals with an entire subject anew, and it is apparent from the mere reading of the new act that it was the intention of the general assembly to cover the entire subject, plainly showing that the new act was intended as a substitute for the old act, there is a repeal by implication ; but repeals of this kind are looked on with disfavor. In Forby v. Fulk, 214 Ark. 175, 214 S. W. 2d 920, this court quoted with approval from Coates v. Hill, 41 Ark. 149, as follows: “Repeals by implication are not favored. To produce this result, the two acts must be upon the same subject and there must be a plain repugnancy between their provisions; in which case the latter act, without the repealing clause, operates to the extent of repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then this latter act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended as a substitute for the first. United States v. Tynen, 11 Wall 88, 20 L. Ed. 153.”
In addition to § 22-707-8, § 26-1301-24 deal with appeals from Justice of the Peace courts, and therefore in accordance with § 22-708 may be applicable in appeals from municipal courts. § 26-1302 also provides for a supersedeas bond and it could hardly be said a bond is no longer necessary to supersede the judgment. Hence it can not be said that Act 280 of 1941 covers anew the entire subject of appeals from municipal court to circuit court, thereby repealing by implication § 26-1302 requiring the affidavit.
The court was correct in dismissing the appeal because of the failure to file the affidavit. The judgment is therefore affirmed.
The Chief Justice and Justices Holt and Ward dissent. | [
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Robinson, J.
Appellant J. D. Parish was injured while riding as a guest in a truck owned by Ben M. Hogan and Company and being operated by Hogan’s employee, Piezel. The court directed a verdict for the defendant on the theory there was no evidence of willful and wanton misconduct on the part of Hogan’s driver which would sustain a verdict in favor of the appellant Parish.
Before a guest in an automobile can recover against the owner or operator, he must show that the automobile was being driven in a willful or wanton manner. Ark. Stats., § 75-915 and § 75-913. Here there is no evidence whatever of willfulness or wantonness on the part of the driver of the truck. For a full discussion of the terms “willful” and “wanton” see Steward, Adm. v. Thomas, 222 Ark. 849, 262 S. W. 2d 901.
The truck involved had an A-frame mounted on the rear extending upward for several feet. The mishap occurred when the driver, Piezel, attempted to cross a bridge and the A-frame came in contact with the superstructure of the bridge. Undoubtedly there is evidence that Piezel was negligent; he was either negligent in estimating the height of the A-frame in relation to the upper portion of the bridge, or he simply forgot about the A-frame being on the truck; but there is no evidence that such negligence amounted to willful and wanton misconduct. In fact, the appellant Farish testified: “Q. There was nothing said, no warning given you by Mr. Fiez.el? A. No, he thought it would go under there himself, I am satisfied, or he wouldn’t have pulled under there.” There is no evidence that the accident occurred from any other cause than that explained by the appellant, and his testimony does not make out a case of willful and wanton misconduct on the part of the driver of the truck.
The court was correct in directing the verdict, and the judgment is therefore affirmed. | [
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J. Seaborn Holt, J.
This is a case of alleged usury and arises out of a Conditional Sales Contract for the purchase of a Pontiac automobile by appellee, Dodge, on May 9, 1952, from the Dutch O’Neal Motors, Inc., — not a party here. The transaction occurred prior to the effective date of the caveat (June 30, 1952) in the case of Hare v. General Contract Purchase Corporation, 220 Ark. 601, 249 S. W. 2d 973.
Appellee alleged in his complaint, in effect, that on May 9,1952, he purchased the car in question from Dutch 0 ’Neal Motors, Inc. for $2,200, on which he made a down payment of $767, leaving an unpaid balance of $1,433, that at the time he signed a Conditional Sales Contract under which he was supposed to pay 5% on the unpaid balance, that later, after receiving a copy of the contract, he learned that a purchase price of $2,400 with an interest charge of $395 was stated therein, and an insurance premium charge of $162 on which appellant received a commission as agent and that the transaction was usurious and fraudulent. He asked that the sales contract and note he cancelled and title to the automobile vested in him.
O’Neal Motors answered separately with a general denial, specifically pleaded that the contract was a true time sales transaction and pleaded stare decisis as a complete defense. A nonsuit was taken as to it. General Contract Corporation answered with a general denial and also alleged it was a true time sales contract and stare decisis as a complete bar. In a cross complaint, appellant, General Contract Corporation, alleged default in making monthly payments by appellee, that it was the owner of the car of the value of $2,000, and prayed for judgment for its possession or value.
Trial resulted in a decree for appellee, Dodge. The decree recited: ‘ ‘ The court further finds as a matter of fact that $2,200 was the selling price of the Pontiac automobile. That there was credited on the $2,200, $767, as a down payment, leaving a balance of $1,433; that an insurance policy was issued protecting plaintiff and defendants for collision or upset; the cost of insurance being $162, leaving a balance to be financed of $1,595; that plaintiff was charged on such balance of $1,595, interest far in excess of 10% per annum.
‘ ‘ That actually this transaction was a loan of money from General Contract Corporation to plaintiff and a sale of personal property by Dutch O’Neal Motors, Inc. to plaintiff and that the contract showing a total price of $2,795 was a device to cover usury, and a fraud as to plaintiff. That there was no bona ficle credit price or time sale and that the whole scheme was one to evade and avoid the constitutional mandate against usury.
‘ ‘ That the note and contract should be declared void and that the lien securing same should be invalidated and the cloud on plaintiff’s title to the Pontiac automobile be removed.”
On the record presented, we hold that this case is governed by our opinions in Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S. W. 2d 551, and Aunspaugh v. Murdoch Acceptance Corp., 222 Ark. 141, 258 S. W. 2d 559, wherein the facts were substantially similar.
It is undisputed that the transaction here was con-summated on May 9, 1952, prior to the finality of our decision in the Hare case, above. The sales contract shows purchase by appellee of the car in question from Dutch O’Neal Motors, Inc. “Time differential price (credit purchase price) — $2,795.—Down payment, cash— $767,” payable $84.50 on or before June 24, 1952, and $84.50 on the 24th of each month thereafter. The bottom portion of the face of the instrument is a note signed by appellee, dated May 9, 1952, for $2,028, payable to the dealer in twenty-four consecutive monthly installments of $84.50 beginning June 24, 1952, with provision for acceleration of balance upon default of any installment. The reverse of the sales contract shows assignment by the dealer with warranty of validity of the instrument, that it was read by appellee and that all statements were true, etc.
A Retail Buyers Order dated May 9, 1952, signed by appellee contains the following recital: “Cash delivered price in North Little Rock — $2,421.—Cash on delivery— $767. — Bal. 24 notes of $84.50 each starting 45 days— $1,633.”
Appellee, a licensed attorney, admitted signing the sales contract here in question. He intended to purchase on a time, or credit, basis and was credited with a down payment of $767 and agreed to pay twenty-four monthly payments of $84.50 each. He testified: “A. That was my agreement to pay twenty-four notes at $84.50, and I just told you that $767, that is $600 plus $167, I knew I was getting credit for that, that is right. * * * It was my understanding I was to pay twenty-four notes at $84.50. That would total up to $2,200 plus insurance, plus 5% interest. That was it. As far as those additional figures in there, I had no understanding of that at all.”
The transaction here appears to have been consummated under the accepted practice in this State prior to the Hare case, above, and in accordance with our holdings in the Crisco v. Murdoch Acceptance Corp. and Aunspaugh v. Murdoch Acceptance Corp. eases, above, the decree must be reversed.
It could serve no useful purpose to reiterate what we said in those cases. Accordingly, the decree is reversed and the cause remanded with directions to enter a decree consistent with this opinion. | [
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George Rose Smith, J.
This is a suit brought by the appellant, Berry Asphalt Company, (a) to recover judgment for $5,023 for asphalt sold to the North Little Rock Asphalt Company, a corporation that is now insolvent, (6) to recover $1,910 of this account from Western Surety Company, as surety upon a contractor’s bond executed by the insolvent company, and (c) to reach by equitable garnishment the sum of $300 which Street Im provement District No. 567 of Little Bock is said to owe tlie insolvent concern. On these issues the chancellor (a) entered judgment,by default for the amount sued for, (5) held that the suit upon the contractor’s bond was filed too late, and (c) ruled that the $300 held by the district was not reached by this proceeding. This appeal brings issues (b) and (c) to us.
In 1950 District 567 and a companion district employed the North Little Bock Asphalt Company to do certain paving work for the districts. The agreement required the contractor to furnish two bonds, both of which were executed by the contractor as principal and by AVestern as surety. The work was substantially completed in October of 1951, but this suit was not filed by Berry, which had furnished $1,910 worth of asphalt for the job, until February 24, 1953. The chancellor was of the opinion that the suit should have been brought within six months after October, 1951, the month in which he found the work to have been completed and the final estimate to have been made.
Except for a contention that we do not reach, relating to the date of the final estimate, Berry concedes that its suit was delayed too long as far as one of the two contractor’s bonds is concerned. This bond is entitled Statutory Performance Bond, secures only indebtedness for labor and materials, and by its terms was executed pursuant to Act 446 of 1911. Ark. Stats., 1947, §§ 51-628 and 51-629.
The dispute upon issue (b) centers upon the other bond, which is entitled Performance Bond. The undertaking of this bond is twofold: First, that the contractor will perform and complete the job in a good and workmanlike manner, and, second, that he will save the districts harmless against claims for labor, materials, and certain other items that we need not enumerate, except to say that these items are substantially the same as those listed in § 1 of Act 368 of 1929. Ark. Stats., § 14-604. Berry contends that this second bond is a common law bond upon which the period of limitations is five years. Western contends that it is a statutory bond, upon which § 3 of Act 368 requires suit to be brought within six months after the date of the final estimate to the contractor. That is the narrow issue to be decided.
We think Berry’s position to be well-taken. Act 446 of 1911 required certain public officers, upon entering into construction contracts, to obtain a bond securing liability for labor and materials. Since those who furnish labor and materials for public works are not protected by the general mechanic’s lien laws (Holcomb v. American Surety Co., 184 Ark. 449, 42 S. W. 2d 765), the purpose of Act 446 was to provide that protection with respect to those public contracts to which the Act applies.
Under the 1911 law questions arose as to the extent of the surety’s liability upon the bond for labor and materials, and Act 368 of 1929 was enacted for the purpose of including “all items which had been previously questioned or would likely be used or employed subsequently in the performance of the construction contracts there enumerated.” Consolidated Indemnity & Ins. Co. v. Fischer, Etc., Co., 187 Ark. 131, 58 S. W. 2d 928.
It is clear that the 1929 statute did not, as Western now contends, require a second statutory bond in addition to the one exacted by the 1911 law. Instead, the 1929 Act is purely interpretational in character. Section 1 (§ 14-604) provides that all bonds required by designated public officers shall be liable for claims for labor, materials, camp equipment fuel, food for men and animals, lumber used in making forms, and several other items that are specifically described. It is true that § 3 (§14-606) begins by saying that public officers shall require a bond specifically enumerating the items listed in § 1; but this statement is merely introductory, for the rest of the sentence provides that even though the bond does not so enumerate the items it shall nevertheless be security therefor.
Thus Act 446 of 1911 and Act 368 of 1929, when construed together, do not contemplate the execution of two separate bonds having the same provisions. It is Act 446 'alone that requires the bond;'Act 368-merely sets out certain claims that are declared to be within the coverage of the bond,- whether or not they are explicitly named -in the instrument. The question, then, is whether this contractor’s Performance Bond is a mere duplication of the Statutory Performance Bond or is instead a common law bond going beyond the statutes.
We think it to be the latter. Although the Performance Bond does secure the payment of claims for labor and materials, it goes farther and assures the obligees that the contractor will perform and complete the job in a workmanlike manner. This protection against the contractor’s poor workmanship or default is not even touched upon by Act 446 or Act 368. It follows that the bond is a common law obligation to which the ordinary statute of limitations applies. Upon issue (b) the decree must be reversed.
We may dispose quickly of the garnishment question. It is familiar law that a garnishee cannot enter his appearance; he must be brought into court by process. Schiele v. Dillard, 94 Ark. 277, 126 S. W. 835. The reason for the rule is given in the two cases there cited. “The garnishee, in the eyes of the law, is a mere stakeholder, a custodian of the property attached in his hands; he has no pecuniary interest in the matter; he has no cost to pay, and therefore none to save; his business is to let the law take its course between the litigants; he has no right to accept or waive service of the proceeding, thereby favoring one party at the expense of and injury to another, and creating actually a privilege with priority in favor of one creditor to the injury of another.” Schindler v. Smith, Bullins & Co., 18 La. Ann. 476. In the case before us District 567 was not served with process; instead it agreed to enter its appearance and attempted to do so. That appearance being ineffective, the chancellor was correct in holding that the retained $300 was not reached by this proceeding. Upon issue (c) the decree is affirmed.
Mr. Justice McFaddin concurs. | [
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Ed. F. McFaddin, Justice.
The question presented for decision is whether Lena Jordan was the owner of certain property in her own right, or as Trustee for appellant, Peoples Mutual Hospital Association, Inc. (hereinafter called “Association”). We do not, however, reach the presented question; since the procedure which the appellee invoked in the Trial Court, makes necessary a reversal and a remand for further proceedings.
The Association was the plaintiff in the Chancery Court. At the conclusion of the evidence offered by the Association, the defendant (appellee here) filed her written pleading, claiming that the evidence offered by the Association was insufficient to sustain a decree in its favor. In other words, the defendant offered a demurrer to the evidence, under Act No. 470 of 1949 (see § 27-1729 Ark. Stats. Cumulative Pocket Supplement). The Chancery Court sustained the demurrer and dismissed the case, and this appeal challenges the correctness of the dismissal.
In Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, we held that a demurrer to the evidence could be filed, in an equity case, under Act No. 470 of 1949; and that in such instance, the duty of the Chancery Court was “. . . to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered, fails to make a prima facie case . . .” We also pointed out that in passing on the demurrer to the evidence, the Chancellor would not weigh the evidence; he would merely act as a Circuit Judge would act when passing on a motion for an instructed verdict: that is, he would view the evidence, in the light most favorable to the plaintiff, and if so viewed a prima facie case had been made, then the demurrer to the evidence should be denied, just as a motion for an instructed verdict would be denied by a Circuit Judge.
When we test the case at bar by the holding in Werbe v. Holt (supra), i. e. give the evidence offered by the Association its strongest probative force, these matters appear:
(a) Henrietta Cullins testified: that Lena Jordan had no money of her own; that the money belonging to the Association was turned over to Lena Jordan, who was managing the Association’s hospital; that Lena Jordan disposed of other property of the Association and with the proceeds acquired the property here in dispute; and that she used, exclusively, the funds of the Association in such acquisition.
(b) Theodore Jordan testified that the property here in dispute was purchased for the Association by Lena Jordan, its Agent.
(c) Wash Jordan testified that he visited the property in dispute and had a discussion with Lena Jordan, and was advised by her that the property here in dispute was being operated by Lena Jordan for the Association.
(d) Prom other evidence it was shown that Lena Jordan purchased the property here involved with money furnished entirely by the Association, and that she admitted that she was operating the property exclusively for the Association.
The plaintiff’s evidence, given its strongest probative force, was sufficient to justify a finding of a trust in favor of the plaintiff. See Wilson v. Edwards, 79 Ark. 69, 94 S. W. 927; Home Land & Loan Co. v. Routh, 123 Ark. 360, 185 S. W. 467; Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437; Edlin v. Moser, 176 Ark. 1107, 5 S. W. 2d 923; Shelton v. Lewis, 27 Ark. 190; Barron v. Stuart, 136 Ark. 481, 207 S. W. 22; Nelson v. Wood, 199 Ark. 1019, 137 S. W. 2d 929; and Mack v. Martin, 211 Ark. 715, 202 S. W. 2d 590.
So the defendant’s demurrer to the evidence should have been overruled and the defendant allowed tó proceed as she saw fit. Accordingly, the decree of dismissal is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
The holding in Werbe v. Holt has been followed in all subsequent cases in which the demurrer to the evidence has been an issue. Some such cases are Poynter v. Williams, 218 Ark. 570, 237 S. W. 2d 903; Mo. Pac. v. United Brick Local, 218 Ark. 707, 238 S. W. 2d 945; Mc Cool v. Jones, 221 Ark. 123, 252 S. W. 2d 80; Laws v. Melton, 221 Ark. 466, 253 S. W. 2d 966; Paskle v. Paskle, 221 Ark. 733, 255 S. W. 2d 671; and Hammond V. Stringer, 222 Ark. 189, 258 S. W. 2d 46. | [
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George Rose Smith, J.
This is an appeal from the trial court’s action in setting aside, after the lapse of the term, a default judgment against the appellees. The circuit court found in effect that the defendants’ failure to appear on the day of trial resulted from unavoidable casualty or from the clerk’s misprision. Ark. Stats. 1947, § 29-506. It is the appellant’s contention that the entry of judgment by default was due solely to the negligence of the defendants’ counsel.
Bartlett brought suit for $507.30 upon a policy of casualty insurance, joining as defendants the insurer and its local agent. Summons was served on the corporate defendant on December 6, 1952. The company’s general counsel, a firm of Oklahoma attorneys, filed an answer for both defendants on December 29, which was within the time allowed. Thereafter, without notice to the defendants, the case was set to be tried on January 21,1953.' On that day the defendants failed to appear, and the plaintiff took judgment by default.
At the ensuing April term of court the judgment was set aside for the reasons mentioned above. In vacating the judgment the court found that its clerk had neglected in two respects to comply with the court’s rules: First, when the answer was filed the clerk should have mailed to the defendants’ attorneys a copy of the court’s rules and of the court calendar. This was not done. Second, when the case was set for trial the clerk should have immediately notified counsel, but this also was not done. It was on the basis of these two omissions that the trial court granted the defendants ’ motion to vacate the judgment.
The circuit court is clothed with a sound discretion in a matter of this kind. United Order of Good Samaritans v. Bryant, 186 Ark. 960, 57 S. W. 2d 399. In this case we find no abuse of that discretion. It is true, as argued by the appellant, that the insurer’s Oklahoma attorneys were at fault in merely filing an answer, without attempting to find out when the case would be tried. But this oversight was not the sole cause for the defendants ’ failure to appear on the day of trial. Had the circuit clerk performed the duties imposed upon him by the court’s rules the defendants would have received notice of the impending trial. It is familiar law that a litigant should not be prejudiced by an act of the court. Metropolitan Life Ins. Co. v. Duty, 197 Ark. 1118, 126 S. W. 2d 921. Here the defendants’ misfortune would have been prevented either by diligence on the part of their lawyers or by the clerk’s discharge of his duty. Neither factor can fairly be said to outweigh the other. When it is remembered that the vacation of the judgment simply leads to a trial on the merits, which is all the plaintiff was entitled to in the first place, we are not willing to say that the trial court was in error.
Affirmed. | [
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Minor W. Mill wee, Justice.
Appellee, Emma Fears, brought this action against the appellant, James Pate, seeking damages for personal injuries sustained when she was hit by appellant’s car. Appellee alleged that she was walking north at the intersection of Eighth and Hays streets in Little Eock, Arkansas, at about 8:30 p.m. on November 5, 1952, when she was struck, and that appellant was negligent in operating his car in a fast and reckless manner and in failing to keep a proper look-out. Appellant denied that he was negligent and pleaded contributory negligence on the part of appellee.
The trial court, sitting as a jury, rendered judgment for appellee in the sum of $2,500. The only contention for reversal is that the judgment is unsupported by any substantial evidence.
Where a jury is waived and the case is tried before a judge sitting as a jury, his finding on a question of fact is as conclusive on appeal as a jury verdict and will not be disturbed if supported by any substantial evidence. Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322. In determining the sufficiency of the evidence, it must be-considered in the light most favorable to appellee. United Van Lines v. Haley, 214 Ark. 938, 218 S. W. 2d 715.
On the night in question appellant was driving north on Hayes street which is paved and level for several blocks from the intersection with Eighth street. According to appellee’s testimony she was walking north on the right-hand gravel shoulder of Hayes street where it intersects with Eighth street when she was struck by appellant’s speeding car. Charlotte Robinson, who lives about 50 feet from the scene of the accident, testified that she heard “the brakes race” or “skidding” of a car and reached her front door just as appellee was struck. When she asked appellant why he hit appellee, he replied, “My lights was dim and I didn’t see her. I wouldn’t have hit her for nothing. ’’ She also corroborated appellee’s statement that there were no other vehicles passing at or near the time that appellee was struck.
Appellant testified that as he approached the intersection he was blinded by the headlights of two automobiles going in the opposite direction. He was driving about 25 miles per hour and as he passed the second car he saw appellee in the middle of Hayes street and immediately applied his brakes. He also turned his car to the right shoulder of the street but appellee ran in front of the car and was struck by the left front headlight and fender. It was dark and appellee was dressed in black clothing. He measured the skid marks of his car which were 41 feet long.
There are many decisions of this court defining the relative rights and duties of pedestrians and drivers of automobiles using the public streets and highways. Both have a right to the use of the streets and are required to exercise ordinary care for their own safety and the prevention of injury to others. In sustaining a jury finding that the driver of an automobile failed to exercise ordinary care under facts similar to those in the instant case, this court said in Northwestern Casualty and Surety Co. v. Rose, 185 Ark. 263, 46 S. W. 2d 796: “It is the well-settled rule that the duty rests upon the driver of an automobile to exercise ordinary care in its operation, and in the exercise of such care it is his duty to keep a constant lookout to avoid injury to others. This is particularly incumbent upon him when driving on the street of a city in order to avoid injury to pedestrians, as he should anticipate their presence upon such streets and their equal right to their use.” In Morel v. Lee, 182 Ark. 985, 33 S. W. 2d 1110, the court said: “Ordinary care, however, is a relative term, its interpretation depending upon the facts and circumstances of each particular case; and, although drivers of automobiles and pedestrians both have the right to the use of the streets, the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them, care commensurate with the danger reasonably to be anticipated. ’ ’ And in Smith Ark. Traveler Co. v. Simmons, 181 Ark. 1024, 28 S. W. 2d 1052, it is said: “Danger may always be expected or anticipated at street crossings or at intersections of streets, and every driver of an automobile should keep a lookout and approach same with his machine under control, else he cannot be regarded or treated as exercising ordinary care.” See, also, Murphy v. Clayton, 179 Ark. 225,15 S. W. 2d 391, and Yocum v. Holmes, 222 Ark. 251, 258 S. W. 2d 535, and cases there cited.
When the conflicting evidence in the case at bar is considered in the light most favorable to appellee under the foregoing principles, it is substantial and sufficient to support the court’s finding that appellee’s injuries were proximately caused by appellant’s failure to exercise ordinary care under all the circumstances.
The judgment is, therefore, affirmed. | [
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In this case, the Commissioner claims that Branyan & Peterson, Inc., is liable to the State for the Use Tax levied by Act 487 of 1949 (§ 84-3101 Ark. Stats. Pocket Supplement), because of sales of merchandise made by Branyan & Peterson to residents of Arkansas. The facts were stipulated as follows:
“Plaintiff is a corporation organized under the laws of the State of Tennessee, engaged in the business of selling woodworking machinery at its place of business in Memphis. Plaintiff is not qualified to do business in Arkansas and does not maintain a place of business or warehouse in Arkansas. All of its sales of machinery to residents of Arkansas are made in the following manner:
“Plaintiff employs sales representatives who travel in Arkansas and solicit orders from residents thereof of certain machinery. If said offers be obtained, they are subject to acceptance by plaintiff in Memphis, Tennessee, and if so accepted the machinery is delivered by plaintiff to common carriers, f. o. b. Memphis, Tennessee, consigned to the Arkansas resident purchaser. The offer to purchase, the acceptance and delivery of the machinery to the common carrier is consummated in Memphis, Tennessee, where the consideration for the purchase thereof is paid. No Tennessee Sales Tax is collected on said sales.”
The present case involves a Use Tax, just as was involved in Miller v. Maryland, 347 U. S. 340, 98 L. Ed. 744, 74 S. Ct. 535. We delayed our decision of this case until the Supreme Court of the United States decided the case of Miller Bros. v. Maryland,; and after careful study of that opinion, we reach the conclusion that Branyan & Peterson, Inc. is liable to the State of Arkansas for the Use Tax in the case at bar, because of facts which distinguish this case from those in Miller Bros. v. Maryland.
It was stipulated in that case, as contained in Item 8 of the Appendix to the majority opinion, that Miller Bros. “. . . does not have, nor has it ever had, any representative, agent, salesman, canvasser, or solicitor, operating in the State of Maryland for the purpose of selling or taking any orders for tangible personal property, or delivering the same”. And the opening sentence of the majority opinion says: “Appellant is a Delaware merchandising corporation, which only sells directly to customers at its store in Wilmington, Delaware.”
In the case at bar, the stipulated facts show that Branyan & Peterson, Inc., employs.sales representatives who travel in Arkansas and solicit orders in Arkansas; and we believe this use of traveling sales representatives is a substantial fact to differentiate the case at bar from the said holding of the Supreme Court of the United States. In Miller Bros. v. Maryland, we find this language in the majority opinion: “If there is some jurisdictional fact or event to serve as a conductor, the reach of the State’s taxing power may be carried to objects of taxation beyond its boundaries”. And in discussing the case of General Trading Co. v. State Tax Comm., 322 U. S. 335, 88 L. Ed. 1309, 64 S. Ct. 1028, the writer of the majority opinion for the U. S. Court, in Miller Bros. v. Maryland, made these very pertinent remarks, in comparing the facts in General Trading Co. with the facts in Miller Bros. v. Maryland:
“That was the case of an ont-of-state merchant entering the taxing state through traveling sales agents to conduct continuous local solicitation followed by delivery of ordered goods to the customers, the only nonlocal phase of the total sale being acceptance of the order. Probably, except for credit reasons, acceptance was a mere formality, since one hardly incurs the cost of soliciting orders to reject. The Court could properly approve the State’s decision to regard such a rivalry with its local merchants as equivalent to being a local merchant. But there is a wide gulf between this type of active and aggressive operation within a taxing state and the occasional delivery of goods sold at an out-of-state store with no solicitation other than the incidental effects of general advertising. Here was no invasion or exploitation of the consumer market in Maryland. On the contrary, these sales resulted from purchasers traveling from Maryland to Delaware to exploit its less tax-burdened selling market.”
Without attempting to meticulously point out other possible distinctions between the facts in Miller Bros. v. Maryland and the facts in the case at bar, we hold that the quoted language above is a recognition by the Supreme Court of the United States that the regular use of traveling salesmen in the taxing State makes the seller liable for the collection of the Use Tax of the taxing State.
We therefore reverse the decree of the Pulaski Chancery Court, and remand this cause, with directions that a decree be entered in favor of the Commissioner, in accordance with this opinion. | [
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Ward, J.
This appeal presents only one issue: Does the evidence support tbe trial court’s finding that William B. Folsom bad tbe mental capacity to execute bis will on November 21, 1949. There is no disagreement as to tbe applicable law, bence tbe issue is essentially one of fact.
Folsom died May 20,1953, at tbe age of 85, seized of an estate of $108,735.75, approximately all of which was in cash. Previously, and about tbe same time be executed bis will, be bad deeded bis borne in Brinkley to that City for a public library. With tbe exceptions of a few small bequests to individuals Folsom, by bis will, provided for his estate to be used for the maintenance of the library to be established in his former home. The library was to be named after him and his wife, to be known as the “Harriet M. and William B. Folsom Library.” The deceased and his wife had lived in Brinkley over 40 years until her death in 1948. During a large portion of this time he was engaged in running a newspaper and was active in civic affairs. He and his wife never had any children, and his closest heirs were the appellants, a nephew and niece. Before setting out the bequest for the library the will provides for the following bequests:
1. Jack W. Yarbrough, Memphis, Tenn. (appellant) ...............................................................................................................$2,000;
2. Miss Ellen Jones Yarbrough, Wjmne (appellant) ...............................................................................................................$1,500;
3. Miss Jennie Folsom, McCrory (an aunt)...............$ 800;
4. Mrs. Maggie Folsom, Memphis..........................................$ 500;
5. Reverend O. C. Harvey...............................................................$2,000;
6. (Certain items of furniture to Hamilton Moses, executor, which were declined).
The will was witnessed by John F. Cole, vice president of the Bank of Brinkley where the deceased did most of his banking business and by Robert Moore, now vice president of the First National Bank of Springdale, Arkansas, but cashier of the Bank of Brinkley in 1949. Both of these witnesses testified that the testator had the mental capacity to execute his will on November 21, 1949, and that there was nothing strange or unusual in his demeanor on that occasion. Both witnesses stated they had known the deceased for something like thirty years, that they had observed his business dealings, and that they observed no impairment of his mind or business ability until he became ill two or three years after the will was executed. These two witnesses were corroborated by several other citizens of Brinkley and business acquaintances of the deceased, including Hamilton Moses who wrote the will, each one detailing their conversations and dealings with the deceased before and after the date the will was executed.
It would serve no useful purpose to set out the testimony of all of the witnesses on behalf of appellee tending to show William B. Folsom had sufficient mental capacity to execute his will on November 21, 1949. In view of the fact that appellants were unable to produce any substantial testimony bearing on the deceased’s testamentary capacity as of that date it suffices to say here that the record discloses amp'le testimony to support the conclusion that the deceased did have testamentary capacity when he executed the wilt The only question remaining is: Is the testimony produced by appellants’ witnesses to the effect that the deceased lacked testamentary capacity at certain times some months before and after November 21, 1949 sufficient to overcome appellee’s testimony, or, in other words is it sufficient to justify us in holding that the decision of the trial court in favor of appellee is not supported by the weight of the evidence? After a careful review of the voluminous testimony on the part of appellants we have concluded that the question posed above must be answered in the negative.
During the latter part of January 1949 the testator became ill and was sent to the Baptist Hospital in Little Bock where he remained for treatment until about the middle of February of the same year. The doctor’s diagnosis showed he was suffering from a bronchial condition and also from arteriosclerosis, that he had fever as high as 103 degrees and was at times confused and disoriented. It is not clear whether his state of confusion was caused by his temperature or other conditions mentioned above. At that time he was 79 or 80 years old and there were circumstances indicating that he was affected by senile dementia. However when he was discharged the doctor stated that he was “perfectly clear mentally.”
Beginning during the latter part of 1951 there were definite signs that the testator was in poor health and that he was in need of someone to take care of him, partially because of his mental incapacity and partially be cause he was living by himself and had no one to look after him. This condition appeared to grow worse and on October 27, 1952 he was adjudged incompetent and a guardian was appointed. He remained in this condition until he died on May 20, 1953. There is much testimony by appellants, in sharp conflict with testimony offered by appellee, indicating that the testator was far from normal at certain periods of time before and after the will was executed. Appellant Yarbrough testified: I am 48 years old, live at Memphis, am a nephew of the deceased, and have kept in close touch with him through the years; after the deceased was released from the Baptist Hospital in February of 1949 I had occasion to pass through Brinkley and would stop off to see him, he visited me and my family in Memphis during that year and often expressed love and admiration for my wife, our little girl and myself; prior to the death of'testator’s wife he was well dressed and quite a neat man but his condition changed after her death in March of 1948 when he wore old clothes that needed mending and pressing; his physical and mental decline began approximately at the death of his wife and became progressively worse; when he came to see us in Memphis he would generally ride the bus and come by himself, he wouldn’t always come when he said he would, and on most of these occasions he was quite confused and didn’t know what was going on; he was an individualist, a strong willed man and very determined in what he wanted to do; he drove a car during 1949 and part of the time he lived by himself ; and, in my opinion at no time during the year 1949 was he mentally competent to make a will because he never seemed to be able to grasp anything and keep it in his mind long enough to make a decision. Introduced in evidence, as exhibits to witness’ testimony are nine letters written by deceased to witness or his wife, two of which were written in April 1949, two in May 1949, and five in November 1949. The last three letters were dated November 19, November 23 and November 25, and all of the letters are written in the testator’s handwriting. The letters appear to be sensibly composed and almost uniformly they expressed love and affection. From these letters and other testimony it appears that they had under consideration a plan whereby the testator would advance something like five or six thousand dollars to help Jack Yarbrough and his wife provide a suitable home in Memphis in which they would all live.
The testimony of Mrs. Jack Yarbrough did not go into as much detail as that of her husband but was substantially to the same effect.
A number of other witnesses, friends and neighbors who lived in Brinkley, testified to numerous conversations and incidents which tended to indicate that the deceased was not normal during 1949 and 1950. One who had almost daily contact with the deceased noticed a mental and physical change in him after the death of his wife in 1948 and didn’t think he was competent to make a will. One lady who lived next door to the deceased for eight years and had almost daily contact with him says that in 1949 he would often lose the keys to his house or would leave them inside the house; she stayed with the deceased and was supposed to receive $175 a month but only got $30; and the deceased did not buy groceries because he said he didn’t have the money, and he could not at all times retain in his memory without prompting the nature and extent of his possessions, sometimes he could and sometimes he couldn’t. Mr. Malham who operated a hotel at Brinkley just one block from Folsom’s home had casual contact with him; Folsom often bought sandwiches and drinks at his place and was never out of order; he had no reason to believe Folsom was incompetent in 1949. Mr. Clifton began working for Folsom in 1921 as a “printer’s devil,” purchased an interest in the paper in 1943 and continued as a joint owner with Folsom until March 21, 1948 when he purchased Folsom’s interest after the death of Mrs. Folsom. Witness saw Folsom frequently from January 1949 to November 21, 1949 and thinks he did not have a good mental condition; he observed a marked change in his physical and mental condition after the death of his wife; prior to his wife’s death Folsom was neat and clean but afterwards he was ragged; Folsom never smoked or drank prior to the death of his wife, he operated on a cash basis and took all discounts. Witness knows that when Folsom deeded his home place to the city he got the description wrong and attempted to convey a portion which he did not own and which he had formerly deeded to him (the witness). Mrs. Stone lives in Memphis and was a cousin of Folsom; she discussed investments with Folsom prior to his wife’s death; on one occasion she came to Brinkley at his suggestion to help him make a list of his holdings so he could get his business straightened out; he didn’t seem to be able to give her any accurate information; she saw him two or three times in Brinkley in 1949 and had conversations with him and does not think his mental condition was very clear on Christmas day of 1949. Mrs. Mary Thompson lives in Memphis and was a cousin of Folsom; she saw him at Christmas time in 1949 when he came to Memphis; she and Folsom carried on considerable correspondence but when she told him something he would answer as if he did not understand; she called him on November 24, 1949 to ask him to come and eat Christmas dinner but he was not at all well and didn’t seem to understand; and in her opinion he did not have mental capacity to transact business or to execute the will. H. L. Cooper, 31 years old, has lived at Brinkley for 27 years, has been engaged in grocery business for eleven years and knew Folsom who traded at his store; he thinks Folsom was a little bit eccentric and unusual all the time he knew him; he was stingy although everybody knew he had lots of money and he was always saying he couldn’t afford things; on one occasion in 1950 Folsom gave him a check for $85 when he only owed 85 cents but had never had any similar difficulty before that time. Marie Graves, a practical nurse employed by Dr. Dalton, has lived in Brinkley 25 or 30 years; she nursed Mrs. Folsom for two or three weeks before she died and has never been paid for her services although she tried to collect from Folsom. There is other testimony of a like tenor. John B. Thurman, an attorney of Little Bock, as a representative of an insurance company, represented Folsom in a lawsuit which involved a car wreck; the wreck occurred in 1948 and the suit was tried in June 1949; before trial he went to Brinkley to talk with Folsom about the wreck and to contact an eye-witness which Folsom was to furnish; he talked about two hours with Folsom and had great difficulty in securing satisfactory information; finally Folsom produced a negro who was supposed to be an eye-witness but actually was not and knew nothing about the wreck. When pressed for an answer to what he thought of Folsom’s mental capacity to execute a will Thurman stated: “At the end of two hours talking to him [Folsom] in his home I was still unable to get him to talk about the accident and I reached the definite conclusion right then his mental condition was such that I doubted the advisability of putting him on the stand.”
Appellants introduced the testimony of two doctors. Dr. Smith who has practiced in Little Rock about 25 years treated Folsom at the Baptist Hospital in Little Rock from January 30th through February 15, 1949. His hospital record shows a diagnosis of acute upper respiratory infection and acute thrombosed hemorrhoids. He found the patient to be 80 years old, disoriented and history not reliable, fairly cooperative and-mentally confused. Another diagnosis was bronchial pneumonia, generalized arteriosclerosis and thrombotic hemorrhoids. The patient’s chart showed temperatures ranging from 96 degrees to 103.40 degrees. The last notation made on February 15, 1949 reads “condition satisfactory, perfectly clear mentally. General physical condition is excellent. To go home today or when ready.” In the doctor’s opinion Folsom’s confusion and disorientation was precipitated by respiratory infection and that the background would be his age and the general cycle of his becoming mentally aged. The doctor stated that sloppiness in dress, disregard of traffic hazards, anxiety about finances are indications of mental deterioration, and all of these symptoms are typical of arteriosclerotic changes; and that loss of memory and interest in surroundings is also a symptom of senile psychosis and arteriosclerosis. The doctor stated further that X-ray is important in a diagnosis of this kind and that Folsom’s X-ray report showed: “The most marked change however is seen in the aorta as there is quite a marked aneurysmal dilatation of same.” "When Folsom left the hospital he was, according to the doctor, normal for a man 80 years of age.
Dr. Howard A. Boone, a graduate of the University of Tennessee medical school in 1944, treated Folsom at the Wallace Hospital in Memphis between the dates of October 28, 1952 and March 24, 1953 and saw him daily. His diagnosis was cerebral arteriosclerosis, arteriosclerotic heart disease, and benign prostatic hypertrophy. In his opinion Folsom was a senile individual who was disoriented and incompetent; that his mental condition might have come about recently after a complete occlusion of one of the larger vessels of the brain but was of the opinion that it came about over a considerable period of time as a gradually advancing process.
In rebuttal to the above testimony on the part of the appellants, appellee introduced approximately a dozen witnesses who had known Folsom intimately for years, and particularly during the years 1948 to 1953. Many of these witnesses had numerous conversations along business lines with him shortly before and after the will was executed. They were all of the opinion that during 1949 and part of 1951, excepting the time he was in the Baptist Hospital at Little Hock, Folsom was fully competent mentally to execute the will and that he actually looked after business affairs and took care of himself as any normal man of his age. According to these witnesses Folsom and his wife had for years planned to give their home and their property to the city of Brinkley for the purpose of establishing a memorial library.
As previously stated, the only issue before us is whether William B. Folsom had mental capacity to execute his will on November 21, 1949. While this issue presents primarily a question of fact or a weighing of the evidence, there are certain well defined applicable rules of law, a consideration of which will assist in a proper determination of that issue.
This court has many times defined the quantum of mental capacity necessary for a testator to have in order to make a valid will. Briefly stated it is generally said that a testator must have a sound mind and disposing memory.
This definition is generally' broken down into three subdivisions and testamentary capacity is more fully defined as the ability on the part of the testator (a) to retain in memory without prompting the extent and condition of the property to be disposed of; (b) to comprehend to whom he.is giving it; and (c) to realize the deserts and relations to him of those whom he includes in or excludes from his will. Shipen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433; Scott v. Dodson, Executor, 214 Ark. 1, 214 S. W. 2d 357; and Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405. We have many times held that it is not necessary to show that the testator actually had in mind all the details concerning his property at the time he makes a will but that he had the capacity to know and comprehend the nature and extent. In Emerich v. Arendt, 179 Ark. 186, (at page 188) 14 S. W. 2d 547, it was stated: “The question is not whether the testator did actually appreciate the deserts of and relation to him of the one excluded but whether he had, at the time, the capacity to do so.”
In Shippen v. Shippen, supra, we said: ‘ ‘ The burden of proof in cases of this kind is on the contestant, who asserts the mental incapacity of the testator,” and this rule had been announced many times previously.
While old age and physical fitness are proper matters to be considered in an effort to determine one’s testamentary capacity yet this court has said many times as was said in Griffin v. Union Trust Company, 166 Ark. 347, (at page 356) 266 S. W. 289, that:
‘ ‘ Old age, physical incapacity and partial eclipse of the mind will not invalidate a will if the testator has sufficient capacity to remember the extent and condition of his property without prompting, to comprehend to whom he is giving it, and be capable of appreciating the deserts and relation to him of others whom he excluded from participating in his estate. He is not required to do all these things, but should have capacity to do them.”
It has also been consistently held by this court, as was stated in the case of Scott v. Dodson, supra, that the testator’s mental capacity must be adjudged as of the time when his will is executed. It is true of course that testimony of the testator’s mental capacity for a reasonable time before and after the execution of the will is ordinarily, as in this case, competent evidence to show what his mental capacity was at the time the will was executed.
When we consider the testimony in behalf of appellants and the appellee, as outlined above, we are driven to the conclusion that the weight of the evidence sustains the trial court’s finding to the effect that William B. Folsom had sufficient mental capacity to execute his will on November 21, 1949.
The weight of the evidence shows that the testator in this instance had many times expressed the intention of giving the bulk of his property to establish a library for the town of Brinkley, that he fully comprehended the extent and condition of the property which he owned; that he knew to whom he was giving it; and that he fully realized the relation which he bore to appellants and their natural claim to his bounty. We cannot say that the devises contained in William B. Folsom’s will are indicative that he did not act as a normal and reasonable person. 'We recognize that many of the testator’s statements and actions before and after November 21, 1949, particularly when standing alone without any explanation which he might have been able to make if alive, appear strange and eccentric but we are unable to say that they overcome the direct testimony that he was mentally competent to execute his will at the time he did so.
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Ward, J.
The question considered here relates to the confirmation of tax deeds purporting to convey undivided interests in oil, gas and minerals under land, where such interests had been previously severed from the fee title to the land and had so forfeited for nonpayment of taxes. No questions of fact are involved but the pleadings present a question of law not heretofore decided by this court.
Pleadings. On September 14, 1951, Manie Schuman and eight other persons filed a petition in the Chancery Court of Ouachita County, under the provisions of Ark. Stats., § 34-1918 et seq., alleging; that they had acquired through various tax sales certain mineral interest in and under certain lands; that the lands, or a portion of them, were occupied by the owners of the fee, subject, however, to the mineral interest which had been conveyed and severed from the freehold; that no one was in actual possession of said lands who was claiming mineral interest adversely to the plaintiffs, and; that said plaintiffs had paid the taxes on said mineral interest for more than three years in succession. Tax receipts were filed in court, and attached to the petition, as exhibits, were 25 deeds from the Commissioner of State Lands, some made to individual plaintiffs and some to two or more, showing the mineral interest conveyed and the year for which said interest forfeited for non-payment of taxes, but not showing in whose name the forfeitures occurred. The petition was verified by Manie Schuitian. The prayer of the petition was that the sale of said land be confirmed and the title acquired by virtue of said deeds be forever quieted and confirmed.
Filed with the petition was the affidavit of two disinterested parties, presumably pursuant to Ark. Stats., § 34-1920, stating in substance; that they were familiar with the lands and knew of their personal knowledge that there were no adverse claimants of the mineral interest, and; that, though the surface of the lands, or a portion thereof, was occupied by various persons, none of them were claiming mineral interest adverse to petitioners.
Notice of the filing of the petition for confirmation of title to the mineral interest as described in the petition was published for sis consecutive weeks as is provided for in Ark. Stats., § 34-1919.
On November 2, 1951, H. D. Bobertson and Yera Sehroeder, claiming to own certain royalty and mineral interest in and under the said lands, filed their demurrer to the petition on the ground that same did not state facts sufficient to constitute a cause of action. After numerous other motions and orders the said demurfer came on for hearing on March 9, 1953, it being agreed by all parties that the demurrer would be treated as if filed by each of the respective attorneys or their clients. The demurrer was sustained by the trial court on the ground that the complaint did not state a cause of action. Petitioners refused to plead further, the complaint was dismissed and this appeal follows.
The only question before this court is: Did the trial court commit error in sustaining the demurrer to petitioners’ complaint?
It is pointed out by appellants that the demurrer was sustained for three reasons or on three grounds, and then it is urged, supplemented by citations to decisions of this court, that no one of the three reasons or grounds is valid or sufficient. However, because of the conclusion hereafter reached it becomes unnecessary to consider appellants’ contentions, because it is elemental that if the trial court was right for any reason it must be affirmed regardless of the reasons given by it.
It is our opinion that appellants ’ petition, considered alone or together with the notice and affidavit, did not state a cause of action for confirmation of title to undivided interests in mineral rights, for the reason that the statutes proceeded under do not apply in this situation.
The basic statute under which appellants state this action was brought, Ark. Stats., § 34-1918, was passed in 1881 amending the original statute adopted in 1836, shown in Bevised Statutes, Chapter 149. The only dif ference between the two statutes is that the amendment substituted the words “County Clerk, or by the State Land Commissioner” for the words “by the Auditor of State” used in the original statute. It would serve no useful purpose to set out either or both of said statutes because it is obvious that, for the purposes of this discussion, they have exactly the same meaning. It will be noted that said § 34-1918 as well as all other sections relied on here used the word “land” and that nowhere are mineral rights mentioned or referred to.
There are convincing reasons that lead us to the conclusion that the legislature never intended to make said statutes available for the confirmation of undivided interests in oil, gas or other minerals. It is common knowledge that in 1836 there were no oil or gas operations in Arkansas and that in particular oil and gas were perhaps not in production extensively anywhere in the United States. This being true it is not reasonable to suppose that the legislature in 1836 intended for the word “land” to include undivided interest in oil and gas. By decisions of this court in the case of Missouri Pacific Railroad Co; Thompson, Trustee, v. Strohacker, 202 Ark. 645, 152 S. W. 2d 557, and Carson v. Missouri Pacific Railroad Company, Thompson, Trustee, 212 Ark. 963, 209 S. W. 2d 97, 1 A. L. R. 2d 784, it was established that the meaning of a written word must be limited to its meaning as of the date it was employed or used.
A strong indication, at least, of what our decision should be here is found in the case of Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728. In that case Ark. Stats., § 37-102, which provides that unimproved and unused land shall be deemed as held in possession of the person who pays the taxes if he has color of title, was construed, and it was held that the word “land” did not include oil, gas or mineral rights. The pertinent language is: “ The legislature undoubtedly had in mind the visible surface characteristics of land in its popular sense.” It is significant that the statute construed in that instance was passed some 60 years after 1836 and about 18 years after the enactment of the amending statute here relied on by appellants.
In any confirmation suit founded on possession the question of possession is, of course, a vital one. Many decisions of this court have definitely established a vast difference between possession of land and possession of mineral rights. In the case of Bodcaw Lumber Company v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578, the court said, after quoting from other authorities, that:
“The rule of those authorities is that the title to minerals beneath the surface is not lost by non-use or by adverse occupancy of the owner of the surface under the same claim of title, and that the statute can only be set in motion by an adverse use of the mineral rights, persisted in and continued for the statutory period.” (Emphasis supplied.)
The holding in the above case was affirmed and the same rule was reaffirmed in different language in the case of Claybrooke v. Barnes, 180 Ark. 678, 22 S. W. 2d 390, 67 A. L. R. 1436. It was there said:
“Where there has been a severance of the legal interest in the minerals from the ownership of the land it has been held . . . that adverse possession of the land is not adverse possession of the mineral estate and does not defeat the separate interest in it. . . .”
* * * *
“So it may be taken as settled that the two estates, when once separated remain independent, and title to the mineral rights can never be acquired by merely holding and claiming the land even though title be asserted in the minerals all the time. The only way the statute of limitation can be exerted against the owner of the mineral rights or estate is for the owner of the surface estate or some other person to take actual possession of the minerals by opening mines and operating the same.”
We cannot agree with appellants’ contention that it was error to dismiss the entire complaint because some interests were included to which, no defense was interposed. The record does show that some interest under some lands were not among those represented by any of the attorneys contesting the complaint, but the record also shows that all interests sought to be confirmed [in the one petition] were based on the same state of facts and governed by the same law and procedure. Therefore when the Chancellor became convinced that the petition [which had been questioned] did not state a cause of action it was his right and duty to dismiss it.
Affirmed. | [
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In this case, the Commissioner claims that Rhodes-Jennings is liable to the State for the Gross Receipts Tax, under Act 386 of 1941 (§ 84-1901 et seq. Ark. Stats.) because of sales of merchandise made by Rhodes-Jennings to residents of Arkansas. The facts were stipulated, as follows:
“Plaintiff is a corporation organized under the laws of the State of Tennessee. It has not qualified to do business in Arkansas, nor does it own or maintain a place of business in this state, neither does it have agents or drummers who solicit business herein.
“Plaintiff has heretofore sold merchandise to residents of Arkansas, all of such sales being made in the following manner:
“ (a) Residents of Arkansas come in person to the place of business conducted by plaintiff in Memphis, Tennessee, and purchase and pay the consideration for certain items of merchandise, and
“ (b) Residents of Arkansas use the Federal postal .service or interstate telephone or telegraph service and offer to purchase from plaintiff such items of merchandise, and such offers are accepted or rejected by defendant in Memphis, Tennessee.
“That in either or all of such transactions so had, the offer to buy such merchandise so made by the resident of Arkansas, and the acceptance thereof by plaintiff, was made in Tennessee, and the consideration therefor was paid in Tennessee. Thereafter, plaintiff delivered the merchandise so purchased -without additional charge to the home or place of business of the Arkansas resident by its truck. Plaintiff has an established policy generally known to its customers that such delivery will be made within a radius of 100 miles of Memphis, Tennessee, at no cost to the purchaser.”
It is clear from the above stipulated facts that Rhodes-Jennings’ place of business is in Tennessee, that it does not have anj^ agents or salesmen traveling in Arkansas, that in each instance the sale to the Arkansas resident was completed in Tennessee, and that the only time Rhodes-Jennings, or any of its employees, ever entered the State of Arkansas, was when the truck of Rhodes-Jennings brought the articles into Arkansas for delivery.
The Commissioner claims that Rhodes-Jennings is liable for the Gross Receipts Tax levied by Act 386 of 1941 (§ 84-1901 Ark. Stats.), which is a Sales Tax Act. In McLeod v. Dilworth, 205 Ark. 780, 171 S. W. 2d 62, we held that sales made in Tennessee under similar circumstances were not subject to the Arkansas Sales Tax; and the Supreme Court of the United States affirmed the case in McLeod v. Dilworth, 322 U. S. 327, §8 L. Ed. 1304, 64 S. Ct. 1023. But the Commissioner now contends that the effect of the holding of the U. S. Supreme Court in General Trading Co. v. State Tax Commission, 322 U. S. 335, 88 L. Ed. 1309, 64 S. Ct. 1028, and Norton Co. v. Dept. of Revenue of Ill., 340 U. S. 534, 95 L. Ed. 517, 71 S. Ct. 377, was to overrule the holding in McLeod v. Dilworth; and the Commissioner also contended that the decision of the Maryland Court of Appeals in Miller v. Maryland showed a broadening of State taxing power, even as regards sales tax cases.
All the contentions of the Commissioner are answered adversely to him by the decision of the U. S. Supreme Court in Miller v. Maryland, 347 U. S. 340, 98 L. Ed. 744, 74 S. Ct. 535 (opinion of April 5, 1954), wherein McLeod v. Dilworth is cited, and General Trading Co. v. State Tax Comm, is explained. So we see no merit in any of the aforementioned contentions of the Commissioner.
Finally, and in this one case only, the Commissioner calls attention to the following stipulated facts:
‘ ‘ That plaintiff holds in escrow the sum of $1,316.32, representing two per cent (2%) of the amount of said sales which is the subject of this litigation. Said purchasers made such deposits under protest, and under the express agreement between the parties that the amount so paid by each and every one of them would be held in trust by plaintiff; that plaintiff would contest the legality and validity of the Arkansas Gross Receipts Act and that the amount of such alleged tax so deposited would be returned to each and every one of them in the event it should be later determined that (1) plaintiff was not legally obligated to collect said tax, or (2) that it be held that the tax is not applicable to such sales and therefore illegal and invalid.”
The Commissioner insists that the case of Cook, Comm. v. Sears-Roebuck, 212 Ark. 308, 206 S. W. 2d 20, is authority to prevent Rhodes-Jennings from recovering the money paid under protest in the case at bar. But we find no merit in this contention of the Commissioner. It is stipulated that Rhodes-Jennings holds the money subject to return to its customers. When Rhodes-Jennings prevails in this case, then the customers get the return of their money. No such facts were shown in the Sears-Roebuck case, and the absence of such facts led to the application of the doctrine of unjust enrichment in the Sears-Roebuck case. That doctrine has no application here.
We affirm the Chancery decree in favor of Rhodes-Jennings Furniture Company in the case.at bar. | [
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Minor W. Millwee, Justice.
The sole issue presented by this appeal is the correctness of the trial court’s refusal to change the permanent custody of a three-year-old girl from the maternal grandmother to a paternal aunt.
Aleta Ann Gordon’s parents were killed in an automobile accident in October, 1951. Appellee, Mrs. Aileen Johnson, is the child’s maternal grandmother and resides at Griffithville, Arkansas. Appellant, Mrs. Lorene G. McLain, is the child’s paternal aunt and lives at Ft. Smith, Arkansas. They filed rival petitions in the probate court seeking appointment as guardian of the person and for permanent custody of Aleta Ann. Pending a final hearing on these petitions, temporary custody was awarded first to appellee for six months and then to appellant for a shorter period. After an extensive hearing on March 20, 1953, an order was entered dismissing appellant’s petition and fixing permanent custody in the appellee, with the right of appellant to have the child for a two weeks visit in the summer. There was a further provision that Mr. and Mrs. J. L. Gordon of Lonoke, Arkansas, paternal grandparents of said child, should have certain rights of visitation every two weeks. On February 15, 1954, we sustained appellee’s motion to dismiss the appeal from the order of March 20, 1953, because it was filed too late.
On June 19, 1953, appellant petitioned the probate court to divest appellee of permanent custody of the child and invest same in appellant. As grounds therefor, she alleged that appellee had disobeyed the order of March 20,1953, in two respects: (1) appellee had failed to place and keep the child under the care of an eye specialist ; and (2) she had refused to permit the child to visit in the home of the paternal grandparents, Mr. and Mrs. J. L. Gordon. Following a brief hearing on August 14, 1953, an order was entered dismissing appellant’s petition but awarding custody of the child to the paternal grandparents for 10 days and fixing their right of visitation as in the original order of March 20, 1953. Mr. and Mrs. Gordon are not parties to this appeal from the order of August 14, 1953.
Counsel for appellant filed his brief herein prior to dismissal of the appeal from the first order of March 20,1953, and his contentions for reversal are based largely on testimony adduced at the first hearing. We may not consider this evidence in determining whether the trial court erred in refusing to change custody in the order of August 14, 1953, but are necessarily confined to the record of the latter hearing. In this connection it is argued that appellee has shown a callous disregard of the child’s eye condition and the court’s order that she be kept under the care of a specialist. It was in evidence that the child had been taken to a specialist in Fort Smith twice by the appellant and to a specialist in Little Nock twice by the appellee. Letters from both doctors were introduced at the August hearing in which each advised the necessity for surgery in cooler weather, but advised against it prior to October, 1953. Both letters indicated that no present treatment was needed. On the question whether appellee had denied visitation privileges to Mr. and Mrs. Gordon, Mr. Gordon testified that visits were refused. This conclusion was predicated on two post cards written to the Gordons by appellee on May 25 and June 4,1953, which were introduced. While the contents of these cards indicate appellee’s displeasure with the week-end visits, they did not amount to an outright re fusal of such visits. It was stated in the first card that the child had “to have her shot like she takes every month of May each year”, and in the second that, “Aleta Ann and I still have a little cold.” Mr. Gordon frankly admitted on cross-examination that no effort had been made to obtain the child which was refused by appellee, and Mrs. Johnson stoutly disclaimed any such intent to defy the court’s order. Appellant admitted that she obtained the child from appellee for the two weeks summer visit without any trouble. With commendable frankness, it is also conceded that the good character of appellee and her genuine affection for the child are in no manner questioned by appellant. There is nothing to indicate any ill feeling between any of the parties involved in this controversy.
A universal rule in these cases is that the trial court, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the interest of the child. Phelps v. Phelps, 209 Ark. 44, 189 S. W. 2d 617. But it is also well settled that a decree fixing the custody of a child is final on the conditions then existing and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child. Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450.
After hearing the evidence adduced on August 14, 3953, the trial court concluded that it was insufficient to show such a material change in conditions affecting the child’s welfare as would warrant an order changing the permanent custody from appellee to appellant. We cannot say this finding is against the weight of the evidence.
Affirmed.
Holt and Robinson, JJ., dissent. | [
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George Rose Smith, J.
This is a claim filed by the appellant, as Commissioner of Revenues, to recover severance taxes in the sum of $192.56, assertedly owed to the State by Greene County. The agreed facts are that the county, having purchased gravel from various landowners, removed the gravel itself and used it solely for the construction and maintenance of county roads. The county court’s denial of the claim was affirmed by the circuit court.
We regard as controlling the decision in McLeod v. Kansas City So. Ry. Co., 206 Ark. 281, 175 S. W. 2d 391. There the railroad employed others to sever gravel from the railroad’s own lands, and the stone was used by the railroad as ballast. The statute then in force imposed the severance tax, as an occupation tax, upon persons engaged in the business of severing natural resources for commercial purposes. Pope’s Digest, §§ 13371 et seq. We concluded that the railroad, in having its own gravel severed for its own use, was not engaged in business of a kind falling within the purview of the statute.
Some three years after that decision the General Assembly reenacted the severance tax law in its present form. Ark. Stats. 1947, Title 84, Ch. 21. The nature and the incidence of the tax have not been changed. It is still levied upon those who are engaged in the business of severing natural resources for commercial purposes. Section 84-2101 (c) and (f). As before, one who desires to engage in that business must apply to the Commissioner for a permit. Section 84-2103. If, as we held in the McLeod case, a private corporation mining gravel for use in its own business is not subject to the tax, still less is there reason to think that the State meant to tax one of its political subdivisions, a county, which severs gravel not for sale or other commercial purpose but only for use upon the public highways. Had the Legislature intended to broaden this field of taxation it would not have resorted again to substantially the same language that was construed in the earlier case.
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Ward, J.
This appeal challenges the jurisdiction of a municipal court to try a misdemeanor committed under the laws regulating Motor Carriers. It is thé contention of appellant that municipal courts have concurrent jurisdiction with the circuit courts, and it is the contention of appellee that circuit courts have exclusive jurisdiction.
Appellee, W. D. Bowers, was convicted and fined $500 in the Municipal Court of Searcy, Arkansas, for violating §§ 8 and 11 of Act 367 of 1941, being respectively Ark. Stats., §§ 73-1709 and 73-1712. Penalty for violation of the Act is fixed by § 22 of said Act 367, being Ark. Stats., § 73-1723. It was charged that appellee, on May 8,1953, ‘ ‘ did unlawfully and wrongfully haul manufactured feed which is a finished product upon the highways of the State of Arkansas, and more specifically in White County, Arkansas, without having a permit from the Arkansas Public Service Commission to haul as a common carrier.”
Appellee filed a motion in the Municipal Court to dismiss the charge against him on the ground that said court did not have jurisdiction, and said motion was overruled. An appeal was taken to the Circuit Court of White County, again the same motion to dismiss was made by appellee, and the motion was sustained by the trial judge, and the charge against appellee was dismissed. The State of Arkansas prosecutes this appeal for a determination of the question of jurisdiction as above stated.
No question of fact is involved and the only question for us to decide is the question of law.
The basis upon which appellee rests his argument to sustain the trial court is the last sentence in said § 22 of said Act 367 (Ark. Stats., § 73-1723) which reads as follows:
‘ ‘ (h) The several Circuit Courts of this State shall have jurisdiction of prosecutions arising from alleged violations of this act.”
To sustain his position appellee quotes from 50 Am. Jur., §§ 244, 246, 357, 358, 429; Continental Casualty Co. v. U. S., 314 U. S. 527, 86 L. Ed. 426, 62 S. Ct. 393; and headnotes from Ledbetter v. Hall, 191 Ark. 791, 87 S. W. 2d 996, and LaFargue v. Waggoner, 189 Ark. 757, 75 S. W. 2d 235. The general tenor of the cited authorities is to the effect that in construing statutes the courts will give efficient operation and effect to all parts so as to render no word or phrase useless or meaningless, and that the courts should arrive at the real intent of the lawmakers. From one authority appellee quotes: ‘ ‘ Generally speaking a legislative affirmative description implies denial of the non-descriptive or non-described powers.” From this line of reasoning appellee concludes that the latter portion of § 22 of Act 367 as quoted above would be rendered useless and non-operative if it is interpreted as appellant contends it should be interpreted. In other words, as contended by appellee, it was a vain thing for the Legislature to enact the sentence mentioned above unless we interpret it to mean that the Circuit Courts have exclusive jurisdiction. Appellee also would distinguish the case under consideration from the cases which we will later refer to on the ground that the Arkansas Motor Vehicle Act deals with civil matters and not primarily with criminal matters.
We are unable to agree with appellee’s contentions, and in our opinion the court erred in sustaining appellee’s motion to dismiss.
First. We think there was a special reason for the Legislature to enact Subsection (h) of § 22 of Act 367 to the effect that “the several Circuit Courts of this State shall have jurisdiction of prosecutions . ’ . .” In Subsection (b) of the same section it is provided that the Chancery Court of Pulaski County shall have statewide jurisdiction in certain matters. In view of this provision it can be reasonably assumed that the Legislature enacted Subsection (h) to make clear that all the circuit courts of the state would have jurisdiction. The use of the word several in Subsection (h) supports this view, otherwise the word several would be surplusage.
Second. It will of course be conceded that, aside from any consideration of the language in said Subsection (h), the law places jurisdiction to try misdemeanor cases in Justice of the Peace Courts, Municipal Courts, and Circuit Courts. Since there is nothing in said Act 367 (or amendments thereto) expressly abrogating the jurisdiction of Municipal Courts, such abrogation, if it exists, must be by implication. But, as stated in Martels v. Wyss, 123 Ark. 184, 184 S. W. 845, and Gans v. State, 132 Ark. 481, 201 S. W. 823, statutory repeal by implication is not favored. In the Martels case, at page 187 of the Arkansas Reports, the court said:
“Repeals by implication are not favored, and when two statutes covering the whole or any part of the same subject-matter are not absolutely irreconcilable, effect should be given, if possible to both. It is only where two statutes relating to the same subject are so repugnant to each other that both cannot be enforced, that the last one enacted will supersede the former and repeal it by implication. ’ ’
Third. This court has previously considered substantially the same question presented here and has resolved it against the contention of appellee.
In the Gans case, supra, appellant was fined $100 in the Municipal Court of Little Rock for a violation of Act 13 of 1917, known as the “Bone Dry” law. The sole question presented to this court was [as stated by the court] “whether or not the municipal court has jurisdiction of causes arising, under § 15 of the above act.” Said § 15, in all parts material here, reads: ‘ ‘ The circuit court held in the county from .which, through which, or to which such shipments are made, shall have jurisdiction for the trial of such violations of this act . . . ” It was there urged, as here, that by conferring jurisdiction on circuit eourts the Legislature intended to confer exclusive jurisdiction to the exclusion of municipal courts. In rejecting this contention, we said:
‘ ‘ The act under which appellant was convicted, while conferring upon the circuit court jurisdiction, did not in express terms say that it was an exclusive jurisdiction. This the Legislature would have done if it had intended to make such jurisdiction exclusive. The two acts conferring jurisdiction are not repugnant to each other, and unless they were so it is our duty to so construe them as to allow them to stand together. Repeals by implication are not favored.”
The issue in the Gans case was substantially the same as the one considered, with the same results, in McCracken v. State, 146 Ark. 300, 227 S. W. 8 (on rehearing). In approving the holding in the Gans case, the court stated the question and its conclusion, at page 309 of the Arkansas Reports, this way :
“It is also urged that the justice of the peace had no jurisdiction of the offense charged in the information. Counsel rely on the language of the statute which provides that when any person obstructs a public road ‘he shall he guilty of a misdemeanor and liable to indictment in the circuit court of the proper county, ’ etc. That part of the statute which reads that the person ‘is liable to indictment in the circuit’ was not intended to confer exclusive jurisdiction on that court, for the other language of the statute in express terms declares the offense to be a misdemeanor.”
Subsection (h), § 22 of Act 367 of 1941, conferring jurisdiction on circuit courts is not repugnant to existing jurisdiction in municipal courts. As stated in Adams v. State, 153 Ark. 202 (at page 205), 240 S. W. 5: “There are many instances of the circuit court and other courts having concurrent jurisdiction”; and “. . . jurisdiction conferred upon one court does not operate to oust other courts otherwise possessing it. ’ ’
Fourth. Any possible doubt that the Legislature, by the enactment of said Subsection (h), meant to leave undisturbed the jurisdiction of inferior courts-over misdemeanors, seems to have been resolved against appellee’s contention by the Legislature itself by the passage of Act 368 of 1953, which Act amends said Act 367 in certain particulars. In Subsection (j), § 7 of Act 368, the jurisdiction of justice of the peace courts is specifically recognized. The language there used clearly indicates a recognition of existing jurisdiction and cannot reasonably be interpreted as conferring jurisdiction where none existed. With some exceptions not material here the law confers the same jurisdiction in misdemeanor cases on justice of the peace courts and municipal courts.
In view of what has been said the judgment of the trial court must be and it is accordingly reversed. | [
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Ed F. McFaddin, Justice.
Appellant was convicted of the offense of maiming, and sentenced to two years in the penitentiary. For reversal, he prosecutes this appeal.
The indictment accused ‘ ‘ the defendant, George Kennedy, of the crime of Maiming, committed as follows, to-wit: The said def endant on the 25th day of October, 1953, in Hot Spring County, Arkansas, did unlawfully, wilfully and of his malice aforethought, put out an eye of one Idella Kennedy, against the peace and dignity of the State of Arkansas. ’ ’
The evidence established: that the appellant was the husband of Idella Kennedy; that after some marital arguments, the appellant went out of the house, got his shotgun, fired through the window and injured his wife; that she was seated on a couch and reading a book; that the shot fired by appellant hit her in the breast, arm, head and eye; and that as a result of such injuries, it was necessary to remove her right eye. Appellant admitted the shooting, but claimed that he had no intention of hitting his wife, or of putting out her eye: he claimed that he was only trying to frighten her. But the evidence is amply sufficient to support a finding that he deliberately aimed the gun at her and fired through the window for the purpose of injuring her.
The appellant urges a number of assignments for reversal:
I. Necessity of Specific Intent to Put Out the Eye. The Trial Court refused to give appellant’s Instruction No. 11-a, which reads :
“You are instructed that if you should find from the evidence that the defendant unlawfully, wilfully and of his malice aforethought shot the prosecuting witness without any intention of putting out one of her eyes, then you are told to find the defendant not guilty of the charge of maiming. ’ ’
In lieu of the foregoing Instruction, the Court gave its Instruction No. 5, reading in part as follows:
“In this case it is not necessary that the State prove that the defendant specifically intended to shoot out the eye of the prosecuting witness at the time he fired the shot. It is sufficient if you believe beyond a reasonable doubt from the evidence that he intended to shoot at the prosecuting witness and to inflict upon her great bodily injury and that same was done wilfully and with malice aforethought, and that as a result of said shot the prosecuting witness ’ eye was shot out. . . . ”
This is not a prosecution under the old common law against mayhem; but is a prosecution for violation of the Statutory offense of maiming. Our Statutes on maiming have existed since Statehood; and may be found in § 41-2501, et seq., Ark. Stats.
Sec. 41-2504, Ark. Stats., reads :
“If any person shall, from malice aforethought, shoot, stab, cut, or in any manner wound and disable any person, he shall be deemed guilty of maiming.”
Sec. 41-2502, Ark. Stats., reads:
“If any person shall, wilfully and of his malice aforethought, . . . put out an eye . . , of any person, he shall be adjudged guilty of maiming.”
The State was not required to prove, in this case, that the sole intention of the defendant was to “put out an eye.” The Court’s Instruction No. 5, as previously copied, correctly states the applicable law. In Pate v. State, 206 Ark. 693, 177 S. W. 2d 933, in affirming a conviction for maiming, we said:
“It is urged by appellant that the lower court should have granted his motion for a peremptory instruction for a verdict of not guilty, because the evidence failed to disclose any intent to commit the crime charged. The testimony on behalf of the State tended to establish that appellant, without justification, struck Bryant in the neighborhood of his left eye with a blackjack, and that by reason of this blow his eye was severely injured and had to be removed. ‘Malice in law may be inferred from the absence of any just cause or excuse for the doing of an act which has caused injury to another.’ 34 Am. Jur. 685. Men are presumed to intend the reasonable and natural consequences of their acts. Howard v. State, 34 Ark. 433; Hankins v. State, 103 Ark. 28, 145 S. W. 524; Rhine v. State, 184 Ark. 220, 42 S. W. 2d 8. The jury had a right to assume from the proof as to the weapon used, the location of the injury and the lack of provocation or justification for the act that the maiming of Bryant was done maliciously and intentionally.”
Our holding in the case of Pate v. State, supra, disposes of the contentions of the appellant in the case at bar regarding Instructions, and also regarding the sufficiency of the evidence to sustain the conviction.
II. Rulings as to Evidence. The appellant complains of several rulings of the Court, but we find no error committed.
(a) When one of the Deputy Sheriffs was called as a witness for the State, the Prosecuting Attorney was allowed to ask him if he (witness) did not remember that the Prosecuting Attorney had talked to appellant right after the shooting “in that little office in the City Hall.” Whether the conversation took place at the Court House or the City Hall was quite immaterial; so no prejudice resulted from the manner in which the Prosecuting Attorney interrogated the Deputy Sheriff as to where the conversation took place.
(b) When Minnie Ruth Kennedy (daughter of the appellant) was testifying for the State, the Prosecuting Attorney asked her if the appellant had not made indecent proposals to her. The Trial Judge promptly announced :
‘ ‘ I will very strenuously advise the jury to disregard it and admonish the Prosecuting Attorney not to continue with that line of questioning.”
In view of the Court’s ruling, and the fact that the witness never made any answer to the question, we hold that there was no reversible error committed in regard to this question.
(c) When the appellant was on the witness stand, the Prosecuting Attorney asked him if he had been fined for whipping his wife, and the appellant answered in the negative. Then the Prosecuting Attorney asked the appellant how many times he had been to the City Hall; and there was an objection to the question. The Court ruled:
“The objection is sustained. The motion for mistrial is denied; but the jury is admonished very earnestly to disregard the prosecuting attorney’s question.”
The ruling of the Court was correct; and a careful reading of the record convinces us that the admonition was sufficient, and the Court did not abuse its discretion in refusing to declare a mistrial. See Glover v. State, 211 Ark. 1002, 204 S. W. 2d 373.
Conclusion
We have examined all the other assignments, and find no error.
Affirmed.
At common law the word was spelled “mayhem”, but the more recent spelling of the word is “maim”. See 57 C.J.S. 461.
See Chapter XLIV, Art. Ill, Sees. 1 to 8 (inc.) of the Revised Statutes of Arkansas, adopted in 1837, commonly known as the “Revised Statutes of 1838.” | [
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George Rose Smith, J.
This dispute involves the appellees’ right to close part of Second Street in the city of Siloam Springs. The appellees’ home is situated at the northwest corner of the intersection of Second and College Streets and fronts on College to the east. The appellants’ home, also facing College, is just across Second Street, at the southwest corner of the intersection. This suit results from the action of the appellees in placing a fence across Second Street along the line of its intersection with College. The appellants’ complaint asks that the appellees be required to remove the fence. The defense is that neither the public nor the plaintiffs have an easement in this part of Second Street. The chancellor sustained this defense, holding that the appellees now own this part of Second Street in fee.
"We agree that the public easement in Second Street, in the block between College and Maple to the west, has been extinguished. This addition to the city was platted in 1881, and of course the subsequent sale .of lots by reference to the plat confirmed the dedication of Second Street and other thoroughfares. Butler v. Emerson, 211 Ark. 707, 202 S. W. 2d 599. But there is a bluff across what would be Second Street between College and Maple, and for that reason Second has never been sufficiently improved to permit vehicles to travel along this entire block. Instead, Second has been a cul-de-sac that extends west from College to a point only slightly past the houses now owned by these litigants.
In 1911 E. J. Hewitt, who then owned the property on both sides of this segment of Second Street, filed a petition with the city council, asking that the street be closed. As consideration for this action Hewitt offered to construct certain concrete steps at the north end of College, for public use. By resolution the council accepted this offer, and in the same year the city conveyed this part of Second Street to Hewitt. His title has since passed by mesne conveyances to the appellees.
It appears that both Hewitt’s petition and the council’s resolution have been lost or destroyed. There is,, however, a familiar presumption in favor of the validity of the acts of public officers, and upon that basis the chancellor may reasonably have assumed the city’s transaction with Hewitt to have been valid. Since 1897 cities of the second class have been authorized to vacate such portions of public streets as may not for the time being be required for corporate purposes. Ark. Stats. 1947, § 19-2305. We have held that a similar statute (§ 19-2304), applicable to cities of the first class, empowers a city to find and to enact that a portion of a street is no longer required for public purposes. Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W. 2d 1004.
In 1911 the city council of Siloam Springs could well have concluded that, owing to the bluff between College and Maple Streets, that particular segment of Second Street was not needed for corporate purposes. Upon such a determination the council was justified in authorizing the conveyance to Hewitt. Of course the power to vacate a street does not ordinarily include the power to convey it to one person; but in 1911 Hewitt owned all the land abutting this part of Second Street, and for that reason the direct conveyance, to Hewitt achieved the same result that would have been accomplished by a declaration that the street had been vacated, with title to vest in the abutting owners. We think it fair to presume that the council’s action, taken more than forty years ago, operated to extinguish the public easement in that part of Second Street that lies between College and Maple.
On the other hand, a decided preponderance of the testimony supports the appellants ’ assertion of a private easement which enables them to nse a portion of the vacated street as a means of access from College Street to their back yard. The appellees insist that the traveled part of what was originally Second Street has for many years been in fact a mere driveway leading to the back door of the appellees ’ house. But the proof shows pretty clearly that this driveway has been used for twenty years or more as a means of ingress to the appellants’ property as well. The appellants themselves have not owned a car and have therefore used the driveway only occasionally, as when loading an automobile for fishing trips and the like. But for at least two decades tradesmen have used the driveway regularly — almost daily- — for deliveries of ice, coal, and groceries to the appellants’ back door. This proof is not seriously disputed; indeed, it was the constant traffic along the driveway that led the appellees to erect the fence now complained of.
Thus the situation is that for some twenty years the driveway along the south edge of the appellees’ property has been utilized by business visitors for ingress to the appellants’ back yard. It is plain enough that this continual travel over the appellees’ property — travel that led only to the appellants’ back door — did not create a public easement such as a street or an alley. But it is equally plain that this long continued use of the driveway, even though exercised mainly by third persons, inured to the benefit of the appellants and resulted after seven years in the creation of a private easement. In these circumstances the user is referable to the premises being visited and eventually creates an easement appurtenant to that property. Jean v. Arseneault, 85 N. H. 72, 153 A. 819; Wilson v. Waters, 192 Md. 221, 64 A. 2d 135.
The most difficult question in the case is whether the use of the way in dispute was permissive or adverse. It would evidently not be correct to say that a private easement invariably results whenever a person, in a spirit of neighborliness, permits others to use his driveway for seven years or more. A mere user, even though continued for the statutory period, does not ripen into a prescriptive right unless the circumstances are such as to put the owner of the servient estate on notice that the way is being used adversely under a claim of right. Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Bridwell v. Ark. P. & L. Co., 191 Ark. 227, 85 S. W. 2d 712. In the case at bar, however, there are several reasons for concluding that the travel across the appellees’ land was not merely permissive.
To begin with, the appellees’ property was occupied. We have recently stressed this fact as one of the factors tending to put the landowner on notice that the user is under a claim of right. Cupp v. Light Gin Ass’n, ante page 565, 267 S. W. 2d 516. Second, this was the only means of ingress to the appellants’ back yard, for there is a hedge along the sidewalk in front of their home. Hence the driveway served not simply as an alternative route of convenience, as is the case when pedestrians cut across a vacant corner lot; instead, it was the only available path to the appellants’ back door.
Third, the metes and bounds description in the city’s 1911 deed to Hewitt was defective, the defect having eventually been remedied by a correction deed executed by the city in 1940. Therefore it was not until 1940 that the owner of what is now the appellees’ property was legally in a position to protest the use of his driveway. When that owner sought and obtained a correction deed he necessarily recognized the flaw in his title, and he must be charged with the knowledge that the preceding use of his property could properly have been under a claim of right. By arming himself with the correction deed the owner undertook to convert into private property what had been a public street since 1881. It is fair to cast upon him the duty of taking some action to warn his neighbors that in the future no one was to have the right to cross the property. No such action is shown to have been taken; on the contrary, the adverse use of the driveway was allowed to continue until shortly before this suit was filed in 1951. This delay of more than ten years precludes the appellees from obstructing the right-of-way which the appellants have acquired by prescription.
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George Bose Smith, J.
This is an action in replevin brought by the appellee to recover possession of a house trailer. The trailer was originally sold by the "Wiley Trailer Market to Paul C. Thompson, the seller retaining title to the vehicle. By subsequent assignments the seller’s contract has passed to the appellee and the purchaser’s interest has passed to the appellant. The complaint alleges that the unpaid balance of the purchase price amounts to $4,736.06.
The defendant first filed a motion to- transfer the cause to equity, upon the ground that usury would be pleaded as a defense. Before the court acted upon that motion the defendant filed an answer which asserts that the contract is usurious and void upon its face. The plaintiff then moved that this defense be stricken, for the reason that the defendant was not a party to the original contract and therefore cannot plead usury. Upon these pleadings, without hearing any testimony, the court denied the motion to transfer and sustained the motion to strike the plea of usury. The ease then proceeded to a final judgment for the plaintiff. Upon this appeal the appellant attacks the court’s rulings on the two motions.
The court was right in denying the request for a transfer to chancery. A plea of usury raises no issue that cannot be effectively determined by a court of law. The debtor, it is true, by acting promptly may bring suit in equity to obtain cancellation of the contract. But this appellant failed to take that step, and instead it was the creditor who first put the debt in issue by seeking to replevy the property. The plea of usury thus became a defense available to the debtor. This defense is no more complicated than, for example, a plea of payment, and in no way does it require the exercise of powers peculiar to a court of equity. Under the doctrine of res judicata a judgment for the defendant in a court of law would settle the controversy with the same finality that would attend an equitable decree of cancellation. There was no occasion for the circuit court to surrender control of the case.
The serious question is presented by the plaintiff’s motion to strike the defense of usury: May one who purchases property already subject to a title retaining contract attack that contract as usurious?
At common law the plea was not allowed. The courts reasoned that the purchaser had presumably received credit on the purchase price for the amount of the encumbrance and would be unjustly enriched if the debt were cancelled. (It conld of course be argued with equal force that, if the contract was void from the beginning, it is the creditor who is unjustly enriched by denying to the purchaser a valid defense. There is simply a choice of who shall bear the loss.) In 1877 we adopted the common law rule by declaring that a plea of usury is personal to the borrower. Pickett v. Merchants’ Nat. Bank, 32 Ark. 346. We later held, in 1885 and again in 1886, that one who challenges a usurious contract must tender the debt plus lawful interest. Grider v. Driver, 46 Ark. 50; Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516.
These two rules — that the plea is personal to the borrower and that even the borrower must tender the debt with legal interest — are mere common law pronouncements which the Legislature is free to abrogate if it likes. The General Assembly, at its next session after the decision in the Tillar case, undertook to abolish both rules, by the enactment of Act 39 of 1887. Ark. Stats. 1947, §§ 68-609 — 68-611. Sections 1 and 3 of the Act are pertinent to the present case:
“Section 1. Every lien created or arising by mortgage, deed of trust or otherwise, on real or personal property, to secure the payment of a contract for a greater rate of interest than ten percentum per annum, either directly or indirectly, and every conveyance made in furtherance of any such lien is void; and every such lien or conveyance may be cancelled and annulled at the suit of the maker of such usurious contract, or his vendees, assigns or creditors. The maker of a usurious contract may by suit in equity against all parties asserting rights under the same, have such contract and any mortgage, pledge or other lien, or conveyance executed to secure the performance of the same, annulled and cancelled, and any property, real or personal, embraced within the terms of said lien or conveyance, delivered up if in possession of any of the defendants in the action, and if the same be in the possession of the plaintiff, provision shall be made in the decree in the case removing the cloud of such usurious lien, and conveyances made in furtherance thereof, from the title to such prop erty. And any person who may have acquired the title to, or an interest in, or lien upon such property by purchase from the makers of such usurious contract, or by assignment or by sale under judicial process, mortgage or otherwise, either before or after the making of the usurious contract, may bring his suit in equity against the parties to such usurious contract, and anyone claiming title to such property by virtue of such usurious contract, or may intervene in any suit brought to enforce such lien, or to obtain possession of such property under any title growing out of such usurious contract, and shall by proper decree have such mortgage, pledge or other lien, or conveyance made in furtherance thereof, can-celled and annulled in so far as the same is in conflict with the rights of the plaintiff in the action. ’ ’
“Section 3. Neither the maker of a usurious contract nor his vendees, assigns or creditors, or any other person who may have or claim an interest in any property embraced within the terms of said usurious contract, shall be required to tender or pay any part of the usurious debt or interest as a condition of having such contract, and any conveyance, mortgage, pledge or other lien given to secure its payment or executed in furtherance thereof, enjoined, cancelled and annulled, and any rule of law, equity or practice to the contrary is hereby abrogated. ’ ’
It is difficult to see how the Legislature could have expressed itself more clearly. In 1875 the General Assembly, pursuant to the mandate contained in the Constitution of 1874, Art. 19, § 13, had declared all usurious contracts whatever to be void. Ark. Stats., § 68-608. During the next eleven years this court laid down the two rules that we have mentioned. By § 1 of Act 39 of 1887, quoted above, it is declared that “The maker of a usurious contract may by suit in equity against all parties asserting rights under the same, have such contract . . . annulled and cancelled. ’ ’ The same right is then extended to “any person who may have acquired the title to, or an interest in, or lien upon such property by purchase from the makers of such usurious contract.” By § 3 it is declared that neither the maker nor his vendees, assigns or creditors shall be required to tender or pay any part of. the usurious debt or interest as a condition to. cancellation of the contract. In an abundance of caution the Legislature pointedly added that “any rule of law, - equity or practice to the contrary is hereby abrogated. ’ ■
This statute, with reference to the particular point now under discussion, has been considered in only one case, Hiner v. Whitlow, 66 Ark. 121, 49 S. W. 353, 74 Am. St. Rep. 74. There Hiner had bought mortgaged property and caused it to be conveyed to his wife. It is not clear whether she assumed the debt or took subject to it, as the court regarded that question as immaterial. In a suit brought by Whitlow to foreclose the mortgage Mrs. Hiner attempted to rely upon usury as a defense. We first referred to the common law rule which precludes one not a party to the original contract from pleading-usury “unless allowed to do so by a statute.” We then examined §§ 1 and 2 of Act 39 and concluded that the common law rule had not been changed thereby. The opinion stresses the concluding- clause of § 1, to the effect that the plaintiff may have the usurious contract can-celled “in so far as the same is in conflict” with his rights. The court’s reasoning was that since the purchaser of mortgaged property acquires not the property itself but only the equity of redemption — “that part of the estate or interest in the property not covered by the mortgage” — there is no conflict between the purchaser’s rights and the usurious lien.
We have studied the statute and the Hiner opinion long and carefully, and we are wholly unable to reconcile the two. The final clause in § 1 of the statute, which was emphasized in the Hiner opinion, can easily be harmonized with the rest of the Act. If, for instance, a usurious mortgage embraces three.tracts of land and the plaintiff has purchased only one tract, this clause limits his right of cancellation to the extent that the mortgage conflicts with his interest.
If, however, this one clause is to be given the foree attributed to it by the Hiner case, then it completely nullifies the rest of § 1 and all of § 3, as far as an assignee of the contract is concerned. This is so for the reason that in every situation, without exception, it could be said that the purchaser of encumbered property acquires only the equity over and above the encumbrance. The result is not only to deny to the purchaser of ‘ ‘ an interest” in the property the right of cancellation, a right plainly given by § 1, but also to require the purchaser to pay the entire debt and usurious interest thereon, in the teeth of § 3.
The Hiner case has not been followed, nor even cited, in the fifty-five years since it was decided. It did not establish a rule of property in the sense that anyone has patterned his conduct in reliance upon the case. That is, it is pretty certain that no creditor, owning a usurious contract, has persuaded his debtor to transfer the prop-' erty to a third person for the sole purpose of immunizing the contract from attack. Yet, if the decision is allowed to stand, it could readily be utilized by an unscrupulous lender as a means of protecting usurious contracts; for the loan could ostensibly be made to a straw man, and the real borrower could then be required to assume the obligation. The Hiner case, to the extent that it construed Act 39 of 1887, is overruled.
"We do not intimate that this appellee’s conditional sales contract is in fact void for usury. That issue has not been investigated, since the defense of usury was. stricken from the defendant’s answer and was therefore not explored at the trial. The statute, however, expressly gives the borrower the right to litigate the matter in a court of equity, and, as we have seen, this is a substantive right that can equally well be asserted in a court of law.
Reversed and remanded for a new trial.
McFaddin and Ward, JJ., dissent. | [
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G-rieein Smith, Chief Justice.
Two issues are present: (1) Did the probate court err in refusing to remove Olen R. Wood as executor of the estate of Irvin Y. Tenison? (2) Was the court’s determination that Wood did not use improper influence to induce execution of the will against the weight of evidence?
Separate appeals were taken. By administrative order the first was withheld from submission until the second could be considered with it, although the two were not consolidated.
Tenison died November 6, 1952, in his 69th year. His will was executed June 13, 1951. Shortly thereafter a codicil corrected the spelling of certain names that had been erroneously typed. The codicil also mentioned that the testator had instructed his friend, Olen R. Wood, to place his body in a double-strength steel casket and vault, “and lay me to rest by the side of my beloved wife in Memorial Park Cemetery”. Mrs. Tenison had died in 1949.
The will, as distinguished from the codicil, contained a similar expression. In addition it asked that the First Christian and First Presbyterian Churches of Mena permit joint funeral services at the Christian Church, the last rites to be supervised by Dallas [Masonic] Lodge No. 128. This sentence appears: “I request that Olen R. Wood acquire from Beasley-Wood Funeral Home a vault for the remains of my body, similar to the one in which the remains of my deceased wife were laid to rest”.
The testator bequeathed to each of the churches heretofore identified $500. Two hundred dollars went to the Mena Park Commission, $500 to the Masonic Lodge, $600 to one sister, $700 to another, $1,500 to a third, and to a niece of Mrs. Tenison $2,500 and a half interest in a lot in Mena. Each of two nephews was given one dollar. As stated by the appellants, Olen R. Wood is to receive as a tenant in common half of real estate valued at $2,500 and $700 in cash. Wood was also to receive a diamond ring. He was to serve as executor without bond. During one of the trials it was stipulated that validity of personal bequests to the executor would be the only challenged items, reserving, of course, the contention that Wood’s personal interests were antagonistic to his trust status.
A procedural controversy arose during the second trial (appeal number 368) when on direct examination Wood was asked what arrangements, if any, Tenison had made for his own funeral. Counsel for appellants insisted that our decisions construing § 2 of the schedule to the constitution were infringed when Wood, over appellants’ objection and exceptions, was permitted to testify that Tenison, in purchasing a burial policy for $300 from the Beasley-Wood Funeral Home, asked whether he could have the same kind of a funeral that Beasley-Wood had provided for Mrs. Tenison. The complete question was: “What arrangements, if any, did Mr. Tenison make with reference to his own funeral?”
There was no dispute that the burial policy had been purchased. During the first and second trials testimony almost identical in many respects was given. On cross-examination by appellants Wood was asked regarding transactions with Tenison. Stress was placed upon testimony of other witnesses who said they had heard Tenison say he had paid Wood $1,200 to cover funeral expenses. We are asked to consider the two appeals in parity. To do this it is impossible to exclude parts of the testimony that appellants themselves developed and to say that as to it the Dead Man’s Statute, so-called, is applicable.
It is not disputed that after Mrs. Tenison’s death Wood and the surviving husband became close friends. Witnesses testified they had heard Tenison say that Mr. and Mrs. Wood were the best friends he had. He frequently expressed appreciation of their acts of kindness. At odd times Tenison would stay at the funeral home or sit for hours talking with acquaintances. He had undoubtedly selected the kind of casket he wished to be buried in and had shown it to several persons. But the evidence that he had prepaid his funeral is partly hearsay and partly dependent upon statements that Wood admitted such an arrangement had been made. The trial court was not impressed with this testimony, and we do not think its rejection was arbitrary or that when all of the evidence is considered it can be said to preponderate in favor of the claim of prepayment.
In 1951 Tenison placed $500 with Wood in anticipation of expenses that might accrue during an illness. It was shown that with the exception of $33.26 the money had been appropriately spent for Tenison’s benefit. Wood testified that he undertook to return the difference and that Tenison told him to keep it for his trouble. This explanation is not inconsistent with the relationship that was shown to have existed at that time.
G. W. Liles, a minister of the United Pentecostal Church at Mena, testified that Tenison had been a roomer and boarder in his home after Mrs. Tenison’s death, and that Tenison had offered to leave some if not all of his estate to him on condition that certain ecclesiastical services would be performed. The minister says he refused the offer because Tenison smoked — a violation of the church rules. Tenison had also told him that he would remember the minister’s son in his will to an extent sufficient to aid with the young man’s education.
Liles said that on one occasion he looked through a window of Tenison’s room and saw him counting money. There were several large envelopes. Liles did not know what the unopened envelopes contained, but assumed that they were used by Tenison in connection with his supposed habit of hoarding money. The envelopes were taken from a box ordinarily kept in Tenison’s trunk. This box, according to Liles, was taken to the Beasley-Wood Undertaking Parlors for safekeeping.
Liles also testified that Mr. and Mrs. Wood had visited Tenison in his room, that on one occasion he over heard conversations regarding a will, and that seemingly Wood objected to certain bequests Tenison had in mind, believing them to be too liberal. He thought Tenison was drinking on this occasion, and knew that after Mrs. Tenison’s death his boarder occasionally took a “bracer” —usually early in the morning. A bottle of brandy was found by Wood in Tenison’s trunk while a search was being made for burial clothes, and there were indications that other containers had been utilized by Tenison. Wood offered to give the liquor to a third party.
Liles and other witnesses called by the plaintiffs thought that Tenison, although ordinarily strong-willed, could be easily influenced through friendship and whiskey. They admitted, however, that he was not mentally impaired and that he usually had definite views not easily changed. Witnesses called by the defendant regarded Tenison as a man of high character, calm reasoning, definite purposes, and mentally alert.
We agree with the probate judge that the evidence was not sufficient to justify removal of Wood as executor or to establish undue influence in the procurement of bequests. Neither do we think prepayment of the funeral costs was shown by convincing testimony. In naming Wood executor Tenison selected Lowrey Embry as executor in succession to serve in the event of Wood’s death. The court felt that the designation of Embry as co-executor would be advantageous. There is no appeal from this action.
Evidence sufficiently shows that Tenison’s will was his voluntary act. Wood was not present when it was written or executed. The drafting attorney followed the testator’s instructions in all essentials and it is difficult to see how the trial court could have reached a different conclusion. Wood’s good character was avouched by a number of witnesses who had known him for years as an upright, honorable business man.
We are not able to say that the trial court incorrectly appraised the testimony, hence the judgments must be affirmed. | [
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George Rose Smith, J.
In the court below the appellee, William A. Knaus, obtained a divorce upon the ground of three years separation. The only contention now made is that Knaus had not been a bona fide resident of Arkansas for two months before the suit was filed.
The parties were married in 1941 and lived together for a few months in Library, Pennsylvania. The appellee then entered the military service and remained in the army until his discharge in 1948. It is conceded that the couple have not lived together since the year 1945.
In 1949 the appellee brought suit for divorce in Pennsylvania, and while that case was pending the appellant sued in the same court for a limited divorce. The cases were tried together, resulting in a decree, entered on July 22, 1952, by which relief was denied to both parties.
On June 24, 1952 — about a month before the decision in the Pennsylvania cases — the appellee had moved to Little Rock, Arkansas. The present suit was filed on August 28, 1952. On the jurisdictional question the appellee offered testimony to show that he had resigned his job in Pennsylvania, that he had moved his belongings to Arkansas, that he had obtained employment here, opened a bank account, rented an apartment, paid taxes, and done other things tending to show that he had become a permanent resident of this State. This testimony is substantially undisputed. There is no reason for us to extend this opinion' by a detailed review of the evidence. As in most cases of this kind, turning upon a question of subjective intent, the issue is not free from doubt and might with some plausibility be decided either way. The chancellor concluded that the appellee is acting in good faith, and we cannot say that his conclusion is contrary to the weight of the testimony. In several respects the case is similar to Kirk v. Kirk, 218 Ark. 880, 239 S. W. 2d 6, where we upheld the chancellor’s finding that the plaintiff had established his domicile in Arkansas.
The appellant contends that, in determining the length of the appellee’s residence in Arkansas, we should exclude the twenty-eight days between his arrival in this State and the dismissal of his Pennsylvania suit. We do not think that an inflexible rule to that effect would be sound law. A change of domicile occurs when physical presence in the new jurisdiction is accompanied by the intention of remaining there. That one who migrates to another state leaves behind him a pending divorce suit may have a very significant bearing upon the issue of intention, as we pointed out in Walters v. Walters, 213 Ark. 497, 211 S. W. 2d 110; but this one fact cannot be regarded as conclusive. Here the appellee cites decisions of inferior Pennsylvania courts to show that there a plaintiff’s suit for divorce does not abate upon his removal to another state during the pendency of the case. If that is the law of Pennsylvania the appellee was at liberty to come to Arkansas when he did, and even if the law were otherwise the appellee by his exodus merely risked the abatement of his Pennsylvania suit. For us the question is whether Knaus came to Little Rock with, the intention of remaining here, and we are not convinced that the pendency of the earlier case outweighs the many facts supporting the chancellor’s decision.
Affirmed.
McF addin, J., dissents. | [
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Ward, J.
On August 6, 1953 petitioner, Letaw, filed a complaint in the Chancery Court of Crittenden County against Doyne Dodd. On August 10, 1953 the clerk of the chancery court wrote one of the petitioners, Roberts, who was Letaw’s attorney and lived in Memphis, Tennessee, that he had not complied with a rule of the Chancery Court of Crittenden County [which will be set out and discussed later] to the effect that it would be necessary to associate with him in the case local Arkansas counsel. Associated with Roberts as one of Letaw’s attorneys in the case was petitioner Norfleet who was also a resident of Memphis, Tennessee.
On August 11, 1953 Roberts and Norfleet, for themselves and as attorneys for Letaw, filed a motion in the Crittenden County Chancery Court stating: That Roberts is now and has been at all material times a resident citizen of Memphis, a practicing lawyer licensed to practice in the Supreme Court of Tennessee and all the courts of Tennessee; that Norfleet is and has been a practicing lawyer at Memphis, Tennessee licensed to practice in the Supreme Court and all other courts of that state, that he is and has been licensed to practice in the Supreme Court and all other courts in Arkansas, and that Norfleet had been a resident of Forrest City, Arkansas up until July 1952 when he became a resident of Memphis, Tennessee; and, that the rule which the chancery court seeks to enforce is void as being arbitrary, unreasonable and violative of comity between Arkansas and Tennessee with reference to the practice of law within the United States of America, etc. The prayer in the motion was that the court relax the said rule insofar as this particular case is concerned and for all other proper relief. The trial court, after hearing’ testimony on the motion, refused by order dated August 31,1953 to modify its rule and refused to allow Letaw and his attorneys to proceed further in the case. From this ruling of the trial court petitioners here seek relief by Writ of Certiorari.
The rule adopted by the Chancery Court of Crittenden County and here questioned is as follows:
“Non-resident attorneys at law, who have been admitted to practice by the Supreme Court of this State or by the court of last resort in the state of their residence, will be permitted by courtesy to appear in all causes in the Crittenden Chancery Court representing any party thereto, but the pleadings in all such causes filed by a non-resident attorney shall be signed also by a duly licensed resident attorney of this county upon whom service of notices may be had and who shall be responsible to the court for the conduct of the interest represented by the non-resident attorney in such cause. The Clerk of this court is charged with the enforcement of this rule.”
“This order to be effective Oct. 16, 1933.”
In rendering its decision the trial court stated ‘ ‘ that the making of said rule was a valid exercise of the court’s power, and that said rule is reasonable, proper and valid.”
Before we consider the issue here raised it becomes necessary to set out certain material and undisputed facts and to call attention to an agreement reached by the attorneys for both parties during the oral argument in this court.
It is undisputed that: Boherts is an attorney residing in Memphis, Tennessee; he is a member of the bar of Tennessee, admitted to practice in all the courts of that state, and has paid his fee of $1.00 to and been enrolled to practice by the Chancery Court of Crittenden County; and, Norfleet has exactly the same status as Boberts, except that he was formerly a resident of Arkansas, he was admitted to practice in all the courts of this state in 1919, and has ever since paid his annual dues to the bar of Arkansas.
The Agreement on Oral Argument. The petitioners filed their motion in the trial court, filed this petition here, and briefed their case on the theory and assumption that the disputed rule meant one thing, and respondent briefed its cause on the theory, not too clearly defined however, that the rule had a different meaning. Petitioners’ interpretation of the rule, as applied to the facts of this case, is: Because Attorney Boberts [and Norfleet] is a resident of Tennessee he is not allowed to prosecute a suit for Letaw in Crittenden County unless he employs, as co-counsel, an attorney residing in Crittenden County. Bespondent contends the rule means: Boberts, an attorney of Tennessee, can proceed with his suit if he employs, as co-counsel, an attorney who lives anywhere in Arkansas. During oral argument respondent’s attorneys made it plain that their interpretation of the rule was as stated above and that they were insisting on no other interpretation, and petitioners agreed that the rule, so interpreted, was satisfactory to them.
The above status of the case leaves two principal matters for further consideration.
1. Since the attorneys in this case have no authority to fix, by agreement, the rules of practice in the Crittenden County Chancery Court, or to say what is or is not a reasonable rule in such matters, it remains the duty and responsibility of this Court to decide the issue presented by this writ.
In our opinion the questioned rule, taken in the plain ordinary meaning of the language heretofore copied, is susceptible only of the interpretation given it by petitioners, and, as such, does not conform to our statute, is unreasonable and cannot be sustained. Ark. Stats., § 25-108, reads as follows:
“Non-resident attorneys at law of record shall be allowed to practice law in all the courts of this State of equal jurisdiction of the court or courts to which they have been admitted to practice and are members of the bar in good standing in the State of their residence.”
It is generally conceded that courts have the inherent right to make local rules of practice and procedure subject to certain limitations. Two of these limitations are that such local rules must not contravene a valid statute or be unreasonable. In the case of Meyer, et al. v. Brinsley, et al., 129 Ohio St. 371, 195 N. E. 702, cited by both parties here, the Court, in discussing the power of trial courts to make rules, said:
‘ ‘ However, it is equally fundamental that such rules must not contravene either the organic law or a valid statute; and likewise they must be reasonable in their operation. ’ ’
The limitations we are speaking of are expressed in 21 C. J. S. § 170 (b), page 261, this way:
“. . . subject to limitations based on reasonableness and conformity to constitutional and statutory provisions.”
Not only does the Crittenden County Rule, requiring a local attorney in the circumstances mentioned, not conform to the reciprocity statute quoted above, but it appears to us to be unreasonable. A rule which requires an attorney residing in Memphis, Tennessee to employ co-counsel living in Crittenden County as a prerequisite to prosecuting a suit filed in that court is manifestly unnecessary. Those seeking to sustain the rule do so on the ground that it is necessary for the Court to have, in each case, an attorney upon whom notices may be served and who would be responsible to the court. This same justification is found in the rule itself. However, as now conceded by respondent, tbe Chancery Court of Crittenden County could exercise the same control over an attorney of Pulaski County [or any other county] that it could over an attorney of Crittenden County. So, if the restriction imposed on non-resident attorney is unnecessary, it is to that extent unreasonable.
2. It has been urged that the Petition here should be dismissed or denied because (a) there is no justiciable issue and (b) the issue is moot, but we do not agree.
(a) If at the hearing before the Chancellor it had been made clear to petitioners that they could proceed by employing any attorney in Arkansas and that such was the interpretation of the rule, then petitioners might not have instituted this proceeding, but this was not done. It appears to us that petitioners had reasonable grounds to believe they were being required to employ an attorney in Crittenden County. The plain wording of the rule conveys this impression; the letter from the clerk of the Chancery Court of Crittenden County to Roberts stated that the rule required him to associate “local Arkansas counsel”; and the record fails to disclose that the respondent or the attorneys made clear to petitioners the interpretation of the rule which they now claim although ample opportunity was afforded them during the hearing. Though it might be argued that the words “local Arkansas counsel” along with other language in the letter should not be interpreted as restricting the location to Crittenden County, yet it must be remembered that the clerk has no authority to interpret the rule and in many instances it is possible that non-resident attorneys might ask for and receive a copy of the rule itself.
(b) On December 14, 1953, at an adjourned day of court after the August order denying petitioners the right to proceed in the original case and after petitioners had taken an appeal [later changed to this writ] from that order, the trial court made another order, stating and finding: “Norfleet is now a resident of St. Francis County, Arkansas and has been since September 11, 1953, and that said Marvin Brooks Norfleet is now a regularly licensed attorney at law in the State of Arkansas and is not an attorney at law, non-resident of the State within the meaning of the rule of this Court dated August 31, 1933 . . and it is therefore ordered that Letaw’s attorneys, Norfleet and Roberts, may now proceed with the trial of this cause.
In our opinion the December order does not render moot the issue presented to us by petitioners’ writ for several reasons. First, we think the December order should be treated as an addendum to the August order and it is 'not the order which is challenged by this writ. Second, the December order, by its own interpretation, does not affect, modify or repeal the rule here challenged. Third, when this court allowed petitioners to change their procedure from “appeal” to “certiorari” it was, we think, an implied commitment to hear this petition on its merits. Fourth, petitioner, Roberts, being a nonresident attorney, had an interest in this matter which the December order does not dispose of. Moreover, it appears that the interest of practitioners and litigants in general would be best served to have the status of this questioned rule definitely settled.
We point out that no one connected with this litigation had anything to do with the adoption of the rule in question and certainly we do not mean to imply any criticism of those who have merely conformed to a procedure which had been followed by others for twenty years.
Writ granted.
Justice Millwee concurs. | [
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Melvin Mayfield, Chief Judge.
This is an employer’s appeal from the Workers’ Compensation Commission and the question presented is whether the commission erred in authorizing a claimant to see another doctor at the employer’s expense.
It is agreed that the claimant sustained a compensable injury to an elbow in a fall which occurred on November 20, 1980. The employer sent her to a doctor who made x-rays, put her arm in a sling, prescribed “warm soaks, Naprosyn and Tylenol,” and released her to go back to work the next day. However, she continued to complain of pain and other symptoms associated with the elbow and eventually went to see Dr. Kenneth Jones of the Little Rock Orthopedic Clinic. It was stipulated that Dr. Jones was selected by the claimant and that all his bills which has been presented up to the day of the hearing had been paid by the employer.
The hearing before the law judge was held on June 30, 1981. Five letters were introduced pertaining to claimant’s treatment by Dr. Jones and his associate, Dr. Millard. One of the letters, dated April 10, 1981, and addressed to claimant’s attorney, concluded as follows:
Today there are no significant findings, other than those previously reported by Dr. Millard and myself. I must admit that at this moment I am at a loss to explain this patient’s unusual complaints, with minimal findings. I therefore have recommended that this patient return to your office, with the consideration that you refer her to some other orthopedic office, as it would seem that neither Dr. Millard or myself have anything else to recommend to this patient in the way of treatment.
The only witness to testify at the hearing was the claimant who said her arm had never stopped hurting and that it swells up when she lifts boxes, as she has to do at times in her present job, and if she does very much housework. She described the pain, how she soaked her elbow in hot water, how she took pain medication, and how the elbow “pops” when she moves it.
It was the contention of claimant’s attorney that claimant was entitled to further medical treatment and if Dr. Jones had nothing else to offer, the law j udge should authorize her to see another doctor. The respondent’s attorney contended claimant should not be allowed to change doctors at respondent’s expense and it was agreed that claimant would go back to Dr. Jones and that he would be asked to examine her again and make another report. This was done and his report was as follows:
The above patient returned to the clinic on July 3, 1981, for reevaluation.
She stated that her symptoms are getting worse. Once again, except for tenderness over the lateral aspect of the right elbow joint, there are no significant findings. It may be that surgical exploration of this elbow joint, or even an arthrogram, might be revealing. However, I do not have enough findings to justify this undertaking in this clinic.
Once again, as previously stated, I would recommend that this patient consider consulting another orthopedic office for a second opinion, or perhaps I should say a third opinion as she has seen Dr. Millard as well as myself.
I would again state that I have nothing further to offer this patient in the way of treatment. I therefore once more dismiss her from our medical observation. As to permanent partial disability, I can only estimate as I have done earlier, on the basis of the patient’s complaints and not on the findings, a 2.5% partial disability to the right upper extremity.
Upon receipt of the above letter the law judge found that the claimant had shown circumstances justifying a change of physician as provided by Ark. Stat. Ann. §81-1311, as amended by Section 3 of Act 290 of 1981, and he authorized her to be evaluated by one of the two doctors he named in his order. This decision was approved on appeal to the full commission, although one member dissented and the other two did not agree as to the basis of their approval. One member apparently agreed with the law judge that Ark. Stat. Ann. § 81-1311 applied as amended and one agreed as to the result, but said he thought the section applied as it existed prior to the amendment.
We think the section applies as amended. It should be noted that Act 290 of 1981 contained an emergency clause which made it effective on the date of its approval, March 3, 1981. Although claimant’s injury occurred before that date, the hearing before the law judge, his decision, and the decision of the commission, all occurred after the act had become effective. In fact, the act was in effect when Dr. Jones wrote his letter of April 10, 1981, saying he had nothing else to recommend in the way of treatment and suggesting that claimant’s attorney consider referring her to some other orthopedic office. Thus, when the claimant requested the commission to authorize her to see another doctor, the provisions of section 81-1311 as amended by the 1981 act were in effect.
If there is a question of whether the 1981 act applies retroactively, the answer seems clear. In Aluminum Co. of Amer. v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982), the contention was made that an amendment to the Workers’ Compensation Law should be construed as having a prospective operation and we quoted with approval from State ex rel. Moose v. Kansas City & Memphis Railway and Bridge Co., 117 Ark. 606, 174 S.W. 248 (1914), as follows:
The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should... be given a retrospective effect whenever such seems to have been the intention of the Legislature.
Section 81-1311 already contained a provision allowing the commission to authorize a claimant to change doctors and section 3 of the 1981 act did not disturb any vested right nor create any new obligation. It merely supplied “a new or more appropriate remedy to enforce an existing right or obligation” and we find that it applies to the issue in this case.
Applying Ark. Stat. Ann. § 81-1311 as amended by the 1981 Act which provides that when the claimant has selected a physician the commission may not order a change of physicians at the employer’s expense unless it finds there is a “compelling reason or circumstance justifying a change,” and using the rule that we must view the evidence in the light most favorable to the action of the commission, Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979), we think the claimant’s testimony that she suffered disabling pain on a daily basis and the doctor’s report that he had no further treatment to offer and that she should consider consulting another orthopedic office, are sufficient to support the commission’s decision in this case. And, while the majority of the commission was not in agreement as to the basis of their decision, we will affirm if the decision appealed from is right even if a wrong reason for the decision is given, Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981); Mayhew v. Loveless, 1 Ark. App. 69, 613 S.W.2d 118 (1981).
Affirmed. | [
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Tom Glaze, Judge.
This is an Employment Security case in which the claimant contends that insufficient evidence existed for the Board of Review to find that claimant’s actions constituted misconduct within the meaning of Ark. Stat. Ann. § 81-1106 (b) (2) (Repl. 1976). Because of our recent holding in Mark Smith v. Everett, 6 Ark. App. 337, 642 S.W.2d 320 (1982), review denied January 10, 1983, we must remand this case for further proceedings before we can dispose of claimant’s argument in this appeal. We note that Mark Smith was decided when the instant case was on appeal.
In Mark Smith v. Everett, supra, the Board of Review reversed the Appeal Tribunal’s award of benefits, basing its decision primarily upon an affidavit submitted to the Board by the employer after the Appeal Tribunal decision. We reversed the Board and remanded for a hearing consistent with Leardis Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982), in which the Supreme Court said that benefits cannot be denied unless a claimant has an opportunity to confront and cross-examine adverse witnesses at an evidentiary hearing. We further held in Mark Smith v. Everett, supra, that the Board of Review is without jurisdiction to accept additional evidence in appeals pending before it.
Here, as in the Mark Smith case, the Appeal Tribunal found for the claimant after both the claimant and a representative of the employer testified at a hearing. On appeal from the Appeal Tribunal’s decision, the employer and the claimant submitted additional evidence to the Board. The employer submitted letters and copies of business records to support its position that claimant was fired for misconduct in connection with the work. Much of this new evidence contained matters never presented at the Appeal Tribunal level. The claimant and his wife subsequently wrote letters refuting this new evidence. In reversing the Tribunal’s award of benefits, the Board in its findings referred to statements submitted by the employer for the first time on appeal. Thus, we must assume that the Board based its decision upon the new evidence — a practice prohibited by our holding in Mark Smith v. Everett.
We therefore reverse the Board’s decision and remand consistent with our holding and directions in Mark Smith v. Everett, supra.
Reversed and remanded. | [
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Donald L. Corbin, Judge.
Appellee, Amos Enderlin Contracting Co., Inc., filed suit in Pulaski Chancery Court seeking judgment against appellant, Michael Wilkinson, d/b/a Wilkinson Brothers Construction Company, in the amount of $27,795.25 for work performed under a subcontract with appellant. The work consisted of the removal of rubble and debris on lands owned by Doyle W. Rogers and Josephine Rogers, his wife. Appellee also sought to impose a lien on Doyle W. Rogers and Josephine Rogers’ land located in Little Rock, Pulaski County, Arkansas. At the request of appellant, the case was transferred to the Pulaski County Circuit Court.
Appellee filed Requests for Admissions and Interrogatories. Appellant did not respond within 30 days and was deemed to have admitted that the exact amount sued for was due and constituted the proper amount by which to render judgment. Appellee sought summary judgment against appellant, asking that it be granted a lien against the Rogers’ property.
The trial court granted appellee’s motion for summary judgment in the amount of $30,505.26 plus interest against appellant and a lien on Doyle W. Rogers and Josephine Rogers’ land in the amount of $30,921.81 plus interest. From that summary judgment, appellant has appealed to this court stating that summary judgment was not proper. We affirm.
Appellant argues that the Requests for Admissions and Interrogatories filed by the appellee did not comply with the requirements of Rule 36 of the Arkansas Rules of Civil Procedure. Request No. 4 reads as follows:
REQUEST NO. 4: Admit that Exhibit “A” hereto are true copies of statements submitted by plaintiff to Wilkinson
(a) The number of hours worked per day by the Caterpillar 955L Loader and Operator;
(b) The number of hours worked per day by the JD 410 and Operator;
(c) The number of loads hauled by dump trucks and drivers provided by plaintiff;
(d) All amounts paid by Wilkinson Brothers Construction Co. for work performed by plaintiff pursuant to contract relating to the property described in the Complaint;
(e) The amount due plaintiff from Wilkinson Brothers Construction Co. for the work performed pursuant to contract relating to the property described in the Complaint.
Exhibit “A” referred to in the Requests for Admissions and Interrogatories contained statements showing the billing methods of appellee, credits and the total amount alleged to be due.
Although appellant argues that Request No. 4 was ambiguous and does not comply with Rule 36 of the Arkansas Rules of Civil Procedure, we believe that its wording conforms to the requirements of Rule 36. Rule 36 authorizes a party to serve upon any other party a written request for the admission of the truth of any matter that relates to statements or opinions of fact, including the genuineness of any documents described in the request. Here, appellee requested that appellant admit that the statements in Exhibit “A” were true copies which directly reflected those items in subparagraphs a through e.
Appellant did not admit, deny or object to the Requests for Admissions and Interrogatories nor did he respond to appellee’s motion for summary judgment. The granting of summary judgment was proper under these circumstances.
In Thomas v. Poff, 268 Ark. 939, 597 S.W.2d 838 (Ark. App. 1980), this court held that a summary judgment finding appellants liable for a real estate commission was appropriate, there being no question of fact outstanding in view of deemed admissions by the appellants as well as a lack of timely objection or opposition to the motion. The appellees had made their summary judgment motion on the basis of the deemed admissions by appellees. Neither appellants nor their counsel appeared at the hearing, and the court granted the motion. In affirming the trial court’s decision, this court stated:
If the law and the justice system were administered without rules, we would have adj udication at the whim of the adjudicators, a miasma which even the most ill-disciplined could not tolerate. The strength of our legal system comes largely from the fact that it is a system, and to refuse to require order in the manner of reaching fair dispositions of disputes would be to kick aside a major peg of the law’s contribution to our civilization. True, our rules are complex, and perhaps too much so for lay persons. Thus we have a need for lawyers who are familiar with and able to apply them. In our view the “justice” which the appellant’s counsel insists his clients are being denied requires evenhanded adherence to procedural requirements. Whimsical departures from them in the service of the needs of those who refuse to abide by the rules would do ultimate and universal disservice to the cause of fairness for all.
We affirm.
Mayfield, C.J., Cloninger and Cooper, J., dissent. | [
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Lawson Cloninger, Judge.
In this workers’ compensation case, appellant, Henry W. Shepherd, was employed as a carpenter for appellee, Easterling Construction Company, when he fell and suffered an injury to his left knee on May 12,1978. The employer was promptly notified of the injury, and the employer’s carrier paid a medical bill for $92.55 at the time. Appellant continued to work and received no workers’ compensation benefits other than the payment of the medical bill. ">{
On March 24, 1981, appellant filed a claim for medical expenses related to surgery performed on the knee on December 23, 1980, for temporary total disability while off work, and for permanent partial disability. By stipulation of the parties, the only question presented to the Commission and on this appeal is the issue of the statute of limitations.
The Commission held that the claim of appellant was barred by the applicable statute of limitations, and the claim was denied. For reversal, appellant contends that (1) the Commission erred in finding that claimant failed to prove that he filed his claim within the statutory period, that (2) the Commission erred in finding that appellant failed to prove that he filed his claim within the statutory period without also considering appellant’s justifiable delay, and that (3) the Commission failed to consider the effect of appellant’s plea of waiver and estoppel.
We must reverse the decision of the Commission on the basis of appellant’s first point, and it will be unnecessary to discuss the other issues raised.
Ark. Stat. Ann. § 81-1318 (a) (Repl. 1976) provides thata claim for compensation for disability on account of an injury shall be barred unless filed with the Commission within two years from the date of the injury. Section 81-1318 (b) provides that in cases where compensation for disability has been paid on account of an injury, a claim for additional compensation shall be barred unless filed within one year from the last payment of compensation, or two years from the date of the injury, whichever is greater.
Ark. Stat. Ann. § 81-1302 (e) (Repl. 1976) defines disability as incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of his injury.
We believe the case of Donaldson v. Calvert-McBride Printing Company, 217 Ark. 625, 232 S.W.2d 651 (1950), is decisive in this case. In Donaldson, the claimant was inj ured on March 10, 1947. He was paid no compensation and continued to work, but the employer paid medical expenses of $25.00. In October of 1948, because of claimant’s injury, he was assigned to a lighter job, at which time his wages were reduced. On May 24, 1949, claimant filed a claim for compensation, setting out the injury of March 10, 1947 and back surgery as a result of that injury. The Arkansas Supreme Court held that the “time of injury” means a compensable injury, and that claimant’s injury did not become compensable until October, 1948 when he first suffered a loss in earnings. The court distinguished the Donaldson case from the case of Sanderson & Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796 (1949), in that in the Sanderson case a compensable injury resulted on the date of the accident.
In Donaldson v. Calvert-McBride Printing Company, supra, the court stated:
Finally, appellees say: ‘Medical expense of $25.00 was paid by respondents. This constituted ‘compensation’ as defined in § 2 (i), 81-1302 (i). The employer was required to furnish it promptly. (§ 81-1311). Claimant accepted it so he was paid ‘compensation’ in this manner. But he still failed to file claim for two years, three months and seventeen days and is barred.’
We think this contention without merit for the reason that § 81-1318 (a) above, refers to ‘time of injury,’ which we hold to mean time of compensable injury (October, 1948). This section also provides ‘except that if payment of compensation has been made in any case on account of such injury (that is compensable injury) ... a claim may be filed within one year after the date of the last payment.’
It is undisputed that appellant received his injury on March 7,1947, ‘was off work from March 10,1947, to March 17, 1947,’ that he was paid no compensation during this period for the reason that he was not off work long enough to entitle him to compensation under the provisions of the Act (§ 81-1310), but medical expenses in the amount of $25.00 were paid by the appellees for this period.
Obviously, this medical payment was not and could not have been, a ‘payment of compensation . . . on account of such injury (compensable injury)’ of October 1948.
In the instant case, the testimony of appellant is uncontradicted that he continued to work long hours with the same employer until September 18, 1979 when he broke his right ankle in a non-work related accident. While it is not clear from the record, apparently appellant was unable to thereafter perform his regular job due to the difficulty of movement brought about by an injured left knee and a fractured right ankle. When the rule laid down in Donaldson is applied to the facts of this case, we hold that appellant’s injury did not become compensable until he suffered a loss of earnings on September 18, 1979, and that the two year statute of limitations provided for in §81-1318 (a), supra, did not commence running until that time. The claim for compensation was filed on March 24, 1981, which is within two years from September 18, 1979.
The medical payment of $92.55 was not a payment of compensation on account of the compensable injury of September 18, 1979. See Donaldson v. Calvert-McBride Printing Company, supra.
This case is reversed and remanded to the Workers’ Compensation Commission for a determination of whether appellant is otherwise entitled to medical and disability compensation. | [
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Donald J. Corbin, Judge.
Appellants, Lewis J. Nobles and Geraldine B. Nobles, his wife, and George F. Burchard and wife, Ida Jo Burchard, appeal from an action of the Hempstead County Circuit Court in granting appellee’s motion for directed verdict. The Court rendered judgment for appellee, Strout Realty, Inc., in the sum of $34,047.00 plus costs and interest. We reverse and remand.
Appellants owned several tracts of land in Hempstead County, Arkansas, among which were a 1,261 acre tract and a 350 acre tract. Appellants gave a number of open nonexclusive real estate listings on their tracts to real estate brokers in southwest Arkansas.
On March 23, 1978, Roy Taylor of Stretch Realty showed Boyd Morrow of Louisiana the 1,261 acre tract and the 350 acre tract. Taylor advised Morrow that Stretch Realty had 1,611 acres for sale at $600.00 per acre. The showing consisted of telling Morrow of the listed land and driving the road on the boundary of the property. Morrow advised Taylor that he was not interested in purchasing that much land. Taylor sent a notice of showing to appellant George Burchard, advising him that he had shown the 1,611 acres at $600 per acre to Boyd Morrow.
In the spring of 1978, Boyd Morrow contacted appellee seeking to purchase soybean land. On July 10, 1978, while appellants were listing another tract of their land with appellee Strout Realty, Inc., appellee obtained an open listing on the 1,261 acre tract and the 350 acre tract at the price of $600.00 per acre. On July 13, 1978, appellants amended the open listing price with appellee to $450.00 per acre. On July 14, 1978, appellee through one of its agents wrote Morrow and advised him that appellee had some new land listed which Morrow might be interested in. Two weeks later appellee’s agent, John Samuels, drove over the 1,611 acres with Morrow and appellant Burchard.
Boyd Morrow testified that he told Strout Realty, Inc., he was interested in the property but that he and his brother only had a small amount of money to put up as earnest money and would have to rely on Farmer’s Home Administration for financing. He further testified that Horace Samuels, an agent of appellee, informed him that FHA should only handle financing for residents of the state. He testified that he later contacted appellant, George Burchard, and Burchard advised him that any offers would have to come through a realtor. Roy Taylor of Stretch Realty learned from appellant Burchard that they were in a hurry to sell and had reduced the purchase price to $450.00 per acre and would sell in separate tracts. Taylor contacted Morrow to advise him of the changes in the listing which he had shown him in March and obtained an offer which appellants accepted. The loans were ultimately funded and the sales were closed on or about May 11, 1979, some fourteen months after Taylor first exposed Morrow to the property and some nine and one-half months after. Taylor began serious negotiations with the Morrow brothers under the open listing. Appellants paid Stretch Realty a five percent commission of $28,372.50.
The record reflects that the only contact appellee had with the Morrows was the showing of the property in July and a letter referring to the possibility of arranging a smaller earnest money deposit but still insisting on a quick closing.
Appellee moved for a directed verdict on the basis that appellant Burchard admitted on the stand that the Morrow brothers were prospects of the Samuels of Strout Realty, Inc. In granting this motion, the trial judge agreed and stated that appellant Burchard was bound by his testimony and his admission acknowledging that the Morrows were procured by the Samuels of Strout Realty, Inc.
The following testimony by appellant Burchard was apparently the basis of the judge’s ruling on the motion fora directed verdict:
Q. Do you know when you next saw the Morrow brothers?
A. I don’t recall the date, but it was the day after they called me.
Q. They did come up there?
A. They did come back.
Q. All right, what was the purpose of the visit?
A. They were wanting to see if they could work out some kind of deal to buy the place.
Q. Did they tell you why?
A. Yes, sir.
Q. Why?
Mr. Graves: Object
The Court: Sustained.
Q. All right, Did you work a deal out with them?
A. No, sir.
Q. What did you tell them?
A. I told them that there was no way that I could put the deal together, that I had it listed with three or four realtors on an open listing, and I knew that I could not sell the land, because it had been showed by another realtor. But my advice to them, and our conversation was short, ‘You will have to see one of the realtors that has it listed, and they will put the deal together for you.’
In Westside Motors v. Curtis, 256 Ark. 237, 506 S.W.2d 563 (1974), the Supreme Court quoted the rule pertaining to directed verdicts from an earlier decision as follows:
It is a rule of universal application that, where the testimony is undisputed and from it all reasonable minds must draw the same conclusion of fact, it is the duty of the court to declare as a matter of law the conclusion to be reached; but, where there is any substantial evidence to support the verdict, the question must be submitted to the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.
In Thompson v. Harper, 225 Ark. 47, 279 S.W.2d 277 (1955), the Arkansas Supreme Court stated:
In 8 Am. Jur. 1069, in discussing the effect of abandonment on the part of the broker, the holdings are summarized in this language:
If a broker, after introducing a prospective customer to his employer to no purpose, abandons his employment entirely, or if, after procuring a person who proves to be unwilling to accept the terms of his principal, he merely ceases to make further endeavors to negotiate a deal with that particular individual and all negotiations in that direction are completely broken off and terminated, he will not be entitled to a commission if his employer subsequently renews negotiations with the same person, either directly or through the medium of another agent, and thus effects a sale without further effort on the part of the broker first employed.
In an Annotation in 9 Ann. Cas. 435 many cases are cited to sustain this statement:
If a broker does not procure a purchaser on the terms authorized and he abandons further efforts to sell to a prospective purchaser, or if negotiations between the broker and the purchaser are completely broken off and terminated, the broker will not be entitled to a commission if the owner subsequently enters into negotiations with the same party and effects a sale.
We believe questions of fact existed for the jury to determine who the procuring broker was and whether or not the actions of appellee constituted an abandonment of the Morrows as prospects and thereby released the owners to negotiate with the Morrows either directly or through another agent. Since appellee’s agent, John Samuels, admitted on the stand that Boyd Morrow advised him that he had looked at part of the land before, a question of fact existed as to which broker procured the sale.
As stated in Murray v. Miller, 112 Ark. 227, 166 S.W. 536 (1914):
Of course, if, during the life of appellant’s contract, Miller, the owner, had made a sale of the property directly to a prospective purchaser with whom appellant had been negotiating, and whose effort had brought about the direct negotiations with the owner which resulted in the sale, then he would be entitled to a commission. But even if the sale had been made under those circumstances by the owner through another agent who had an equal right with appellant to negotiate a sale, and whose effort contributed equally in bringing about the sale, then the agent who finally secured the purchaser, and not appellant, was entitled to the commission, and the owner is not liable to appellant if he acted in good faith and did not interfere with appellant’s efforts to consummate the sale.
In the case at bar, the agents of appellee admitted that they never obtained an offer from the Morrows. In Brinkman v. Peel, 222 Ark. 345, 260 S.W.2d 448 (1953), the Supreme Court noted:
The law is that as between realtors who have nonexclusive listings, the agent first producing a buyer whose offer meets the seller’s terms has earned his commission.
We believe the trial court erred in taking the case away from the jury as it clearly deprived appellants of the right to have questions of fact which raised a jury question presented to the. jury. Reversed and remanded. | [
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Melvin Mayfield, Chief Judge.
The appellant was found guilty of possession of cocaine with intent to deliver and was sentenced to ten years. He was also found guilty of possession of marijuana and Valium and fines were imposed for those offenses. He appeals only the conviction for possession with intent to deliver and his first contention is that the jury’s verdict was contrary to the law and evidence.
There was testimony that law enforcement officers, acting with a search warrant, searched appellant’s house and seized the following items: $500.00 in bills of various denominations; a plastic sandwich bag containing approximately five grams of a white crystalline powder; a bag containing approximately one ounce of vegetable matter; an unlabeled bottle containing 81% tablets; a single-pan scale calibrated in grams and another scale calibrated in ounces; a quantity of cigarette papers; and'several glass and metal smoking pipes. Arkansas State Crime Laboratory chemists who tested the powder, vegetable matters, and tablets seized from appellant’s home testified that the bag of white powder weighed 6.3 grams and contained 2.1547 grams of pure cocaine mixed with a larger amount of sugar, that the vegetable matter was marijuana, and the tablets were Valium.
Appellant testified in his own defense and admitted that the items seized were his, but said the cocaine was for his own personal consumption and that he had not engaged in selling any drugs. He testified that the scales were gifts and that the money came from his used car business.
Appellant’s former wife testified that she was aware appellant smoked marijuana and sometimes laced it with cocaine, but that she had never known him to sell any controlled substances to anybody, either before or after his arrest. She testified that the money seized by the officers came from a car sale; that appellant had been collecting money from cars to go to an auction in Little Rock the following week; and that he normally kept his money at home.
The appellant argues that the evidence could have supported a conviction for possession of cocaine, but not for possession with intent to deliver. Intent, or state of mind, is not subject to direct proof but must be inferred. We think there was sufficient evidence for the jury to make that inference in this case. The amount involved, 2.1547 grams of pure cocaine, was evidence which the jury could properly consider in determining the purpose or intent with which it was possessed and, in keeping with Arkansas Model Criminal Instruction 3307, the jury was so instructed. Other evidence seized in appellant’s home, from which the jury could reasonably infer the requisite intent, included the large amount of money in a variety of denominations and the scales calibrated in grams.
It is settled that purpose can be established by circumstantial evidence, and often this is the only type of evidence available to show intent. Washington v. State, 268 Ark. 1117, 1120, 599 S.W.2d 408 (Ark. App. 1980). However, as Washington says, the circumstances established by the evidence must be such that the requisite purpose of the accused can reasonably be inferred, and the evidence must be consistent with guilt of the accused and inconsistent with any other reasonable conclusion. The jury was so instructed in this case and the appellant contends that his evidence provided the jury with just such a reasonable alternate conclusion, and that the jury could not, under the law and the instructions, find him guilty of possessing the contraband with the intent to deliver it, based on the circumstantial evidence in this case.
The jury is not required, however, to believe the testimony of any witness, and especially not that of the accused who is certainly interested in the outcome of the trial. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). It was the jury’s prerogative, as the trier of fact, to evaluate the evidence and draw its own inferences as to why appellant had the cocaine in his possession. Milburn v. State, 260 Ark. 553, 542 S.W.2d 490 (1976). In Caradine v. State, 189 Ark. 771, 75 S.W.2d 671 (1934), the court said:
[TJhere is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the circumstances introduced in evidence beyond a reasonable doubt that the defendant is guilty, it is the duty of the jury to find him guilty, just as it would if the evidence was direct.
In this case, the jury found appellant guilty of possession with intent to deliver. We cannot say the evidence was insufficient to support the verdict.
Appellant’s second point argues that the evidence seized should have been suppressed because the nighttime search was in violation of the Arkansas Rules of Criminal Procedure.
The pertinent part of the affidavit upon which the search warrant was issued reads as follows:
That a confidential informant who has furnished reliable information in the past which led to the location of a fugitive felon, and who has, in the past, purchased illegal drugs from Charles Lewis at 406 West 3rd St., Smackover, Ark., furnished information that during March, 1980, he observed Charles Lewis sell marijuana and cocaine, and that Charles Lewis had secured the drugs from a back room of that residence.
The informant stated that many sales take place at night and a night search may be more successful.
Our Criminal Procedure Rule 13.2 (c) provides:
(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
Appellant’s only argument on this point is based on the very narrow contention that the affidavit did not state that the warrant could be safely or successfully executed only at nighttime. First, we note that Criminal Procedure Rule 16.2 (e) provides that a motion to suppress shall be granted only if the court finds that a violation is substantial or it is otherwise required by the United States or Arkansas Constitutions. Both constitutions prohibit unreasonable searches and seizures and it has been pointed out that affidavits for search warrants should be tested and interpreted in a commonsense and realistic fashion under both of them. Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977). Also, appellant’s argument overlooks the other part of Rule 13.2 (c) (iii) which provides that a nighttime search may be authorized if the warrant can be safely or successfully executed only under circumstances the occurrence of which is difficult to predict with accuracy.
Considered in the light of the above, we find that the trial court’s ruling on the motion to suppress should be sustained. As in Blankenship v. State, 258 Ark. 535, 527 S.W.2d 636 (1975), we accord some weight to the decision of the judicial officer who issued the warrant and from the language of the affidavit we find that he could have reasonably believed that the occurrence of daytime sales were so difficult to predict that the warrant could be successfully executed only at nighttime when many sales take place and when supplies are likely to be present in the back room of appellant’s residence.
No argument is made here as in State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980), that the language of the affidavit was so conclusory that the judicial officer could not make an independent and neutral determination of reasonable cause for the issuance of the warrant. We think, however, that the language here is no more conclusory than the officer’s statement that “evidence of the crimes might be disposed of” which was approved in Harris v. State, 262 Ark. 506, 509, 558 S.W.2d 143 (1977). There the court found no substantial violation of Harris’ rights and we find no substantial violation of the appellant’s rights here.
Affirmed. | [
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Melvin Mayfield, Chief Judge.
The appellant was convicted of burglary and attempted rape and sentenced to serve consecutive terms of 10 years imprisonment on each charge.
His only point on appeal is that the trial court erred in allowing a red bandana — or handkerchief — to be introduced into evidence. It is appellant’s contention that there was no foundation for the introduction of the exhibit but that, even though there was no evidence to show it belonged to appellant or was ever in his possession, the jury was left with a strong impression that he was in some way connected with it.
There was evidence that a man attacked a 17-year-old girl who was baby-sitting a 9-year-old boy. After the man left the room where they were, they attempted to leave the house and were again confronted by the man who was then wearing a red bandana over the lower portion of his face. During the boy’s testimony he was shown a red bandana and asked if it “looks like the one the man had,” and the boy said it did. Essentially the same evidence was given by the girl.
We think it proper for these witnesses to describe the attacker’s appearance and how he was dressed. Even evidence of crimes other than the one charged have been allowed in order that the jury might know all the circumstances surrounding the commission of the crime charged. Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981). If the bandana shown the witnesses helped them to explain and the jury to understand what the attacker had over his face, then it would be proper to use the bandana for that purpose. Morrison v. Firemen’s Ins. Co., 4 Ark. App. 351, 631 S.W.2d 310 (1982). McCormick on Evidence, § 212 (2nd ed. 1972), states it this way:
It is today increasingly common to encounter the offer of tangible items which are not contended themselves to have played any part in the history of the case, but which are instead tendered for the purpose of rendering other evidence more comprehensible to the trier of fact.
Upon request, the trial court would have been required to instruct the jury that the bandana was admitted for that limited purpose. Uniform Evidence Rule 105. However, no such request was made and “whether the admission of a particular exhibit will in fact be helpful, or will instead tend to confuse or mislead the trier, is a matter commonly viewed to be within the sound discretion of the trial court.” McCormick, supra. We find no abuse of the trial court’s discretion in this case.
We affirm.
Glaze, J., concurs. | [
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Tom Glaze, Judge.
This appeal arises from the trial j udge’s decision that appellant removed topsoil from appel-lees’ adjoining land, caused water to drain onto it, and damaged appellees in the sum of $2,047.37. For reversal, appellant contends (1) the chancellor failed to apply the proper measure of damages, and (2) his findings were against the preponderance of the evidence. We affirm.
The parties agree that the proper measure of damages is the difference between the fair market value of appellees’ land before and after appellant caused the injury. St. Louis Iron Mountain & Southern Railway Co. v. Miller, 107 Ark. 276, 154 S.W. 956 (1913). Appellees presented evidence that they had spent $1,047.37 in attempting to put their land back the way it was before appellant removed the topsoil and to stop the flow of water from appellant’s land onto their own. Appellees also called an expert witness, Lewis M. Ballard, to testify to the decrease in the value of the land. Mr. Ballard testified that the difference in before and after values was $3,750.00 in 1979 values and $5,000.00 in 1981 values.
The chancellor enunciated the proper measure of damages in his decree. Absent evidence to the contrary, we must assume that he considered and applied this standard in awarding damages. He stated further that he had considered all testimony and evidence relating to damages in reaching the amount of the final award.
Appellant contends that the chancellor applied an improper measure of damages because no correlation exists between the damages suffered and the amount awarded. However, we believe that the chancellor had a basis for his award in the evidence presented, even though the amount awarded was not exactly the same as the difference between the before and after values set out by the appellees’ expert witness. The Supreme Court has said that even though opinion testimony concerning value is uncontradicted, it is not conclusive and binding upon a jury since such testimony is only advisory or an aid to the jury in resolving an issue of fact. Arkansas State Highway Commission v. Schanbeck, 240 Ark. 277, 398 S.W.2d 897 (1966). The Court in Schanbeck relied on the rule that a jury has the unrestricted right to exercise its own independent thinking and judgment in translating the testimony into a finding of fact. See also Fulbright v. Phipps, 176 Ark. 356, 3 S.W.2d 49 (1928). The same rationale and rule is applicable to a court sitting as a fact-finder, when it decides the relative weight and sufficiency of opinion testimony.
Here, we believe the chancellor was justified in exercising his independent judgment in making a finding of fact concerning the amount of damage to the property in question. Although he awarded damages in an amount less than that to which appellees’ expert testified, the amount awarded was not unreasonable in view of all of the other evidence presented. The chancellor, like a jury, was permitted to take into consideration not only the testimony of the witness, but the reasonableness of that testimony, the demeanor of the witness, his apparent candor and interest, and whether or not his testimony was in accord with sound judgment and common sense. See Schanbeck, supra.
Appellant’s final contention is that the evidence of temporary or permanent damage to appellees’ property was not sufficient to support a judgment. However, the chan cellor heard numerous witnesses testify about the removal of topsoil; he viewed photographs of the property which were introduced by both parties; and he personally viewed the property in question before finding that appellees had suffered permanent damage and were entitled to compensation. We cannot say that his findings were against the preponderance of the evidence or clearly erroneous, so we affirm. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981).
Affirmed. | [
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Tom Glaze, Judge.
Appellant was convicted of tampering with physical evidence and received a sentence under the Class A misdemeanor provisions of Ark. Stat. Ann. §§ 41-901 and41-1101 (Repl. 1977). During the trial, the State presented for the first time testimony that City Councilman Chester Hesselbein was involved in the crime. When appellant called Hesselbein as a witness to deny such participation, the State objected on the grounds that the appellant failed to furnish Hesselbein’s name as a witness during the discovery process. The trial court sustained the State’s objection, and appellant proffered Hesselbein’s testimony. Hesselbein denied any knowledge or participation in the tampering charge. For reversal, appellant contends the trial court erred in excluding Hesselbein’s testimony, and we agree.
In November, 1978, appellant assisted in the investigation of a break-in at the Highway No. 9 Liquor Store. Two men were subsequently charged with breaking or entering and theft of beer and whiskey. The beer and whiskey were inventoried, labeled and stored at the Morrilton Police Department. On May 1, 1980, the men were convicted of breaking or entering but found not guilty of theft. After the trial, appellant took custody of the beer, which had been introduced into evidence, and again stored it in the evidence room at the Police Department. Later, in December, 1980, appellant was charged with tampering with this evidence.
At appellant’s trial, the State presented Debbie Reynolds, a former Morrilton Police Department employee, as a witness. She testified that appellant had given the beer, used as evidence in the two men’s earlier proceeding, to Councilman Hesselbein. Reynolds said that she gave appellant her keys to the Department’s evidence room; he and Hesselbein entered the room, and Hesselbein emerged with two six-packs of beer and one bottle of whiskey under his arm. However, appellant testified that he destroyed the beer that had been stored in the evidence room, and only after the State deputy prosecuting attorney told him that he could do so.
Obviously, the State’s case centered around Reynold’s testimony, which implicated both appellant and Hesselbein in the alleged tampering. However, the State’s charges against appellant never revealed that any other person was involved in the alleged crime. In a criminal case, the Bill of Particulars must state the act relied upon by the State with sufficient certainty to apprise the defendant of the specific crime and to enable him to prepare his defense. See Ark. Stat. Ann. § 43-804 (Repl. 1977); and Edens v. State, 235 Ark. 996, 363 S.W.2d 923 (1963). Here, the State withheld details of the crime to which appellant was entitled and in doing so clearly served to frustrate his defense preparation.
In addition, appellant filed a motion for discovery pursuant to Rule 17.1 of the Arkansas Rules of Criminal Procedure requesting, among other things, the names of all State witnesses and any exculpating information in the prosecuting attorney’s possession. When furnishing his list of witnesses to the appellant, the prosecutor did not mention Reynolds by name but did state that he would call representatives of the Morrilton Police Department. Of course, Hesselbein was neither named specifically nor under a broad representative category of potential witnesses. The record does reflect that appellant, on his own initiative, did attempt to interview Reynolds before trial, but that she refused.
In sum, there is nothing in the record that shows appellant had any reason to believe Reynolds would testify and implicate appellant and Hesselbein in the crime charged. To the contrary, we can only assume from the evidence presented that the prosecutor and Reynolds were the sole persons who knew of Hesselbein’s alleged involvement in the crime. The State never charged Hesselbein as a principal or an accomplice. Nor did it intend to call Hesselbein as a witness. When he was called as a witness —by appellant — Hesselbein’s proffered testimony tended to negate appellant’s guilt of the tampering charge. Under Rule 19.2 of the Arkansas Rules of Criminal Procedure, the prosecutor had a continuing duty to.nodfy appellant of any additional material or information comprehended by appellant’s prior discovery motion. In conclusion, the prosecutor not only failed to comply properly with appellant’s discovery motion but also, as previously discussed, he improperly withheld details of the alleged crime which should have been set out in the State’s Bill of Particulars. For these reasons, we reverse.
Appellant raised a second issue, arguing the trial court erred in refusing to reduce his conviction to a Class B misdemeanor. While we may find merit in his argument, it is unnecessary to address that issue since we reversed for other reasons. We have no reason to believe this second.issue will recur at a retrial of this case.
Reversed.
Various descriptions were presented of the items actually stored as well as the types of containers in which they were stored. These conflicts have little significance or relevance to the legal issue under consideration in this appeal. | [
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Donald L. Corbin, Judge.
Appellant, Michael Ferrell, was found guilty of possession of a controlled substance and was sentenced to one year in the Clay County jail and fined $1,000.00. We affirm.
Deputy Sheriff Jim Earl Groning and Game and Fish Warden Austin Arnold observed appellant and William J. Woods parked on Highway 135. Upon approaching the vehicle, Deputy Groning observed beer bottles strewn about the car. The officer asked the driver, William Woods, for his driver’s license. When Woods got out of the car to show his license, the officer observed marijuana butts, seeds and a roach clip on the floorboard of the vehicle. After gathering these items up, Mr. Woods told the officer to look in the trunk of the car. The appellant was in an intoxicated state. He ran away from the officers and returned after the officers had searched the vehicle.
According to Rule 11.2 (b) of the Arkansas Rules of Criminal Procedure a vehicle can be searched if consent is given by the registered owner or one who is in “apparent control of the operation at the time consent is given.” Clearly consent was given in this case by one in “apparent control.” Some relatively recent cases in Arkansas have determined the question of apparent authority to consent. The United States District Court stated in U.S. v. Butler, 495 F. Supp. 679 (E.D. Ark. 1980) that:
It is well settled that consent to search effective to validate a warrantless search and seizure may, in appropriate circumstances be given by a person other than the victim of the search. Frazier v. Cupp, 394 U.S. 731 (1969). This third person authority may be based upon the fact that the third person shares with the absent target of the search a common authority over, general access to or mutual use of the place or object sought to be inspected under circumstances that make it reasonable to believe that the third person has the right to permit the inspection in his own right and that the absent target has assumed the risk that the third person may grant this permission to others. United States v. Matlock, 415 U.S. 164 (1974).
It was reasonable for Deputy Sheriff Groning to believe that William Woods could consent to the search. When the sheriff first saw the Ferrell vehicle, Woods was the driver of the vehicle. The Sheriff also testified that he did not know Ferrell was the actual owner until he looked up the registered owner the next day. Although appellant later protested, initially, Woods went to the trunk of the car to let the deputy search it without any argument on Ferrell’s part. Woods testified that the appellant wanted him to drive because he had been drinking. Thus, Woods had apparent control of the vehicle. In addition, appellant abandoned the car, leaving the keys to the vehicle with the officers.
We hold that the trial court Was correct in refusing to grant appellant’s motion to suppress and affirm. | [
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Tom Glaze, Judge.
This is an appeal from certain property settlement provisions of a divorce decree in which the appellant alleges that the trial court erred as follows: (1) in awarding a $400 credit to appellant for his jewelry which appellee sold; and (2) in awarding appellee the use and possession of the parties’ home. We affirm the chancellor’s decree in both respects.
The parties lived apart for several years before they were divorced. A Decree of Separate Maintenance was entered in October 1977 which set out the division of certain items of personal property, including the jewelry at issue, and which granted the appellee the use and possession of the family home for herself and the parties’ children. A divorce hearing was held January 14, 1981. Another hearing was held May 19, 1981, at which time the court rendered its final decision. A decree of divorce was entered in October 1981 nunc pro tunc to the date of the May hearing.
No record was made of the May hearing; consequently, no transcript is available to determine the basis for the chancellor’s final awards. A transcript of the January 14 hearing reflects appellee’s testimony that she sent three necklaces to California for her sister to sell and that appellee received proceeds of $900 from the sale. Two of the three necklaces belonged to appellant; the third to appellee. The appellant contends on appeal that his jewelry was worth $4,000, and that the trial court erred in giving him a credit of only $400 against child support and house payment arrear-ages he owed appellee. Without a transcript of the May hearing, we are unable to determine exactly how the chancellor arrived at the $400 figure. Rule 6 (d) of the Rules Appellate Procedure provides a method of reconstructing a record of proceedings when a stenographic record is not kept. However, appellant made no attempt to make a record in compliance with the rule. In this situation, we must presume that the matters presented in the unrecorded hearing support the trial court’s findings. Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978); Watson v. Jones, 233 Ark. 203, 343 S.W.2d 415 (1961).
Appellant contends that the court also erred in awarding appellee the use and possession of the home which they owned as tenants by the entirety rather than in ordering the house sold and the proceeds divided between the parties. He bases his assertion upon Ark. Stat. Ann. § 34-1215 (Supp. 1981), and upon the alleged financial straits of the appellant at the time of the divorce. We find this argument without merit. Under § 34-1215, parties who hold property as tenants by the entirety automatically become tenants in common at the time of divorce. In construing § 34-1215, the Supreme Court in Yancey v. Yancey, 234 Ark. 1046, 356 S.W.2d 649 (1962), held that the trial court, upon granting the divorce, may place one of the parties in possession of the premises, or it may order the property sold and the proceeds divided. Thus, in the instant case, the chancellor’s action in placing appellee in possession of the parties’ property was certainly authorized under Arkansas law. In view of the record presented us in this case, we must presume that the chancellor’s decision to put appellee in possession was not clearly against the preponderance of the evidence.
In Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981), the Supreme Court held that Act 705 of 1979, which amended the general property division statute, codified as Ark. Stat. Ann. § 34-1214 (Supp. 1981), did not effect a change in § 34-1215. We also note that a 1975 amendment to § 1215 provided that the change in estates is automatic at divorce, rather than being merely within the authority of the chancellor. This 1975 Amendment did not affect the rule and holding announced in Yancey. | [
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W'ood, J.
This is an action by Mrs. Rozell Duncan against the ¿Etna Life Insurance Company (hereafter called company), on a policy of life insurance issued by the company on November 11, 1920, insuring the life of her husband, Jerry C. Duncan, in the sum of $6,000, in which policy she was named as the beneficiary. She alleged the death of her husband on June 17, 1922, set up the policy, and alleged that the premiums had been paid; that the company had due notice and proof of death, and had refused to pay the amount due on the policy. The company moved to make the complaint more definite and certain by stating the date on which the last premium was due and the date upon which it was paid, if paid, and the date and manner of delivery of said payment, and whether the consideration was other than cash, and moved to require the plaintiff to exhibit all original letters from the company, or to state their substance, or to state the substance of the agreement, if verbal, to accept the consideration for the premium. The court overruled the motion.
The company answered, admitting the issuance of the policy, but denied due notice and proof of death, and denied that the premium necessary to keep the policy in force had been paid before the death of Duncan, and averred that the policy therefore had lapsed, and had never been reinstated, and denied liability on the policy. The policy was introduced by the plaintiff.- Without setting forth all of its provisions in haec verba, those material to this controversy are in substance as follows:
In consideration of an annual premium of $134.76 to be paid in advance, at its home office or to its agent, on the 11th day of November in each year, during the life of the assured, it insures the life of Duncan in favor of his wife in the sum of $6,000, payable upon receipt at the home office of due proof of the death of Duncan. If any subsequent premium was not paid when due, then, after the grace period of thirty-one days, the policy lapsed. The policy provided that, within five years after default in any premium payment, it could be reinstated upon evidence of insurability satisfactory to the company and the payment of arrears of premiums, with interest at the rate of six per cent, per annum.
The policy contained these further provisions: “No renewal premium shall be considered paid unless a receipt shall be given therefor, bearing the original or lithographed signature of the secretary or assistant secretary of the company, and countersigned by the agent.”
“All agreements made by the company are signed by its president, vice president, secretary, assistant secretary, treasurer, or assistant treasurer. No other person can alter or waive' any of the conditions of this policy or malee any agreement which shall be binding upon the company.” There was a provision making the application for insurance and the policy the entire contract between the parties. In the application is a statement by the assured acknowledging that all policies and agreements made by the company are signed by one or more of its executive officers, and that “no agent or other person not an executive officer can grant or waive any condition of its policies, or make any agreement which shall be binding upon said company.”
The undisputed facts are as follows: The first premium was paid, and the policy was in force from November 11,1920, to November 11,1921. The premium was not paid on the latter date. On April 20, 1922, Dunoan wrote Campbell & Hart, State agents and managers of the company, a letter in which he acknowledged receipt of their letter of April 18 in regard to the reinstatement of his policy. In this letter he stated that the soliciting agent, Harmon, had told him that he could renew by making a note, and he requested the managers, if this were satisfactory, to send him a note due November 15, 1922. In reply to this letter Campbell & Hart wrote: “Beg to advise that your policy was reinstated on April 11. We inclose herewith extension note, which, if you will sign and return to us with partial payment of $25, will extend the balance of your premium to June 11. When this note falls due, by making another partial payment of $25 we can extend the final balance to August 11.”
On April 24, 1922, Duncan wrote in reply to this letter, stating that he could not send the money, and if the company would not take his note he would let his insurance drop. In reply to this, the managers wrote on April 26, telling Duncan that, if he was unable to make the payments as outlined in the previous letter, that was the only way they could handle the matter, and it would be best for him to wait until fall and then advise if he could make the payments, and they would give the matter' prompt attention. On May 20, 1922, the managers wrote Duncan that his policy, which had been recently reinstated, had again lapsed for the nonpayment of the reinstatement premium, and inclosing a form for reinstatement for Duncan to fill out and return, if he was ready to pay the premium and reinstate the policy, and ■ (concluded by saying, “We will make an effort to get the company to reinstate it.” On May 23, 1922, Duncan answered, acknowledging receipt of letter and blank form, and stated, “Am sending you check for $25, dated June 1,” and requesting the managers to send him a note to sign for the balance. The application for reinstatement referred to in the letter of May 20, above, was introduced, and is as follows:
. “Approved..............................
“Brief Reinstatement Application No. 266970 S
Jerry C. Duncan.
/Etna Life Insurance Company, Hartford, Conn.
Lapsed November 11, 1921.
Canceled Lap. May, 1922.
Date reinstatement June 7, 1922.
Unpaid premiums due (See margin) $134.76.
Premium Int. $1.35.
Net payment $136.11.
Agent, Campbell & Hart, managers.
Examined by Pearl.
Application received, record made June 1, 1922.
No record — L. B., June 1, 1922, A. Gr. P.”
Then follow questions with reference to the health of the assured and his occupation, and various other questions, on which no issue is based in the case, and then the following recital: “I further agree that said contract shall not be considered reinstated by reason of any cash paid or settlement made in connection with this application unless this application is approved for reinstatement by an executive officer of the company at its home office, and the payment of the full amount of all unpaid premiums and interest made within thirty-one days from the date of the company’s reinstatement receipt, and before said receipt, properly signed by an executive officer, is actually delivered to me, and then on the express condition that I am in sound health on the date of said delivery, which I expressly represent myself to be by accepting said receipt. It is hereby understood and agreed that, if this application is declined, or if the company’s reinstatement receipt is delivered to me while I am not in sound health, any payment made on account of this application is to be returned to me upon demand, and the said receipt shall be surrendered to the company.
“(Signed) J. C. Duncan.
“P. O. Address, England, Ark. Dated May 23, 1922.”
On June 10, 1922, the managers wrote Duncan the following: “The company has agreed to reinstate your policy No. 266970, the amount due being $136.11. We will hold your check for $25 to apply on this amount, as soon as we have received the remittance for the balance, when receipt will be forwarded and your policy will be put in full force and effect.”
In answer to this letter, Duncan wrote, June 12, 1922, saying: “Your letter of the 10th just received, and will say you wrote me if I would send $'25 you would take a note for the balance, and you have not sent the note. Now if you can’t take a note, just return my $25, as I have no more money to pay out now.” The agents answered this letter on June 16 as follows: “In reply to yoúr letter, we inclose herewith extension note covering the balance of your reinstatement premium, which, if you will sign and return to us, will extend this balance to August 7. When this note falls due, by making a partial payment of $25 we can extend the balance to October 7.”
Mrs. Duncan testified that her husband was killed instantly on June 17, 1922, between 12:30 and 1 o’clock. She identified a note which her husband had signed on that day about 12 o’clock, which note is as follows:
“Form No. 71A.
Must be signed by same person who signs the form No. 71.
Net premium..................$136.11 Number of policy S-266970.
Cash pay’t. (if any) 25.00 Premium fell due 6/7/1922.
Balance .......................-..... 111.11 Ext’sion matures 8/7/1922.
Interest added............... 1.11 1 have this day 6/15/1922
Amount due..................... 112.22 signed form as described hereon.
‘ ‘ General Insured or
“Attest.............................. Agent................!............................... Beneficiary
(Sign here)
(Indorsed on face in red ink “Beinstatement”).
“Important — This form must be signed on or before the days of grace expire. Interest is added for extension of time hereby authorized.
“Form No. 71 Edition Feb. 1922.
“$112.22.
“In consideration of an extension of time for payment of reinstatement premium due 6/7/1922 under policy No. S-266970, I agree to pay said premium and interest, amounting to one hundred twelve and 22/100 dollars, to Campbell & Hart, agent of the /Etna Life Insurance Company of Hartford, Conn., at its office in Little Bock, Ark., on or before August 7, 1922.
‘ ‘ This agreement, with a cash payment of $25, being given to extend time for payment of said renewal premium, it is understood that, if the sum named is not paid when due, said policy shall then cease and determine, except for the nonforfeiting provisions (if any) to which said policy was entitled when the premium fell due, and this agreement shall be canceled;- and it is also understood that this extension shall not exceed -sixty days from the date when said premium fell due, anything to the contrary herein notwithstanding.
“ x J. C. Duncan Insured or Beneficiary.
“ x Must be signed on both lines marked x
(Indorsed on face in red ink) “Beinstatement.”
(Indorsed on back in red ink).
“Insured (or beneficiary) must sign his name in two places.”
She identified her husband’s signature to the note, and testified that she delivered the same to Harmon, the local agent of the company, the day her husband was killed. Her husband had intended to mail the note. She further testified that Mr. Hart, one of the managers of the company, came down to her home about a month or six weeks after her husband’s death to get the details, and she told him all about it.
Harmon testified in substance that he was agent of the company, and that he solicited Duncan’s application for the insurance in controversy; that he went to Duncan’s on the day he was killed, shortly after the killing, and received the note above mentioned from Mrs. Duncan, which he forwarded to the general managers, explaining the circumstances of Duncan’s death, and requesting them to forward the necessary blanks, and that he would attend to the matter to the best of his ability. He identified the telegram which was sent by the company from Hartford on September '22 to Campbell & Hart. The telegram stated, “Will advise you fully Duncan case in few days.” The witness made the contents of the telegram known to Mrs. Duncan. Witness testified, on cross-examination, that he'accepted the note mentioned from Mrs. Duncan, and sent the same to the managers, because of his friendship for the Duncan family and at Mrs. Duncan’s request. He was a soliciting agent, and had no authority to act as an agent for the company in settling the claim. It was not his duty to collect premiums, though sometimes, as an accommodation to his friends, he did so, and remitted same to the company. All the business of the company in the State was handled through Campbell & Hart, by whom witness was employed.
■Witness Morris testified that he was employed as an attorney for Mrs. Duncan to collect her insurance. He wro+e two letters to the comoanv at'its home office, concerning the policy in controversy, and stating that he understood that proof of death had been furnished, and that the beneficiary desired to know if the claim would be paid without litigation. . He testified that he offered to make any proof of death demanded, and requested the company to send him a form so that he might make the proof in the usual course. He did not get a reply to his letters.
Hart testified for the company that he was a manager, and that he made a personal investigation of the case in controversy; that he was informed by Mrs. Duncan as to all the facts with reference to the death of her hus-' band. He received the note signed by Duncan which had been introduced in evidence, and also received a cheek for $25, dated June 1, and inclosed in Duncan’s letter of May 23. He retained the note and check until after the suit was brought. He was authorized to and did solicit Duncan to reinstate his lapsed policy. The application for reinstatement had to be submitted to the company for its decision. The general managers are authorized to reinstate when the company sends down a reinstatement receipt. The managers then advise the policyholder to send in his premium and that the reinstatement will then be sent him. The application for reinstatement of Duncan went to the home office of the company, and they sent witness a reinstatement receipt, with instructions that, upon collecting the premium, he could then send the reinstatement receipt to Duncan, at which time the policy would be reinstated. The only agreement witness ever made with Duncan was that, if he would pay the premium, either by note or cash, the policy would be reinstated. Witness had to hold the check until he could tell whether the company would approve the application or not, and, when the company approved the application for reinstatement, he demanded the remainder of the premium, and never cashed the cheek because the balance of the premium was never paid. Witness identified and introduced in evidence the reinstatement receipt which was sent witness, to be delivered to Duncan when the premium was paid, which is as follows: “Reinstatement receipt. ¿Etna Life Insurance Company, Hartford, Conn., June 7, 1922. In consideration of the application for the reinstatement of Contract No. S-266970 on the life of J. C. Duncan, England (herein called the insured), which reinstatement application is dated May 23, 1922, and is hereby referred to and made a part of this contract, and of $136.11 to be paid within thirty-one days from this date, and before the delivery of this reinstatement receipt, the JEtna Life Insurance Company reinstates said contract from the date this receipt is actually delivered to the insured, on the express condition, and the representation by the insured, that the insured is then in sound health, otherwise this reinstatement to be null and void. Not binding without date of payment and signature of agent here. Received payment this -day of-, 192 — , subject to the above terms.
“Agent. Payment for November 11, 1921. L. R.”
Upon the above facts the plaintiff prayed the court to instruct the jury to return a verdict in her favor, which prayer the court granted. The court instructed the jury to return a verdict in favor of the plaintiff in the sum of $6,000, with interest at the rate of 6 per cent, per annum from October 31,1922, and twelve per cent, of the $6,000, less the sum of $136.11, with interest from November 11,1921, at the rate of 6 per cent, per annum. The defendant also prayed the court to instruct a verdict in its favor, which prayer the court refused, to which ruling the defendant duly excepted. The defendant also prayed for other instructions, which the court refused, and to which rulings the defendant duly excepted. The jury returned a verdict in favor of the plaintiff as directed. Judgment was entered in accordance with the verdict, from which is this appeal.
1. The court did not err in overruling the appellant’s motion to require the appellee to make her complaint more specific The allegations of the complaint, showing the policy issued, the premiums paid, the death of the assured, and a compliance of the appellee with the requirements of the policy as to notice,of the death and demand of payment, which was refused, definitely state a cause of action against the appellant, and its answer admitting the issuance of the policy and denying the other allegations of the complaint raised the issue upon which the testimony was adduced covering all the grounds of appellant’s motion. The complaint was sufficiently specific to call for the proof which was adduced to support the appellee’s contention, and it was unnecessary and improper to set forth in the complaint the proof or evidence to be adduced.
2. The policy required the appellant to pay the amount named therein “upon receipt at its home office of due proof of death of Jerry C. Duncan.” The policy does not require that proof of death shall be made in any particular manner, or at any particular time. No method is specified for making the proof. In the absence of a specific requirement of the policy as to a particular method to be pursued, any method is sufficient which serves to bring home to the insurer notice and proof of the death of the assured. The testimony of the appellee’s attorney to the effect that he had written the appellant at its home office, notifying it of the death of Duncan and offering to make proof of death in any way demanded, and asking the company if it intended to resist the payment to the beneficiary of amount claimed under the policy, together with the telegram of the company to its general managers stating that it would advise them fully within a few days what to do with the Duncan case, show conclusively that the company had notice of the death of Duncan at its home office. “No matter what the form of the notice may be, if it operates to bring the attention of the insurer to the loss, it is sufficient, and, where the nature of the notice is not prescribed, it may be oral.” 14 R. O. L. 1338, § 507; 33 C. J. 16, § 664; see also Jackson v. Life & Annuity Assn., 195 S. W. 535; 5 Joyce on Insurance, p. 5470, § 3277. The appellant having notice of the death of Duncan, its denial of liability, not predicated upon a failure to furnish proof of loss, and its failure, upon request, to indicate that further proof of loss would be required, constituted a waiver of any right to any other or further proof of loss. Dodge v. Thomasson, 94 Ark. 621. See also Security Mut. Ins. Co. v. Woodson, 79 Ark. 266; Equitable Surety Co. v. Bank of Hazen, 121 Ark. 422.
3. The real crux of this lawsuit is involved in' the contention of the appellant that, at the time of the death of Duncan, the contract of insurance had lapsed because of the nonpayment of the premium due November 11, 1921, and that the policy had not been reinstated, and was not in force, on the 17th day of June, 1922, when Duncan was killed, and therefore that appellant was not liable. The undisputed testimony shows that the premium due November 11, 1921, was not paid, and therefore the policy, by its express terms, lapsed after the thirty-one days of grace period. The policy provides that, after default in premium payment, it may be reinstated upon evidence of insurability satisfactory to the company, and by payment of arrears of premium, with interest at the rate of six per cent, per annum. "We are convinced that the undisputed testimony shows that there was a completed contract for reinstatement of the policy, according to its terms, before Duncan was killed. Learned counsel for appellant contends that there was no receipt of the. renewal premium signed by the secretary of the company and countersigned by the agent; that there was no agreement signed by the president, vice president, secretary, assistant secretary, treasurer or assistant treasurer, showing the reinstatement of the policy; that no one of the executive officers of the company signed or approved any application or agreement for a reinstatement of the policy, and that therefore the requirements of the contract of insurance in these respects were not complied with. But all of the above provisions were made for the benefit of the appellant company, and they could be waived by the company. The undisputed testimony shows that these provisions were waived. The testimony of Hart, of Campbell & Hart, appellant’s general agents and managers for the State of Arkansas, shows that they were authorized to solicit the reinstatement of policies, and to reinstate the same when the company sent down a reinstatement receipt showing that the application for reinstatement had been approved by the company. The correspondence in the record between the appellant’s general agents and Dnncan, set out above, shows that, prior to May 20, 1922, Campbell & Hart had solicited Duncan to reinstate the policy, and had reinstated the same on April 11 until June 11, on condition that he pay $25 in cash and sign a note for the balance of the unpaid premium. But Duncan wrote them that he could not send the money, and that, if they could not take his note, he would let his insurance drop. The result of these negotiations was that Duncan permitted the reinstatement of April 11 to lapse because he failed to comply with the conditions prescribed for the payment of the premium. On May 20 the general agents renewed their solicitation to Duncan to again reinstate, and inclosed him a blank for that purpose, stating that they would endeavor to get the company to reinstate the policy. Duncan, in answer to this letter, wrote the agents, on May 23, acknowledging receipt of the letter and blank, and inclosed a check for $25, dated June 1, and requesting them to send him a'note to sign for the balance. While the letter does not so state, the indisputable inference is that he also returned the application duly filled out and signed. This letter of May 23 contained a definite offer on the part of Duncan to pay the company $25 in cash and to sign a note for the balance of the premium if they would reinstate his policy. The subsequent correspondence and the record made on this application in the office of the company shows that the company accepted Duncan’s offer and reinstated the policy. This record shows that the policy had lapsed on November 11 and was canceled, and the clear inference was that it had been reinstated, and again lapsed in May, 1922; that an application was received for reinstatement and a record made thereon June 1, 1922; that the application was examined and the policy reinstated June 7, 1922. The correspondence and testimony of Hart show clearly that the company had accepted Duncan’s offer and reinstated the policy on condition that he pay the balance of the premium, and it sent its general agents a reinstatement receipt; that the general agents were authorized, after getting this receipt, to further negotiate with Duncan as to when and to whom he should pay the balance of the premium. This they did, as shown by their letters of June 10 and 16, 192'2, in which they told him that they would hold his check for $25 and take his note for the balance. The last act of Duncan immediately before his death was to comply with the request of the general agents of the appellant to evidence his indebtedness to the company for the balance of the premium by signing a note therefor to Campbell & Hart. True, this note was not delivered to the company or its general agents until after Duncan’s death, but, when he signed it, he evidenced his obligation to pay the balance of the premium in that form, and there was no revocation of this note prior to his death. After his death it was delivered to the general agents of the company, who retained both the note and the check for $25 without offer to return same until after this action was instituted.
Now, the above undisputed testimony shows that Duncan’s offer to the company was to pay $25 in cash and to sign a note for the balance of the premium if the company would reinstate his policy. The company accepted the $25 and reinstated the policy, and Duncan signed the note for the balance of the unpaid premium. Thus the minds of the parties had fully met on the terms of the contract of reinstatement, and this contract had been consummated before Duncan’s death. The company, on its part, had reinstated the policy, and, in consideration of this reinstatement, Duncan, on his part, had paid $25 in cash and executed his note for the balance. But, even if he had not executed the note, he would have been bound for the balance of the premium. The signing of the note simply evidenced his indebtedness for the amount which he was due, even before he signed the note. Because the company, as the record shows, had carried out its part of the contract in reinstating his policy, and he was due, in consideration therefor, the balance of the premium to be evidenced by the note. The death of Duncan before the note was actually delivered was wholly immaterial, because his act in agreeing to sign the note and in signing same as effectually bound his estate for the payment of the unpaid premium as if the same had been delivered to the company before, and not after, his death.
The case is controlled on the facts by the doctrine of our cases to the effect that, where the minds of the insured and the insurer, for a valuable consideration, have met upon all the terms of the contract, the contract is complete and enforceable, even though it was intended by the parties to be evidenced by a writing, which writing, because of some fortuity, was not delivered before the death of the insured. Mutual Life Ins. Co. v. Parrish, 66 Ark. 612; Jenkins v. International Life Ins. Co., 149 Ark. 257. To be sure, if the appellant had not accepted the insured’s application for reinstatement on the terms offered by him, and had not actually reinstated his policy on June 7,1922, the case would be entirely different. But the record shows that the company did accept his terms, and that the policy was actually reinstated on June 7, 1922. The very last letter written by the general agents to Duncan on June 16,1922, the day before he died, shows that they considered that the policy had already been reinstated. They speak of the note which Duncan was to sign <as the note “ covering the balance of your reinstatement premium,” all of which shows conclusively that the general agents themselves, who were authorized to accept the note for the balance of the unpaid premium on reinstatement, considered the contract for reinstatement as already consummated.
There are no errors in the rulings of the trial court, and its judgment is therefore affirmed. | [
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McCulloch, C. J.
One of the appellants was convicted in six consolidated cases, and the other appellant was convicted in one case. All of the appeals are heard together, as they involve the same question, and will be disposed of in one opinion.
All of the cases had been set down for trial on January 31,1924, and on the morning of that day each of the appellants filed a petition for change of venue. The cases were not taken up during that day, for the reason that other cases ahead of them were on trial, bnt, on the morning of the next day, February 1, 1924, the cases were called, and, on presentation to the court of the motions for a change of venue, the court overruled the motions, for the reason that they had been filed too late, under a rule of the trial court, which reads as follows:
“In all cases set for a day certain, any motion for continuance, change of venue or other cause must be filed at the motion hour of the court next day preceding the day set for trial, and not thereafter, and no motion will be considered by the court if presented thereafter, unless good reason be shown for such default.”
We decided in the case of Maxey v. State, 76 Ark. 276, that a rule of court requiring a notice of three days before the presentation of an application for change of venue was void, and that it was error to refuse such an application on the ground that the rule had not been complied with. The right to obtain a change of venue is one conferred not only by the statute but by the Constitution of the State (art. 2, § 10; Crawford & Moses’ Digest, § 3088 et seq.), and the court has no power to restrict that right by rules.
Under the statute an accused has the right, at any time before the commencement of a trial, to obtain a change of venue by complying with the requirements of the statute. The rule in question established by the court attempted to restrict the exercise of that right to the presentation of an application at least one day in advance of the time set for the trial, though the rule leaves it to the discretion of the court to determine whether or not the petition may be filed and presented later. The right to obtain a change of venue is not dependent upon the discretion of the court further than in determining the credibility of the persons who give their affidavits in support of the application, and the court has no power to establish a rule which makes the right to present a petition for change of venue at any time dependent upon the court’s discretion. ■
Our conclusion therefore is that the court erred in refusing to consider and pass upon the sufficiency of the application for change of venue.
The judgment is therefore reversed, and the cause is remanded for a new trial and for other proceedings in accordance with this opinion. | [
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Hart, J.
On the 22d day of December, 1922, the Hale Hardware Company brought suit in the chancery court against E. A. Bagland to obtain judgment for $40.26 for materials used in constructing a certain building in Harrison, Arkansas, and to declare the amount of said judgment a lien on said building.-
E. A. Bagland filed an answer, in which he admitted that he owed the Hale Hardware Company the amount sued for, and, by way of cross-complaint, asked judgment against it for $725 as compensation due him for a breach of contract of employment.
The chancellor rendered a decree in favor of E. A. Bagland against the Hale Hardware Company for $559.74, and the case is here on appeal.
E. A. Bagland was the principal witness for himself. He admitted owing the Hale Hardware Company $40.26, and based his right to recover against the hardware company on the ground that he had been wrongfully discharged from its service. During the year 1921, and for several years prior thereto, the Hale Hardware Company was engaged in selling hardware at retail in the city of Harrison, Arkansas, and Bagland had been in its employment as a salesman. Prior to the year 1921 he had been employed by the month. At the first of the year 1921 John Hale, who was the manager of the business of the hardware company, employed E. A. Bagland to work for it for a period of one year at a salary of $1,500, to be paid in monthly installments. Bagland discharged his duties as salesman for the hardware com pany in a faithful and efficient manner. In the first part of July, 1921, he was discharged without any cause. There was another hardware firm in Harrison, and Rag-land endeavored to obtain employment from it, and failed. He also went to other towns and cities and tried to get employment, but failed to do so. During the remainder of the year he worked at some other employment and made a small amount of money.
Ragland’s testimony that he was employed for a year at a salary of $1,500 was corroborated by E.' O. Lopp, a fellow-salesman, who was present when the contract of employment was made. John Hale was discharged as manager of the Hale Hardware Company soon after he employed Ragland, and Ragland was discharged by P. M. Angel, who succeeded Hale as manager of the hardware company.
John Hale was a witness for the Hale Hardware Company. He denied having employed Ragland for a year at a salary of $1,500, but stated that he had employed him by the month at a salary of $125. Hale denied having admitted to Ragland, in the presence of the latter’s brother-in-law, that he had employed him for a year for $1,500, to be paid at the rate of $125 per month.
Ragland’s brother-in-law testified that Hale made such an admission to him in the fall of 1921, after Rag-land had been discharged. ,
Prior to his discharge, Ragland was paid every two weeks at the rate of $125 per month. Hnder this state of the record, the chancellor found that Ragland had been wrongfully discharged,. and that the Hale Hardware Company owed him for the balance of his salary, $600 less $40.26 due by Ragland to the company, leaving a balance due Ragland of $559.74.
It cannot be said that the finding of the chancellor that the Hale Hardware Company had hired Ragland for a year for $1,500 was against the preponderance of the evidence. The company admitted that it only paid him up to the time of his discharge, during the first part of July. It was Ragland’s duty to seek and accept other like employment, but he was not required to seek or accept employment of a different characcer. Van Winkle v. Satterfield, 58 Ark. 617, and Williams v. Robinson, 158 Ark. 327.
The Hale Hardware Company claims, however, that it had grounds for discharging him. The general rule is that any person may lawfully refuse to continue in his employ a servant who has shown himself to be negligent, incompetent, inefficient, or dishonest. Eagland was impliedly bound by his contract of employment to serve the Hale Hardware Company faithfully and to refrain from doing any act knowingly and wilfully which might injuriously affect the business of his employer. This court has expressly held that a servant, while engaged in the service of his master, has no right to do any act which may injure his trade or undermine his business. McMurray v. Boyd, 58 Ark. 504.
The main grounds relied upon for discharging Eagland is that he was injuring the business of the hardware company by driving off its customers on account of his sympathy with the railroad strikers.
It appears from the record that, during the year 1921, there was a strike by the railroad employees at Harrison,. Arkansas, and other points along the line of railroad running through Harrison and that portion of the State. The positions held by the strikers had been supplied by other persons, and the feeling between the strikers -and those taking their places had become very bitter. The people along the line of the railroad took sides in the matter, because the railroad strike injured all classes of business along the railroad. The citizens were divided in the matter. Some of them sympathized with the strikers, and others became imbittered against them. F. M. Angel, the manager of the Hale Hardware Company, who discharged Eagland, said that it was his policy not to take sides, either for or against the strikers. He does not say, however, that he told Eagland that he must quit talking with the strikers in the store or refuse to allow them to congregate there. He does not even testify that he directed Ragland to avoid sympathizing with the strikers in the store. He said that it was generally understood that Ragland was in sympathy with the strikers, and that he would allow them to congregate in the store, and would talk with them.
A number of other witnesses testified that they had quit trading with the store because they understood that Ragland sympathized with the strikers and permitted them to congregate in the store. All admitted that the feeling between the two factions had become very acute.
Angel further testified that, on one occasion, Rag-land delayed about waiting on a customer. We do not think the evidence on this point was strong enough to warrant Angel in discharging Ragland for neglecting the business or injuring it. Ragland denies that he, on any occasion, neglected to wait on the customers or that he was not courteous to them. The proof does not show that he allowed the strikers to congregate in the store and act in a tumultuous or overbearing manner towards other customers of the store. The strikers were accustomed to purchasing goods from the store as they needed them. It does not appear that Ragland permitted the strikers to become boisterous or otherwise annoy the other customers. None of them heard him use any offensive language against those not in sympathy with the strikers. They said that his general attitude was one of sympathy for the strikers, and that they would see him talking with little groups of them in the store.
It is fairly inferable that the customers who quit trading at the store did so because they believed that Ragland was in sympathy with the strikers; but their conduct in this regard was the result of their own bitterness in the matter, and was not caused by the acts or conduct of Ragland. It does not appear that he did anything of an affirmative character that warranted the customers in carrying their trade to another store. If Ragland had been guilty of any affirmative conduct in the premises which caused them to quit trading with the Hale Hardware Company, this would have been grounds for Ms discharge; but his mere sympathy with the strikers and Ms act in allowing them to meet in the store in a quiet manner was not cause for his discharge. It does not appear that Angel forbade him talking with the strikers or expressing his sympathy with them. As the situation became more acute and the two factions became more bitter towards each other, it was apparent that it would be difficult for the same store to keep both factions as its customers.
After examining the evidence carefully it does not seem to us that Ragland was guilty of any overt acts or conduct wilfully and knowingly which would tend to injure the business of his employer. He might have thought Ms quiet sympathy with the strikers would hold their trade, and that he would not lose the trade of the other faction. If Angel thought otherwise, he should have advised or directed Ragland what course to pursue in the matter during business hours. In any event, the evidence does not show that he was wilfully and knowingly guilty of acts which of themselves tended to injure the business of his employer.
Upon the cross-appeal it need only be said that Rag-land obtained other employment for a time after his discharge, and thus reduced the amount he was entitled to recover. It cannot be said that the weight of the evidence is against the finding of the chancellor in any respect, and the decree will be affirmed. | [
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McCulloch, C. J.
This appeal involves a continuation of the controversy between the parties concerning the custody of a child, Nellie Josephine Brown by name. The facts are recited in the opinion of this court on a former appeal. 160 Ark. 490. Mrs. Brown, the appellee, is the mother of the child, and the child has heretofore been, and is now, in the custody of Mrs. Scott. Mrs. Brown resides in Tennessee, and at one time consented for Mrs. Scott to take the child, but later Mrs. Brown obtained possession of the child in Tennessee, and Mrs. Scott sued out a writ of habeas corpus in one of the courts of Shelby County to obtain the custody of the child. After securing the custody of the .child in that way, Mrs. Scott- brought the child -to Arkansas, where she resides. Mrs. Brown then instituted an action in the chancery court of 'Crittenden County against Mrs. Scott, and the decree was in her favor, from which an appeal was prosecuted.
In affirming the decree .of the chancery court we declined to consider the questions as to the best interests of the child or the rights of the parties with respect to the custody of the child, further than to determine that Mrs. Scott, having secured the custody under process of a Tennessee court, could not litigate her right to the custody of the child here until she had restored the custody to Mrs. Brown and abided by the judgment of the Tennessee court. In the opinion we said:
“The question therefore as to what the best interests of the child are, and what the rights of the parties are with respect to the child, cannot be adjudicated until there is a restoration of the custody wrongfully obtained through the writ issued by the Tennessee court. A court of this State should not lend its aid to the enjoyment of a benefit secured in that way, and, if the appellants desire to contest for the custody of the child, they must do so after having restored it to the custody of the appellee, Mrs. Brown, within the jurisdiction of the Tennessee court, where the custody was wrongfully obtained.”'
Appellee filed in the chancery court of Crittenden County the mandate of this court affirming the decree, and moved the court for an order on appellant requiring her to perform the decree by restoring to appellee the custody of the child. Appellant appeared in court and filed her petition, setting forth the fact that she had complied with the court’s decree by restoring the custody of the child to appellee in Tennessee and by dismissing her petition for habeas corpus pending in the Tennessee court. Appellant exhibited with her petition certified copies of the records of the Tennessee court showing the dismissal of her action. The prayer of the petition of appellant was that an order be entered showing that the decree of the court had been complied with before the filing of the mandate and that the decree was thereby satisfied. The court refused to entertain appellant’s petition, and entered the order, as requested by appellee, requiring appellant to immediately deliver the child to appellee, and, in the event of appellant’s failure to do so, directed the sheriff of the court to carry out the order. Appellant sav.ed exceptions, and has prosecuted an.appeal to this court.
Appellant filed a petition in this court for a- certi orari, which was denied on the ground that any review of the action of the chancery court must be by appeal. The petition alleges the facts to be that appellant com plied with the former decree of the chancery court by twice delivering the custody of the child to appellee in the State of Tennessee, but that the child subsequently voluntarily left the State of Tennessee and returned to appellant’s home in Crittenden County, Arkansas. We are not at liberty to consider the allegations of the petition filed here, for it was not a part of the record in the court below. But the record does show that, at the time this motion was made by appellee to require appellant to comply with the former decree, the child was then in the custody of appellant, and that appellant offered to show that she had, prior to that time, and prior to the filing of the mandate of this court, fully complied with the decree. We are of the opinion that the court erred in summarily entering an order directing appellant to deliver the child to appellee, and in refusing to hear appellant on her petition alleging that she had theretofore fully complied with the original decree. The judgment of this court was merely one affirming the decree of the chancellor, but, in stating the reasons for affirmance, we said that appellant was not in an attitude to litigate for the possession of the child and could not do so until she had restored the custody to appellee. She had the right therefore to show that she had fully complied with those requirements and had delivered the child to the custody of appellee in Tennessee. According to appellant’s contention, she is now in an attitude to contest with appellee her right to obtain the custody of the child. If she restored the child in good faith, and if the child subsequently came into the custody of appellant without any fraud or collusion on the part of the latter, she had the right to a trial of the issues which we decided could not be tried in the other ease.
The decree is therefore reversed, and the cause-remanded for further proceedings, with directions to hear such proof as may be offered on the question whether or not appellant has complied with the former decree of the court by in good faith restoring the custody of the child to appellee. It is so ordered. | [
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Smith, J.
The Tri-State Motor Sales Company, hereinafter referred to as the company, sold an automobile to L. C. Rogers for the sum of $1,079,. and, in payment therefor, Rogers executed two promissory notes, one for $359.72 and the other for $719.44. The title to the car was retained in the contract of sale and in the notes evidencing the debt.
Rogers failed to pay the notes when they fell due, and suit was filed to enforce payment, and it was there prayed: “That the sheriff of Cross County, Arkansas, attach and hold the said automobile herein described, and hold same subject to the orders of this court, and that a lien be by this court established upon said car, and that same be sold to satisfy the said debts.”
The sheriff took possession of the car, whereupon Rogers executed the following bond: “We undertake and are bound unto the plaintiff, the Tri-State Motor Sales Company, Inc., and Commercial Acceptance Trust, in the sum of two thousand ($2,000) dollars, that the defendant, L. O. Rogers, shall perform the judgment of the court in this action, or that the undersigned will have the property attached in this action, or its value, one thousand and seventy-nine dollars, forthcoming and subject to the orders of this court, and for the satisfaction of such judgment.” The sheriff approved this bond, and released the car to Rogers.
Upon the trial of this suit judgment was rendered in favor of the plaintiff for $1,018.86, and it was by the court adjudged that “a lien be and is hereby declared upon the said automobile, and that, if said debt be not paid, that said car be sold, * * *,” and the proceeds of sale be applied to the payment of the judgment.
The car was sold under the judgment, and brought only $275. Thereafter the company sued Rogers and the sureties on his bond, set out above, and, upon the trial of this cause, judgment was rendered against the sureties on the bond for the price of the car, less the proceeds from the sale, and the sureties have prosecuted this appeal.
Appellees rely on § 8731, C. & M. Digest, for the affirmance of this judgment. This section provides that the defendant in a suit of this character may give bond for the retention of the property as in cases of orders of delivery of personal property.' The statute referred to, which prescribes the form of bond in cases of orders of delivery of personal property, is § 8649, O. & M. Digest, and this statute provides that the bond shall be “to the effect that the defendant shall perform the judgment of the court in the action.”
It- is only upon the execution of a bond with this condition that the defendant is entitled to have the property redelivered to him, and it will be observed that the bond here sued on was not so conditioned. The sureties did not undertake to perform the judgment except as an alternative if the automobile was not “forthcoming and subject to the orders of the court.”
The auto was surrendered, and was sold under the orders of the court, and the condition of the bond was thus discharged. The company had the right to demand that the sheriff retain possession of -the automobile until a bond was executed which conformed to the requirements of the statute; but the bond here sued on is, of course, the one which was executed, and not the bond which should have been required before the property was released.
The principle which controls here was announced in the case of Fondren v. Norton, 86 Ark. 410. That suit, like this, was one to enforce payment of a note given for the purchase price of the attached property. The property was found by the officer in the hands of a third party, who claimed to have purchased from the maker of the note. In lieu of a bond, the party in possession deposited with the officer á sum of money exceeding the valu’éüdf ■ the property. The trial court declared the law as follows: “1. The money in lieu of bond became such bond as the statute required in such oases, and was an absolute and unqualified bond to perform the judgment of the court. 2. That, after the deposit and discharge of property, plaintiff relinquished all right to property, and could rely solely on the bond. 3. Plaintiff, having secured judgment against, the original debtor, was entitled to the deposit of the money in satisfaction of his judgment.” After rendering judgment in favor of the plaintiff for the amount of the note, the court directed that this judgment be satisfied out of the deposit in the hands of the officer. In reversing this judgment this court said: “The statute provides that, when the officer shall seize property in cases like this, the defendant may give bond for the retention as in cases of orders of delivery of personal property. Kirby’s Digest, § 4908. ‘ Such a bond, in effect, as well as in terms, is absolute, to perform the judgment of the court.’ Mayfield v. Creamer, 39 Ark. 460. The constable in this case was not authorized to receive money in lieu of such bond. He had no right to release the horse except upon the condition prescribed by the statute. The money being received without authority, it did not become a substitute for the bond prescribed by the statute.”
The court further said that the owner of the money deposited with the officer obviously intended that the money should be held for the return of the horse (the property there attached) in the event it should be held liable for any judgment that should be recovered for the purchase money for which the note sued on was given, and that, in making the deposit, no consent was given that the money should be applied to the satisfaction of the debt if the horse was returned.
So here, the bond given was not conditioned as the statute required to secure the return óf the property. The sureties obligated themselves to perform the judgment by paying the debt in the event only that the car was not returned, but, as the car was returned, the bond' was discharged, and the court was in error in rendering judgment against the sureties.
The judgment will therefore be reversed, and the suit against the sureties dismissed. | [
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Hart, J.
Mark Dover prosecutes this appeal to reverse a judgment of conviction against him for the crime of assenting to the reception of a deposit by a bank -of- which he was director, after having had knowledge of the fact- that it was insolvent. '
The first assignment of error is that the court erred in not sustaining a demurrer to the indictment. It dogs not appear from the record that a ruling of the court on the demurrer was asked or obtained, and, under the settled rules of practice of this court, the alleged error cannot be considered on appeal. Kiernan v. Blackwell, 27 Ark. 235; Pratt v. Frazier, 95 Ark. 405; and Harbottle v. Central Coal & Coke Co., 134 Ark. 254. The defendant did, however, file a motion in arrest of judgment; Under our statute (Crawford & Moses’ Dig., § -3224), a judgment can only be arrested on the ground that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Under this statute every material fact constituting the offense must be alleged in the indictment; but in determining this question the language used will be construed in favor of the validity of the indictment unless such interpretation is contrary to the plain and usual meaning of the words of the indictment. Loudermilk v. State, 110 Ark. 549.
The body of the indictment is as follows: “The grand jury of Polk County, in the name and by the authority of the State of Arkansas, accuse Mark Dover of the crime of receiving deposits in an insolvent bank, committed .as follows:
. .- “The said Mark Dover, in the county and State aforesaid, on the 16th day of October, 1923, being then and.there a director in the Bank of Hatfield, a corporation, did unlawfully, knowingly and feloniously permit, connive at and assent to the receipt on deposit in the said Bank of Hatfield, $40 in gold, silver and paper money, of the value of $40, from Boyd Coleman, the said Mark Dover then and there well knowing at the time that-said -Bank of Hatfield was insolvent and in a failing condition, against the peace and dignity of the.State of Arkansas.”
The indictment charges that Mark Dover, as a director in the Bank of Hatfield, a corporation, did, at a certain time and place, assent to the receipt of a deposit in said bank of $40 from Boyd Coleman, knowing at the time that the bank was insolvent.
The defendant was indicted under § 697 of Crawford & Moses’ Digest. The section reads as follows: “It shall be a crime for any president, director, manager, cashier or other officer or employee of any bank, or member of a firm, after having had knowledge of the fact that it is insolvent, or in a failing condition, to assent to the reception of any deposits or the creation of any debts by it. And if any such officer, employee, member of firm or individual shall knowingly receive a deposit or cause a debt to be created, or assent thereto, or in any manner is accessory to such crime, he shall be guilty of a felony, and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than one year.”
Thus it will be seen that the language of the indictment contains a statement of the facts constituting the offense under the statute' in ordinary and concise words and in such manner as to enable a person of common understanding to know what is intended. But it is insisted that the indictment does not charge that the Bank of Hatfield was in fact a bank or engaged in the banking business. We think that this fact is charged by necessary intendment from the language used in the indictment. The corporation of which the defendant was a director is called the Bank of Hatfield, and it is charged that the defendant assented to receiving a deposit of $40, knowing at the time that the Bank of Hatfield was insolvent. A bank is usually defined to be an association or corporation whose business it is to receive money on deposit, etc. 7 O. J., p. 473. Therefore we think the indictment meets the requirements of the law under a motion in' arrest of judgment. See Wilkins v. State, 121 Ark. 219, and Collman v. State, 161 Ark. 351.
A reversal of the judgment is also urged because the evidence is not legally sufficient to support the verdict, and because the court erred in giving certain instructions to the jury. Both of these alleged errors may be disposed of together, for the reason that they are based upon the same state of facts. The facts summarized make it clear that the Bank of Hatfield was a 'corporation engaged in the banking business in the town of Hatfield, Polk County, Arkansas; that the defendant, Mark Dover, was a director in the bank during the year 1923; that Boyd Coleman deposited $40 in the bank on the 16th day of October, 1923, and that the deposit was accepted by Roy Holder, the cashier of the bank; that the defendant, Mark Dover, was not present in the bank at the time; that the bank was insolvent at the time the deposit was received, and had been for some time prior thereto; that the bank suspended business on October 17, 1923, and the State Bank Commissioner took charge of it, and that several witnesses testified that the defendant had told them, some time before the deposit in question was received, that he knew the bank was insol /ent.
It is the contention of counsel for the defendant that the instructions complained of are erroneous, and. the facts relied upon for a conviction are insufficient in law, because the defendant did not receive the deposit, was not personally present in the bank when it was made, and did not in any wise advise or consent to the cashier’s receiving the particular deposit in question.
We have copied above the section of the statute under which the defendant was indicted and convicted. It provides that it shall be a crime for any director of any bank, after knowledge that it is insolvent, to assent to the reception of any deposit. The purpose of this statute is to protect the depositors in a bank by punishing its officers for assenting to the receiving of deposits when the bank is insolvent. By necessary implication, it makes it the duty of the directors to refrain from receiving deposits or assenting to their receipt when they know that the bank is insolvent. It is the dutv of the directors to give personal supervision to the affairs of the bank, and its solvency or insolvency should be a matter peculiarly within their knowledge. On the other hand, depositors have no means of accurately informing themselves on the subject. It is a matter of common knowledge 'that bank deposits aré made upon a wholly different reliance as to security than in the loan of money. Generally when money is lent, security is expected and demanded. Money is deposited in a bank because of confidence in its solvency and ability to repay because it is a bank. The business of a bank is not confined to the property owned by the bank, but includes and involves all deposits and other property passing through its hands or intrusted to its keeping. While the bank continues in business, it holds out to the public the assurance' of its solvency and ability to meet its obligations. To construe the statute as applicable only to the agent of the bank who' actually receives the deposit, or connives at the receipt of it, would have the practical effect of nullifying the statute. If the- directors, knowing the bank to be insolvent, could make use of the teller to receive the deposit for the bank, and escape civil and criminal liability because they had nothing to do with the actual receipt of the deposit or connived at its receipt, then the statute might' as well'not have been passed. They could leave the receipt of deposits wholly in the hands of a teller, and, by keeping •him- in ignorance of the insolvency of the bank, they all could escape responsibility under the statute. ’ ’
The reasonable construction is that, when the receiving teller of a bank accepts a deposit' for it, it is an act performed for the bank on the authority of the directors. Statutes imposing criminal liability on officers of insolvent banks, who receive or assent to the receipt of deposits, have been generally sustained. The reason is that the right to engage in banking may be regulated by legislation, and the business must be carried' on in Strict accordance with such statutes. ' This view' of similar statutes is sustained by the following authorities: State v. Mitchell, 96 Miss. 259, 51 So. 4, Ann. Cas. 1912B 309; State v. Eifert (Iowa), 38 L. R. A. 485; Baker v. State, 54 Wis. 376; 12 N. W. 12; Carr v. State (Ala.), 16 So. 150; State v. Caldwell (Iowa), 44 N. W. 700; State v. Sattley (Mo.), 33 S. W. 41; and McClure v. People (Colo.), 61 Pac. 612. The constitutionality of the statute -in question has been upheld by this court in Collman v. State, 161 Ark. 351 and cases cited.
’ In the present case it clearly appears that the bank was insolvent at the time the deposit in question was "made. Several witnesses testified that the defendant, a •short time before the bank closed its doors and before the deposit in question was made, stated to them that he -knew that the bank was insolvent. As we have just seen, the mere fact that he was not personally present when the deposit was received by the cashier did not relieve him from responsibility under the statute. The gist of “the offense was in the defendant’s assenting to the receipt 'of a “deposit, knowing that the bank was then insolvent. If he intended to relieve himself of responsibility under 'the statute, he should have protested against the receipt of any deposits by the bank after he knew that it was insolvent.
■ It is true that there is testimony in the record tending to show that a former officer of the bank caused its insolvency, and that the defendant became a director 'of the bank for the purpose of protecting the interests that' he and his business associates had in the bank, and was trying to work out a method of relieving the stockholders of its financial difficulties. These facts, however, did not relieve the defendant from criminal liability under the statute, but such testimony was proper to go to the jury to be considered by it in mitigation of his punishment.
. - .Section 717 of Crawford & Moses’ Digest provides .that a bank shall be deemed insolvent within the meaning of’the act upon the existence of certain stated facts.-' No objection can be made to the validity of this section of the statute. As we have already seen, the gist of the .offense was in receiving the money on deposit, .with the knowledge on the part of the defendant that the bank was insolvent, and the proviso of the statute as-to • what constitutes insolvency is merely a rule of evidence;-:-
There is some conflict in the authorities as to whether the closing of the doors of a bank by a State Bank Commissioner, just after the receipt of a deposit, could be made prima facie evidence by the statute not alone of the insolvency of the bank at the time the money was received, bpt of the knowledge of the officers of the bank of that fact. State v. Buck, 120 Mo. 479, and cases cited; Meadowcroft v. People (Ill.), 35 L. R. A. 176, and cases cited; and People v. Cannon, 139 N. Y. 32. We need not decide this question, however, for it is plain from reading these cases and the opposing authorities that the general power of the Legislature to prescribe rules of evidence and methods of proof is undoubted. All of the authorities agree that, in .statutes of this sort, the Legislature. might have the power to define what would constitute insolvency under the banking law. The 'business of a banker is affected by a public interest, and therefore subject to public regulation. As a part of the regulatory act, the Legislature would have the undoubted power to define what would constitute insolvency within the meaning of the act. The definition by statute would inure, not only to the benefit of the general public doing business with banks, but also to the banks themselves.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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Hart, J.
Frank Ferrel prosecutes this appeal to reverse a judgment of conviction against Mm for uttering a forged instrument, in violation of the provisions of § 2460 of Crawford & Moses’ Digest.
The main reliance of the defendant for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict.
According to the testimony of C. M. Leavitt, the defendant came into bis store and purchased several articles of wearing apparel, and gave in payment thereof a check signed by J. K. Smith, payable to the order of Tom Newton, for the account of "Walter Davis. The check was drawn on the Bank of Winchester, at Winchester, Arkansas. The defendant represented himself to be Tom Newton at the time he presented the check in payment, and he indorsed the check “Tom Newton.”
It was also shown by the State that the defendant went to J. K. Smith, the drawer of the check, and represented himself to be Walter Davis, and to be living upon the farm of Tom Newton. He said that he was dissatisfied, and wanted to move. He stated further that he owed Tom Newton $47.80 for supplies. J. K. Smith gave him a check for that sum on the Bank of Winchester, payable to the order of Tom Newton. Smith sent a servant with the defendant to Newton for the purpose of paying Newton and hauling back the defendant’s things from there to Smith’s farm. After they got near where the defendant said that Newton lived, the defendant left Smith’s servant in the truck for the purpose of going to Newton’s place by himself. Later the defendant came back, and said that Newton had told him that he would not get out of his chair and go anywhere to get the check. The check was then given to the defendant for the purpose of being delivered to Newton.
In order to constitute the offense of uttering and publishing a forged writing, it is necessary that there be an intent to defraud, and that there be a knowledge of the falsity of the instrument on the part pif the defendant. Elsey v. State, 47 Ark. 572; Maloney v. State, 91 Ark. 485; and Rickman v. State, 135 Ark. 298.
Therefore one of the material averments of the indictment is that the defendant uttered and published the forged instrument with fraudulent intent. To establish this averment, it was essential for the State to prove that the defendant knew when he indorsed the check that he had no authority to do so. The only evidence which it can be claimed has any tendency to prove this fact is the circumstance that the defendant falsely represented that he was Tom Newton, the payee of the check. This was not sufficient. It may be that this circumstance would justify the suspicion that the defendant knew the character of the instrument, but it falls short of proving the fact that-the defendant did not have the authority of Tom Newton to indorse the check and use it in pavment of the goods purchased by him. The defendant did not testifv in the case at all, and it did not devolve upon him to introduce evidence tending to disprove anv fact material to the establishment of the crime -charged against him.
On the other hand, the burden was on the State to prove everv material fact charged in the indictment and involved in the -commission of the crime, beyond a reason able doubt. Tbe mere suspicion of tbe guilt of tbe defendant would not meet the requirements of the law. There must be some substantive evidence tending to show his guilt, and the mere fact that he represented himself to be Tom Newton would not justify the inference that he did not have authority to sign Tom Newton’s name to the check as an indorser thereof. In short, his representations that he was Tom Newton did not justify the jury in finding that he signed Tom Newton’s name as indorser of the check without his authority. Surmise, conjecture, or suspicion cannot take the place of proof.
It follows that the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Humphreys, J.
Appellee recovered judgment in the circuit court of Ouachita. County upon a life insurance policy for $5,000, interest, the statutory penalty, and an attorney’s fee against appellant, which policy was issued by it upon the life of Charles A. Witt, naming appellee as the beneficiary therein.
An appeal has been duly prosecuted from the judgment to this court, and appellant seeks a reversal thereof upon three grounds, namely: (1). That the trial court was without jurisdiction. (2). That the answers made by the insured in his application for the policy were false, and rendered the policy void. (3). That the trial court erroneously instructed the jury.
(1). The insured resided in Monroe County, Arkansas, when he procured the policy, and continued to reside there until his death. This suit was brought in Ouachita County, and service was obtained upon appellant, a foreign corporation, in Pulaski County, by delivering á copy of the summons to its designated agent, Bruce T. Bullion, Insurance Commissioner. The appellant appeared specially and moved to quash the summons upon the ground that it was issued out of a court that had no jurisdiction over the 'cause of action. The trial court overruled the motion to quash the service, and the contention of appellant is that the court com mitted reversible error in doing so. Appellant insists that the venue of the cause of action was fixed by § 6150 of Crawford & Moses’ Digest, which requires actions on life insurance policies to be brought in the county of the residence of the insured, or in the county where the death of the insured occurred. In other words, appellant contends that the suit should have been brought in Monroe County, where the insured resided and died. Section 6150 of Crawford & Moses’ Digest became a law by enactment of the Legislature of 1897. The suit was brought under § 1829 of Crawford & Moses’ Digest, which is as follows:
“Service of summons and other process upon the agent designated under the provisions of § 1826 at any place in this State shall be sufficient service to give jurisdiction over such corporation to any of the courts of this State, whether the service was had upon said agent within the county where the suit is brought or is pending, or not.”
This section of the Digest was passed by the Legislature in 1899, two years later than § 6150, supra. Section 1826 of Crawford & Moses’ Digest, referred to in said § 1829, expressly embraces foreign life insurance companies. By carefully reading § 1829 we have concluded that it is a venue statute, and that its purpose is to give jurisdiction over suits against foreign corporations, including foreign life insurance cpmpanies, to any of the courts of this State. This was the effect of the ruling of this court in the case of the American Hardwood Lumber Co. v. Ellis, 115 Ark. 524. In that case the contention was made that a transitory action must be brought against a foreign corporation in the county where its designated agent resided. This court rejected the contention upon the ground that § 1829, supra, meant to add something to the law as it then existed, “in saying that the service should be sufficient to give jurisdiction to any of the courts of this State, whether had in the county where the suit is brought or is pending, or not.” In construing the statute in question this court said: “We conceive it to be onr duty to give effect to the language used by the lawmakers, and, when this is done, it means that, under the statute now in force, service on the designated agent, even outside of the county where the suit is brought, is sufficient. We have nothing to do with the harshness of the statute nor the inconvenience which is likely to follow from it. That is a matter which addresses itself entirely to the lawmakers.”
It is true that the court had under review a transitory action, but the statute in question makes no distinction between transitory and local actions. It relates to both kinds of actions, so, if the statute changed the venue with reference to transitory actions, it had the effect of changing the venue of any action brought against a foreign corporation which had designated an agent in this State for the purpose of service. Moreover, a suit upon an insurance policy against a foreign insurance company is in its nature a transitory action. We think § 18'29 had the effect of changing the venue in suits against foreign insurance corporations from the county of the insured’s residence, or the county where his death occurred, to any county in the State.
The court did not therefore commit error in overruling the motion to quash the service.
(2-3). The two other questions presented on this appeal, and relied upon for reversal of the judgment by appellant, were involved in a companion case between the same parties reported in volume 161 of the Arkansas Reports, at page 148. There is no material difference between the facts in the two cases or in the theory upon which they wére submitted, so the instant case is ruled by the case of Mo. State Life Ins. Co. v. Witt, 161 Ark. 148.
No error appearing, the judgment is affirmed. | [
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Hart, J.
'This is an action of unlawful detainer brought in the circuit court by J. P. Kirk against A. K. Thompson to recover one-half acre of ground, on which is situated a storehouse occupied by the defendant.
There was a directed verdict in favor of the plaintiff, and, from the judgment rendered1, the defendant has duly prosecuted an appeal to this court.
Inasmuch as there was a directed verdict in favor of the plaintiff, in order to test the ruling of the court on this point the evidence must be considered in the light most favorable to the defendant.
According to the testimony of A. K. Thompson, he made a verbal 'contract with J. F. Kirk in the fall of 1916, whereby he was to erect a store building on a half acre of ground belonging to Kirk, and occupy it for five years. After that he was to continue to occupy the store building as long as he pleased for an annual rental of $25. The storehouse cost him $350. He moved into it in December, 1916, and occupied it until November or December, 1921, which was the expiration of the five years. Kirk did not say anything about his continuing to occupy the building for the year 1922. It was understood that Thompson had it, and was' to pay $25 for thi year 1922. Along about Thanksgiving day, 1922, Thompson told Kirk that his health was bad, and that he would sell his business if he could do so. Kirk talked about buying him out; but, during Christmas week of 1922, Kirk informed Thompson that he would not purchase his stock of goods. Thompson continued1 to occupy the store building during the year 1923. Thompson owed Kirk $25 for the rent of 1922, and has never paid him any rent for that year. Thompson did not pay Kirk any-rent for the year 1923. A written notice to quit, in the form provided by the statute, was served upon Thompson by Kirk in February, 1923. Thompson was notified to deliver possession of the premises to Kirk within three days after the service of the notice. Thompson refused to deliver possession of the premises, and Kirk instituted this action to recover possession of them. He gave the statutory bond required in a suit for unlawful detainer. Thompson gave bond to retain possession of the premises in the form prescribed by the statute.
Under this state of facts the court was correct in directing a verdict for the plaintiff. Our statute regulating the action of unla’ivful detainer confers upon a land lord the right to maintain it- upon the refusal of the tenant to pay the rent when due and to quit possession' upon demand in writing by the landlord. Parker v. Geary, 57 Ark. 301; Lindsey v. Bloodworth, 97 Ark. 541; Texas Hardwood Lumber Co. v. Richardson, 115 Ark. 28; Hallbrooks v. Rosser, 143 Ark. 559, and Martin v. Stratton, 157 Ark. 513.
According to Thompson’s own evidence, he failed1 to pay the rent for the year 1922, and the undisputed evidence shows that Kirk made a demand in -writing for the possession of the premises, as required by the statute. Hence the court properly directed a verdict in favor of the plaintiff for the possession of the premises.
'The plaintiff has taken a cross-appeal. It is insisted by him that the circuit court erred in refusing to render judgment in his favor against the sureties on the bond of the defendant. The defendant gave a bond to retain possession of the premises, under § 4847 of Crawford & Moses’ Digest. When the court .rendered judgment in favor of the plaintiff against the defendant for the possession of the premises, it should also have rendered judgment against the sureties on the statutory bond of the defendant.
Section 4854 of the Digest provides that, in all cases where judgment is rendered against the plaintiff or defendant for any amount of recovery, judgment shall also be rendered against his sureties on the bond given under the provisions of the' act.
The judgment will be modified so as to give the plaintiff judgment against the sureties on the statutory bond of the defendant as indicated, and, as modified, the judgment will be affirmed. | [
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Humphreys, J.
On the 11th day of April, 1922, appellant instituted suit against his wife, the appellee, in the chancery court of Garland County for an absolute divorce upon the ground of indignities, and1, on the 5th day of May following, filed an amendment to his bill, charging her with having committed adultery with one Elmer Walters on the night of March 28, 1922, at the Marion Hotel in Little Rock, and at various other times and places, the particulars of which were unknown to him.
Appellees filed an answer specifically denying the material allegations in the bill and amendment thereto, and1 a cross-bill for alimony and attorney’s fees.
On motion the court allowed appellee $200 per month alimony pendente lite, and a preliminary attorney’s fee of $500. These allowances were paid by appellant.
The cause was submitted to the court upon the pleadings and testimony responsive to the issues of adultery, permanent alimony and attorney’s fees, which resulted in a decree dismissing appellant’s bill for the want of equity and an additional allowance of $1,500 for her solicitors, and permanent alimony in the sum of $250 per month, from which is this appeal. Appellee has prosecuted a cross-appeal from the allowances, seeking to have them increased.
The testimony introduced by appellant tended to support the specific charge of adultery, and that introduced by appellee tended to show that she was innocent of the charge. The record of the testimony is voluminous, and it would extend this opinion to great length to set it out in detail, so we shall only attempt to set out in a general way the history of the case leading up to the alleged act of adultery, and then briefly summarize the testimony responsive to that issue. The specific charge of adultery, is entirely dependent upon the identity of the woman who was discovered and1 arrested with Elmer Walters in the Marion Hotel, room 379, in Little Rock, about 11 o’clock on the night of March 28, 1922. The burden was upon appellant to show that the woman in question was his wife. Appellant, having suspected the existence of an intimacy between Elmer Walters and his wife, had employed a detective by the name of Roy Stegall to watch her. On the 27th day of March appellee drove over to Little Rock in the afternoon, in company wfith Mrs. Jeff Freeman and Mrs. Freeman’s brother, Paul King. They arrived in Little Rock between five and six o’clock p. m. Before leaving Hot Springs appellee had got a clerk in the Como Hotel, partly owned by her husband, to telephone to the Marion Hotel to reserve a room for her and another lady. She and Mrs. Edith Brown, who had come to Little Rock earlier in the day, had arranged to occupy the same room at the hotel. When appellee arrived in Little Rock she stopped at the Marion Hotel for Mrs. Freeman and her brother to get out, and then went over to see the Pollocks on Scott Street. After visiting them she returned to the hotel, and registered in the name of Mrs. Ed Johnson, Hot Springs, and was assigned to room 3791 on the third floor. "When she registered the clerk remarked that another lady was to occupy the room with her, whereupon she asked whether she should register the other lady, and wag told that it was unnecessary. She then met Mrs. Edith Brown on the mezzanine floor of the hotel, and they went to their room. Mrs. Brown informed her that Miss McFadden was at the Merchants’ Hotel, and wanted appellee to spend the night with her. She left her grip in the room, and took her handbag, which contained her toilet articles, nightgown and other necessities, and went to the Merchants Hotel to spend the night with her lady friend. Later in the evening she called up another friend, Mrs. W. H. Park, who resided at 1900 Johnson Street, and invited her to go to the picture show. ■ Mrs. Park came down in her car and,' after the show, invited appellee and Miss McFadden to spend the night with her. They accepted the invitation. Early the next morning, the 28th, Mrs. Park took Miss McFadden and appellee to the Rock Island depot, and, while at the depot, appellee telephoned Mrs. Freeman to take breakfast with her. Miss McFadden left on 'the train, and Mrs. Park then took appellee down town, where they parted, with the understanding that they would meet that evening at the Famous Cafe for dinner. Appellee then went to her room, took a bath, and, while resting on the bed, went to sleep. She was aroused by a telephone message from Mrs. Freeman, who was waiting to go to breakfast with her. She left Mrs. Brown in the room, who said she never ate breakfast until 10 or 11 o’clock. After breakfasting with Mrs. Freeman, appellee entered upon the performance of her duties as a delegate to the American Legion Auxiliary Convention, which was in session in Little Bock. She went to her room at the Marion about noon, where she again met Mrs. Brown. In the afternoon she attended the convention, and, in the performance of her duties, went on an inspection tour of the hospital at Fort Logan H. Boots. Upon her return she went to her room, where she found Mrs. Brown. After remaining there a short time she went to the cafe on Main Street to have dinner with Mrs. Park. According to the testimony of appellee and Mrs. Park, they drove around awhile after dinner, then went to the Merchants’ Hotel, where appellee paid $4 for the room which Miss McFadden had engaged, and then to the home of Mrs. Park, where appellee spent the night on March 28. Mr. Park was away from home on the night of March 27, but returned on the 28th. He testified that appellee spent the night of the 28th in their home. Mr. and Mrs. Park fixed the date by the meeting of the convention of the American Legion Auxiliary. They knew of this meeting, and that appellee was in attendance upon it as a delegate.
Boy Stegall testified that he found out that room 379 in the Marion Hotel had been assigned to appellee, and that, early in the evening of the 28th, he had seen Elmer Walters enter an elevator in the basement of the Marion Hotel, and suspected that he was going to that room; that, upon inquiry, he ascertained that he had got off on the third floor; that he, Stegall, made arrangements to occupy a room across the hall from room 379, and stationed himself on a table so that he could look through the transom and observe any one entering or coming out of room 379; that the bell-boy came up twice, first with ice water and then with lemonade, and that the door was opened on both occasions by appellee, who was dressed in a kimono; that later he heard a man cough in room 379, whereupon he notified Tom Moore, assistant manager of the hotel, that a man was in the room with appellee; that Moore, in company with E. A. Young, the hotel detective, and a man by the name of Evans, the hotel engineer, entered the room, and found Elmer Walters in the bathroom, in his night clothes; that appellee and Elmer Walters were arrested and turned over to T. L. Hooter, a policeman, who had accompanied the hotel proprietor and the detective to the third floor, and who waited for them in the hall until they came out of the room.
After Elmer Walters and the woman dressed they were taken by the police officer to the city hall, the woman into the chief’s office and the man into the turnkey’s office. The woman was interrogated by J. L. Bennett, the night chief, and a record was made, describing them. She gave her name as Vera Johnson, her residence as Hot Springs, and the following description of herself to the chief: weight, 140 pounds; height, 5 feet 4 inches; eyes, gray; hair, brown. This was a correct description of Mrs. Edith Brown. Appellee has brown eyes, black hair, is about 5 feet high, and weighs 118 pounds. Cases for immorality were docketed against the man and woman in fictitious names, and they were released upon cash bonds of $15 each, which were deposited by the woman. After being discharged, the woman went to the Capital Hotel and registered under the name of Mrs. L. Johnson, Hot Springs. Several days afterwards the name of Mrs. L. Johnson was erased, and that of Mrs. Edith Brown was substituted for it on the Capital • Hotel register by Elmer Walters.
Elmer Walters testified that the woman arrested with him in room 379 on the night of March 28,1922, was Mrs. Edith Brown. • -
- Mrs. Edith Brown testified that she was the woman arrested with Elmer Walters in the room on the occasion referred to, and that, after their arrest and discharge, she registered for the remainder of the night at the Capital Hotel in the name of Mrs. L. Johnson, because she understood that was the way Mrs. Johnson had registered at the Hotel Marion, and that the baggage would be sent over from the Marion to the Capital Hotel in that name; that, several days afterwards, she had Elmer Walters change the register and substitute her own name for fear she would implicate Mrs. Johnson.
Tom Moore and it. A. Young testified that appellee was not the woman who was arrested in the room with Elmer Walters by them and turned over to the police. They described the woman who was found in the room, and their description tallied with the description of Mrs. Edith Brown.
J. L. Bennett and T. L. Hooter testified that appellee was the woman who was brought by T. L. Hooter from the Marion Hotel to the police station-with Elmer Walters. They testified six or seven months after the episode, .and, when appellee and Mrs. Edith Brown were presented to them, they identified appellee as the woman who was arrested upon the charge of immorality, and who deposited cash bail for herself and Elmer Walters on the night of March 28, 1922.
When appellee first testified she denied having seen Elmer Walters while in Little Rock, but, after Mrs. Jeff Freeman testified that appellee introduced Elmer Walters to her while they were lunching together on the 29th of March, she was recalled, and testified that she had seen him at that time, .and that he went back to Hot Springs that afternoon in the car with Mrs. Freeman and herself.
There was some conflict between the testimony of appellee and Mrs. Freeman relative to statements made by appellee when registering at the Marion Hotel and with reference to visiting the Pollocks on Scott Street.
It was shown that appellee associated with Elmer Walters and Mrs. Edith Brown both before and after the separation between appellee and appellant. Elmer Walters had taught appellee how to swim, and had, on various occasions, danced and gone automobile riding with her. Appellee testified that her husband had encouraged and sanctioned her association with both these parties.
After the episode at the Marion had gained notoriety, appellee went to see Mrs. Freeman and Mrs. Maggie King, who had testified in reference to -appellee’s association with Elmer Walters, and, according to their testimony, made an effort to get them to suppress these facts. On cross-examination, however, Mrs. King admitted that their conversation pertained to the proposition that appellee regarded her as a good woman who would tell nothing -but the truth, and Mrs. Freeman admitted that she requested appellee not to draw her name into the affair if it could be avoided.
John Oreen, one of appellant’s attorneys, testified that he -sent for appellee -after the escapade at the Hotel Marion, and openly charged her with being in room 379 with Elmer Walters, which charge she denied, -claiming that she spent the night of the 28-th of March, 1922, at the Merchants’ Hotel with Ona McFad-den, and did not •intimate that she had spent the night with Mr. and Mrs. Park.
There was a conflict between the testimony'of Roy Stegall and Moore and Young. Moore and Young testified that, when they asked Stegall whether the man and woman were the parties he wanted, he said the man was, but that he did not see the woman, and would rely upon the register for her identification. Stegall denied making this statement to them.
Other discrepancies exist in the testimony, but I deem it unnecessary to refer to them. Suffice it to say, without further detail, that the charge of adultery was supported by the testimony of Roy Stegall, J. L. Bennett and T. L. Hooter, whose testimony was corroborated by circumstances testified to by other witnesses as above set out; and that appellee’s innocence was supported by the testimony of herself, Mrs. Edith Brown, Tom Moore, R. A. Young, Mr. and Mrs. Park, Elmer Walters, and the recorded description in the police record of the woman who appeared there, as well as other favorable circumstances which were developed in taking the testimony.
After a careful reading and analysis of the testimony, a majority of the court are of the opinion that the finding of the trial court, purging appellee of the charge of adultery, is supported by the weight of the evidence. Mr. Justice Hart is of the opinion that the charge of adultery was established by the preponderance of the testimony.
The next and last issue presented by the appeal and cross-appeal for determination by this court is allowances of attorney’s fees and permanent alimony. The record reflects that appellant is a very wealthy man. The estimated value of his estate is $250,000, and his annual income at about $25,000. Appellee, however, did not assist him in accumulating this fortune. He was a widower of sixty-eight years of age, and appellee a divorcee, thirty-one years of age, at the time of their marriage. They only lived together six years before the separation. This lawsuit has been a hotly contested long-drawn-out affair, involving much skill and time on the part of eminent counsel employed by the parties. Taking into consideration the nature of the charge made ■against appellee, the successful defense made in her behalf, and the ability of appellant to pay for legal services, we think the amount allowed by the chancellor to appellee for her attorneys is fair and just. We cannot affirm the allowance, however, made by the learned chancellor to appellee as permanent alimony. In affirming the finding of the trial court upon the issue of divorce, the majority did not intend to place the stamp of approval upon the conduct of appellee. While the evidence is insufficient to brand appellee as an adulteress, it did show that she had been and was associating with Mrs. Edith Brown and Elmer Walters, who were arrested and fined upon the charge of immorality. Appellee’s association with Elmer Walters was continued, over the protests of her husband, and with both of them after she ascertained that they had been arrested in her room at the Marion Hotel for immorality. We do not think such conduct on her part becoming or circumspect, and must take her persistent association with them into account in fixing the amount of alimony. Her association with Elmer Walters had a great deal to d'O with the separation. This court said in the case of Shirey v. Shirey, 87 Ark. 175 (quoting from syllabus 6):
“The amount to be allowed as alimony is within the sound discretion of the trial court; and all the circumstances of the particular case should be considered in fixing it, such as the husband’s ability to pay, the station in life of the parties, and the conduct of the wife bearing upon the cause of separation.” A good discussion by the Supreme Court of Alabama of the reasons for this rule will be found in the case of Jones v. Jones, 11 So. 11.
Applying the rule thus announced to the facts in this case, we think the allowance made by the trial court should be reduced to $150 per month, and so order.
The decree is therefore modified in this respect, and, as modified, is affirmed.
Chief Justice McCulloch dissents from the modification.
Mr. Justice Hart dissents from that part of opinion refusing to grant a divorce. | [
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McCulloch, C. J.
Appellee’s intestate, B. C. Martin, while working in the service of appellant, was crushed between two freight cars in the Pine Bluff yards, and was fatally wounded. He lived about thirty-six hours after the injury, and suffered great pain. He left a widow and children, and this is an action against appellant, instituted by the administrator of the decedent’s estate, to recover under the Federal Employers’ Liability Act. It is conceded that the injury to decedent occurred while working for appellant in interstate commerce, and that, if liability on the part of appellant exists at all, it falls within the terms of the Federal statute.
Deceased was, according to the undisputed evidence, working in the yards as clerk, his duty being to check cars and to weigh them when called upon by the foreman of the switch crew to do so. The injury occurred shortly after ten o ’clock on the night of October 10', 1922.
The yard office was situated north of the main line, toward the eastern end of the yard, and the track scales upon which cars were weighed were situated toward the western end of the yard and south of the tracks, which ran.parallel with the main line. There were twelve of these tracks between the track scales and the main line. The yard-clerk, when on duty, usually remained in the yard office until called or directed to do particular work. When a car was placed by the switch crew on the scales to be weighed, a signal call to the yard clerk would be given from the engine by blasts of the whistle, and it was the duty of the yard-clerk to proceed immediately to the scales to weigh the car. It was necessary for the yard-clerk to cross the intervening tracks between the yard office and the scales. Decedent Martin received his fatal injury while he was crossing track No. 7, proceeding on his way pursuant to a call from the yard office to the scales to weigh a car. There were four cars, coupled together, standing on track No. 7, and another single car within about four feet of the end of the string of four cars. As Martin passed along this space between the end of the single car and the end of the string of four cars, a car which had been “kicked” in on track No. 7 by the switch crew came violently in contact with the other end of the string of cars, and threw them against the single car, catching Martin between the two cars and crushing him. It was dark in the yards at the time, and Martin had a lantern on his arm. These facts are all undisputed, and it is also undisputed that the car “kicked” in on the track was not in charge of any one, but was rolling down the track at a rapid speed, without any one on it to control its movement.
None of the employees engaged in the switching operations saw Martin as he passed along the yard and entered the space between the cars, and the first that any of them knew of Miartin’s dangerous situation or injury was when his. groans or exclamations were heard after the impact of the cars;
The sole charge of negligence involved in the case is the act of the switching crew in “kicking” the car by a “flying switch” into track No. 7 and causing it to roll down the track at a rapid speed, without being manned by some one to control its movement.
In submitting to the jury the issue of negligence there was no cognizance taken of the “lookout” statutes of the State, which apply to the operation of switching cars in railroad yards (St. L. I. M. & S. Ry. Co. v. Puckett, 88 Ark. 204), no mention was made in the instructions of the court as to any statutory duty in that respect of the railway company. The action being based on the Federal statute, supra, local statutes imposing duties and liabilities are not applicable. Seaboard Air Line Ry. v. Horton, 233 U. S. 492; St. L. I. M. & S. Ry. Co. v. Steel, 129 Ark. 520.
It is earnestly insisted that the evidence is not sufficient to sustain the charge of negligence, in that, according to the method in vogue of switching cars in the yards at Pine Bluff, there was no duty resting upon the switching crew to man the freight cars- “kicked” in on the various tracks, and therefore no negligence in failing to observe that precaution..
It is also contended that the deceased was fully aware of the custom with respect-to “kicking” the cars onto sidetracks without manning them, and that he assumed the risk, should be held as a matter of law to have assumed the risk.
It was proved at the trial that, nearly two years before the date of the injury of Martin, the yardmaster issued a-bulletin, directed to engine foremen, which prescribed a rule of conduct in switching cars. The bulletin was dated January 17, 1921, and read as follows:
“To all Engine Foremen: Bepeated attention has been called to engine foremen as to the rough handling of equipment in Pine Bluff yard. Do not see where you are in any way making any headway, as we are continually receiving complaints account concealed damage in merchandise cars, etc., on cars originating here in Pine Bluff and on cars passing through Pine Bluff yard, which are switched in breaking up trains. Effective this date, instruct your engine foremen that the helpers ‘go high’ on these cars that are cut off, and ride them into tracks. "We have got to put an end to this rough handling of equipment in Pine Bluff yards. Acknowledge receipt and understanding of these instructions, and issue instructions to all your switch engine foremen, and secure their acknowledgments, as I am personally going to check these foremen up to see that these instructions are complied with. Acknowledge receipt with return of this letter.
“Yours truly,
“CC: Mr. A. Holmes. (Signed) W. D. Badgett.”
The contention of appellant’s counsel is that this bulletin did not attempt to establish a general rule with reference to the conduct of the switchmen in “kicking” in cars, but merely referred to the protection of merchandise cars. We cannot agree with counsel in this contention. It is true that the bulletin makes reference to the prevailing evil of subjecting merchandise cars to rough handling, but it states unequivocally a direction that helpers must “go high” on the cars “that aré cut off, and ride them into tracks.” This rule is fairly susceptible only to the interpretation that the cars that are cut off and “kicked” onto the tracks must be manned by men riding them into the tracks.
It is next insisted that this bulletin, or rule, was wholly and habitually disregarded to the extent that it was abrogated, and that this is shown by uncontradioted evidence. It must be conceded that there is much evidence of strong probative force tending to show that this rule was totally disregarded and was thereby abrogated, but it cannot be said that this testimony was uncontradicted, and we find evidence in the record which justifies the conclusion that it was always regarded as the duty of switchmen to accompany the cars to the place where they were to be “jointed up,” or, at least, to have men on duty to see “that the cars go in the clear and that the couplings are kept open so that the joints will be made right, and to watch and see that the cars don’t run back, and to watch out for any other object that might be across the track or any obstruction on the track, or for any carman that might be working on the cars, and to look out for any danger signals.” The court did not err therefore in refusing to take' this question from the jury.
The same may be said with respect to the contention that the undisputed evidence shows that the risk was assumed. If the rule was not abrogated, as some of the evidence tended to show, then it cannot be said as a matter of law that Martin, the yard-clerk, by walking through the yards assumed the risk of the danger created by the nonobservance of the rule by the switchmen. If the rule had not been abrogated, Martin had the right to assume that it would not be disobeyed, and he did not assume the risk of possible dangers arising from disobedience of the rule.
Other assignments of error are predicated upon the objections made to the court’s charge to the jury. The court gave, over appellant’s objection, instruction No. 5, which reads as follows:
“You are instructed that it is not the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his saféty until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.”
We are of the opinion that this instruction is correct. An employee is not bound to anticipate or to exercise care to discover “extraordinary dangers that may arise from the negligence of the employer or those for whose conduct the employer is responsible.” If the employee is aware of the negligent act of his employer or a fellow-servant, and appreciates the danger arising therefrom, he is deemed to assume the risk of such danger by proceeding, but, as before stated, an employee is not bound to anticipate extraordinary dangers arising from the negligence of his employer or a fellow-servant.
Appellant requested the court to give instruction No. 4, and the court modified it by striking out the word “extraordinary” where it appears and inserting the word “ordinary.” The instruction as requested reads as follows :
“If you find from the evidence that the said Martin had been working for defendant company, in its yards at' Pine Bluff, for a number of years, and that he was familiar with the dangers and character of his work in the yards, and the manner and custom of the switching of the cars and the making up of the trains therein, and if you further find that he made no objections to the manner and danger of his work and the manner and danger of the switching and handling of the cars by the switching crews, to his superior or superiors, and continued in the performance of his work and duties, then you are instructed that he assumed, by virtue of his employment, the extraordinary risks incident to his employment. .So, if you find from the evidence that the said Martin was injured by the extraordinary risks of his employment, then plaintiff cannot recover, and you will so find.”
This modification was, we think, correct, for it would have been erroneous to tell the jury that, because the injured employee was familiar with the dangers and character of his work in the yards he assumed, by virtue of his employment, extraordinary risks incident thereto. It is true, as we have already said, that, where an employee is aware of the negligence of his employer or fellow-servant, and appreciates the danger, he assumes the risk, even though it is an extraordinary danger created by negligence. But this instruction goes farther than that and tells the jury that, merely because the employee was familiar with the danger apff character of his work, he would assume the extraordinary risk incident to his employment. This instruction entirely ignored the fact, which could have been and doubtless was found by the jury, that there was a prevailing rule requiring the switchmen to man the cars so as to control them, or to ■ provide other means for that purpose, and, under those circumstances, an extra hazard created by the negligence of the switchmen in failing to comply with that rule would not be assumed by another employee, who had not become-aware of the danger before his injury. Counsel invoke the well-established rule of law that the servant does assume the extraordinary risks caused by the mas ter’s negligence or negligence of a fellow-servant which is obvious and fully known and appreciated by tbe -servant, but the trouble with tbis instruction now under consideration is that it misapplies that principle and brings tbe injured servant within tbe application of tbe doctrine of assumed risk, even where he is injured by reason of the negligence of a fellow-servant without knowledge or appreciation of tbe danger.
Note: Petition for certiorari in the above case was denied by the Supreme Court of the United States. (Reporter).
Finally, it is insisted that the court erred in refusing to give appellant’s requested instruction submitting tbe question of abrogation of tbe rule established by tbe bulletin put in evidence, and in failing to give any other correct instruction on that subject. Tbe instruction requested by appellant reads as follows:
“7. You are instructed that, if you find from tbe evidence that the bulletin introduced in evidence in tbis case, signed by Badgett, was not in force after tbe witness Tucker became -yardmaster, and that said bulletin was habitually violated, then such bulletin was abrogated, and would not be in force after such habitual violation or failure to enforce tbe same.”
Tbe court correctly refused to give .this instruction, for the reason that it was too vague, and failed to give a correct rule for determining whether or not tbe rule bad 'been abrogated. Habitual violation of a rule does not constitute an abrogation unless it is done so openly and continues for a long enough period to raise tbe presumption that tbe employer, or those appointed by him to enforce tbe rule, consented.to tbe abrogation, or knowingly acquiesced in it. St. L. I. M. & S. Ry. Co. v. Caraway, 77 Ark. 405; St. L. I. M. & So. Ry. Co. v. Dupree, 84 Ark. 377; St. L. I. M. & So. Ry. Co. v. Blaylock, 117 Ark. 504.
We do not discover any error in tbe proceeding, and, as the verdict is supported by legally sufficient evidence, tbe judgment is affirmed. | [
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Smith, J.
Appellant, a colored man, was indicted for having raped Etta Tresvant, a colored woman, and, upon his trial, was convicted of an assault with intent to commit rape, and given a sentence of five years in the penitentiary, and has appealed.
For the reversal of the judgment the following errors-are assigned: (1) that the evidence is insufficient to support the verdict; (2) that the court erred in giving-instruction numbered 8 over the objection of appellant, and in refusing- instruction numbered 1 requested by him; (3) that the prosecuting attorney committed prejudicial error in his closing argument.
■The testimony of the prosecutrix was to the effect that appellant had frequently sought to visit her, -but she had declined to permit him to do so. That one Sunday night appellant met her on her way to church, and insisted on escorting her, but she refused to allow him to accompany her. After leaving- the church she saw appellant, who had1 been waiting for her, and he told her he was going home with her. She went to a restaurant to find some one to accompany her home, but, finding no one, she started home alone. Appellant seized her by the arm as she left for her home, and said, he “would go home with her or else- — •” She tried to avoid him, and struggled to release his hold on her, when he opened his knife and said he would kill her if she made an outcry. She was a small woman, weighing only 115 pounds. 'She continued her struggle, when appellant cut her slightly in the side with his knife and said he would cut her damned head off if she did not go along. ¡When she reached her home, which was in the yard of her employer, she pretended1 to have lost her key, but appellant compelled her to produce it. After unlocking the door appellant took possession of. the key and locked the door, and she did not know what he did with the key until he unlocked the door about four o’clock the next morning. Appellant compelled her to go to bed with him and to have sexual intercourse with him. He took his open knife with him to the bed, and he renewed his threat to cut her head off if she made an outcry or if she refused to submit to him. She had heard that appellant had served a term in the penitentiary for shooting a woman who had refused to submit to him, and she believed he would kill her if she did not yield or if she made an outcry. She was asked why she did not call for help when she passed through her employer’s yard, and answered that her employer was away from home, and would not have heard her had he been at home, as the family slept upstairs. She also testified that appellant was carrying his knife in his hand, and she was afraid he would execute his threat. She further testified that she was crying, and begged appellant to leave her, and that she pushed and scratched at him, but was afraid to carry her resistance beyond that point. That she did not sleep that night while appellant was in her room, and did not think he could have slept on account of her crying. When appellant left at four o’clock she fell asleep for a short time, but was awake before her employer had got up, and she told him-what had happened as soon as he came down from his room, which was about 7:30 in the morning. She was asked by appellant’s counsel why she did not let appellant kill her before she ceased to resist, and she answered1 that she wanted to live to tell what had happened.
A twelve-year-old colored boy testified that he saw appellant scuffling’ with Etta on the way to her home; that appellant had a knife in his hand, and that at one time he was almost carrying her on his hip.
Appellant testified that he spent the night with Etta at her invitation, and certain witnesses testified that they saw appellant and Etta going towards her home in a manner which attracted no attention, and there was certain other testimony which tended to corroborate appellant’s story, the truth of which was, of course, a question for the jury. ■
We think this testimony was legally sufficient to support the conviction.
The court told the jury that force was an essential element of the crime, and that the force might be exercised by putting the woman in fear, and that if she did not, in good faith, resist appellant’s attempt, appellant was not guilty of any crime, and that, if there was no such force or putting in fear as compelled the woman to yield against her will, appellant was not guilty of any crime. This idea was enlarged upon in a number of instructions, which made it perfectly plain that it ivas essential that the woman’s will was overcome by force or by such putting-in fear as caused her to cease to resist for her own safety.
Appellant asked an instruction numbered 1, reading as follows: ‘ ‘ The court instructs the jury that, if you find from the evidence that the defendant had carnal knowledge of the woman Etta Tresvant, then consent on her part of such carnal knowledge would be presumed until the State proved beyond a reasonable doubt that the prosecutrix used every means within her power to prevent such intercourse, and something more must be shown than a mere want of consent on the part of Etta Tresvant to the intercourse, if any, with defendant, but it must appear from the evidence beyond all reasonable doubt that the said Etta Tresvant made and used every exertion and means within her power, under the circumstances, to prevent intercourse, if any, with defendant, and, if the evidence in this case upon this subject is such as to raisQ reasonable doubt as to whether said woman did use every such exertion within her power, you will give defendant the benefit of such doubt, and acquit him. ’ ’
Other instructions were also asked by him which elaborated the same propositions.
No error was committed in refusing to give this instruction. It would have been a charge upon the weight of the testimony to have told the jury that there was a presumption of 'consent. There was, of course, a presumption of innocence which attended appellant until his guilt was established beyond a reasonable doubt, but the instructions given fully covered this phase of the case. The instruction was also erroneous in telling the jury that rape was not committed unless the prosecutrix had used every means within her power to prevent appellant from having sexual intercourse with her. Under this instruction the prosecutrix would have been compelled to continue her resistance as long as she was conscious or had strength to offer any resistance, without regard to the effect of this resistance on her safety. If, for instance, appellant’s conduct had induced1 the fear that an outcry would cost her her life, she was not required to thus imperil her life or safety.
In the case of Zinn and Cheney v. State, 135 Ark. 342, we said: “The law does not require of the woman who seeks to protect her chastity that she shall resist as long as either strength endures or consciousness continues. It is essential that she shall not at any time consent, but none of the cases on the subject hold that she had consented because, through fear for her life or bodily safety, she had ceased to resist or failed to make an outcry.”
No error was committed1 in refusing to charge the jury as requested by appellant.
In his closing argument the prosecuting attorney said: “Gentlemen, you don’t know that he will rape the same color the next time.” This argument was, of course, highly improper, but.it was withdrawn as soon as it was made, at the suggestion of the court. Moreover, it does not appear that any objection was made or exception saved at the time, and, while this argument is assigned as error in the motion for a new trial, this was not sufficient to save an exception, as it is not the province of the motion for a new trial to raise objection for the first time. Hall v. State, 113 Ark. 455; Wolfe v. State, 107 Ark. 29.
The testimony was sufficient, according to the prosecutrix, to sustain the conviction, and appellant is in no position to complain that he was only convicted of an assault with the intent to commit the crime of rape.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
Appellees instituted this action against appellant railroad company to recover the value of a building destroyed by fire, which is alleged to have been communicated to the roof of the building from a passing locomotive. The building was rented by appellees to tenants for business purposes, and it was totally destroyed by fire. The value of the building was alleged to be the sum of $2,000, and recovery was asked for that amount, with statutory penalty and attorney’s fees.
' The appellant answered denying that the fire which eonsnmed thé building of appellees was communicated írom an engine.
There was a trial of the issues before a jury, which resulted in a verdict in favor of appellee for the value of the building, fixed by the jury at the full amount sought to be recovered by appellees.
The fire occurred between two and three o’clock on the morning of July 13,1921. The building was situated ■in the city of Camden, near appellant’s track, and testimony was adduced tending to show that a northbound freight train, operated by appellant, passed • along the track near the building shortly after two o’clock in the morning of the date mentioned, that the engine was throwing sparks at the time, and that the fire was discovered shortly afterwards. One of the witnesses testified that a fire alarm was sounded about thirty minutes after the train had passed. It was a northbound train, according-to the-testimony of appellee’s witnesses. The. .witnesses-also testified that, when the fire was discovered and the alarm was sounded, it was observed that the roof of the building was on fire, and that there was no fire at first on the inside of the building. Testimony was also introduced concerning the value of the building.
■ There was a sharp conflict in the testimony in that appellant introduced witnesses whose testimony, if believed, established the fact beyond controversy that the only northbound train on appellant’s track which passed through Camden on the night in question was a certain extra freight train, which passed Camden about ten o’clock and arrived at G-urdon about twelve o’clock. Appellant introduced its train dispatchers, and the train-master, and the conductor, engineer and fireman of the particular train involved in this controversy. The record of- the movement of trains was also introduced, and all this testimony tended very .strongly to prove that the only northbound freight train'that night was One which passed through Camden about ten o’clock — certainly not later than eleven o’clock. We cannot, however, treat this testimony as uncontradieted, for several witnesses introduced by appellees testified positively that a northbound-freight train passed through Camden on appellant’s road about two o’clock or two-fifteen in the morning. There being a conflict, and there being legally sufficient evidence to justify a verdict either way, we are not at liberty to disturb the finding of the jury on that issue.
There is also a conflict in the testimony as to the location of the fire at the time it was discovered and the alarm given. As before stated, appellee’s witnesses testified that the roof was burning, and that there was no indication of fire on the inside of the building, but, on the other hand, appellant’s witnesses testified that the building was’afire on the inside, not on the roof. Appellant also introduced photographs and other testimony tending to show that the building caught from the flue of a stove in the rear end of the building.
It is earnestly insisted that the evidence is not sufficient to sustain the verdict, but we are of the opinion that there is legally sufficient evidence on all of the issues in the case, and that the verdict of the jury is conclusive.
The only other assignment of error relates to an instruction given by the court on the measure of damages, which stated the measure of damages to be the cash market value of the building. It is contended- that the measure of damages should have been stated as the difference between the value of the premises before and after the destruction of the building. That question has, however, been put at rest by the decision of this court in the case of Bush v. Taylor, 130 Ark. 522, where we said that “if the value of the property destroyed depends upon its connection with the soil, the measure of the damages is the difference in the value of the land before and after the fire. But, if the property destroyed could be replaced in substantially the condition in which it existed before the fire, then the measure of the damages is the cost of so replacing it.” This means, of course, the replacement value, taking into consideration the depreciation of the old building, and'that is tantamount to saying that the cash market value at the time is the true measure of damages. In the opinion in that case there is pointed out the distinction between destroyed property, such as fruit trees, pasture grasses, etc., which depend for their value upon their connection with the soil.
There is no error in the record, and the judgment is affirmed. | [
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McCulloch, C. J.
This is an action to foreclose a mortgage, or deed of trust, on real estate. The land in controversy was owned by T. J. Draper and his wife, Anna, and on January 1, 1919, they borrowed the sum of $2,100 from appellee, New England Securities Company, and executed a note for the same, due and payable five years after date, with interest coupons payable annually. They also executed a deed of trust to appellee, T. C. Alexander, conveying the land in controversy, as security for the debt. Prior to the commencement of this action the Drapers sold and conveyed the land to appellant, W. E. Beloate, the latter assuming, as a part of the consideration for the conveyance, to pay off the mortgage. The action was instituted by the New England Securities Company and T. C. Alexander, trustee, against Beloate and the Drapers.
It is alleged in the complaint that the New England Securities Company is the owner of the note with interest coupons, that default had been made in paying some of the coupons when due, and that the lands in controversy had been sold for taxes and that the same had been redeemed by the New England Securities Company, the sum of $357.02 being paid out in effecting the redemption. The notes and deed of trust contained an accelerating clause providing that all of the debt should be- declared due on -default in the payment of any interest coupon.
On January 24, 1919, the New England Securities Company assigned the debt to Mrs. Mary E. Wells Cady, by indorsement and by a separate written assignment, in which the assignor undertook to “look after the collection of the interest as it' falls due, and the principal at maturity, and to remit same; to keep insurance in force for and on behalf of the holder thereof according to the provisions of the deed of trust securing the bond; to make an annual examination of the taxbooks, and to report any delinquencies, and to advise the holder hereof of the status of the borrower and the condition of the security, whenever deemed necessary, hereby guaranteeing the deed of trust securing this bond to be a first and valid lien upon the premises described therein.” Appellant Beloate filed an answer in which he denied that the New England Securities Company was the owner of the debt, and denied the right of the company to declare maturity.of the same, or to pay the taxes on the land and assert a lien therefor, pleading that the New England Securities Company was a mere volunteer in the payment of the taxes. Thereafter, and before the trial of the cause, the New England Securities Company obtained a reassignment of the debt from Mrs. Cady. The instrument reassigning the debt was dated prior to the commencement of this action, but it was not acknowledged until a date subsequent to the commencement of the action. It appears that, in anticipation of the commencement of this suit, the reassignment was prepared by appellee New England Securities Company and forwarded to Mrs. Cady, and that the forfeiture was declared and this suit instituted before the assignment was actually executed by Mrs. Cady. The proof shows that the taxes were also paid by the New England Securities Company before the reassignment. In the final decree the court awarded a foreclosure for the full amount of the debt, as well as for the amount of taxes paid, and ordered a sale by the commissioner.
It is insisted, in the first place, that the suit was premature for the reason that, a declaration of maturity of the debt was not made by the real holder; in other words, that the New England Securities Company was not the holder of the debt' at the time it declared the maturity. It is sufficient answer to this contention to say that default had been made in the payment of interest which fell due prior to the commencement of the suit, and it was the right of the owner of the debt, whoever that might be, to declare maturity under the acceleration clause and institute an action for the whole debt. The fact that the New England Securities Company had not secured a reassignment of the debt at the time it commenced this suit does not prevent an enforcement in this suit of the acceleration clause in the deed.
It is further insisted that the New England Securities Company was not the owner of the debt at the commencement of the suit, and could not be brought into the action .after its commencement. The real owner of the debt, as well as the trustee in the mortgage, were necessary parties in the action to recover the debt and foreclose the mortgage. Boyd v. Jones, 44 Ark. 314; Snider v. Dennis, 159 Ark. 231. If the plea of appellant that the New England Securities Company was not the owner of the debt'had been made good by proof, the suit should have been dismissed on account of defect of parties (Boyd v. Jones, supra), but the proof of the reassignment.of the debt to the New England Securities Company subsequent to the commencement of the action was tantamount to an establishment of its rights to maintain this suit and to be brought in .at that time as a necessary party-plaintiff, and, with that proof in the record, it would have been improper for the court to dismiss the action. Where one of the necessary parties has brought the action without joining the other party, the defect may be cured by bringing in the other party. Snider v. Dennis, supra. It is not like a case where there is an effort to substitute parties who have a right of action for other parties who instituted the action without right.
The same reasons stated herein for sustaining the decree with respect to the parties also sustain it as to the recovery of the taxes. In addition to those reasons, it may be said that the New England Securities Company was not a volunteer in paying the taxes, as it was under obligation to its assignee of the debt to protect the property from tax liens.
We think the decree was correct in all things, and it is affirmed. | [
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Humphreys, J.
This is an appeal from a judgment in favor of appellees against appellant in the circuit court of Little River County growing out of a rental contract. Appellant was the landlord and appellees the tenants. The latter part of 1920 appellant leased a plantation in said county to appellees for the years 1921, 1922 and 1923, at a yearly rental of $3,300. Early in the year 1921 he furnished them corn to the value of $600, and took an interest-bearing note for same, payable in the fall. On April 1, 1921, he advanced them $800 in cash and took an interest-bearing note for same, due November 15, 1921. For the purpose of securing this note and all other indebtedness which was then due or might become due, appellees executed a chattel mortgage to appellant, covering the crops to be raised on the plantation and ten mules which appellees owned and were using in cultivating the place. A little later on appellant advanced appellees another $100, for which he took two interest-bearing notes in the sum of $50 each, payable in the fall. Appellant also advanced a small amount to appellees to pay cotton pickers. On November 29, 1921, the three-years’ lease was canceled, appellant agreeing, in consideration of the termination of the lease, to reduce the rent to $2,500 for the year 1921, to buy at least 1,600 bushels of corn from appellee, with an option to buy more, at fifty-five cents per bushel, for enough, to pay the $600 note, and sixty cents per bushel for the balance, and to hold the cotton which had not been sold until the market recovered, or until both parties should decide it best to sell, but in no event to hold same longer than January 1, 1922.
Appellees introduced testimony tending to show that, after the contract of cancellation had been executed, the market price of cotton recovered, and that they were offered twenty-three cents per pound for the whole lot of cotton; that they requested appellant to accept the offer, but he declined to do so, and, in December, sold it at a much lower price, without their knowledge or consent, and to their damage in a large sum.
Appellant introduced testimony tending to show that no such offer was made and refused, and that he sold the cotton for the best price obtainable in the market.
After selling the cotton and applying the proceeds thereof and accounting for the value of 2,000 bushels of corn at the price specified in the cancellation contract, appellant brought this suit to foreclose the chattel mortgage against the mules, to pay the $800 note and other indebtedness which he claimed appellees owed him.
Appellees filed an answer pleading payment, and a cross-bill claiming that appellant had received 2,800 bushels of corn instead of 2,000 bushels, and had damaged them in a large sum by refusing to sell the 'cotton at twenty-three cents per pound when requested to do so.
Appellant filed an answer denying the material allegations of the cross-bill.
The cause was submitted upon the pleadings, the testimony introduced by the parties and the instructions given by the court, which resulted in a verdict and judgment in favor of appellees for $510.45.
The first contention of appellant for a reversal of the judgment is that, under the most favorable interpretation which can be given the testimony, under any conceivable theory of the case, appellees would not have been entitled to a judgment of more than $251.09. We deem it unnecessary to outline and analyze the testi mony, as the judgment must be reversed on account of erroneous instructions given by the court.
Appellant next contends that the court erred in giving instruction No. 3 requested by appellees, which is as follows:
“The court further instructs the jury that, if they find from a preponderance of the evidence that the defendants turned over to plaintiff the cotton raised by them on plaintiff’s place during the year 1921, it would devolve upon the plaintiff to account to the defendants for the value of said crop.”
This instruction wholly ignored the contract entered into between the parties for the disposition of the cotton, and permitted the jury to ascertain and determine the value' of the crop in its own way.
Appellant next contends that the court erred in giving instruction No. 4, requested by appellees, which is as follows: “The court instructs the jury that, if they find from .a preponderance of the evidence that the plaintiff, having taken possession of said cotton, refused to let defendants sell the same for the highest price, if you find defendants were offered the highest price, and after-wards, without defendant’s consent, sold the said cotton for a price less than the highest price, then the plaintiff would be liable to defendant for the loss sustained by reason of plaintiff’s selling same for less than the highest price. ’ ’
The contract for the sale of the property did not impose upon appellant a duty to sell the cotton at the highest price which might prevail between November 29, 1921, and January 1, 1922. It only imposed a duty upon appellant to hold the cotton until the market improved or until both parties should decide it was best to sell same. Of course, if appellees received an offer which would be sufficient to pay their entire indebtedness to appellant, then it would have been appellant’s duty to sell it, irrespective of the contract, because he could have no interest in the cotton, either under the contract or under his chattel mortgage, beyond an amount sufficient to pay what appellees owed him. If the instruction'had contained such a proviso, then it would have declared the law applicable to the case, but, as written, it imposed an absolute duty upon appellant to sell the. cotton at twenty-three cents per pound if such an offer was received and such a request was made upon him to sell same, irrespective of whether it would bring enough to pay his debt. If it would not have brought enough to pay the entire indebtedness then due him, he would have been entitled, under the contract, to hold same for a higher price. • .
Appellant’s last contention is that the court erred in giving instruction No. 5, requested by appellee, which is as follows: “The jury are instructed that, if théy find from a preponderance of the evidence that plaintiff has received in money or property, or because of the loss in selling cotton for less than the highest price, as herein defined, and the money or property and loss amounts to more than the notes and interest sued on herein, you will find for defendants for such excess, if you find there is an excess.”
This instruction would have been correct if the highest price of the cotton mentioned therein had been properly defined in instruction No. 4. As said in discussing instruction No. 4, appellant was not required, under the contract, to hold and sell the cotton at the highest price obtainable, unless it would have sold for enough at such price to pay his entire indebtedness.
On account of the errors indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Ed. F. MoFaddin, Justice.
Appellant sought a lien (under § 51-601 et seq. Ark. Stats.) on certain property belonging to appellees. From a decree denying the lien, there is this appeal.
In September, 1950, the appellees, Bobbins, et al., made a contract in writing with Lowell Dickson, whereby Dickson was to furnish the labor and materials and to construct and paint some houses for the appellees. In October, 1950, Dickson employed the appellant, Kennemore, to paint the houses at a total price of $1,170.00. Kennemore performed Ms contract and received $400.00 from Dickson, and then filed the lien claim, here involved, for the balance of $770.00. Among other defenses, the appellees pleaded and offered evidence of estoppel; and their testimony on that issue — the determinative one — ■ is substantially as follows:
That before Kennemore began the painting work, he was in the store of the appellees, and they directly inquired of him as to whether they should withhold any money from their contract with Dickson and pay same to Kennemore for the paint job; that Kennemore then told appellees that Dickson was constructing a house for Kennemore, or one of his employees; that Kennemore and Dickson were going to “swap-out”; that Dickson would get his pay for the Bobbins painting job by crediting the same on the Kennemore house job; that the appellees need not hold back any money on their contract with Dickson in order to pay Kennemore for the paint job; that at the time Kennemore made these statements, the appellees had several thousand dollars still due Dickson on their contract; and that because of Kennemore’s statements, the appellees paid Dickson the full contract price long before Kennemore attempted to assert the lien here involved.
As aforesaid, the Chancery Court rendered a decree adverse to Kennemore; and on this appeal he questions (a) the correctness of the evidence of the appellees, and (b) the sufficiency of such evidence on which to base an estoppel.
I. The Preponderance of the Evidence. The burden was on the appellees to prove the facts constituting their claims of estoppel, since it is conceded that the materials had been furnished and the lien notice filed within the statutory time. Davidson v. Reifff 123 Ark. 620, 186 S. W. 818. Four witnesses — the three appellees and one of their employees — testified to the statements made by Kennemore in the conversation as heretofore detailed. Kennemore admitted that he was in the ap pellees’ place of business and that they had some kind of conversation; but he claims that it was different from that testified to by the appellees and their witnesses. Dickson testified that he knew nothing of the Kennemore-Robbins conversations; and that Kennemore never told him of any such conversations.
With the testimony in such irreconcilable conflict. on the factual issue, we cannot say that the Chancellor’s decision is against the preponderance of the evidence. Therefore we cannot reverse on the facts.
II. Estoppel. In 57 C. J. S. 803 et seq., Mechanic’s Liens, § 229-230, the general rules on estoppel against the assertion of a mechanic’s lien are stated as follows:
“As a general rule a person entitled to a mechanic’s lien may be estopped to assert or enforce it by any act which would render it inequitable for him to do so .. . A sub-contractor, materialman, or laborer, is estopped to assert a mechanic’s lien where the owner has settled with the contractor, or made payments to the contractor or subcontractors, in reliance on a representation, statement or direction by the sub-contractor, materialman, or laborer, that he has been paid.”
See also Annotation in 155 A. L. R. 350 on “Estoppel of Mechanic’s lien claimant as predicable upon his representations to owner as to payment made to claimant by contractor or sub-contractor. ’ ’ See also note in Ann. Cas. 1916D 1068: “Representations of sub-contractor inducing payment to contractor as estopping former from claiming mechanic’s lien.”
We have several cases in this jurisdiction which recognize that a potential lienor may estop himself by making statements which are relied on by the owner. In Davidson v. Reiff, 123 Ark. 620,186 S. W. 818, the Court found the facts to be against the alleged estoppel but recognized that an estoppel could exist under such a situation. In Hot Springs Golf & Country Club Assn. v. Community Bank & Trust Co., 182 Ark. 715, 32 S. W. 2d 427, the Court recognized the possibility of estoppel but denied its application because there was no evidence that the alleged statements had been relied on to the prejudice of the party pleading the estoppel.
In the case at bar, however, the appellees testified —and the Court by the decree inferentially found — that the statements were made by Kennemore and were relied on by the appellees, who paid the full price of the Dickson contract long before they learned that Kennemore was denying his alleged statements to them. Thus a promissory estoppel was established in the case at bar, just as in Peoples Nat’l Bank of Little Rock v. Linebarger, 219 Ark. 11, 240 S. W. 2d 12.
The decree is affirmed.
This opinion is not reported in full in the Arkansas Reports, but may be found in the Southwestern Reporter. | [
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Robinson, J.
This case stems from a contract for the sale of real estate. The appellants, James F. and Ina Sntterfield, entered into a written contract to sell to appellee, Yern Eugene Bnrhridge, certain real estate. The purchaser paid $200 at the time of the execution of the contract, agreed to pay an additional $500 within 60 days, and another $500 within 30 days thereafter, with the balance to be paid within 12 months from that time. The contract states: “Provided however, that all moneys paid hereunder are paid on the condition of the grantor herein furnishing good and sufficient and marketable title to said lands and an abstract of the title thereto together with a Warranty Deed, tendered upon full payment of the purchase price therefor.”
In due time the sellers made demand for the first $500 payment, but in the meantime the purchaser had ascertained that the sellers could not deliver a marketable title in accordance with the terms of the contract, since they had previously sold the timber on a portion of the land to another party, and the timber had not been removed at the time of the contract to sell to Burbridge. Hence Burbridge refused to make any additional payments unless the Sutterfields would make proper arrangements so that Burbridge, the purchaser, would not only get title to the land itself but the timber standing on the land. Later Burbridge filed suit against the Sutterfields for breach of contract, but a non-suit was taken. Subsequently Burbridge filed this suit in the chancery court to enforce the terms of the contract, asking for specific performance, with the alternative prayer that if title to said lands could not be conveyed to the plaintiff according to the terms of the agreement, the defendants be required to make restitution to the plaintiff of the $200 down payment plus $405 as damages.
The Sutterfields, defendants in the lower court, filed a motion which in effect was a plea in abatement, giving rise to the issue of whether in filing the first suit for damages, Burbridge had made his election of remedies and was thereby precluded from maintaining an action for specific performance. There was a decree for the plaintiff for the sum of $200, and from that decree comes this appeal.
Appellants are correct in their contention that since Bnrbridge had made his election of remedies and sued for damages, he could not thereafter shift his ground and sue for specific performance, although he had taken a non-suit in the suit asking for damages. Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107. However, here there is the alternative plea for restitution of the $200 down payment and also $405 damages. This part of the complaint asking for restitution and damages is not inconsistent with the suit previously filed; therefore the trial court treated the pleadings in this case asking for specific performance as surplusage and rendered a decree for $200, but allowed no other damages. There is no cross appeal from the court’s action in allowing only $200 damages.
We cannot say the chancellor’s decree allowing the $200 is contrary to a preponderance of the evidence.
Affirmed. | [
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Ed. F. McFaddin, Justice.
This is a direct attack on the order incorporating the Town of Busch, in Carroll County.
On March 9, 1953, the County Court of Carroll County granted the petition of Ernest Huffman and 21 others and declared the Town of Busch to be incorporated. (See § 19-101 et seq. Ark. Stats.) Within 30 days thereafter, The Arkansas and Ozark Railway (appellant here) filed the present proceeding in the Carroll Circuit Court, seeking, under § 19-105 et seq. Ark. Stats., to annul the order of incorporation, and alleging, inter alia-.
“. . . that this proposed town is approximately 3 miles long and in most places %-mile wide; that it runs from the state Highway No. 62 to the Missouri line; that the area is thinly settled and has therein one store belonging to the agent for petitioners, Mr. Ernest L. Huffman, whose expressed principal reason for the incorporation of the town is to enable him to sell gasoline at Missouri prices; that the proposed incorporated town does not contain the requisite number of inhabitants; that the limits of said town are unreasonably large. ’ ’
The allegations of the complaint being denied, the cause was heard by the Circuit Court; and judgment was entered sustaining the County Court’s order of incorporation. From an unavailing Motion for New Trial, there is this appeal.
We conclude that the Circuit Court order is without substantial evidence to sustain it, and therefore, must be reversed, and the incorporation of Busch must be annulled. § 19-106 Ark. Stats. provides that “. . . if it appears to the satisfaction of the court . . . that the limits of said proposed incorporated town are unreasonably . . . large . . . then the said court . . . shall order the record of said incorporated town to be annulled; . . .” In the case at bar, all the evidence established the situation mentioned in the quoted Statute. The area of the proposed Town of Buseh extends two and three-quarter miles along the public road from Mr. Huffman’s store on the South to the Missouri line on the North; and the area is about one-quarter mile wide. There is only one store in the proposed town: no church, and no schoolhouse. Mr. Huffman owns all the land on the public road that is in the Town, and only 21 other people live in the entire area sought to be incorporated. Mr. Huffman — the moving spirit in the incorporation effort — admitted on cross-examination, that his desire to sell gasoline at the Missouri prices was a substantial factor in the effort for incorporation.
Thus a tract of rough terrain, about one-quarter mile wide and extending two and three-quarter miles along the public road from Huffman’s store to the Missouri line, is sought to be incorporated into a town; and limits of the town were designed in order that Huffman might sell gasoline at the Missouri prices. We conclude that all the testimony shows that the limits of the proposed Town of Busch are unreasonably large; and that the Circuit Court should have entered a judgment annulling the County Court order of incorporation.
The Circuit Court judgment is reversed and the cause remanded, with directions to enter a judgment in accordance with this opinion, and for further proceeding as specified in § 19-106 et seq. Ark. Stats.
For some of our cases involving either collateral or direct attack on original incorporation of towns see: Waldrop v. K. C. So. Ry. Co., 131 Ark. 453, 199 S. W. 369, L. R. A. 1916B, 1081 (and Annotation); Bragg v. Thompson, 177 Ark. 870, 9 S. W. 2d 24; Bridges v. Gateway, 192 Ark. 411, 91 S. W. 2d 592; and McCarroll v. Arnold, 199 Ark. 1125, 137 S. W. 2d 921.
Here are portions of Mr. Huffman’s testimony:
“Q. Did you testify before the County Court that the main purpose of this Incorporation was to sell gasoline at Missouri prices?
“A. I said one of the reasons. I don’t know whether I said it was the main reason or not, but I said it was one of the reasons.
“Q. Well, you wouldn’t say that you didn’t say it was the main reason?
“A. No, I wouldn’t say that.
“Q. It is the main reason, isn’t it?
“A. Well, I think we should have one there, and I’ll tell vou why. Nineteen miles stretch from there to Gateway, without any filling stations is very inconvenient for a lot of people. . . .
“Q. So, you and Albert got together on the proposition to put the station there and conceived the plan, then, of running this to the Missouri line, in order to sell this gas at Missouri rates, didn’t you?
“A. Well, I don’t know, I asked him.
“Q. But, that’s what first suggested the idea of the town there, wasn’t it?
“A. Well, I’ve thought about it for years.
“Q. Selling gas at Missouri prices?
“A. Surely.” | [
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Ward, J.
This appeal by a taxpayer of Texarkana challenges the ruling of the chancellor in denying his petition to enjoin the City from paying for the materials and labor in connection with the construction of rest rooms in the basement of the City Hall where the contract for such construction was not let pursuant to law.
On July 7, 1953, the Mayor and six of the Councilmen in Texarkana met and let a contract for Claughton to install two restrooms. This was not a regular meeting-of the council and bids were not asked for. The contract price was $2,204. On July 9, 1953, appellants filed a petition in chancery court before the regular chancellor asking to restrain the City from proceeding under the alleged contract. The regular chancellor stated that he was disqualified to hear the case or to issue a temporary order but that he would call in a judge on exchange for that purpose. Judge James A. Howies was selected to preside in the case and a hearing was set for July 15th. On the last mentioned date it was shown by appellees that the entire installation had been made and the job completed and accepted by the City. Thereupon appellants amended their pleading and asked to enjoin the City from paying out any money under the purported contract either to the contractor or to the materialmen. Upon the issue thus joined evidence was introduced and the special chancellor dismissed appellants’ petition finding that the City had approved the contract and had accepted and was enjoying the benefits of the newly installed restrooms. For a reversal appellants urge several grounds of error.
First. It is insisted by appellants that they had a right to maintain this kind of an action but this need not be discussed as will appear later.
Second. Appellants contend that they did everything in their power to prevent the construction and completion of the project. They insist that they had no right, upon the disqualification of the regular chancellor, to present their petition to the county or circuit judge, relying on Ark. Stats., § 32-214..
We do not agree with appellants in this contention. The statute referred to above “provides that no injunction shall be granted by a circuit or probate judge after a motion therefor has been overruled by the court. Nor shall any he granted hy a judge of a probate court where it has been refused hy the judge of the court in which the action is brought or by any circuit judge. ’ ’ The provision of this statute did not prevent appellants from presenting their petition to another judge because, as noted above, the regular chancellor did not pass on or refuse their petition, hut merely disqualified himself as a judge in this particular case.
Third. It is the contention of appellants that the City of Texarkana had no statutory power to let a con-s tract such as was done here, but that such a power rests solely in the Board of Public Affairs under the provisions of Ark. Stats., § 19-1022. In brief this statute provides :
‘' Said board shall have the exclusive power to make purchases of all supplies, apparatus, materials, and other things requisite for public purposes in such city, and to make all necessary contracts for work or labor to be done,” or materials or other necessary things to be furnished for the benefit of such city, or in carrying out any work or undertaking of a public nature therein; but where the amount of expenditure involved therein may exceed three hundred dollars ($300), said board shall transmit to the city council an estimate thereof, and an ordinance authorizing such expenditure, with their recommendations in relation thereto, and, upon the passage of such ordinance, it shall be the duty of said board to advertise and let the work or contract to the lowest responsible bidder.”
Replying to the above and to sustain the ruling of the lower court appellees, admitting that appellants have the right to maintain this kind of an action, take the position that even though the contract was improperly let in this case still the City Council having approved the contract by ordinance and the City having accepted the job and the benefits deriving therefrom is liable to pay the fair value of all labor used and materials employed. In support of this contention they rely on, among other cases, Texarkana v. Friedell, 82 Ark. 531, 102 S. W. 374; City of Little Rock v. White Company, 193 Ark. 837, 103 S. W. 2d 58; Yaffee Iron & Metal Company v. Pulaski County, 188 Ark. 808, 67 S. W. 2d 1017; and Fort Smith v. U. S. Rubber Company, 184 Ark. 588, 42 S. W. 2d 1004.
Appellants of course contend the contract was void because the Board of Public Affairs was by-passed and also because there was no regular meeting of the City Council where the purported contract was authorized, but, conceding appellants’ contention, this does not relieve the City from all obligation to pay.
In the Yaffee case, supra, the Court said:
“ ‘It is immaterial that the contract was void. Appellee cannot accept and hold appellant’s money, also retaining the bridges, and at the same time plead the invalidity of the contract in bar of recovery. This contention has been definitely and certainly determined by this Court in a number of cases. ’ ’ ’
It was also shown at the hearing on. the 15th that the City held a regular meeting on the 14th and passed an ordinance approving and ratifying the project. In the Friedell case, supra, the Court approved the following from Dillon’s work on Municipal Corporations:
“ ‘ . . . a municipal corporation may ratify the unauthorized acts of its agents or officers which are within the scope of the- corporate powers but not authority. The next is, that where work done for a corporation without legal authorization is for a corporate purpose, and is beneficial to it, and the price reasonable, strong evidence of the assent of the corporation is not required; but such assent must be shown. The third principal is that the ratification, whatever its form must be by the principal or by its authorized agents. ’ ’ ’
The rule, which seems to be conceded by appellees, under the circumstances here is that the contractor, Claughton, is not necessarily entitled to receive the full contract price of $2,204 but is only entitled to receive the fair value of his work and the labor and materials furnished. The trial court decided the case in accordance with this rule, and found that appellants failed to show “the City did not receive full value” or “that the City was not getting its money’s worth,” and so dismissed appellants’ complaint.
We have examined the testimony introduced on both sides and we cannot say the decision of the Special Chancellor was against the weight of the evidence on the question of fair value
The testimony is conflicting and unreconcilable and it would serve no useful purpose to set it out in full. Lykes stated the work could have been done for much less, but he admitted the workmanship and materials used were good, and apparently admits that Claughton’s claim for supervisory services was fair. He was asked if he knew “The quantity of rough plumbing, labor and materials that went into the job, excluding the fixtures that you [he] already named?” His answer was: “I couldn’t itemize it, no.”
“Q. You do not know?
“A. I couldn’t itemize it, no.
‘ ‘ Q. And the reason you cannot itemize it is because you do not know?
“A. Because some of it is covered up. The quality that I saw there was a standard quality, the material I saw laying there.”
There was testimony by Claughton and Paul Hardy, Jr., a disinterested contractor, that the contract price was fair.
Appellants’ brief contains no argument on the question of the value of the improvements, but they contend that the fair value rule does not apply where there is a lack of good faith. We are not convinced by this argument. If any lack of good faith is shown it is on the part of the City. If we should hold the City is not obligated to pay for these improvements, it would not be punished but rewarded for its exercise of bad faith.
It is our opinion that the decree of the Special Chancellor should be and it is hereby affirmed.
Justice McF addin not participating. | [
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Minor W. Millweb, Justice.
On August 7, 1952, appellant, A. E. Sullivant, purchased from the .agent of Pennsylvania Fire Insurance Company, appellee, a policy of insurance which insured, among other things, a 1947 Studebaker %-ton truck against loss or damage occasioned by theft. The policy provided for a maximum coverage of $800.00 and defined theft as “loss or damage to the automobile caused by theft, larceny, robbery or pilferage.”
At a hearing in the Jonesboro Municipal Court, the parties stipulated that, if called as witnesses, appellant, Hubert Eogers, his employee, and Curtis Kerr, a garage-owner, would testify as follows:
Appellant had farming interests north of Jonesboro, Arkansas, and employed Hubert Eogers of Nettleton, Arkansas, to assist him during the summer of 1953. Eogers was accorded the privilege of using the Studebaker truck for the sole purpose of traveling back and forth from work. Eogers was permitted to keep the' truck at his residence at night and week-ends, but was specifically instructed that the truck was not to be used except for a means of transportation to and from work.
On the night of July 23, 1953, Eogers violated instructions by using the truck for his own personal pleasure. He became intoxicated, collided with a tree in the City of Jonesboro, and abandoned the vehicle. Damage to the vehicle was $169.63, and it is undisputed that the policy was in full force and effect at the time of the collision. It was stipulated also that Hubert Eogers would testify that it was his intention to return the truck, that he had no intention of keeping or stealing it.
Appellant filed a complaint in municipal court contending that the damage to his truck was caused by larceny and seeking ¡judgment therefor pins the statutory penalty and attorney’s fee. On December 18, 1953, the municipal court found in favor of appellee and dismissed appellant’s complaint. The instant appeal is from the same judgment rendered on appeal upon a trial before the circuit court sitting as a jury.
The principal issue is whether the acts of the employee, Hubert Rogers, constituted larceny or theft under the laws of Arkansas. In determining this question the policy must be interpreted according to the laws of the state in which it is issued. It is also well settled that insurance policies are to be construed strictly against the insurer. Appellant contends that the damage to his truck was occasioned by larceny, as defined by the 1953 Supplement to Ark. Stats. § 41-3929, and was therefore within the terms of the policy. This section recites: “Any person who shall lawfully obtain possession as bailee of any money, goods, vehicle, aircraft, chose in action, or property of any character or description including farm produce and livestock, whether or not such possession was obtained gratuitously or for a consideration, who shall thereafter knowingly receive, dispose of, conceal, convert, keep, or use said property as above described contrary to the provisions of the agreement or conditions under which the same shall have been obtained, shall be deemed guilty of larceny to the degree depending upon the value of the property involved as fixed by law, and upon conviction thereof shall be punished as in cases of larceny.”
The first question for decision is whether or not a bailment existed. In 6 Am. Jur., Bailments, § 4, in de fining “bailment”, the text recites: “In its ordinary legal signification, which conforms to modern authorities and is substantially accurate, the term may be said to import the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it.” In defining the same term, in 8 C. J. S., Bailments, § 1, it is said: “It may be comprehensively defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be.” On the specific issue of a master’s lending a car to a servant, in Blashfield’s Cyclopedia of Automobile Law and Practice, Yol. 5, § 3050, p. 419, it is said: “Where the master has loaned the car to the servant the situation is different. Such a situation constitutes a bailment, superseding the relation of master and servant, and such relation is not restored until the driver is again acting under the master’s specific direction and control. A general instruction to return the car cannot be regarded as a specific direction from the master, placing the car within his control within this rule.”
In Spellman v. Delano, 177 Mo. App. 28, 163 S. W. 300, the fact situation was closely analogous to the present case. There, the master lent his servant, Cook, a horse to ride to and from work, and while Cook was going from work one day the horse was killed by a train. The master sued the railroad company for the value of the horse, and the question was presented whether the contributory negligence of the servant was imputable to the master. To decide this question, the court had to determine the relation between Cook and his employer at the time of the accident, and in discussing this the court said: “Was Cook, at the time the horse was injured, the servant of plaintiff ? He was not. He worked for plaintiff by the day, and the relation of master and servant terminated each day when the day’s work ended. Plaintiff had no control over Cook after 6 o’clock. What be did from that time until be returned to work again, between 7 and 8 the next morning, was no concern of plaintiff’s. Indeed, be could not legally require Cook to return to work next morning, since the hiring was by the day, and Cook was only paid for the days be worked. Plaintiff was under no obligation to transport Cook to and from bis place of labor. His lending the horse to Cook was no part of the contract between them. It was done only when Cook requested it, and was then only a gratuitous favor wbicb plaintiff could withhold or not, as be chose. But the real test as to whether Cook was a servant of plaintiff at the time of the accident is whether the former was at that time subject to the latter’s orders and control. Wood on Master and Servant, § 317; Atherton v. K. C. Coal Co., 106 Mo. App. 591, 81 S. W. 223. He was not. Consequently the relation between them was not that of master and servant, but was that of bailor and bailee.”
We conclude that a bailment existed in the instant case, and that Rogers was a bailee at the time appellant’s truck was damaged. Did the acts of Rogers which occasioned the damage to appellant’s truck fall within the statutory definition of larceny by bailee as set out in § 41-3929, supra¶ A situation somewhat analogous to the case at bar was presented in Central Surety Fire Corporation v. Williams, 213 Ark. 600, 211 S. W. 2d 891, in which this court construed a statute which provided certain acts would be deemed larceny. In that case appellee was insured against loss of bis automobile by “theft, larceny, robbery or pilferage.” A swindler gave appellee a worthless check in payment for the car, and appellee delivered to him the car with a bill of sale. When the check was discovered to be worthless, appellee sued the insurance company on the policy, claiming be bad lost bis car through larceny; the insurance company argued that the swindler was guilty only of false pretense, not larceny. This court said: “Even if Martin [the swindler] was guilty only of false pretense, still —under our statute [§ 3073, Pope’s Digest] — such false pretense is deemed to be larceny . . .
“One guilty of the statutory crime of false pretense is deemed — or adjudged — ‘guilty of larceny and punished accordingly. ’ By the plain wording of our false pretense statute, the person guilty of its violation is adjudged guilty of larceny. The wording of our statute brings the act of Martin within the policy coverage of the insurance company, i. e., larceny.”
Other states have enacted so-called “joy-ride” statutes similar to § 41-3929. In Block, et al. v. Standard Insurance Company of New York, 292 N. Y. 270, 54 N. E. 2d 821, a car owner was driven by his chauffeur to a hotel, and, not needing the car any more that day, the owner gave the chauffeur permission to drive the caito the place where the chauffeur was spending the night, expressly forbidding him to go joy-riding in the car. The chauffeur disobeyed his instructions and wrecked the car. The car was covered by insurance which insured the owner against “Loss or damage to the Automobile caused by Larceny, Robbery or Pilferage.” In holding that the owner could recover from the insurance company under a statute similar to § 41-3929, the court said:. “. . . The average automobile owner knows that the taking of an automobile in manner such as was done here constitutes the crime of larceny. His legislative representative voted for that enactment. The newspaper he reads contains reports of unauthorized temporary appropriations of automobiles and both he and the newspapers now use the word joy-ride as a definition of such an act. Such act is larceny and is so considered by the average man whether or not he is the owner of an automobile. ’ ’' See also, Pennsylvania Indemnity Fire Corporation v. Aldridge, (D. C.) 117 F. 2d 774.
In support of the judgment, appellee relies on the case of Export Insurance Co. v. Royster, 177 Ark. 899, 8 S. W. 2d 468, where this court held that it is necessary to show that there was an intent to convert the property to the nse of the taker to constitute larceny. This case was decided prior to the 1947 and 1953 amendments which resulted in § 41-3929, supra. At that time the statute provided that there exist an intent to convert to the taker’s use. This provision was eliminated by the 1947 amendment. In that case the policy covered loss by “theft, robbery or pilferage” and the alleged thief was not in the employ of the assured but was employed aj; a garage where the car was stored.
In enacting § 41-3929, the Legislature defined larceny by bailee as including the use of a bailed vehicle contrary to the provisions of the agreement or conditions under which it was obtained. The intention to convert to the use of the taker was significantly omitted from the amended statute, and it is clear that such intent is not now necessary in this state where the taking-falls within the provisions of said section. Under the undisputed testimony in the case at bar the acts of Hubert Rogers clearly fall within the definition of, and constitute, larceny as set out in the statute.
The judgment is accordingly reversed and the cause remanded with directions to enter judgment in favor of appellant for the stipulated damage plus the statutory penalty and a reasonable attorney’s fee.
Prior to amendment by Act 323 of 1947 and Act 24 of 1953, the statute read: “If any carrier or other bailee shall embezzle, or convert to his own use, or make away with, or secrete with intent to embezzle, or convert to his own use, any money, goods, rights in action, property, effects or valuable security, which shall have come to his possession, or have been delivered to him, or placed under his care or custody, such bailee, although he shall not break any trunk, package, box or other thing in which he received them, shall be deemed guilty of larceny, and on conviction, shall be punished as in cases of larceny.” The term “bailee” as used in this statute was held not confined to bailees of the generic class of carriers, but embraced all bailees. Wallis v. State, 54 Ark. 611, 16 S. W. 821; Tally v. State, 105 Ark. 28, 150 S. W. 110.
This case is to be distinguished from Van Vechten v. American Eagle Fire Insurance Company, 239 N. Y. 303, 146 N. E. 432, where the company insured against “theft, robbery or pilferage.” | [
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Minor W. Millwee, Justice.
This is a bastardy proceeding instituted in the Pulaski County Court against appellant by appellee, State of Arkansas, for tne nse and benefit of the mother of the alleged bastard child. A hearing was held on February 21, 1952, and a judgment was entered March 27, 1952, finding appellant to be the father and ordering him to pay $295.00 for lying-in expenses, $300.00 for past maintenance of said child and $30.00 per month for future care and maintenance. The judgment recites: “This judgment having been rendered on February 21, 1952, but omitted from record on that date is hereby ordered entered nunc pro tunc.”
On April 23, 1952, appellant filed affidavit and bond for appeal in the county court. On the same date the county court entered an order granting an appeal to circuit court. On May 2, 1952, a transcript of appeal was lodged with the clerk of the circuit court. On July 31, 1953, appellee filed a motion to dismiss the appeal on the ground that it was not timely filed. On October 5, 1953, appellant filed a response stating that if the statutory requirements for appeal had not been satisfied, it was because the county clerk would not permit him to have the papers and transcript; that appellee was estopped from claiming that the appeal was not filed within the time required by law; and that justice required a de novo hearing and a disregard of the delay in filing the appeal.
This appeal is from an order of the circuit court entered on October 20, 1952, sustaining the motion to dismiss.
The matter of appeal in bastardy proceedings is controlled by Ark. Stats. 34-709, which recites: “An appeal will lie from a judgment of the county court to the circuit court in all cases of bastardy, as in cases of appeal from judgments of justices of the peace to circuit courts . . .” Referring to the statutes controlling-appeals from judgments of justices of the peace to circuit courts, we find two statutes, Ark. Stats. §§ 26-1306 and 26-1307, which relate to the time allowed for filing the transcript of the judgment in the office of the circuit clerk. § 26-1306 provides: “On or before the first day of the circuit court next after the appeal shall have been allowed, the justice shall file in the office of the clerk of such court a transcript of all the entries made in his docket relating to the cause, together with all the process and all the papers relating to such suit . . .” This statute was a part of Act 135 of 1873 and was in effect at the time Ark. Stats. 34-709 was adopted in 1875. Carr v. State, for use of Smith, 164 Ark. 503, 262 S. W. 337. In 1939, the legislature adopted Ark. Stats. 26-1307, which recites: “A party who appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment must file the transcript of the judgment in the office of the circuit court clerk within 30 days after the rendition of the judgment. If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond.”
Appellant argues that, even though § 26-1307 has superseded § 26-1306, still the statute in effect at the time § 34-709 was adopted should be the controlling one, because § 34-709 specifically adopted it. He relies on the general rule of statutory construction followed in McLeod, Commissioner of Revenues v. The Commercial National Bank, Executor, 206 Ark. 1086, 178 S. W. 2d 496, to the effect that when a statute adopts a part or all of another statute by a specific and descriptive reference thereto, such adoption takes the statute as it exists at that time, unaffected by any subsequent modification of the statute adopted, unless a contrary intention is clearly manifested. While this general rule is well recognized, there is also a well-established exception to, or qualification of, the rule to the effect that where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof, the reference in such case includes not only the law in force at the date of the adopting act but also all subsequent amendments or laws in force on the subject at the time it is invoked. 82 C. J. S., Statutes, § 370a; 50 Am. Jur., Statutes, § 39.
The rule is stated by the annotator in 168 A. L. R. 628, as follows: “In the absence of anything in the adopting statute and the circumstances surrounding its enactment to indicate a different legislative intent, the general rule of construction to be drawn from the cases is that a statute adopting or referring to another statute or to some of its provisions adopts and incorporates the provisions of the earlier statute as they existed at the time of the adoption, but not subsequent additions or modifications of the statute adopted, with the result that the operation of the adopting statute will not be enlarged, limited, or otherwise affected by the subsequent modification or repeal of the adopted statute, but if reference in the adopting statute is to the general law regulating the subject, the incorporation is of that general law as it exists from time to time or at the time the exigency arises to which the law is to be applied.”
In Davison v. Heinrich, 340 Ill. 349, 172 N. E. 770, in construing a provision that appeals in probate matters may be taken “in the same time and manner as appeals may be taken from justices of the peace” the court said: “It is a well-settled rule of statutory construction that, where the reference in an adopting statute is to the law generally which governs the particular subject and not to a particular act, by title or otherwise, the reference will be regarded as signifying and including the law in force on the subject at the time it is invoked.” The court held that modifications of the appeal procedure from justices of the peace subsequent to the enactment of the adopting statute were also adopted by that statute.
Here, Ark. Stats. § 34-709 did not specifically or descriptively refer to Ark. Stats. § 26-1306 or any other statute. Its reference was to the general law controlling appeals from justices of the peace. § 26-1306 was modified by § 26-1307, and the latter became a part of the applicable appellate procedure in bastardy cases.
In discussing § 26-1307, in Lytle v. Hill, 205 Ark. 789, 170 S. W. 2d 684, we said: “This section gives finality to the judgments of inferior courts where the train cript of the judgment is not filed in the office of the clerk of the circuit court within thirty days after the rendition of the judgment, and authorizes the issuance of an execution against the signers of the appeal bond as upon a final judgment. ’ ’
“This act is not only mandatory, but is jurisdictional. The transcript must be filed with the clerk of the circuit court within 30 days to confer jurisdiction upon the circuit court.”
Since the ins-tant appeal was not perfected by filing the transcript in the circuit court within 30 days after the rendition of the county court judgment, it was properly dismissed.
The judgment is affirmed. | [
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Ward, J.
Appellant, Benjamin Tom Ward, and appellee, Katie Marie Biddle Ward, were married on July 12, 1951.. Approximately three months later appellee gave birth to a child.
On October 2, 1952, appellant obtained a decree of divorce from appellee on the ground of willful desertion by appellee for a period of one year. One month previous to'the divorce decree appellant and appellee entered into a written agreement to the effect that if a decree of divorce-should be granted appellee should have custody of the child, Brenda Marie Ward, and that appellant would pay $25 per month for the support of said child. The divorce decree itself did not contain or make any reference to the said agreement but it embodied the same provisions concerning custody and support.
On October 6, 1953, appellant filed a complaint against appellee asking to have the said marriage annulled and declared void ab initio, and that he be relieved from making further payments for child support.
The material allegations in the complaint were: He and appellee had kept company for a period of about two years prior to said marriage; that his consent to said marriage was induced by duress and fraud on the part of appellee and her relatives; that they threatened him in divers ways, and represented to him that appellee’s father had developed a heart disease and could not stand the strain caused by the unmarried status of his daughter in her pregnant, condition; that. if appellee’s father should die as a result of the strain; appellee’s relatives would hold him responsible; that appellee and her relatives had no conclusive knowledge that he was the father of said child, and that they knew or ought to have known “that other persons and not plaintiff might have been or could have been.the father of said child”; that in other ways he was induced, against his will, to marry appellee; that at the time he consented to the marriage appellee knew he was not the cause of said pregnancy and not the father of the child, but that it was another person, that he has only recently discovered that appellee had. indulged in sexual intercourse with different persons at or about the time she became pregnant, and that he is not the father of said child, and; that he has only recently learned that he was not in fact the father of the child, a fact which appellee well knew at all times.
Appellee filed a motion to dismiss appellant’s complaint alleging, among other things, that the divorce decree of October 2,1952, is an existing final judgment rendered upon the merits of the issue in this case by a court of competent jurisdiction, without fraud or collusion, and is conclusive of the rights, questions and facts in issue as to the parties in this case, and that no marriage now exists between the parties and therefore there is no marriage to set aside or annul.
Attached to appellee’s motion to dismiss was the original court file in a divorce proceeding, case No. 7434. Included in this file were the following: (a) A complaint, signed by appellant’s attorney and verified by appellant, in which he alleged that he was married to appellee on July 12, 1951; that immediately after the marriage defendant deserted and abandoned him; that to the marriage was born one child, Brenda Marie.Ward; that he was entitled to divorce from defendant; that it would be for the best interest of the child for the mother to have custody, and; that he was able to contribute the sum of $25 per month for the support of the child. The prayer was for a dissolution of the bonds of matrimony; (b) A waiver of service signed by Katie Marie Ward; (c) An agreement dated September 2, 1952, and signed by appellant and appellee in which it was agreed that in event the court should grant a divorce appellee should have custody of the child and appellant to pay $25 per month for its support, and; (d) A decree dated October 2, 1952, which, among other things, gave custody of the child to the mother, ordered appellant to pay $25 per month for its support, and dissolved “the bonds of matrimony heretofore existing between the plaintiff and defendant.”
At the hearing on appellee’s motion to dismiss it was agreed by both sides that the instruments mentioned above were the authentic and original papers in said case No. 7434. It was stated by the attorneys for appellant that they were not trying- to annul the divorce decree mentioned above but that they were trying to annul the marriage that had been perpetrated by fraud.
The trial court granted appellee’s motion to dismiss and we sustain this finding.
. By this action appellant sought only to annul or set aside his marriage to appellee on July 12, 1951. It is conceded that this marriage relationship was dissolved by the decree of divorce dated October 2, 1952, in case No. 7434, which cause of action was instituted by appellant. Consequently when appellant’s complaint in this case was filed on October 6, 1953, seeking to annul the marriage relationship existing between him and appellee as a result of their marriage on July 12, 1951, no marriage relationship existed between them, and none can exist between them until the divorce decree of October 2, 1952, is canceled and set aside. Under these circumstances appellant could not maintain an action to dissolve or annul a relationship which did not exist.
Affirmed.
Justice MoFaddin concurs. | [
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Ed. F. McFaddin, Justice.
These two cases stem from the efforts of the Attorney General to have a hearing by the Eclectic State Medical Board (hereinafter called “Board”) regarding the validity of the license of Dr. J. S. Schirmer.
On September 14, 1953, the Attorney General of Arkansas filed suit in the Circuit Court of Clay County, Arkansas, against Dr. J. S. Schirmer, seeking a hearing for the purpose of cancelling the license of Dr. Schirmer to practice medicine in this State. That matter reached this Court in the case of Schirmer v. Light, which was a prohibition proceeding, and in which an opinion was delivered by us on November 23, 1953. See Schirmer v. Light, 222 Ark. 693, 262 S. W. 2d 143.
In keeping with the views expressed in the foregoing-opinion, the Attorney General, on December 8,1953, filed a petition with the said Board, seeking a hearing on the validity and legality of the license which Dr. Schirmer claimed to have been issued by the said Board. The hearing was sought under the provisions of § 72-611, et seq., Ark. Stats. On December 15, 1953, the Board decided that May 11, 1954, was the earliest date on which the Board would hold a meeting. The Attorney General felt that the Board was unduly delaying the hearing, and filed suit against the Board in the Pulaski Circuit Court, seeking a writ of mandamus to compel the Board to meet at an earlier date. The Pulaski Circuit Court, Third Division (J. Mitchell Cockrill, Judge), thereupon issued its order, directing- the said Board to meet and have its hearing on April 12, 1954.
The Board did meet on April 12, 1954, and decided that its hearing should be secret, and not open to the public. Thereupon, certain newspaper, radio, and television representatives obtained an order from the Pulaski Chancery Court, requiring- the Board to have open hearings. The Chancery Court in issuing this order was apparently relying on Act 343 of the Acts of Arkansas of 1953. When the Chancery Court order was served on the Board, it immediately suspended the hearing in the Schirmer matter, and filed Case No. 480 in this Court, in which the Board sought a writ of certiorari to bring up to this Court and quash the order of the Pulaski Chancery Court which required the Board to have public hearings.
After the said Board suspended its hearings on April 12, 1954 (which hearings were being held in accordance with the mandamus order of the Pulaski Circuit Court), the Attorney General of Arkansas then filed in the Pulaski Circuit Court, Third Division, Case No. 40487 against the said Board and Dr. Schirmer, praying for certiorari against the said Board, alleging that the Attorney General had appeared before the Board at the hearing on April 12th and had sought to introduce his evidence and present his case, regardless of whether the sessions were open or closed, and that the Board had indefinitely adjourned its meeting of April 12th, without giving the Attorney General any opportunity to present his case, and that such indefinite adjournment on April 12th was in violation of the mandamus order of the Pulaski Circuit Court, Third Division, directing the Board to proceed on that date to a hearing.
The Attorney General also alleged that the conduct of the Board had been such as to clearly demonstrate that it would be futile and useless for the Attorney General to present his case to the Board, and that the Board had clearly demonstrated that it was not going to proceed with the hearings as directed by the Pulaski Circuit Court. The Attorney General prayed (1) that the Pulaski Circuit Court should issue a writ of certiorari directing a copy of all the proceedings and records of the respondent, Eclectic State Medical Board, to be brought before it for review; and (2) “that this Court enter an order setting down for full and complete hearing, and its subse quent determination thereof, the charges filed before the respondent Board herein, which said respondent has failed and refused to hear.” This was case No. 40487 in the Pulaski Circuit Court, in which the said Board and Dr. Schirmer were respondents. Dr. Schirmer filed a response in the Pulaski Circuit Court, denying all material allegations of the petition for certiorari, and praying that it be dismissed.
The Circuit Court issued its order granting the first prayer of the Attorney General’s complaint (i.e., that the Board bring to the Circuit Court all copies of proceedings and records in connection with the Schirmer matter). Thereupon, Dr. Schirmer, without waiting for further Circuit Court action, filed Case No. 490 in this Court, seeking to prohibit the Pulaski Circuit Court (Third Division, J. Mitchell Cockrill, Judge) from any further proceedings in Case No. 40487 therein pending. Dr. Schirmer claimed that the said Circuit Court was entirely without jurisdiction, and that the Eclectic State Medical Board had exclusive jurisdiction.
Thus Cases No. 490 and 480 in this Court are intertwined and grow out of the efforts of the Attorney General to have a hearing regarding the validity of the license of Dr. J. S. Schirmer.
Case No. 490
This is Dr. Schirmer’s petition seeking a writ of prohibition against the Circuit Court; and the petition of Dr. Schirmer is denied. The rule is well established that prohibition does not issue if the court (in this instance the Pulaski Circuit Court) has jurisdiction; and clearly such Court does have jurisdiction. If the Court should wrongfully act within its jurisdiction, then the remedy is by appeal. If it acts in circumstances where there is no jurisdiction or proceeds beyond its jurisdiction, a void order may be quashed by certiorari. But prohibition cannot be used as a substitute for appeal or certiorari. Keenan v. Strait, 221 Ark. 83, 252 S. W. 2d 76; Harris v. Marlin, 220 Ark. 621, 249 S. W. 2d 3, and Gordon v. Smith, 196 Ark. 926, 120 S. W. 2d 325.
The legal residence of the Eclectic State Medical Board is Pulaski County, Arkansas. BaKer v. Fraser, 209 Ark. 932, 193 S. W. 2d 131; Leonard v. Henry, 187 Ark. 75, 58 S. W. 2d 430; Downey v. Toler, Judge, 214 Ark. 334, 216 S. W. 2d 60. The said Board had power and authority to conduct a hearing at Little Rock in reference to the revocation of Dr. Schirmer’s purported license. See § 72-611, Ark. Stats., and the case of Schirmer v. Light, 222 Ark. 693, 262 S. W. 2d 143. The Pulaski Circuit Court has supervisory jurisdiction over the said Eclectic State Medical Board. Section 22-302, Ark. Stats., provides:
‘ ‘ Said Circuit Courts shall have power to issue writs of certiorari to any officer or board of officers, city or town council, or any inferior tribunal of their respective counties, to correct any erroneous or void proceeding or ordinance, and to hear and determine the same; . . .”
Thus the Pulaski Circuit Court could legally issue a writ of certiorari to the Board; and if the Circuit Court found that the Board was failing and refusing to act in accordance with the order of the Pulaski Circuit Court directing the hearing for April 12, 1954, then the Pulaski Circuit Court could act in lieu of the Board. Some of the cases involving the authority of the Circuit Court over Boards are Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; Green v. Blanchard, 138 Ark. 137, 211 S. W. 375, 5 A. L. R. 84; Eclectic State Board v. Beatty, 203 Ark. 294, 156 S. W. 2d 246.
Therefore the issue now before the Pulaski Circuit Court is to decide whether the said Board has been so dilatory and slothful in the matter of the Attorney General’s efforts to have a hearing against Dr. Schirmer as to justify the Circuit Court in lifting — -because of such extraordinary circumstances — -the entire proceeding' against Dr. Schirmer to the Circuit Court for trial and determination. If the Circuit Court should so find (a matter within its sound discretion), then the Circuit Court will proceed to a hearing on the Attorney General’s case against Dr. Schirmer, and at the conclusion of that hearing, a final judgment may be entered by the Circuit Court, from which there may be a review, as in any other final judgment.
If the Circuit Court should decide that the Board should be allowed to continue to hear the Attorney General’s case against Dr. Schirmer under strict orders of the Circuit Court that prevent any delay in hearing and decision, then such conclusion is for the Circuit Court.
At all events, we deny Dr. Schirmer’s petition for prohibition in Case No. 490.
Case No. 480
In this case the Board is seeking to quash the order of the Pulaski Chancery Court, which directed the Board, to have public hearings. Because of what we have said in Case No. 490, it is obvious that the Pulaski Circuit Court had undertaken to exercise jurisdiction, and was-exercising jurisdiction in directing that the Board meet, and conduct its hearing on April 12, 1954.
It is clear that there must be no conflict of jurisdiction between the circuit courts and the chancery courts; and the Circuit Court had jurisdiction to order the Board to meet and conduct its hearing, and such meeting was being held in accordance with the order of the Circuit Court. Under these peculiar facts, it is obvious that the Chancery Court should have remitted. Hughes, et al., to the Circuit Court for such relief as they desired, because the Circuit Court had already taken, jurisdiction. In instances in which law and equity courts have concurrent jurisdiction, then when one court as sumes jurisdiction, the other court must not thereafter attempt to act in the same matter. Ford v. Judsonia Merc. Co., 52 Ark. 426, 12 S. W. 876, 6 L. R. A. 714; McCracken v. McBee, 96 Ark. 251, 131 S. W. 450; Home Fire Ins. Co. v. Benton, 106 Ark. 552, 153 S. W. 830, and Shields v. Shields, 183 Ark. 44, 34 S. W. 2d 1068.
We therefore hold that in Case No. 480, the newspaper, radio, and television representatives should have gone into the Circuit Court, which had already undertaken to exercise jurisdiction; and this makes it unnecessary for us to decide anything about the meaning of Act 343 of 1953. It is only fair to say that nothing in the record shows that the Board ever advised the Pulaski Chancery Court that the Pulaski Circuit Court had taken jurisdiction, but rather it used the Chancery order as an excuse to indefinitely adjourn the hearings. Therefore, in quashing the order of the Pulaski Chancery Court, we do so at the expense of the Board, which did not raise the proper question in the Court below. Our holdings in each case herein are effective immediately so that the Pulaski Circuit Court may proceed without awaiting any time for rehearing.
Justice Ward dissents in Case No. 490.
The Chief Justice and Justice Ward dissent in Case No. 480.
That case is styled: Eclectic State Medical Board v. William W. Hughes, Bobbie Forster, Wm. H. Hadley, Jr., Dick Evans, Bill Neel, Bud Lemke, Sam G. Harris, and Dean Duncan.
In Smith v. Ill. Bell Tele. Co., 270 U. S. 587, 70 L. ed. 747, 46 S. Ct. 408, it was shown that the Telephone Company had filed an application with the State Commerce Commission of Illinois for a schedule of rates; and that the Commission had allowed the petition to remain dormant for a period of two years. In holding that the Courts could act when the administrative agency had failed, the U. S. Supreme Court said: “For this apparent neglect on the part of the commission, no reason or excuse has been given; and it is just to say that, without explanation, its conduct evinces an entire lack of that acute appreciation of justice which should characterize a tribunal . . .” Thus, the U. S. Supreme Court held that an unreasonable delay by a Board gave the courts just power to act. On the general subject of the exhaustion of administrative remedies, see 73 C. J. S. 351 et seq. | [
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J. Seaborn Holt, J.
Appellee, Murray Laboratories, Inc., sued appellant, Dr. Murray, to cancel 45 shares of stock, issued to and held by Dr. Murray, alleging failure of consideration for said stock, for the reason that said shares of stock were not issued for money or property actually received or labor done and were in violation of Article 12, § 8 of the Constitution of Arkansas, and were therefore void and cancellable.
Dr. Murray filed answer and cross-complaint in which he denied failure of consideration and prayed for an accounting and decree for his portion of the earnings of the corporation.
Trial resulted in a decree cancelling Dr. Murray’s stock in accordance with appellee’s prayer, and refused his plea for an accounting and restitution to him. This appeal followed.
The evidence discloses that Dr. Murray was a graduate veterinarian from Texas A. & M. College, having received a D.V.M. degree from that institution. While at Texas A. & M. Research Center, he studied the techniques of culturing and testing the strength of various species and strains of viri and the making of live virus vaccines. Dr. Murray, having conceived the idea of setting up a manufacturing laboratory in Northwest Arkansas, the center of a great chicken broiler industry, went to Fayetteville and interested six of the leading broiler producers in that area in his proposition. A corporation was duly organized and on August 22, 1951, one hundred shares of capital stock, with par value of $50.00 per share, were issued, Dr. Murray receiving 46 shares (for one of which he paid $50.00 in cash) and 45 shares were issued to him for his formula for Newcastle Disease vaccine, representing $2,250.00 of the capital stock. The remaining stockholders, six broiler producers, subscribed and paid for nine shares each at $50.00 a share or a total paid by these six stockholders of $2,270.00. This stock was issued to these seven original, and only stockholders and directors by agreement.
Dr. Murray assumed his duties August 1, 1951, as manager and director of appellee, Murray Laboratories, Inc. The corporation began operations in August, 1951, and as of March 31, 1952, showed an earned surplus of $25,260.00, or a total of $30,730.26, including the value of Dr. Murray’s stock, issued to him for the formula above mentioned. During all this operation, Dr. Murray acted as laboratory director, and the sole product manufactured and sold by the corporation was Dr. Murray’s Newcastle vaccine.
Differences and friction having arisen, Dr. Murray tendered his resignation on March 31, 1952, and in writing demanded his share of the earnings of the corporation up to that time, or that he he reimbursed for his stock, in accordance with the stock subscription agreement which he claimed the corporation had with him. The written proposal of Dr. Murray contained these recitals: “I sell my stock in the corporation as provided in the stock subscription agreement, the book value as of March 1, 1952, being $12,337.20, and resign as general manager on April 1,1952, or prior thereto upon payment of the value of my stock, at the discretion of the directors. II. I purchase all outstanding stock of the remaining 6 stockholders, computed on the same basis, sales to be consummated and stock delivered on or before April 1, 1952.”
It appears that Dr. Murray was the originator of the plan to manufacture vaccine for Newcastle Disease in poultry.
At the first meeting of the Board of Directors on August 4, 1951, (regular meetings were held each month thereafter), the minutes contained these recitals: “After some discussion a motion was unanimously adopted that Dr. W. L. Murray be employed and retained as General Manager of the Laboratories to be operated by this Corporation at a salary of $300.00 per month, beginning on the 1st day of August, 1951. . . .
“WHEREAS, Dr. W. L. Murray, who has been retained as General Manager of the Laboratories of this Corporation, has developed a vaccine for the treatment of Newcastle Disease and, WHEREAS, Dr. W. L. Murray is conducting research for other vaccines, medicines, and formulas, for the- treatment of diseases of poultry and livestock and, WHEREAS, the formula already developed by Dr. W. L. Murray is needed by this Corporation to manufacture vaccine for the treatment of Newcastle Disease and, WHEREAS, Dr. W. L. Murray has agreed to turn over all property rights in said formula to-this Corporation, as well as all property rights in other formulas developed by him while in the employ of this Corporation, in exchange for forty-five shares of the capital stock of this Corporation and, WHEREAS since said formulas are needed by said Corporation, it is the belief of this Board of Directors that they are reasonably worth $2,250.00,
“NOW THEREFORE, BE IT RESOLVED that this Corporation issue to Dr. W. L. Murray forty-five shares, of its capital stock at its par value of $50.00 per share in exchange for the Newcastle vaccine formula developed by him and in exchange for any formulas subsequently developed by him for the treatment of diseases of poultry and livestock, as well as any formulas developed for human use and consumption,
“BE IT FURTHER RESOLVED that all such formulas developed by the said Dr. Murray, while in the employ of this Corporation, shall become the sole and exclusive property of this Corporation, even though the same might be copyrighted in his individual name, and,
‘ ‘ BE IT FURTHER RESOLVED that the President and Secretary of this Corporation enter into an appropriate agreement with the said Dr. W. L. Murray in respect to the exchange of shares of stock for said Newcastle vaccine formula, and any other formulas subsequently developed by him while in the employ of this Corporation.
‘ ‘ The following resolution was unanimously adopted: BE IT RESOLVED that the Corporation rent from Louis M. Heerwagen a building located at 304 Johnson Street, at a monthly rental of $50.00 per month, which building shall become the general offices and headquarters of this Corporation.”
At a meeting of the Board November 20, 1951, Dr. Murray’s services appeared so satisfactory that his salary was, by unanimous vote, increased to $400.00 per month. Minutes of Board meetings thereafter reflect continuous increase and growth in assets of the corporation. It appears undisputed that a satisfactory vaccine was produced by Dr. Murray in November, 1951, and used by the corporation as long as Dr. Murray remained with it and that this formula was delivered to the corporation at Dr. Murray’s resignation. It also appears that this formula was duly filed with the Arkansas State Board of Health, shortly after the corporation was organized.
Following Dr. Murray’s resignation, Dr. Wadsworth was employed in his stead on a month to month basis, at a salary of $500.00 per month.
The minutes of January 8,1952, recite “satisfactory results were reported on the performance of the company’s vaccine.”
The record reflects that Dr. Murray’s formula in question provides :
“FORMULA NEWCASTLE DISEASE VIRUS VACCINE
two eight
“The formula is based on a four, six ratio. The virus is a mild strain of Newcastle virus which does not ordinarily cause the bird to exhibit symptoms of the disease, and will constitute the former of the above ratio. The diluent will be composed of a physiological saline solution, and will be the latter of the above ratio.”
The minutes of appellee’s Board of Directors disclose that as early as October, 1951, all directors were aware of and made recommendations in regard to the ratio of virus to diluent, that is, the strength of the vaccine; that in November, 1951, the Board agreed to adopt a 20% solution, or a 2-8 ratio, continuing tests on a 10% solution. The Directors were cognizant of every change made in the ratio and, as indicated, after many experiments with the vaccine made by Dr. Murray, with the Directors ’ knowledge and consent, a suitable vaccine was perfected, accepted, and used from November, 1951, to March 31, 1952, when Dr. Murray resigned, and assets grew from $5,000.00 to approximately $30,000 up to March 31,1952. Since Dr. Murray’s resignation, the corporation appears to have continued operations under the same corporate name.
There was no innocent third party involved here and no change in the stock ownership. No fraud has been shown. The corporation owes no debts, but on the contrary, has substantially profited. Those seven men, as the only stockholders and directors, who owned the corporation determined among themselves that the value of Dr. Murray’s formula to them was $50.00 per share, the par value of the stock.
The principles of law announced in Kimmel Sales Corp. v. Lauster, et al., 167 Misc. 514, 4 N. Y. S. 2d 88, apply with equal force here. “The consequences are different where rights of creditors or of the public are involved. Where the controversy is solely between the corporation and its stockholders, it is held that the stockholders unanimously can do what they will with the corporate assets, which are their own. . . . Where the public is concerned, e. g., in the violation of a statute limiting the powers of a public service corporation. Berkey v. Third Avenue Ry. Co., 244 N. Y. 84, 90-92, 155 N. E. 58, 50 A. L. R. 599, or where creditors’ interests are adversely affected, there can be no waiver or estoppel as a result of action or inaction by the stockholders, but where only the interests of the stockholders themselves are at stake, the contrary holds good. . . . ‘An issue of stock by a corporation as a bonus or gratuity, at less than its par value, or on payment therefor in property at an overvaluation is binding ... by estoppel, even when in violation of a constitutional or statutory provision, upon participating, consenting or acquiescing stockholders and their transferees, so that they cannot sue to set the transaction aside. . . .’ 14 Corpus Juris, p. 452, § 613; Id., p. 449, § 609.”
They, as the seven directors, fully understood and agreed, as reflected by the minutes above of their regular monthly meetings, that Dr. Murray’s formula in the beginning was not perfect or satisfactory, that he was to experiment and develop one that would be satisfactory to them, and the preponderance of the evidence shows that he did develop such a satisfactory formula three months before he resigned, and that the corporation operated under it to their substantial benefit, that is increasing an initial investment of $5,000 to approximately $30,000.
Jeff Brown, one of the directors, testified: “Well, in short, after some period of experimentation in producing the formula some formula was hit upon which satisfied you and the other incorporators? A. That’s right. Q. And following that period of time did you and the others, if you know, purchase that vaccine from the corporation and use it on your flocks ? A. Yes, sir. Q. Did you sell it commercially as a distributor? A. I didn’t, some of the others did, I used mine. Q. Now, Mr. Brown, do you know what results followed with respect to those buyers who bought it commercially and used it on their flocks? A. Well, I think most of them are pretty well pleased; I wasn’t selling any, I don’t know much about that. . . . Can you give me any idea, Mr. Brown, as to about when it began to appear that a suitable vaccine mix had been worked up? A. No, I would have to guess at that, I would guess about November. Q. Is it true, then, that from about November on that reasonably proper and reasonably satisfactory results were obtained from the use of the vaccine? A. Reasonably, yes, sir. Q. Are you in position to say whether you and the other incorporators from that time on got quantities of the vaccine for use on their own flocks? A. We did.”
The value of the consideration for the 45 shares of stock issued to Dr. Murray was determined by the judgment of the seven directors (the only stockholders) which is conclusive.
‘ ‘ Shares of stock other than shares without nominal or par value may be issued only for a consideration having a value in the judgment of the Board of Directors of the corporation at least equivalent to the full par value of the stock so to be issued; and in the absence of fraud, or wilfull over or under valuation in the transaction, the judgment of the directors as to the value of any such consideration shall be conclusive.” (§ 64-208, Ark. Stats., 1947.)
Here, it appears undisputed that these 45 shares were issued to Dr. Murray for a vaccine formula. The question of the validity of stock in a corporation issued in consideration of a formula, as here, has never been presented to this Court. It is unnecessary, however, for us to determine whether this formula constituted property which Art. 12, above contemplated. On the facts presented, by this record, we have concluded that the trial court erred in holding, in effect, that Dr. Murray’s shares were void and should be cancelled under said Art. 12 for the reason that it is not controlling, in the circumstances.
There is no rule of law better settled than that “ ‘A party who has had the benefit of an agreement cannot be permitted in an action founded upon it to question its validity.. It would be in the highest degree inequitable and unjust to permit a defendant to repudiate a contract the benefit of which he retains.’ ” State ex rel. Inde pendence County v. Citizens Bank & Trust Company, 119 Ark. 617, 178 S. W. 929.
It appears that six of the stockholders, the broiler producers, have claims against the corporation arising in various ways. The validity and amount. of these claims should he determined and charged against the corporation assets before appellant obtains relief.
Accordingly, the decree is reversed and the cause remanded with directions to the court for further proceedings consistent with this opinion. | [
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Richard B. Adkisson, Chief Justice.
On September 12, 1980, appellant, Kenneth Vansandt, was convicted in Arkansas County Circuit Court of possession of a firearm by a felon and sentenced to five years imprisonment. Prior to trial Vansandt filed a motion to dismiss asserting that he was not accorded a speedy trial under Art. 8, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977); he alleged that he was not brought to trial within three terms of court as required by Rule 28.1 (b). We agree.
The trial court acknowledged that appellant’s trial was held 39 days after three full terms of court had passed, but it found that there was an excludable period of 43 days under Rule 28.3 which permits exclusions for periods of necessary delay. It is not clear from the record which part of this rule the trial court relied upon in finding the excludable period, but the court did specify the excludable period began on March 28,1980, when appellant filed his motion to suppress evidence and ended on May 9, when the hearing on this motion was actually heard by the court. This hearing was originally set for April 4, but was continued due to the unavailability of a key State witness.
The question presented is whether the trial court correctly excluded the 43-day period from the computation of defendant’s right to a speedy trial under our Rules of Criminal Procedure. The burden is on the State to prove excludable periods of time under Rule 28.3. State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980). The State clearly did not meet his burden since the record reflects the witness for the hearing was unavailable for only one day. The State’s only argument to support the 43-day delay was a statement that its witness, Deputy Ellenburg, “had been admitted to the hospital [on the day of the hearing] for an emergency situation. He had to stay there for a good period of time. I don’t know the exact time.” When asked if it was in excess of 30 days, the prosecutor stated, “I don’t know.” The defense attorney agreed that the witness was hospitalized on the day of the hearing, but refused to agree that his illness continued more than a day. The defense attorney then suggested that the State subpoena Deputy Ellenburg and base its argument for a longer excludable period upon the length of his stay in the hospital; but the State did not do so.
Reversed and dismissed. | [
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Steele Hays, Justice.
The Pope County Bar Association brought suit to enjoin real estate brokers in Pope County from completing certain instruments involving real estate transactions without consulting a lawyer. The Bar Association contends that such acts constitute the practice of law and are against public policy. The Pope County brokers and the Arkansas Realtors Association, intervening as a party defendant, deny that the disputed acts constitute the practice of law. In a carefully drawn opinion the chancellor denied the injunction but limited the use of such instruments by realtors and both sides have appealed. We affirm the chancellor.
The chancellor held that brokers could fill in the blanks of certain standardized, printed forms in connection with simple real estate transactions, provided they had been previously prepared by a lawyer. The chancellor approved the use of standard warranty deeds, quitclaim deeds, release deeds, bills of sale, lease agreements and mortgages with power of sale under six specific restrictions:
(1) That the person for whom the broker is acting has declined to employ a lawyer to prepare the necessary instruments and has authorized the broker to do so; and
(2) That the forms are approved by a lawyer either before or after the blanks are filled in but prior to delivery to the person for whom the broker is acting; and
(3) That the forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker’s business; and
(4) That the forms shall be used only in connection with real estate transactions actually handled by such brokers as a broker; and
(5) That the broker shall make no charge for filling in the blanks; and
(6) That the broker shall not give advice or opinions as to the legal rights of the parties, as to the legal effects of instruments to accomplish specific purposes or as to the validity of title to real estate.
By amendment, the decree was modified to define a “simple real estate transaction” as:
... those which involve a direct, present conveyance of a fee simple absolute between parties, which becomes effective immediately upon delivery of the title document. Such transactions do not include conveyances involving reservations or provisions creating life estates, limited or conditional estates, contingent or vested remainders, fee tails, easements or right-of-way grants, or any other conveyance of future, contingent or limited interest.
Eight abstract and title companies have filed a brief amici curiae supporting the decision of the trial court and requesting that they also be allowed to use the forms under the same restrictions. However, we decline to enlarge on the chancellor’s decree. They do not become parties simply by filing a brief amicus curiae and would not be bound by the decree. Moreover, they are, in effect, introducing an issue not considered by the trial court. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977); Brown v. Wright, 137 F. 2d 484 (CA 4 W. Va. 1943).
The issue presented here has been directly addressed by this court in three cases: Creekmore v. Izard, 236 Ark. 558, 367 S.W. 2d 419 (1963); Ark. Bar Assn. v. Block, 230 Ark. 430, 323 S.W. 2d 912 (1959); Beach Abstract & Guarantee Co. v. Bar Assn, of Ark., 230 Ark. 494, 326 S.W. 2d 900 (1959).
In Block and Beach, decided on the same day, this court barred realtors and abstract companies from filling in the blanks in real estate forms incidental to their lawful business. Four years later, these decisions were modified by Creekmore, supra. In Creekmore, at 565, the majority stated:
The relief here sought by appellant Sewell, the realtor, falls within the ambit of the merchant for the filling in of the simple standardized forms here involved is a necessary incident of his business just as the collection of the merchant’s bills is a necessary incident of his business. Therefore we are ruling that the decision in Ark. Bar Assn. v. Block, 230 Ark. 430, 323 S.W. 2d 912, should be modified to provide that a real estate broker, when the person for whom he is acting has declined to employ a lawyer to prepare the necessary instruments and has authorized the real estate broker to do so, may be permitted to fill in the blanks in simple printed standardized real estate forms, which forms must be approved by a lawyer; it being understood that these forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker’s business and that such forms shall be used only in connection with real estate transactions actually handled by such brokers as a broker and then without charge for the simple service of filling in the blanks.
Appellant argues the Creekmore decision is limited to sparsely populated areas where lawyers are not readily available. Although this was a consideration in Creekmore, there is nothing in the opinion to indicate the decision was not intended to apply to every section of the state regardless of lawyer population. We can see no useful purpose to be gained by such a limitation; it would only lend uncertainty.
Defining what constitutes the practice of law has proved extremely difficult for the courts. Grand Rapids Bar Association v. Denkema, 290 Mich. 56, 287 N.W. 377 (1939). In Creekmore, we recognized the difficulty by stating:
The individual members of this court have spent many hours of research in trying to determine what does and what does not constitute the practice of law. After the oral argument was held, we requested amicus curiae briefs. There seems to be no clear definition of the term. (At page 564.)
The ultimate issue in this case is not so much whether realtors are practicing law when filling out these routine forms but whether it is in the best interest of the public to allow them to do so. This issue was addressed sensibly by the Colorado Supreme Court in Conway-Bogue Realty Inv. Co. v. Denver Bar Association, 135 Col. 398, 312 P. 2d 998 (1957), by holding identical activities as these to constitute the practice of law, finding at the same time that the public interest permitted such practices by brokers:
We feel that the weight of authority and especially the more recent decisions, sanctions our holding that the acts of which complaint is made, done without separate charge therefor by licensed real estate brokers only in connection with their established business, and in behalf of their customers and in connection with a bona fide real estate transaction which they are handling as brokers, should not be enjoined.
The plaintiffs have much logic in support of their contentions. Reason, public convenience and welfare appear to be on the side of the defendants.
We feel that to grant the injunctive relief requested, thereby denying to the public the right to conduct real estate transactions in the manner in which they have been transacted for over half a century, with apparent satisfaction, and requiring all such transactions to be conducted through lawyers, would not be in the public interest; that the advantages, if any, to be derived by such limitation are outweighed by the conveniences now enjoyed by the public in being permitted to choose whether their broker or their lawyer shall do the acts or render the service which plaintiffs seek to enjoin.
We are reluctant to say that the preparation of these instruments should not be classified as the practice of law. Standing alone, they fall readily within the meaning of that term. The difficulty is that they are not being considered in the abstract, but in the light and limitation of the six specific conditions carefully imposed by the chancellor in reliance on the decision of Creekmore v. Izard, supra. Even when examined in the context of these restrictions we regard the use and preparation of these instruments as so indigenous to the practice of law that it would be illogical to say they are not. But we can also say, as a majority of other jurisdictions have done, that it is in the public interest to permit the limited, outside use of standard, printed forms in the manner stipulated by the chancellor and we so hold. See 53 ALR2d788#l (b); Conway-Bogue Realty Inv. Co. v. Denver Bar Association, supra.
II.
Appellees have cross-appealed alleging error in the definition of “simple real estate transactions” as those involving conveyance of a fee simple absolute ánd excluding easements, right of way grants and other conveyances of limited interests. We disagree. The line must be drawn somewhere and this seems the appropriate place. Easements, rights of way, future or contingent interests, remainders and the like, are not routine in comparison with the other transactions and the likelihood of error when prepared by laymen is appreciably greater. Besides, this safeguard serves a dual purpose: it protects the public interest by excluding the more complicated transactions, where a significant risk of error exists, and gives adequate notice to both the realtors and the public of the upper limits of the realtor’s authority to act in such matters. We find no error in the order so modifying the decree.
Appellees argue that if the decree is left standing real estate brokers will be merely volunteers in the preparation of these instruments and, hence, no one will be liable for the mistakes which will undoubtedly occur. We disagree with that concept of the brokers’ role in these transactions. The fact that they are not to be paid for the specific task of preparing one or more of these instruments does not mean they are unaccountable for incompetence or neglect. They have a clear interest in the over-all transaction and are not obligated to prepare any of the instruments discussed here, even though the client ostensibly declines to have the necessary instruments prepared by a lawyer. These duties cannot be thrust upon the realtor and he undertakes them at his own exposure.
Supplemental Opinion on Denial of Rehearing delivered December 21, 1981
The decree is affirmed.
Hickman, J., concurs. | [
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STATEMENT.
Eaicín, J.
"Wellborn, a practicing physician, owning land and residing near a fork, upon what he claims to be a public highway, near the town of Forrest City, brought this suit'against several individuals living or owning pro- ' perty along the road, who had severally obstructed one or the other of the folks, by buildings, fences, &c., and also against the Memphis and Little Rock Railroad Com pany, which, as be alleges, had made a deep cut across the highway, and had allowed a bridge to fall down, without rebuilding it; whereby the passage of the road over the cut had been prevented. Some of the obstructions were within the corporate limits of the town itself. He describes the course of the roads, which, he says, had for a long time, until within-a comparatively recent period been recognized and kept up by the county uathorities as public highways; describes the nature and locality of the several obstructions, which lay between his place and Eorrest City; and alleges that he is damaged by the inconvenience he incurs in visiting his patients, and in passing to and fro on business. He says also that his place is rendered thereby less valuable in market* and as a residence. The bill is professedly filed upon the ground that all said obstruction are public nuisances and should be abated “for the public good, and for the good of each and every man interested.”
The bill prays for the abatement of the several obstructions “as nuisances,” and for a mandatory injunction against the defendant railroad to construct a suitable bridge; and for general relief, to complainant and “the public in interest.”
The Court overruled a joint motion of the defendant’s, that the complainant should elect which cause of action he would prosecute, on the ground that they were in their nature, several. The railroad then filed a general demurrer, and that being overruled, rested.
The other defendants, severally, moved to have their names struck from the complaint as improperly joined in the same cause of action; all of which motions were denied; and th$y then severally demurred to the bill. All the demurrers were overruled.
A Commissioner appointed by the Court of its own motion, for the purpose, reported the sort of bridge the railroad should be required to build at the old crossing, aud that it would cost about $400.
Davies alone answered 5 saying with regard to the part of the road which he had obstructed, that it was not and had not been, for more than seven years, a public highway, nor used as such by the public; and that it was not when complainant purchased his land. Pie says he has fenced it in, built upon it and planted an orchard, and has so occupied it for more than seven years. He admits that an old road once ran on the route designated by complainant, but alleges that it had long been abandoned by the public, and left off the road districts; that the overseer by direction of the County Court had worked another road in place of it, and that it was finally vacated; and that no one ever objected besides complainant; and every one who chose, including complainant himself, had enclosed it. The effect of the answer being, in short, that the- road was never a well defined public highway, and that, if it ever had been, it had long been abandoned as such both by the public and the county authorities.
The Court, upon hearing, dismissed the bill for want of Equity; assigning for cause that it would be a useless tax upon the public to open the road prayed for; and further finding, from the preponderance of evidence, that the road had been vacated by order of the County Court.
OPINION.
The first question arises upon the demurrers, upon which all the defendants rested, except Davies. As his defence, being to the merits of the whole bill, would have enured to the benefit of all, if successful; so their demurrers being of the character to impugn the whole right pf.action, would enure to his, if sustained. Whether or not tbe defendants were all properly joined in one suit, would be a secondary question, to arise after determining whether the bill disclosed any ground for equitable relief against any body.
The remedy, by injunction, against the creation or continuance of private nuisances is unquestioned. Such suits may be sustained to establish a right even where damages only nominal can be shown. Infinitesimal damages are sufficient, because the object of such suits is rather to protect and preserve the special private right, than to obtain redress for any special injury.
It is not so with regard to purprestures and other nuisances of a public nature, injurious to a common right, and affecting all who come, and have the right to come within the reach of their influences, although not actually affecting all equally. These are injuries to the public at large, in derogation of the sovereign right and duty of the State, to afford all citizens facilities ©f business and travel, of a nature to promote the public good and forward the general welfare. If, in such cases, one citizen might sue, so might another, and.litigation might be interminable. Courts cannot nicely measure the mere degrees of inconvenience, which some citizens suffer over others; and thus define a line, short of which there should be no right of private action. Such general injuries, considered merely as general are best remedied by indictment or proceedings of some public officer, on behalf of the public, and for the common benefit.
Such public nuisances may, at the same time, become private nuisances with regard to those individuals who suffer special and peculiar injury, and for that special and peculiar injury they may have an action against the wrong doer for damages; or may maintain a suit for injunction against its continuance. These are elementary principles, announced and supported by authorities, in all the most approved text'books. The citation of special cases is unnecessary. See Story’s Equity Juris.; Secs. 921 to 924 a; High on Jurisdictions, Sec. 528; Wood’s Law of Nuisance, Sec. 811.
Considering that the road was a public highway, and that the enclosures and obstructions were made as alleged, does the bill disclose any special and peculiar injury, such as, in the language of Mr. Story, is “quite distinct from that of the public in general ?”
The inconvenience to the complainant in visiting his . patients, however often he may be called to do so, is not different from that which every citizens suffers, whose business or pleasure may call him to travel the road. It is of the same character, only perhaps different in degree, from that which others suffer, who have other business, and live further away. This will not sustain his right of action. The case is very much like that of McCowan v. Whitesides, 31 Ind., 235, in which a demurrer was sustained.
Further: with regard to the special injury, the complaint states that complainant purchased his place in 1867, before the obstructions were made; that it was immediately upon and contiguous to the road, in the near vicinity of the obstructions, and near Forrest City; that he intended it for a residence, and that it was of great value. In addition to. the inconvenience which he suffers, as a physician, he alleges that: “for the cultivation of his farm, and for the use of his horses, mules, cattle and hogs; as well as for the convenient communication with his neighbors, and the’public’lgenerally, the said highway furnished a sufficient, and, indeed, the only outlet.” The bill further, in a general way, shows that by means of the several obstructions thrown across the highway hq was so hemmed in, and turned away from convenient means of access to the town and surrounding country, as to make the impression, taken altogether, that his property had suffered a damage peculiar to its position, different from that of his neighbors. It is not shown very clearly and distinctly to what extent, and by which special ob structions it was diminished in value; but that it was in a-peculiar manner, different from that of his neighbors, rendered less commodious and desirable, is, taking the bill as true, sufficiently apparent. The bill was rather amenable to a motion to make more certain, than to a demurrer.
Whether the defendants, being according to the bill, separte and distinct ' tort-feasors, each acting for him- . self, and without concert with each other, could be joined in one action, is a new question in this State. Generally in actions ex delicto, that can not be done. With regard to nuisances however, there is a recent English decision, directly in point. In the case of Thorpe v. Brumfitt, Law Reports, 8 ; Ch. App., 650; (S. G. 6 ; Eng. Rep., Moak Notes 554;) it is expressly held that the acts of several persons, without concert, but each acting for himself with reference to his own affairs, may constitute a nuisance which a court of equity will restrain ; though the damage occasioned by any one, if his act be taken alone, would be inappreciable. The principle finds its analogy in the case of an action by the lord of a manor, against a number of persons claiming rights of common, and may perhaps be extended properly to the case of a number of persons claiming a common right to obstruct a highway, to the peculiar detriment of the complainant. It is not necessary however, to decide this point in this case, and as it is not made the subject of contention in the briefs, we pass it without further discussion.
Upon the merits of the case the despositions are long, numerous, and for the want of sufficient plats, somewhat unintelligible. They are sufficient however, to disclose the tacts that the roads once existed and were worked as public highways under the county authorities. The Memphis and Little Rock Railroad came with its changes upon society and the courses of business. The flourishing town of Forrest City sprang up where there was nothing before. New roads became necessary and old ones were abandoned, and falling out of repair became impassable. That was the case with the roads in question. For more than seven years they had not been worked by the county authorities, and one, the principal fork, seems from the best evidence that can be had, to have been actually vacated by the County Court. Gradually, first one and then another, had enclosed portions of them. The complainant himself had done so in other places. The new roads were not as convenient to complainant as the old, and gradually the enclosures of his neighbors came to annoy and embarassed him very seriously. Doubtless they did diminish the market value of his property.
Nevertheless, these were the accidents to him, of a change in the population, business and necessities of the community at large. He made several applications to the County Court to reopen the old roads, and they were all refused. Evidently the public necessity did not require them. As the old roads had been, one of them, expressly vacated, and the other probably so, for many years, and both long abandoned by non-user, and no longer recognized by the County Court, and especially as complainant had seemed himself to acqaiesce in this view of them by enclosure at another point; we think the bill should not under the circumstances, have been sustained. We find no error.
Affirm the decree. | [
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Smith, J.
One Watts being under indictment for slan- ° der, the appellees entered into a bail-bond, conditioned that he should appear in Independence Circuit Court at its next term to answer said charge and at all times render himself amenable to the orders and process of said Court in said prosecution, and if convicted should render himself in execution thereof. At the following term Watts appeared and demurred to the indictment. The Court sustained the demurrer, quashed the indictment, discharged Watts and exonerated his hail. The State appealed to this Court, where the judgment was reversed and the cause remanded with directions to require Watts to plead to the indictment.
At the next term after the filing of the mandate, Watts made default, his bond was adjudged to be forfeited and a scire facias was issued against his sureties. Their plea is, that by the judgment and consideration of the Circuit Court, they were discharged from further liability upon said bond. And the question is whether, when bail have been once exonerated by a final judgment in favor of the defendant, a subsequent reversal for error revives their liability.
In State v. Mathis, 3 Ark., 84, it is said by Dickenson, J., arguendo, that, if the indictment be quashed, the recognizance becomes ineffectual.
In Gentry v. State, 22 Ark., 544, it was ruled that a recognizance to appear at the next term of Court and not to depart thence without leave, binds the conusor to appear not only at that time, but at each succeeding term, until acquitted, or otherwise legally discharged; or if found guilty, until sentence is passed on him — unless he is permitted to depart sooner by leave of the Court.
In Harrison v. Trader, 29 Ark., 85, an attachment had been levied upon lands, hut the defendants obtained a judgment in the Court of first instance. A writ of error was prosecuted without supersedeas and the judgment was reversed. When the mandate was filed below, the Circuit, Court rendered a personal judgment against the defendants, but refused to order a special execution against the property attached. And this Court held, that as between the parties the lien springing from suing out the attachment was preserved.
These are all the cases in our own reports which we have been able to find, bearing directly or remotely upon this point.
Butler v. Bissell, 1 Root, (Conn.) 102, is an exact counterpart of this case, except that it was scire facias on special bail given in a civil action. The bondsman pleaded in bar the first judgment in favor of the defendant. The plaintiff replied, nul tiel record, that judgment having been reversed' on error. _ To this reply the defendant demurred, and the reply was held insufficient upon the ground that the bail was exonerated by the first judgment, notwithstanding it had been reversed for error.
Lyons v. State, 1 Blackf., 309, was scire facias on a recognizance, the condition of which was that the principal should appear in a certain court and answer to a charge of larceny, and not depart without leave. And a plea that the principal had appeared and pleaded not guilty; that the Court, having heard the evidence and dismissed the jury, had discharged him; and that after-wards he had been called and the recognizance declared forfeited, was held good.
In People v. Felton, 36 Barb., 429, it was ruled that quashing the indictment which the accused had given bail to appear to and answer, was a discharge of the .obligation, released the surety and authorized the prisoner’s departure from court without special leave.
v. The case of United States v. White, 5 Cranch, C. C. Rep., 369, announced the safer rule that if the recognizance, is conditioned to appear to answer to a certain indictment and not to depart without leave of the Court, it is not discharged by the quashing of that indictment, but remains in force until the defendant has leave from the Court to depart; and if a new indictment be found, he and his bail are bound for his appearance to answer such new indictment.
People v. Green, 5 Hill, 647, was an action on a bastardy bond, conditioned that the putative father should appear at the next court' of general sessions, and not depart the said court without leave. The accused- appeared and answered at the time specified; and on motion of his counsel, without the knowledge or consent of his sureties, the hearing of the matter was postponed and the principal in the bond was suffered to depart. At the next term a default was taken, but it was adjudged that the recognizance had been satisfied.
The test of the continuing obligation of the bail is this: After the entry of the order quashing the indictment and dismissing Watts without day, had bail the right to re-arrest him and surrender him into the custody of the law ? For bail hold their principal always in a string, and may at any time ex-onorate themselves by giving him up., And whatever deprives them of the right to surrender him discharges them. Now it is plain to our minds that, after the final judgment in the Circuit Court, his sureties had no further control over the person of Watts. And the reversal of that judgment did not revive their right to arrest him, nor, consequently, their obligation to produce him in court.
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Smith, J.
These were bills to enforce; the payment of overdue taxes, brought under the Act of March'll2, 1881, and the amendatory Act of March 22, 1881. They allege that certain described parcels of land were subject to taxation for certain years, but from some cause had been omitted from the assessment rolls. And it was prayed that the Assessor might be required to assess the lands at their actual value for those years and that the amount of taxes due might be ascertained by the court upon an exténsion based upon the levies made by the State and the County Court for said several years, for which a lien should be declared and a sale of the lands ordered.
In one case, upon the intervention and demurrer of the owner of one oí the tracts mentioned, the Court dismissed the causo, holding the Act to be unconstitutional. In the other case, no defence was interposed; but on final hearing the bill was dismissed for the want of equity.
Both bills contain the substantial averments that are required by the Act. And See. 1, 8 and 20 of the Act make provisions for the case where, from inadvertence or other cause, lands that are taxable have escaped assessment.
We do not recall any constitutional privilege, nor any principle of natural justice, which this law invades. It is certainly right that all, who in their persons or their property, enjoy the protection of the government, should contribute to its support in proportion to their means.
The Constitution of 1874, Art. II, Sec, 23, expressly concedes the State’s ancient right of taxation. And it imposes sundry limitations upon the exercise of that right. But the power to levy and collect taxes is not'derived from that instrument.; being, indeed, an essential attribute of sovereignty and necessary to the continued existence of all governments, whatever their form.
It is provided that ihe assessment and taxation of property shall be equal and uniform throughout the State, according to value ; but the ascertainment of values, as well as all other details of levying and collecting taxes are left to the discretion of the Legislature. Constitution of 1874, Art. XVI, Sec. 5.
Some of the Acts, under which levies were made for some of the years in question, have been repealed either expressly or by implication. When the taxes had already become due, as in cases where the lands had been assessed, but payment had not been made, a retrospective operation should not be given to the repealing statute. It can not be supposed that the General Assembly intended to remit those taxes. Oakland v. Whipple, 44 Cal. 503.
And with regard to lands that have never been assessed, as in the present cases, the Act in question is sufficient authority to collect taxes upon them according to the rates levied by the proper authorities for State, County and. School purposes during the omitted years.
The overdue Tax Law was repealed by the Act of February 17, 1883, but this does not affect pending proceedings. Gantt’s Digest, Sec. 5624. McCuen v. State, 19 Ark. 636.
The judgment of the Marion and Scott Circuit Courts are reversed and the cause remanded with directions in the one case to overrule the demurrer to the bill and in both to proceed in conformity with this opinion. | [
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Smith, J.
This cause was tried before a special judge elected in consequence of the necessary absence of the regular Circuit. Judge, as the record states. This trial took place on tne 6th day of June, 1881, and resulted in a verdict and judgment for a small amount against the appellants, who were defendants below. Two of the defendants filed a motion for a new trial on the 10 th of June, when, as it seemed, the special judge was on the bench. But the motion was not disposed of until after the regular judge -had resumed his seat. He denied the motion and afterwards signed a paper which purports to be a bill of exceptions and is copied into the transcript. But we can attach no importance to this paper. It was a nullity.
The office of a bill of exceptions is to bring upon the record the evidence and such of the proceedings, .rulings and -other matters in the action, as do not otherwise appear record and which may be necessary to bring to the notice ©f this court the errors complained of. It must be certified by the judge who presided at the trial. (Watkins v. State, 37 Ark., 370); or, if he refuse, by by-standers. His successor cannot sign it because the exception must have been taken during the trial, although the u«ual practice is to reduce them to writing after the motion for a new trial is overruled ; and it is impossible for him unless he were present, to say, except from hearsay, what evidence was adduced or what matters were excepted to. Consaul v. Liddell, 7 Mo., 250.
In Milvehal v. Milward, 2 Duer, 607, the exceptions had been properly settled, but the judge died before signing them.
To prevent a failure of justice, the Superior Court of New York, with the assent o'f all, the judges, directed the bill ot exceptions to be signed by the clerk, in the name of the deceased judge. And upon the bill of exceptions so signed, the cause was afterwards heard in the Court of Appeals and the judgment affirmed. 1 Kernan, 343.
• In Doe ex dem, Robinson v. Parker, 3 Sme & Mar., 114, a cause was tried at one term, verdict found and motion made for a new trial by the unsuccessful party. The motion was taken under advisement, the opinion of the court to be delivered in vacation, as of term time. But a bill of exceptions, setting out all of the evidence, was then signed by the presiding judge. Afterwards in vacation the motion for a new trial was overruled. At the next term, a different judge signed a bill of exceptions to the opinion of the court overruling the motion. On error, it was objected that the appellate court could not consider the merits on account of the fact that the judge who signed the last bill of exceptions was not the same judge who presided at the trial. The court said : “He (the last judge) certified no new facts, but only stated that a motion for a new trial had been overruled. To prevent a failure in justice, this must be regarded in the same light as if it had been done by the judge who presided at the trial,”
In tbe present ease, the correct practice was to cause a bill of exceptions to be signed by the special judge, embodying the evidence adduced, proceedings had and exceptions reserved while he was on the bench. After the regular judge came on, a second bill of exceptions might have been signed to show what was done before him.
It follows that there is nothing before us for review.
Affirmed. | [
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English, C. J.
On the 15th December 1880, Rice Stix & Co., commenced an action by attachment, in the Circuit Courtof Lincoln county, against Thomas L. Pertnis; the complaint alleging, in substance, that defendant was indebted to plaintiffs in the sum of $423.16 for goods, wares and merchandise sold to him by them, 3rd of September 1880, payable on the 3rd of January 1881.
The complainant also made the following allegations:
“That said defendant, Thomas L. Pertnis, has sold conveyed or otherwise disposed of his property with the fraudulent intent to cheat, defraud, hinder or delay his creditors in the collection of their debts; that he is about to make such fraudulent sale, conveyance or disposition of his property with such fraudulent intent; and that he has and is about to remove a material part of his property out of this- State, with the intent and to the effect of cheating, hindering or delaying his said creditors, in the collection of their said debts.”
The complainant was sworn to by an agent of plaintiffs. A writ of attachment was issued and returned by the Sheriff as levied upon a stock of merchandise of defendant’s, of the estimated value of $3,815.80.
In vacation, after the return of the writ, an attorney of plaintiff’s filed an affidavit affirming the allegations of the complainant, and stating that defendant immediately preceding the 15th of December 1880, had removed a material part of his property out of this State, not leaving enough therein to satisfy the claims of his creditors.
At the August term 1881, defendant moved to quash the attachment, on the ground that plaintiffs did not, at the commencement of the suit, file the affidavit required by law. The court overruled the motion because, before it was made, plaintiffs had filed an amended affidavit in vacation.
Defendant then filed an affidavit denying each and all of the grounds for attachment stated in the complaint and in the amended affidavit, and the issue was submitted to the court.
' The plaintiffs called the defendant as witness, who testified, in substance, that he made the following shipments of cotton from Pine Bluff to T. A. Gleason, of New Orleans, La.
On the 15th October 1880.............................. 1 bale.
On the 29th “ “ 3 bales.
On the 3d November “ 2 “
On the 10th “ “ 3 “
That Gleason sold the cotton, and applied the proceeds to the credit of witness as shown by accounts of sales produced in evidence. That he was indebted to Gleason at the time the cotton was shipped, in the sum of $1100.00, he having advanced to witness money to that amount in the Spring of 1880, upon an agreement that he was to ship him cotton in the fall to pay him, the cotton to be sold *n commission and the net proceeds placed to the credit of the witness. That he- shipped no other cotton than as stated above.
He then proceeded to state the amount of his indebt edness to all Ms creditors, and the amount and character ot his assets at the time the attachment was sued out, showing the latter to be greater than the former.
In answer to a question asked by the court, he stated that he had shipped the cotton to pay the debt, of Gleason in good faith, and without any intention to defraud any of his creditors, to which question and answer, -plaintiff objected and excepted.
Witness then stated what sums he had paid to other creditors in the fall of 1880, and among them to plaintiffs $50.
The sheriff stated the value of the goods attached as shown in his return, and no other witness was examined.
The bill of exception states that the plaintiffs asked a declaration of law, which the court refused, and they excepted. The clerk, in a note, states that this declaration was not copied, because .not found among the papers.
The court found the facts to be, that “the defendant shipped nine bales of cotton to New Orleans to a bona fide creditor in payment of a debt, in good faith, and without fraudlent intent.”
And the court declared the law to be as follows :
“A debtor shipping cotton to a bona fide creditor in La., in payment of a debt-in good faith, and without fraudulent intent, will not sustain an attachment, even if the debtor is in failing circumstances.”
The court found the issue as to the truth of the grounds for attachment in favor of defendant, and discharged the attachment, and the suit having been commenced before the maturity of the debt, the court dismissed it.
The matter of damages being submitted to the court, defendants damages for wrongful suing' out of the at tachment, were assessed at $100, and judgment rendered accordingly;
Plaintiffs moved for a new trial on the issue as to the truth of the grorpds of attachment and assigned as causes:
1. That the court erred in its conclusion of facts.
2. In its declaration of law.
3. In refusing the declaration of law asked by plaintiffs.
4. In permitting the defendant to testify that he shipped the cotton to Gleason to pay his debt in good faith, and without any intention to defraud his creditors.
The court overruled the motion for a new trial, and plaintiffs took a bill of exceptions, and appealed. ■
When the debtor “is about to remove his property, or a material part thereof, out of the state, with the intent or effect, of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts,” the statute makes it ground for attachment before the creditors claim is due. Gantt's Digest, Sec. 437. clause third.
The amended affidavit states “that defendant immediately preceding the 15th December 1880 (the time the attachment was sued out) had removed a material part of his property out of this state, not leaving enough therein to satisfy the claims of his creditors.”
This affidavit omitted the material words of the statute “with the intent or to the effect of cheating or defrauding his creditors,” &c., but if aided by the sworn allegations of the complaint, the declaration of law made by the court, upon its conclusion of facts, which was warranted by evidence, was correct.
Affirmed. | [
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English, Ch. J.
This was a suit by attachment, brought by Weil & Brother, upon an open account, against Jacob Kittay, in the Circuit Court of Yell county, for the Dardanelle District.
After the writ of attachment, which contained a summons as well as a garnishment clause, had been levied, served and returned, it was quashed by the Court on motion of defendant Kittay, and all proceedings under it held for naught.
A personal judgment, it seems, was rendered against Kittay for the amount of the account sued on, and the plaintiffs brought error to the judgment of the Court quashing the writ of attachment, etc.
The motion to quash the writ of attachment was upon the following grounds: “ Because the said writ was improperly and prematurely issued, no action having been commenced by first filing in the clerk’s office of the proper court a complaint, and causing a summons to be issued .thereon prior to the issuance of said writ.”
It appears that at the time the suit was,commenced the account sued on was not due, and that plaintiffs filed in the clerk’s office (16th of November, 1880,) a complaint, bill of particulars, an affidavit that defendant had made a fraududisposition of his goods, a bond and an order of the County Judge for an attachment, the Circuit Judge being out of the county.
It also appears that on the 29th of November, 1880, the same complaint, affidavit, etc., were submitted to the Circuit Judge, and he made an order for an attachment to issue, as provided by Sec. 438 Gantt’s Digest.
On the first of December, 1880, the writ of attachment which the Court quashed appears to have been issued. No separate summons for the defendant seems to have been issued upon the complaint, but the writ of attachment commands the sheriff to attach the defendant’s property, etc., and to summon him to appear at the next term of the court to answer, etc. It also contained a garnishment clause, and other separate writs of garnishment appear to have been issued and served.
His honor, the Circuit Judge, seems to have been of the opinion that a separate summons should have been issued upon the complaint, for the defendant, and that for want of it the writ of-attachment was invalid, and. therefore it was quashed, though it contained a summons clause.
It appears from the sheriff’s return that goods were attached, and a copy of the writ of attachment, containing the summons clause, served on the defendant.
The writ quashed was made to serve the purposes of both * it attachment and a summons. Was it for that reason in-as a writ of attachment, and properly quashed?
The court below seems to have treated the summons clause of the writ as valid, for it rendered a personal judgment against defendant, though he made no appearance to the action other than to file the motion to quash the writ of attachment.
The statute in force before the adoption of the civil code provided that a writ of attachment should contain a summons clause,' (Gould’s Dig., chap. 11, sec. 6), and the clerk attempted to follow the old form of the writ in this case.
! There is no express provision of the Code that á writ of attachment shall or shall not contain a summons clause. When the attachment is sued out after the commencement of the suit, the writs are necessarily separate; and where it is issued at the beginning of the suit there are expressions in the Code that indicate the intention of the Code-makers that a summons separate from the attachment should issue. Gantt’s Dig., sections 4503, 388, 392, And the form for a writ of attachment appended to the Code, contains no summons clause, Ib., p. 1033.
But it is a liberal provision of the Code, in furtherance of the administration of substantial justice, that “The Court must, in every stage of an action, disregard any error or defect in the proceedings which does not effect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” Gantt’s Dig., section 4619.
We cannot see how any substantial right of the defendant was prejudiced or impaired by inserting a summons clause in the writ of garnishment instead of issuing a separate summons. It was matter of form and not of substance, and avoided the cost of issuing an additional writ.
The judgment quashing the writ of attachment and declaring the proceedings under it null and void, must be reversed and the cause remanded to the Court below for further proceedings under the attachment branch of the suit. | [
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Steele Hays, Justice.
Two cases are combined in this appeal. Appellant first appealed the revocation of a sentence of probation, and while that appeal was pending he appealed an order dismissing a petition for post-conviction relief under Rule 37, A. R. Crim. P. The Court of Appeals consolidated the two cases and certified the appeal to us pursuant to Rule 29 (4).
Before considering the revocation of the sentence of probation, we point out that we will not consider the issues raised under Rule 37, as we have repeatedly held that post-conviction relief is not a substitute for appeal and is not available while an appeal is pending. Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980); Swisher v. State, 257 Ark. 24, 514 S.W. 2d 218 (1974); Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973).
Appellant was charged with violation of the Arkansas Hot Check Law and with numerous counts of forgery. The charges were reduced to one felony and two misdemeanors upon a plea of guilty as part of a written plea agreement providing for restitution of $1,407.12 under a work-release program. Appellant received a sentence of seven years imprisonment, suspended with active probation pending the successful completion of the plea agreement. The written conditions stipulated that appellant was to remain in the Faulkner County jail at all times except to pursue employment during the day. Local employment was found and appellant agreed to pay $100.00 a week toward restitution and $5.00 a day for maintenance.
After some two months the State filed a petition to revoke appellant’s probation alleging that he had failed to pay an installment of $100.00, had left the jail without authorization over a weekend, was habitually late in returning to the jail after work and had harassed the jailers and deputies. After a hearing the trial court found that the appellant had violated the conditions of probation by taking unauthorized weekend leave and failing to maintain the scheduled restitution payments. His probation was revoked and he was sentenced to seven years in the Department of Correction, credited with 258 days jail time.
For reversal, appellant argues that the findings of the trial court were against the preponderance of the evidence. We find the evidence sufficient to support the findings. Appellant claims that his leaving the jail was not unauthorized; rather, that the evidence shows he was allowed by the jailer to leave and was only one payment behind in his restitution payments. The jailer did permit appellant to leave, but the appellant had been told by his probation officer and the chief deputy that he would have to have the sheriff’s permission, which he did not have. Appellant permitted the jailer to assume he had permission to leave when he knew he did not. We cannot say that the trial court erred in finding that this constituted an inexcusable violation of the terms of probation. See Ark. Stat. Ann. § 41-1208 (4) (Repl. 1977). Had appellant’s conduct in taking leave under these circumstances been the result of a good faith misunderstanding it might be possible to say it was excusable, but that is not the case. The evidence here supports the conclusion that appellant left the jail notwithstanding clear instructions to the contrary and by so doing knowingly violated his probation. We will not overturn a decision in the trial court to grant a petition to revoke unless it is clearly against the preponderance of the evidence. Cureton v. State, 266 Ark. 1034, 589 S. W. 2d 204 (Ark. App. 1979); Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977).
The trial court also found that appellant failed to make a weekly $100.00 restitution payment, the reason being he spent his wages during the weekend he was free. Appellant does not deny this fact, but argues that this requirement is notin writing, citing Burt v. State, 271 Ark. 245, 608 S.W. 2d 15 (1980), and Ross v. State, 268 Ark. 189, 594 S.W. 2d 852 (1980). It is true that the figure of $100.00 appears to have been fixed by informal agreement, rather than as part of the original plea agreement. Evidently that was because at the time the plea agreement was prepared and signed the appellant did not have employment and the exact amount of the payment could not be determined. However, at the commencement of the hearing the prosecution and the defense stipulated that terms of the probation were that appellant was to be incarcerated at nights and on weekends, work through the day and contribute $100.00 a week toward restitution. (T. 122) The appellant does not argue that he did not understand he was to pay $100.00; in fact, he made several payments of that amount. Hence, the reason behind the requirement that conditions be in writing, i.e. to avoid misunderstanding by the probationer, is not the source of the problem: The appellant simply chose to spend the money on other things rather than as he had agreed to. The over-all conditions of probation were in writing and signed by the appellant. Without relaxing the rule, we find no merit to the argument in the context of this case, where only the amount of the payment was not in writing and that amount was clearly agreed on.
Appellant also contends that Ark. Stat. Ann. § 46-423 (Repl. 197) provides that not more than 25% of an inmate’s work-release income shall be apportioned to restitution, and the $100.00 payments exceeded 24% of appellant’s wages. But this argument was not raised below prior to the order of revocation. Furthermore, the statute relied on applies only to misdemeanors, whereas appellant stands convicted of a felony. See § 2, Act 413 of 1977. It is sometimes said, correctly, that probation is granted by the trial court, not of right but of grace or sufferance. Morgan v. State, 267 Ark. 28, 588 S.W. 2d 431 (1979). The evidence fully supports the findings below that appellant inexcusably violated the conditions of his probation. It was the trial court’s prerogative to revoke his probation.
The judgment is affirmed.
CA CR 80-77 and CA CR 81-4. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Robert Ryan Sipe was convicted of manslaughter in Garland County Circuit Court on March 3, 2011, and sentenced to twenty years’ imprisonment pursuant to a firearm enhancement for the shooting death of Brian Lumen. On appeal, he claims that the trial court failed to properly instruct the jury, erred in admitting and excluding evidence, and erred by denying his motion for directed verdict. We affirm.
Appellant testified that in the early morning hours of February 12, 2010, he awoke to the sound of his four-wheeler ATV being started and the engine revving. Appellant said that he looked out of his window and saw a man on his ATV. Appellant then got dressed, grabbed his handgun, removed the barricade from his front door, and went out on his porch to investigate. Appellant testified that he saw a man riding his ATV and when the man started coming toward him, appellant fired a warning shot. When the man kept coming, appellant shot him. Appellant also testified that the man pointed something at him, but that he did not[gknow what the man was pointing. After shooting him, appellant went to the victim and discovered that it was Brian Lumen, a childhood friend. Appellant placed two blankets on top of Lumen’s body and waited for police to arrive.
According to appellant, he and Lumen had been estranged for the last five years due to Lumen’s “destructive behavior.” Appellant claimed that when he had tried to rekindle his friendship with Lumen in 2009, he had to ask Lumen to leave his property because Lumen was “on drugs.” Appellant testified that after that incident, things “began happening” at his house. He said that he found his two-year-old English Mastiff dead for no apparent reason. On another occasion, appellant saw Lumen driving a blue Camaro away from appellant’s home, and when appellant got home, he found that his door had been kicked in and several things had been stolen, including the keys to his ATV. A few days later, he heard glass breaking and upon investigation found that two tractor tires had been slashed. ' Appellant claimed that his vehicle was stolen. Further, he stated that Lumen was driving a moped around in circles on appellant’s “back forty” on one occasion, and on another, Lumen shot a gun while driving around appellant’s property on the moped. Appellant testified that he began barricading his front door and argued that he was justified in shooting the victim because he feared for his life. Appellant noted that there had been no more incidents at his home since Lumen was killed.
Arkansas State Medical Examiner Daniel Dye testified that the victim was shot in the back — “left flank.” Garland County Sheriffs Officer Matt Avant testified that when he arrived at appellant’s home, he found appellant on his front porch, calm but “partially |sincoherent.” When pressed about his conclusions on incoherence, Officer Avant explained that appellant had difficulty answering basic questions, had slurred speech and red glassy eyes, kept repeating himself, stumbled several times, and stared blankly. Officer Avant testified that appellant told him that he had taken “a few” Xanax before going to bed.
Appellant testified that it was dark and that he could not see who was on the ATV. Officer Avant testified that when he arrived, appellant’s home lights, front-porch light, and a permanent Entergy night light were burning. Appellant testified that the victim was headed straight for him. Officers testified that the tire tracks in the snow showed that the ATV was backed out of the driveway in a wide semi-circle and that the ATV was not facing the house, but backed up to about ten feet from the porch.
Prior to trial, the trial court granted the State’s motions in limine, which precluded any evidence concerning the victim’s prior gunshot wound to the buttocks, the victim’s prior bad acts and convictions, and the toxicology report showing that the victim was under the influence of methamphetamine at the time he was shot. The trial court denied appellant’s motion in limine and allowed evidence that appellant was “under the influence” when he had made police reports regarding incidents at and around his home.
At the close of the State’s case, appellant moved for a directed verdict, arguing that the evidence supported his claim that he acted in self defense. This motion was denied. At the close of the defense’s case, the State called several rebuttal witnesses and appellant then renewed his motion for a directed verdict. This motion was denied.
14After deliberating, the jury concluded that appellant was guilty of manslaughter, a lesser-included offense to second-degree murder, which was appellant’s original charge. Appellant moved for judgment notwithstanding the verdict, claiming that there had been no true showing of appellant’s intent at the time of the shooting. This motion was denied. Appellant was then sentenced to ten years’ imprisonment for manslaughter, with a consecutive term of ten years for the firearm enhancement. A timely notice of appeal was filed, and this appeal followed.
I. Substantial Evidence
In his third point on appeal, appellant claims that the State failed to meet its burden of proof on the lesser-included offense of manslaughter and that the trial court erred in denying his motions for directed verdict and for judgment notwithstanding the verdict. An argument contesting the denial of a directed verdict is a challenge to the sufficiency of the evidence, and protection of appellant’s double-jeopardy rights requires that we address such an argument prior to addressing other asserted trial errors. Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Id. This court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Beare v. State, 2010 Ark. App. 544, 2010 WL 2606525. In assessing the weight of the evidence, a jury may consider and give weight to any false and improbable statements made by an accused in explaining suspicious circumstances. Reams v. State, 45 Ark.App. 7, 870 S.W.2d 404 (1994). Appellant argues that the evidence, considered in the light most favorable to the State, does not rise to the level of manslaughter.
A person commits manslaughter if he recklessly causes the death of another person. Ark.Code Ann. § 5-10-104(a)(3) (Supp.2011). A person acts “recklessly” when he consciously disregards a substantial and unjustifiable risk that circumstances exist or the result will occur. Ark. Code Ann. § 5-2-202(3)(A) (Repl.2006). The risk must be a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Ark.Code Ann. § 5-2-202(3)(B). The defense of person and property from harm, injury, or loss is a fundamental right when someone is unlawfully entering or attempting to enter or intrude into the home. Ark.Code Ann. § 5-2-620(a) (Repl. 2006). Moreover, appellant cites Arkansas Code Annotated section 5-2-620, and claims that it is perfectly normal and acceptable to use force to defend his person and property.
Appellant argues that he is not guilty of manslaughter, which is defined as recklessly causing the death of another person. See Ark.Code Ann. § 5-10-104(a)(3). Appellant maintains that it cannot be deemed reckless for him to stand his ground and defend his person and property from someone apparently trying to steal his ATV and advancing on him in that ATV in the middle of the night, especially in light of the previous incidents involving his car being stolen and the burglary of his house.
| r,The State contends that appellant failed to preserve this issue for appeal. When appellant moved for directed verdict at the close of the State’s case, he argued that the evidence supported his affirmative defense and made no attempt to refute the specific elements of second-degree murder or its lesser-included offenses.
Arkansas Rule of Criminal Procedure 33.1 (2011) requires that a motion for directed verdict state the specific grounds on which the movant is relying. The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. Ark. R.Crim. P. 33.1(c). A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. Id. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. Id.; see also Williamson v. State, 2009 Ark. 568, 350 S.W.3d 787. Accordingly, appellant’s argument is not preserved.
II. Jury Instructions
Appellant contends that the trial court committed three errors relating to the jury instructions: (1) refusing to give model instruction 706 — use of deadly physical force in defense of premises; (2) refusing to apply to the lesser-included offense of manslaughter model instruction 705— use of deadly physical force in defense of a person; and (3) refusing to advise the jury that appellant had no duty to retreat un der model instruction 705. A circuit court’s |7ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Jones v. State, 2012 Ark. 38, 388 S.W.3qd 411.
The instruction submitted to the jury and made applicable to the second-degree murder charge, entitled AMI Crim.2d 705, is based on Arkansas Code Annotated section 5-2-607 (Supp.2011), which states that a person is justified in using deadly physical force upon another person if he reasonably believes that the other person is (1) committing or about to commit a felony involving force or violence; (2) using or about to use unlawful deadly physical force; or (3) imminently endangering the person’s life. Ark.Code Ann. § 5-2-607(a)(1) — (B). A person may not use deadly physical force in self-defense if the person knows that he can avoid it by retreating. Ark.Code Ann. § 5-2-607(b)(l)(A). However, a person is not required to retreat if he is in his own dwelling or on the curtilage surrounding his dwelling. Ark. Code Ann. § 5-2-607(b)(l)(B)(i).
The instruction submitted to the jury entitled AMI Crim.2d 705 states as follows:
Robert Ryan Sipe asserts as a defense to the charge of murder in the second degree that deadly physical force was necessary to defend himself. This is a defense only if:
First: Robert Ryan Sipe reasonably believed that Brian Lumen was committing or about to commit battery in the second degree, a[sic] felony of force or violence; or that Robert Ryan Sipe reasonably believed that Brian Lumen was using or was about to use unlawful deadly physical force; and
Second: Robert Ryan Sipe only used such force as he reasonably believed to be necessary. Robert Ryan Sipe, in asserting this defense, is required only to raise a reasonable doubt in your minds. Consequently, if you believe that this defense has been shown to exist, or if the evidence leaves you with a reasonable doubt as to his guilt of murder in the second degree, then you must find him not guilty.
| ^Appellant contends that this instruction should have also been made applicable to the manslaughter charge. Further, he claims that the trial court erred in refusing to include in the instruction the language in the statute that a person need not retreat if they are on their curtilage.
Appellant further contends that the trial court erred in failing to submit the proffered model jury instruction AMI Crim.2d 706, pertaining to deadly physical force used in defense of property. Instruction 706 is modeled after Arkansas Code Annotated section 5-2-608 (Supp.2011), which provides that a person in lawful possession or control of premises is justified in using deadly physical force upon another person when and to the extent that he reasonably believes the use of deadly physical force is necessary (1) to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises; (2) use of deadly physical force is authorized by § 5-2-607; or (3) he reasonably believes the use of deadly physical force is necessary to prevent the commission of arson or burglary by a trespasser. Ark.Code Ann. § 5-2-608(a)-(b). Appellant argues that, in light of the history of break-ins and thefts, his actions when confronted by the intruder driving his ATV were justified.
The State claims that there was no abuse of discretion by the trial court in limiting the jury instructions. Jones, supra. Just because a proffered jury instruction may be a correct statement of the law does not mean that a trial court must give the proffered instruction to the jury. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). “Non-model instructions are to be given only when the trial court finds that the model instructions do not accurately state |flthe law or do not contain a necessary instruction.” Bond v. State, 374 Ark. 332, 340, 288 S.W.3d 206, 212 (2008). To preserve an objection to an instruction for appeal, the appellant must proffer the proposed instruction to the trial judge, include it in the record on appeal, and abstract it to enable the appellate court to consider it. Robertson v. State, 2009 Ark. 430, 347 S.W.3d 460.
Here, appellant sought to instruct the jury with a version of AMI Crim.2d 705 that included language not found in the model instructions — that appellant was not required to retreat from the curtilage of his house. However, appellant did not proffer the version of that instruction that he wanted the trial court to give, which precludes appellate review. Id. Also, because no objection or request was made regarding the applicability of 705 to the lesser-included offense of manslaughter, the trial court’s refusal is precluded from our review. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997).
Finally, the State contends, and we agree, that the trial court’s decision to deny use of AMI Crim.2d 706 pertaining to justification of deadly force to defend premises was correct. The State objected to appellant’s submission of 706 because the instruction pertained to situations where the defendant reasonably believes that the use of deadly force is necessary to prevent a trespasser from committing arson or burglary. The trial court agreed that there was no basis in the evidence that the victim intended to commit arson or burglary and thus denied the use of 706, but allowed appellant to proffer it. When the evidence does not support the giving of an instruction, it is not error to refuse it. Waller v. State, 2010 Ark.App. 56, 2010 WL 183505. Neither party addressed the applicability of subsection (b) of AMI Crim.2d 706, which states hnthat the use of deadly force is lawful if the defendant reasonably believes that another person is committing or about to commit a felony with force of violence, or is using or about to use unlawful deadly force. Appellant’s failure to raise that issue below precludes appellate review. Bridges, supra.
III. Evidentiary Rulings
Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401 (2011). Arkansas Rule of Evidence 402 further provides that “[ejvidence which is not relevant is not admissible.” Ark. R. Evid. 402 (2011). Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403 (2011). A circuit court’s ruling on relevancy and matters pertaining to the admissibility of evidence are left to the sound discretion of the circuit court, and will not be reversed absent an abuse of that discretion. Jones v. State, 2011 Ark.App. 324, 384 S.W.3d 22. An abuse of discretion is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. Id. Moreover, an appellate court will not reverse a circuit court’s evidentiary ruling absent a showing of prejudice. Id.
Appellant challenges several rulings made prior to trial pursuant to motions in limine made by both appellant and the State. Appellant sought to place into evidence as part of his justification defense the fact that the victim, Mr. Lumen, had a prior gunshot wound, had|nbeen convicted several times for drug offenses and offenses involving violence, and Lumen’s toxicology report, which showed that at the time of his death, Lumen was under the influence of amphetamines, opiates, hydro-codone, and several other drugs. The trial court granted the State’s motion in limine prohibiting the introduction of this evidence. Also, appellant had made several police reports related to thefts and trespassing that occurred prior to the night of the shooting. In these reports, the police officers noted that they believed appellant was under the influence. The trial court allowed the officers to so testify, over appellant’s motion in limine and objection. Appellant contends that these rulings had a prejudicial effect in light of the trial court’s exclusion of similar evidence about the victim.
Appellant further argues that all of the evidence he sought to introduce would be relevant for a jury to consider in determining whether the State could overcome his affirmative defense of justification and defense of his person and property. He cites Brockwell v. State, 260 Ark. 807, 545 S.W.2d 60 (1976), for the proposition that a defendant is entitled to have the jury consider all the conduct of the decedent in order to determine whether there was a necessity for the defendant to act in defense of his household. Appellant contends that whether the victim was under the influence and had a prior history of violence would have been relevant for the jury’s consideration of whether appellant had a reasonable fear that he or his property were in danger.
Finally, appellant argues that Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000), while affirming the trial court’s denial of evidence related to the victim’s drug use, reaffirms that there must be some relationship between the drug usage and the issues in the case. Here, ^appellant contends that there was a relationship and that the evidence of the victim’s drug usage should have been admitted.
When the victim was autopsied, a .22-caliber bullet was found in his buttock. It was evident from the fibrous tissue surrounding the bullet that the wound was fairly old. Appellant sought to introduce evidence of the bullet wound, arguing that it was relevant because it showed the victim’s propensity toward violence and, thus, supported his defense that the victim had threatened him the night of the shooting. The State rebutted his premise by explaining that the wound was accidentally self-inflicted and not the result of violence. The State argued, and the trial judge agreed, that the wound was completely irrelevant and overly prejudicial under 401 and 403; particularly in light of the fact that there was absolutely no evidence that the wound occurred from a violent altercation.
Appellant next sought to introduce prior bad acts of the victim, again in order to show that the victim had a propensity toward violence. Appellant argued that he and the victim had been friends, knew each other’s history, and, because he suspected the victim of having been involved in other harassment in previous weeks, that the information was relevant. The State moved to limit such evidence, arguing that the victim’s non-violent criminal past was completely irrelevant under 401 and more prejudicial than probative under 403. The trial court granted the motion, holding that the evidence’s relevance rested on appellant’s state of mind at the time he fired the weapon and would only potentially be admissible if appellant testified.
113When the victim’s autopsy was performed, methamphetamine and opiates were found in both his blood and urine. Appellant sought to introduce the report in order to show the victim’s state of mind at the time of the altercation. The State successfully moved to limit the evidence, arguing that it was not only prejudicial but also completely irrelevant unless appellant knew at the time of the shooting that the victim was intoxicated. Regardless, in cross-examination, appellant stated that the victim “was amped up on meth and hydrocodones ... all kinds of drugs.” Therefore, despite the trial court’s instructions not to mention the intoxication, appellant brought it to the jury’s attention without objection from the State.
In the context of self-defense, the victim’s alleged propensity toward violence, his criminal background, and his intoxication at the time of death could only possibly be relevant if appellant both knew about those factors and knew who he was defending himself against when he fired his weapon. Britt v. State, 7 Ark.App. 156, 161, 645 S.W.2d 699, 702 (1983) (holding that testimony of specific acts unknown to a defendant are not directly probative of his belief that he is about to encounter unlawful deadly force). Here, appellant admitted that he fired his gun without knowing who was riding toward him. Therefore, because appellant did not know upon whom he was shooting, he could not have considered the victim’s background and state of mind before firing his weapon. Accordingly, such evidence would only have served to prejudice the victim. Moreover, appellant was not prejudiced by the trial court’s ruling regarding the victim’s intoxication, as it was mentioned without objection during questioning. See Jones, supra. For all these reasons, the evidence was inadmissible, and the trial court did not abuse its discretion in so limiting it.
Appellant finally suggests that it was unfair for the trial court to omit evidence of the victim’s drug use but allow the jury to hear evidence of his own. Appellant wanted to use the reports he had made to police for his defense but wanted to prevent the State from being able to cross-examine the officers as to appellant’s state of mind when those reports were made. The trial court granted appellant’s motion, but warned, however, that if appellant opened the door to the evidence, the State would be free to use the evidence during cross-examination. The trial court agreed that law enforcement would be free to “testify as to the physical demeanor of the person reporting the crime” regardless of whether field-sobriety tests were performed to substantiate that conclusion. When appellant testified regarding the thefts and vandalized property, he suggested that the police failed to take the crimes and his fear for his safety seriously by not promptly responding or investigating the crimes to his satisfaction. After appellant thus opened the door, the State was free to refute his allegations by calling the officers who responded to his 911-theft calls, as appellant had made his intoxication relevant to refute his allegations about the police.
Affirmed.
VAUGHT, C.J., and WYNNE, J., agree. | [
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STATEMENT.
English, C. J.
The subject of litigation in this suit is the following note:
“Forrest City, Arks.. March 26th, 1875.
$500. One day after date we promise to pay to the order of John W. Walker, five hundred dollars,, with interest at 10 per cent, per annum, value received.
A. L. Grady & Co.”
Credits endorsed on back of note :
January 22d, 1877, $100.
March 24th, 1877, $300.
June 14th, 1879, $32.25.
At some time after the last credit endorsed on the note, A. L. Crady died, and R. W. Casteel was appointed his administrator.
On the 3rd of May, 1881, Walker presented for allowance to the Probate Court of St. Francis county a verified claim against the estate of Grady, founded on the note, for $228.38, as balance of principal and interest due after deducting the credits endorsed; and which claim 'had been presented to Casteel as administrator of the estate, and by him rejected.
The administrator appeared and contested the claim, and the Probate Judge decided that the claimant was entitled to interest on the note at ten per cent, from its date to its maturity and interest at 6 per cent, thereafter, and allowed and classed the claim for $153.38, as balance of principal and interest due on the note; and Walker appealed to the Circuit Court.
In the Circuit Court, the case was submitted to the Court 10th of October, 1881, and after reading in evidence the claim, Walker called as a witness J. P. Keathly, surviving partner of A. L. Grrady & Co., the makers of the note, who testified that he was such surviving partner, and was present when the note was executed. Whereupon Walker asked him the following questions :
“The note in question expresses that it is to bear interest at ten per cent. What was the understanding of the parties to this note at the time the same was executed as to the length of time the principal in said note was to bear the rate of ten per cent, interest per annum?”
To this question Casteel, the administrator, objected, the Court overruled the objection, and the witness was permitted to answer as follows
“It was the intention of the parties when the note was executed, that it should bear interest at the rate oí ten per cent, per annum from its date until it was fully paid off, and discharged.”
To which answer Casteel objected, and moved to exclude it, but the Court overruled the objection, and he excepted.
The Court fouud as matter of fact that the note was intended by the parties to bear interest at the rate of ten per cent, per annum from its date until paid; and declared the law to be:
“That a-note payable one day after date is practically a demand note, and it cannot be presumed that the parties executing such note with a clause therein specifying a certain rate of interest only intended such contract rate of interest to continue for one day; on the contrary the presumption is that the parties intended the note to bear interest at the rate specified until the principal was fully paid, although the expressions ‘from date’ and ‘until paid’ may have been omitted.”
To which declaration of law Casteel excepted. '
The Court rendered judgment in favor of Walker against Casteel, as administrator, for $242.97 as balance of principal and interest due on the note at the date of trial.
Casteel moved for a new trial, which was refused, and he took a bill of exceptions, and appealed to this Court.
OPINION.
I. There is no rule of law better settled, or more salutary in its application to contracts, than that which precludes the admission of parol evidence, to contradict or substantially vary the legal import of a written agreement. Renner vs. Bank of Columbia, 9 Wheat., 587; Martin vs. Cole, 104 U. S. (14 Otto), 38; Joyner vs. Turner, 19 Ark., 690 ; see cases cited in Rose’s Digest, title evidence, 20(a).
Whether the makers of the note contracted to pay ten per cent, interest after the maturity of the note was a question of law to be decided by the Court from the face of the note —from its legal import — and parol testimony was Hot admissible to prove what may have been the intention of the parties to the written contract. •
II. Six per cent, is the legal rate of interest, but “the parties to any contract, whether the same be under seal or not, may agree in writing for the payment of interest not exceeding ten per centum on money due or to become due.” Act of 9th February, 1875. (Acts of 1874-5, p. 145) ; Constitution, Art. 19, See. 13.
In Newton vs. Kennerly, 31 Ark., 620, the note was dated 8th March, 1870, when the legal rate of interest was six per cent., but the parties were at liberty to contract for any rate. Gantt’s Digest, See. 4277-8. The note was payable on or before the 1st of January, 1871, “with interest at 16 per cent, per annum from date,” omitting the words until paid, and this Court held that there was a contract for the rate of interest expressed in the note until its maturity only, and after that it bore no more than the legal rate of interest.
In Pettigrew vs. Summers, 32 Ark., 571, the note was dated 12th October, 1876, (after the passage of the Act of 9th Feb., 1875), and payable thirty days after date, “with interest at ten per cent, per annum from date,” and the Court held that the legal effect of the contract was that the obligors agreed to pay interest on the debt at the rate of ten per cent, per annum from the date of the obligation for thirty days, the time of its maturity, and the contract being silent as to the rate of interest to be paid on the debt after due, the words “until {laid” being omitted in the interest clause, the debt bore the legal rate of interest only after maturity, following. Newton vs. Kennerly.
Same ruling in Woodruff vs. Webb, Ib., 613, where the note was payable four months after date.
See also Gardener et al. vs. Barnett, 36 Ib., 477.
In Vaughan et al. vs. Kennan, 38 Ark, 114, Justice Eakin said:
“This Court has repeatedly decided that, in case of notes bearing contractual interest, when there is no agreement as to interest after maturity, they can only bear interest at the ordinary rate of six per cent, after due. It is a matter of intention "to be gathered from the direct expressions, or plain import of the instrument.”
No doubt in all the cases where ten per cent, interest was contracted for, it was in the minds of parties that the debts should bear that rate until paid, but it was not so expressed in the notes. Such was not their legal import.
The note in suit is payable one day after date, with interest at ten per cent, per annum. The Court below decided that the note was practically a demand note.
Technically it differs from a note payable on demand in this: A demand note is payable ats once, and suit may be brought upon it immediately after its execution, but an ordinary action cannot be brought on a note payable one day after date, until after the day of payment has transpired.
In Paine v. Caswell, et al., 63 Maine 80, the form of the note sued on was: “For value received we promise to pay John S. Paine, or order, five hundred dollars, and interest át ten per cent.” Justice Peters, for the Court said: “The question is, for how long a period can the plaintiff require that rate of interest to be paid. The note, although not so expressed, is on demand. Where a note is payable on time with interest exceeding six per cent., no more than six per cent, is recoverable after maturity, there being no ■ bargain for interest after that time. In such case interest after the note is due is allowed only by way of damage. Eaton v. Boissonnault 67 Maine, 540. It is different, however, if the note stipulates for extra interest after, as well as before it is due. In such a case, the rate of interest, is collectable according to the contract. Capen v. Crowell, 66 Maine, 282. Applying this doctrine as well as it can be applied, to the present case, we think interest at the rate agreed should be reckoned up to the date of the judgment to be recovered on the note. The meaning of the parties could not have been, that the interest at the rate named was payable until the note was due, and not after, because there was no time after the note was delivered before it became due. It was due instanter. It could have been sued on by the plaintiff on the moment he received it. The statute of limitations then commeneed to run against it. It could not have been in the contemplation of the parties that the note was to be immediately paid, for in such a case, the note would be but an idle form. The idea of the contract must have been that the maker would pay the stipulated interest as long as tne note might run. Such a note as this is denominated in the cases as a continuing promise, and a continuing security.” «
In Gray, &c. vs. Briscoe, 6 Bush, (Ky.), 687, the note in suit was made in Missouri, where six per cent, was the legal rate of interest, b ut the parties might contract in writing for interest not exceeding ten per cent per annum. The note was for five hundred dollars, payable one day after date, “ with ten per cent interest from date.”
Justice Hakdin, for the court, said : — “ It is agreed for the appellants that the contract imports only an agreement to pay interest at ten per cent, for one day, and that after the maturity of the debt, it bore only the legal rate of interest. In several of the States having statutes legalizing such contracts, the question has arisen, what rate of interest shall be charged in cases where the contract provides for a higher rate than the legal rate, up to the time of maturity, but is silent as to the rate to be charged afterwards, until) payment. Upon this question the adjudged cases are in conflict; but the weight of authority, including the decision of the Supreme Court of the United States in the case of Brewster vs. Wakefield, 22 Howard, 118, is that ordinarily in such cases, the rate provided by statute shall prevail after the maturity of the debt, &e., &c., But while we rec ognize this as the correct rule in cases where it appears that the parties meant to fix the rate of interest with reference to the time of maturity, and not of payment, this case must be controlled by the intrinsic evidence which the contract itself furnishes of the intention of the parties. The amount of interest secured by the contract in excess of the rate of six per cent, per annum, for a single day, is so inconsiderable, that it is scarcely reasonable to suppose the parties intended to restrict the stipulated rate of interest, to the maturity of the contract, but we must conclude that they intended it to continue until the debt should be paid.”
This adjudication is in point, the reasoning of the opinion is persuasive, and we have concluded to follow it in this case.
As to the matter of interest, there is no substantial dif ference between a note payable one day after date, “ with interest at ten per cent, per annum,” and a note payable on demand, with ten per cent interest, or a due bill with like interest. It is not a reasonable construction of such contracts, to interpret them to mean that the parties .meant to agree for the per cent interest for a single day, or for no time at all,
But it may be asked, if the established rule is not to be applied to a noté payable one day after date, will it be applied if more days be added — where is the limit to be fixed ? The question is not without perplexity. But it will make the rule certain to apply it in all cases where a longer time than one day is fixed for payment, treating notes payable at one day as substantially payable presently, and as a matter of form, which is in accordance with common habit and understanding.
We conclude that a note payable one day after date, “ with interest at ten per cent per annum,” bears that rate of interest until paid, and that such is the legal import of the note, and that the court below, correctly so declared the law to be, and though the court erred in admitting parol evidence to prove the intention of the parties, yet upon the whole record the judgment is right, and must be affirmed. | [
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Darrell Hickman, Justice.
This is a companion case to Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981).
Two men wearing ski masks tried to rob a liquor store at Harrisburg, Arkansas on January 4, 1980. Two others were charged as participating in the scheme. A shoot-out between the men and Bill Junkin, the owner and operator, resulted and the robbery attempt was thwarted. Junkin’s wife and child were in the store when the shooting occurred.
Joseph Verser Swaite, the appellant, received a separate trial from Walter Swaite and Tommy Swaite, both of whom were charged with the defendant. Their case is reported in Swaite v. State, supra. Joseph Verser Swaite was convicted of attempted capital murder, aggravated robbery and two counts of aggravated assault. He was sentenced to thirty years on the first count, thirty years on the second, and ten years for each aggravated assault. The judge ordered him to serve two forty year sentences concurrently. On appeal he argues three errors, none of which have merit.
First, he concedes that no objections were made at the trial to his being charged with and convicted of both attempted capital murder and aggravated robbery. He argues on appeal that being charged with both of those offenses violates the double conviction prohibition of Ark. Stat. Ann. § 41-105 (1) (a) (2) (a) (Repl. 1977). Thatargument was made by counsel for the two other Swaites in Swaite v. State, supra, and was found to be meritorious. Their convictions were reversed and remanded. Swaite argues that we should deal with the question even though the trial court was given no opportunity to rule on the issue, asking us to adopt the ‘‘plain error” rule. He cites a dissenting opinion in Shelton v. State, 271 Ark. 342, 609 S.W. 2d 18 (1980) as his authority. We do not recognize the so-called ‘‘plain error” doctrine.
As we plainly said in Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980):
... In Arkansas, however, we do not have such a rule. Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980). To the contrary, in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Citations to that familiar principle are unnecessary.
That even applies to questions of constitutional magnitude, Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975). We did acknowledge in Wicks four possible exceptions to the rule, but none of them apply to this case.
The United States Supreme Court has, on occasion, noticed errors not raised in the court below. But that has been in the exercise of their discretionary power only. United States v. Atkinson, 297 U.S. 157 (1936); Weems v. United States, 217 U.S. 349 (1909).
In Rowe v. State, 271 Ark. 20, 607 S.W. 2d 657, cert. denied, 101 S. Ct. 1764 (1981), the appellant tried to raise on appeal, but not at trial, the issue of double j eopardy because two offenses were charged, one of which may well have been a lesser included offense. The charges in Rowe were attempted capital murder and aggravated robbery. We held that the arguments could not be heard on appeal because it was not argued below.
Swaite’s second argument, which is two-pronged, goes to the enhancement of his sentence. The information charged six crimes and in two separate paragraphs asked that Swaite receive additional punishment because he had used a firearm in connection with three specified aggravated assaults and because he had three prior felony convictions.
At Swaite’s request, before trial, the court struck counts five and six. Count five charged Swaite with aggravated assault against a deputy sheriff with a pistol and count six charged him with possession of a firearm as a convicted felon.
Swaite’s argument is that the two paragraphs seeking enhancement were listed on the information immediately following counts five and six, and were a part of counts five and six. He argues that since counts five and six were stricken, these paragraphs were also stricken. The trial court held that the enhancement paragraphs were not stricken and rightly so. They were separate and distinct allegations from counts five and six and not at all dependent upon those counts for their validity.
The trial court struck one prior conviction but allowed two others in evidence which alleged that Swaite was convicted in Jefferson County, Kentucky in 1968 of armed robbery and willful murder. As it turns out these convictions were reversed by the appellate court and remanded. Swaite was subsequently found guilty of the same offenses so that the convictions, for these same offenses, were actually dated “1973” rather than “1968” as alleged in the information.
It is argued that the state should be prohibited from using the convictions because of the variance of the date and the fact that the defendant had inadequate notice of the alleged convictions. The trial court, finding that the prosecution’s file had been open for months to the defense, and finding no prejudice as a result of the variance of the dates, overruled the objections. We uphold that decision. In Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977), we found no prejudicial error when the prosecuting attorney was allowed, during the trial, to amend the information to allege previous convictions. The appellant is correct that it is a matter of notice and prejudice, but in this case the prosecution’s file showed that the convictions were evidently overturned and then reinstated in 1973, a fact that removes any possibility of prejudice.
Finally, it is argued the prosecuting attorney’s remarks during the trial were prejudicial and can only be cured by granting a new trial.
During opening remarks the prosecuting attorney said:
The overwhelming proof in this case will prove beyond any reasonable doubt that Mr. Swaite on the evening of January 4, 1980, along with three other persons, Tommy Swaite, Walter Swaite, two persons who have already had their day in court...”
An objection to these remarks was sustained and the judge admonished the jury to disregard them but denied a motion for mistrial. The defense had filed a motion in limine to prevent any reference to the conviction of the other Swaites. Although no order was granted, evidently some understanding was reached between counsel that the jury would not be told of the other Swaites’ conviction. Any error was cured by the court’s admonition. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979).
The other remarks objected to were during closing when the prosecuting attorney said:
I, of course, agree with what Mr. Webb said in some instances and disagree quite hard in others. I would agree with him that you made promises to us in the voir dire that you would decide this case based upon the evidence you heard from the witness stand. That’s what you told him and all of us that you would do. You’ve heard a total of 9 witnesses. He talked to you, I think, kind of tongue and cheek. I know K. W. [Webb], well, he’s got a job to do and it’s probably a difficult job for him to do in this particular case.
A motion for mistrial was denied and no request for an admonition was requested or given. This is a discretionary matter and we cannot say the judge abused that discretion. The remarks were no more than the usual unnecessary banter that counsel often feel compelled to engage in.
Affirmed.
Purtle, ]., dissents. | [
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Per Curiam.
This is an appeal from a circuit court judgment affirming the decision of the Arkansas Real Estate Commission to revoke appellant’s real estate broker’s license. In the process of appeal, the appellant has filed two volumes entitled “Abstract and Brief of Appellant.” However, the appellant has not abstracted the transcripts of testimony of the hearings. Instead, he has reproduced a major part of the transcripts. A reprint of a transcript is not an abstract. Rule 9 of the Arkansas Supreme Court sets forth in detail the manner in which the appellant is to make an abstract of the record. For a discussion of abstracting see Smith, Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 359 (1977). Rule 9 (d) does not permit the reproduction or substitution of the record in place of an abstract. We have consistently held that this flagrant viola tion of Rule 9 (d) calls for summary affirmance. Sellers v. Harvey, 222 Ark. 804, 263 S.W. 2d 86 (1953); Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W. 2d 605 (1965); Smith v. Pond, 259 Ark. 564, 534 S.W. 2d 769 (1976).
Affirmed pursuant to Rule 9 (e) (2). | [
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Frank Holt, Justice.
This case involves the question of whether an Arkansas court has jurisdiction to modify a custody decree of a Texas court under our Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. § 34-2701 et. seq. (Supp. 1981), Act 91 of 1979, when the Texas court has continuing jurisdiction over the custody of the child. The chancellor held he had jurisdiction and modified the decree by changing the custody of the child from the appellant to the appellee, granting appellant certain visitation rights. For reversal the appellant asserts that the chancellor lacked jurisdiction to modify the Texas court decree. We agree.
The appellant and appellee are respectively the mother and father of Lori Ann Pickett. After several years of marriage, the appellee petitioned for divorce from the appellant in Harris County, Texas, where the divorce was granted November 8, 1974. The appellant was awarded custody of Lori, then 5 years of age. Appellee was awarded visitation rights and was not required to make child support payments. After the divorce the appellee moved to Lockesburg, Sevier County, Arkansas, where he has resided for several years with this third wife and her 7 year old son. The appellant, who continued to reside in Texas, moved to Georgetown (an Austin suburb), Texas, where she has resided for the past several years. She married her third and present husband there in 1978. In the summer of 1980, while Lori was making her annual visit with her father at his home in Lockesburg, he filed a petition in the Sevier County Chancery Court seeking to modify the Texas decree by being awarded custody of Lori, then 1VÁ years of age. Appellee alleged, inter alia, that due to an emergency situation the court could take jurisdiction to protect the child, pursuant to Ark. Stat. Ann. § 34-2703 (a) (2) (3) (Supp. 1981), because the child is neglected or dependent. The appellant responded by asserting the court lacked j urisdiction, citing § 34-2714, which reads:
(a) If a court of another state has made a custody decree, a court of this state shall not modify the decree unless: (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction and (2) the court of this state has jurisdiction (Italics supplied.)
Ark. Stat. Ann. § 45-403 (Supp. 1981), in pertinent part defines a dependent neglected child as a juvenile whose parent, by reason of immorality, is unfit to properly care for the minor child. The trial court agreed with the appellee and found that Lori is a dependent or neglected child as defined by § 45-403. The chancellor made a finding of fact that the appellant had an immoral and adulterous affair with a man when she was recently and temporarily separated from her husband and her conduct so disturbed Lori that her best interests required that appellee have custody of her.
Lori was the principal witness. She testified that her mother and stepfather had worked out an arrangement that during their recent two months trial separation her mother and he could have dates and that she had observed her mother dating. She did not believe that this was right and wanted to stay wi th her father in Arkansas and attend school there. This was her decision and uninfluenced by her father. She testified that she loved her mother, who is good to her as is her stepfather. She has a nice home. However, she objected to her mother’s dating other men. This behavior affected her grades and upset her. She was apprehensive that this conduct would continue. She did not want to stay with her mother until her mother decides what she is going to do. The mother candidly admitted that on two or three occasions she had had intimate relations with another man during the trial separation with her husband in the summer of 1980. She felt the child was unaware of this. This separation, beginning in May, lasted about two months, and upon reconciliation with her husband, this affair had ended. She has had no other affairs during the marriage. Lori is active in sports and Girl Scouts. Her husband verified her testimony and told the court that he loved Lori and that he would not have spent the money and made two trips to Arkansas to attend the custody hearings if he were not sincere in his desire that his wife retain custody of the child. This is his first marriage. He contributes to Lori’s support. Lori periodically attends a local Sunday School. A clinical psychologist, appellee’s witness, testified that Lori is a well adjusted child who made no complaint about mistreatment or abuse by her mother or stepfather; that Lori has a good moral background; that she is distressed, does not approve of her mother dating other men, and prefers staying with her father. If her mother provided her with moral security, he saw no “particular difference” between the competing parents. If she were sent back to her mother against her wishes, it would place some stress on her; it would not be a “disastrous blow, disappointed perhaps.” She appears sufficiently well adjusted to adapt to a disappointment.
Jurisdiction predicated on § 34-2703 (a) (3) is to be used only in extreme or extraordinary situations where the immediate health and welfare of the child is at stake. See De Passe v. De Passe, 421 N.Y.S. 2d 497 (1979); In Re Marriage of Schwander, 145 Cal. Rptr. 325 (1978); and Roberts v. District Court of Larimer Cty., 596 P. 2d 65 (Colo. 1979). The Commissioners’ note following the Uniform Child Custody Jurisdiction Act (9 U.L.A.) § 3 (Master Edition), p. 124, states that under paragraph (3) of subsection (a), “[tjhis jurisdiction exists when a child has been abandoned and in emergency cases of child neglect.... This extraordianry jurisdiction is reserved for extraordinary circumstances .... When there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph.”
Here, the evidence is insufficient to justify the Arkansas court preempting the continuing jurisdiction of the “home state” court to modify the custody award on an emergency basis for the child’s best interests. In fact, it appears that the asserted emergency had ceased to exist since there is a reconciliation of her mother and stepfather. The record does not reflect that the Texas court is without jurisdiction nor that it has declined to exercise jurisdiction. Texas is the child’s “home state” and she was in Arkansas only for visitation with her father in compliance with the Texas court order.
Our legislature, in § 34-2701, stated the general purposes of this act were to avoid jurisdictional competition and conflict in other states on matters of child custody; to assure that custody litigation takes place ordinarily in the state which has optimum access to matters concerning the custody; the courts of this state should decline jurisdiction when the child and family have a closer connection with another state; to promote cooperation with the courts of other states in order to insure that the determination of custody is made by the court which can best decide the interest of the child; to avoid relitigation of custody decisions of other states insofar as feasible; to promote and expand the exchange of information and mutual assistance between the courts of this state and other states on custody matters; make uniform the law of child custody among the states; and that this Uniform Act shall be construed to promote these general purposes.
The merits of this custody case should be determined by the Texas court which has continuing jurisdiction. To hold otherwise under the facts in this case would undermine the policy and purpose of the Uniform Child Custody Act which our legislature has so recently enacted.
The appellant is awarded her costs and $500 for her attorney for his services on appeal.
Reversed and dismissed. | [
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Steele Hays, Justice.
This appeal is brought from the Washington Circuit Court for a burglary conviction. The appellant was found to have been previously convicted of four or more felonies subjecting him to an extended term of punishment pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). In addition, he was sentenced pursuant to Ark. Stat. Ann. § 41-1004 because he was found to have “employed a firearm” in furtherance of the burglary. In his bifurcated trial, the jury recommended a twenty-year prison sentence.
Our jurisdiction is invoked under Supreme Court Rule 29 (1) (c), in that the validity, interpretation, construction, or constitutionality of an act of the General Assembly is involved.
On appeal it is insisted that (1) the trial judge erred in not disqualifying himself and (2) in allowing the defendant’s confession into evidence; (3) § 41-1004 is unconstitutionally vague and (4) the evidence was insufficient to support a finding that appellant “employed a firearm” within the meaning of the statute. The fourth point alone has merit but does not require reversal as it is clear the sentence was not extended under § 41-1004.
At 1:00 a.m. on August 13, 1980, the Ozark Steel Company in Fayetteville was burglarized. Gasoline was siphoned from company vehicles and an unsuccessful attempt was made to open a safe.
Four burglars were interrupted by police and employees of Ozark Steel. In an ensuing chase, at least one shot was fired by the police. Two suspects were arrested on the premises and the appellant was arrested sometime later by Officer Joey Boersma in a nearby wooded area. Appellant appeared exhausted and had superficial cuts and scratches sustained, evidently, running through underbrush. At approximately 1:50 a.m. appellant was taken to the Fayetteville Police Station where he signed the standard Miranda rights form.
Appellant was questioned by Officer J. O. Surles. After, refusing to implicate others, appellant was allowed to go to the telephone room to make a call. Having just learned that one of the suspects might be armed, Officer Surles spoke, so he says, from across the room to say, “Jimmy, there's an empty holster. Before anyone gets killed, do any of the other guys have a gun?” Shortly thereafter appellant confessed to the burglary, giving the details and the names of the other participants.
Appellant argues the trial judge should have disqualified himself because he had actively prosecuted him in three of the four prior felony convictions relied on for the enhancement of punishment.
Although this precise question has not been addressed by this court, other jurisdictions have rejected the argument by holding a trial judge is not disqualified from hearing a criminal prosecution because he had been a prosecutor in a prior conviction used to enhance the punishment for a current offense. Nichols v. State, Tex. Cr. App., 494 S.W. 2d 830 (1974); Morgan v. State, Tex. Cr. App., 503 S.W. 2d 770 (1974); Hawthorne v. State, Tex. Cr. App., 459 S.W. 2d 826 (1970). This argument has also been rejected where earlier convictions are applied under an habitual criminal statute. Maloney v. Maxwell, 174 Ohio 84, 186 N.E. 2d 728 (1962).
Appellant also argues that bias is shown by the judge’s out-of-court statement, made two days after his fourth felony conviction, which was suspended. Judge Gibson is said to have told appellant he would send him to the penitentiary if he came before his court again. But admonitions of this sort are not unusual following a suspended sentence and are generally prompted by nothing more than to impress upon the defendant the need to stay out of trouble. Without some added element, they are not to be regarded as evidence of a residual bias.
Appellant cites Burrows v. Forrest City, 260 Ark. 712, 543 S.W. 2d 488 (1976), to support his argument. In Burrows, the trial judge’s comment that a defendant should bring his toothbrush to a hearing to revoke a suspended sentence, along with other statements indicating bias or prejudice against the appellant, was sufficient to require disqualification. Burrows is distinguishable in that the statement there was made just before the hearing. Here, the statement was made when no criminal proceedings were pending against appellant. The comment can be reasonably construed as merely a warning and not an indication of lasting bias by the trial judge that would affect any proceeding that might happen in the future.
Appellant cites Article 7, § 20, of the Arkansas Constitution:
Disqualification of judges — Grounds. No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.
There is no evidence of a violation of this section, as the interest referred to is a pecuniary or a proprietary interest, Mears v. Hall, 263 Ark. 827, 569 S. W. 2d 91 (1978); Forman v. Marianna, 43 Ark. 324 (1884), and the reference to having been “of counsel” obviously relates to the case being tried. Bledsoe v. State, 130 Ark. 122, 197 S.W. 17 (1917).
The fundamental issue we must consider here is whether under the circumstances the judge’s impartiality might “reasonably be questioned.” (See Code of Judicial Conduct, Canon 3, subdivision C.) The appellant was heard on the allegation of bias. The record shows the trial was conducted in an impartial manner and there is no indication that any of the judge’s rulings were the result of bias. The jury sat in both stages of the bifurcated trial and the judge only followed its verdict and recommendation in sentencing. We find no objective intimation of bias or prejudice and even the appearance of bias, which appellant insists is present, we regard as subjective.
II.
Appellant contends that his confession was coerced and should have been suppressed by the trial judge. He argues that he was exhausted, bloody from the cuts and scratches, thirsty and in need of medical attention. He points out that Officer Boersma arrested him at gun point, made him lie on his stomach to handcuff him and that his head may have been struck as he got into the police car. He insists that Officer Surles’ remark should be interpreted as a threat on his life. The officer denies that his words had any reference to appellant, but merely to the other officers and suspects.
But whether these circumstances are taken severally or collectively they fail to suffice. Appellant’s rights were read to him when he entered the police station and there is no evidence that he was unreasonably denied medical attention or water except for a momentary interval when he first arrived at the station. He argues that Officer Surles’ remark was threatening but the trial court found that insufficient to suppress the confession and though we review the record independently we need not shun its findings. Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981). We see no basis to reverse. We cannot say that the comment could not have been taken as appellant claims, but the more plausible interpretation is consistent with the officer’s explanation. Had the appellant been denied needed attention, subjected to prolonged questioning or intimidating circumstances, his arguments would be more convincing, but those elements are not present.
Appellant also argues that Officer Boersma was a material witness and should have been produced by the State at the Denno hearing. Relying on Hayes v. State, 269 Ark. 47, 598 S.W. 2d 91 (1980), he points out that Boersma held a revolver on him 20 minutes before the questioning at the station. But there is no indication that this officer was involved in the events at the station and the State was not required to produce him.
III.
Appellant argues Ark. Stat. Ann. § 41-1004 (Repl. 1977) is unconstitutionally vague in that “employed” is not defined. The statute reads in part:
Sentence to imprisonment for felony — Extended term for use of firearm. — (1) If a defendant is convicted of a felony and the trier of fact finds that the person so convicted employed a firearm in the course of or in furtherance of the felony, or in immediate flight therefrom, the maximum permissible sentence otherwise authorized by section 901 [§ 41-901] or section 1001 [§ 41-1001] shall be extended by fifteen (15) years. (Emphasis added.)
In Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975), we held a similar statute not to be unconstitutionally vague. Webster defines “employ” as “1. To make use of, as an instrument, means or material; to apply, use; as to employ a pen in writing. ...”
The Arkansas Model Jury Instructions, AMCI 6001, utilizes the word “use” rather than “employ” in its instruction for § 41-1004 where the defendant is also charged with being a habitual offender. The Arkansas cases construing § 41-1004 utilize the words “use” and “employ” interchangeably. Welch v. State, 269 Ark. 209, 599 S.W. 2d 717 (1980); Rust v. State, 263 Ark. 351, 565 S.W. 2d 19 (1978). We conclude the trial court was correct in ruling § 41-1004 was not unconstitutionally vague and that "employed” is a word of common usage and understanding, thus not requiring further definition. Where a man of average intelligence would not have to speculate as tb the meaning of the statute, the constitutional requirement of specificity is met, since fair warning of the proscribed conduct is given. Rowan v. Post Office Department, 397 U.S. 728 (1970); United States v. Harris, 347 U.S. 612 (1954); Newton v. State, 271 Ark. 427, 609 S.W. 2d 328 (1981); Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975).
IV.
Finally, we consider whether the evidence was sufficient to support the j ury’s finding that a firearm was employed by appellant in the commission of the burglary or in flight. The testimony is conflicting as to whether the appellant or a co-defendant had possession of the revolver while siphoning the gasoline or while in the building attempting to break open the safe. There is no evidence in the record that the appellant made any use of the firearm for any purpose in the commission of the felony or in flight. Use of the verb “employed” rather than “in possession” compels us to conclude the Arkansas General Assembly intended something more than mere possession.
Since we have not ruled on the specific question we look elsewhere. California has two statutes relevant to this issue: West’s Ann. Pen. Code § 12022, which enhances the punishment by one year if a person is armed during any felony and § 12022.5, which enhances the punishment by two years if a firearm is used in the commission of a felony.
In People v. Chambers, 102 Cal. Rptr. 776, 498 P. 2d 1024 (1972), § 12022.5 was interpreted to require more than mere possession:
[5] We next direct our attention to that conduct which constitutes use of a firearm within the meaning of the statute.5 By employing the term “uses” instead of “while armed” the Legislature requires something more than merely being armed. (People v. Washington (1971), 17 Cal. App. 3d 470, 474, 94 Cal. Rptr. 882.) One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest. (See People v. Pheaster (1963), 215 Cal. App. 2d 754, 30 Cal. Rptr. 363.) Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. “Use” means, among other things, “to carry out a purpose or action by means of,” to “make instrumental to an end or process,” and to “apply to advantage.” (Webster’s New Internal. Diet. (3d ed. 1961).) At 1027. (Footnote omitted.)
The question was also addressed in In Re Culbreth, 130 Cal. Rptr. 719, 551 P. 2d 23 (1976), at 26.
[3] It is clear that the terms “uses” was deliberately employed by the Legislature when it adopted section 12022.5. To “use” means, among other things, “to carry out a purpose or action by means of,” to “make instrumental to an end or process,” and to “apply to advantage.” (People v. Chambers, supra, 7 Cal. 3d at p. 672, 102 Cal. Rptr. at p. 779, 498 P. 2d at p. 1027.)
Appellee relies on United States v. Moore, 580 F. 2d 360 (Ninth Circuit 1978) which construes 18 U.S.C.A. 924 (c) (1), the Federal counterpart to § 41-1004. Moore was found to have violated the statute by mere possession of a firearm in an attempted bank robbery. Moore is distinguishable in that 18 U.S.C.A. 924 (c) specifically prohibits either 1) the use of a firearm to commit a felony or 2) the unlawful carrying of a firearm during the commission of any felony.
Many states specifically provide for increased sentences for mere possession of firearms related to the commission of a felony, but Arkansas has no such law. We find no jurisdiction which imposes a mandatory 15 year extension of sentence to run consecutively for mere possession of a firearm in the commission of a felony. We conclude § 41-1004 applies only where a firearm is used by the defendant in furtherance of the commission of a criminal offense.
Although we find the evidence insufficient to support the finding that appellant violated § 41-1004, we find no reason to reverse as his sentence was not extended. Had it been, he would have received a sentence of 35 years rather than the 20 the jury recommended. The trial was bifurcated and appellant was found guilty of burglary and to have committed four or more previous felonies, thus 20 years is the minimum sentence he could have received under § 41-1001 (2) (b) irrespective of the issue of the firearm.
Affirmed.
Hickman, J., dissents. | [
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Smith, J,
This action was brought to recover the amount due the plaintiff for the board of ceitain men who were employed by the defendant in cutting cross-ties for a railroad. It was begun before a Justice of the Peace, and there were no written pleadings. The facts are undisputed and no special instructions as to the law of the case were given to the jury or refused.
The defendant applied to the plaintiff to board some of his laborers. She objected because the pay was doubtful. He told her that he would see that she was paid, as their money passed through his hands. She then said, that if she took the men to board, she should look to him for payment. Ancl to this he assented.
This was an original undertaking, on a valid consideration moving between the parties and not a special promise to answer for the debt of another. The credit was given to the defendant personally and not to his laborers. His promise to be answerable for the board was a promise to pay his own debt, not theirs. If A. says to B. pay so much money to C. and I will repay you, this is an independent promise; and if the money is paid upon the faith of it, it has always been deemed an obligatory-contract, even though it be by parol; because there is an original consideration moving between the immediate parties to the contract. Townsley v. Sumrall, 2 Peters, 170; Emerson v. Slater, 22 Howard, 28; Browne on the Statute of Frauds, sec. 195.
The judgment which was against the defendant, must be affirmed. | [
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Smith, J.
One Matlock was indicted in Independence Circuit Coui’t for murder. He obtained a change of venue to Lawrence, and was tried and acquitted. A judgment for the costs of the prosecution was rendered against Independence county. A duly certified bill of costs was presented to the Independence County Court, all of which was allowed except $140.
On the trial of Matlock, only four jurors were accepted from the re’gular panel. The other eight were selected from a special venire, and they served five days, and were entitled to $10 each for their- services, making $80. Thirty other persons were also sumxnoned on the special venire, but were not taken on the trial jury. They each claimed pay for one day’s .attendance as jurors, amount ing in the aggregate to $60. The presiding Judge certified the per diem of the eight jurors selected from the special venire who did serve, and the per diem of the thirty who were summoned, but did not serve, as part of the costs chargeable to the county of Independence. But the County Court rejected these items and the claimants appealed to the Circuit Court, where they obtained a judgment.
The statute makes each county liable for costs incurred in the prosecution of offenses committed within its limits, if the defendant is acquitted, and also in case of conviction, if he has no property. Gantt’s Digest, Sec. 2015.
And that liability continues, though the venue be changed to another county; Pulaski County v. Irvin, 4 Ark., 473; County of Ouachita v. Sanders, 10 Id. 467.
But the costs lor which the county where the prosecution began is liable, are the costs which it could have recovei’ed of him, if he had been convicted and of sufficient ability to pay. Now the compensation of jurors, both in civil and criminal cases, seems to be a' part of the current expenses of holding the Circuit Courts, and in the same category with fuel, lights, stationery, etc., which thq statute directs shall be paid out of the county treasury of the county in which the Court is held. Gantt’s Digest, Sec. 1176.
This is certainly the case when the jury is selected from the regular panel. Jurors’ fees are not taxed against the losing party in a civil action, nor against a convicted defendant in a criminal case. And we do not remember any statute which provides a different mode of compensation for talesmen. The clerk gives * to each juror a certificate of his attendance, (act of Feb. 25, 1875, Sec. 38), which is afterwards to be presented to the County Court for audit, aud upon its allowance a war rant is issued. This applies as well to jurors called upon to serve from the by-standers as'to the regular venire.
For error in holding Independence county liable to pay these fees as a part of the cost the judgment is reversed. | [
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Smith, J.
This was an action of forcible entry and detainer, to recover possession of two lots in the town of Texarkana. The lots had, it seems, originally belonged to a railroad company, and it had sold them to one Arthur, rer ceiving part of the purchase money and giving him a bond for title, in which there was perhaps a clause of forfeiture upon failure to pay the remainder. Arthur took possession, built a house of four rooms, and in August, 1877, sold and conveyed the premises to appellant, Anderson, for $700 which was then paid. Anderson went into possession under his purchase, and remained in possession until the 22nd of March 1880, letting the house and lots to tenants by the month. A few days before the date last mentioned, Anderson’s tenants had vacated the premises and his agent had locked the house, and was looking around for another tenant, when Mills, the appellee, made his entry, by depositing a sleeping cot and some other household goods in the back room. Anderson found the articles there, and not knowing whose they were, but supposing, as he testifies, that they had been left there by his late tenant, placed the same out in his yard. Mills then brought the present action.
His connection with the property originated thus: $160 of the original purchase money due by Arthur remained unpaid. On the 31st of January, 1880, the railroad company, without any notice to Anderson, quietly cancelled the contract with Arthur and resold the premises, which, according ing to the proofs, were worth $1000, to its own land agent, one Bramble, for the balance then due upon the first sale. And Mills is the tenant of Bramble.
A trial before the jury resulted in a verdict and judgment for the plaintiff.
In this action the estate, or merits of the title, cannot be inquired into, except to show the right to the possession and the extent thereof. Act of March 2nd, 1875, Sec. 19.
Consequently our remarks must be restricted to the single point: Who is entitled to the possession until the ownerhip of the property can be adjudicated?
The Court gave and refused several instructions to the jury which it would be unprofitable to discuss in detail. The vice which pervades those given at the instance of the plaintiff is that they are predicated upon the assumption that plaintiff had actual and peaceable possession of the demanded premises; whereas he had only a scrambling possession. The continuity of Anderson’s possession has never been broken; that is to say, there has been no interval of time during which Mills could enter without being himself guilty of an unlawful entry. His attempted entry was a mere intrusion and a trespasss. Wray v. Taylor, 56 Ala., 188.; Barlow v. Burns, 40 Cal., 351; Bowers v. Cherokee Bob, 45 Id. 495; Conroy v. Durane, Id. 597; Voll v. Butler, 49 Id. 74.
In Harris v. Turner, 46 Mo., 438, the facts were essentially different from the facts of this case. There A. had entered upon the land of B; had planted a crop, and was in peaceable possession of the same. He had thus acquired an actual possession which had ripened into a peaceable occupation. And it was held that no superior right of B. could justifiy him in ousting A. by force, and in case of such eviction A. could bring forcible entry and detainer.
If a man should shut up his house for the summer and upon his return should find that some tramp had established his quarters in hi® kitchen, as shown by his leaving his baggage, we do not think the owner would be driven to an action of ejectment to try the title, butthat he might safely set the things outside in the street, leaving the tramp to his own devices to regain possession.
Reversed and remanded for a new trial. | [
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STATEMENT.
English, C. J.
The material facts disclosed by the transcript in this case, stated in the order in which they occurred, follow:— ^
On the 22nd February, 1878, Crockett & Yancey commenced suit by attachment before a Justice of the Peace of Arkansas county, upon an account for $50. against Willis P. Bush, a non-resident. On the filing of the account, &g., an attachment was issued to a Constable, a warning order made, and Freeman & Johnson appointed attorneys ad litem for the non-resident defendant, Bush.
The Constable returned upon the attachment that he could find no personal property in the county belonging *to defendant, and that he had levied upon the north half of the south east quarter of section nineteen, Township four S. R. three W., as the property of Bush.
On the 29th of April, 1878, the day set for trial, publication of the warning order in the Vindicator, a newspaper published in Arkansas county, WUs proved, plaintiffs appeared by attorneys, and Ereeman & Johnson, who had been appointed by the Justice, attorneys ad litem for defendant, and accepted the appointment, also appeared, and asked leave to enter a general denial of the account sued on, which was granted, and demanded a jury, which was ordered, and there was a trial, and verdict in favor of plaintiffs for $30. The Justice rendered judgment in favor of plaintiffs against defendant for $30 and costs, to be made out of the tract of land attached, and that a copy of the judgment be certified to the Clerk of the Circuit Court of Arkansas County, to the end that execution might be issued in the manner prescribed by law. Ereeman & Johnson, attorneys ad litem for defendant, asked for an appeal from the judgment to the Circuit Court, which was granted on condition that the affidavit required by law should be filed.
On the 17th of June, 1878, Crockett & "Yancy, the plaintiffs in the attachment suit, assigned the judgment to Arthur B. Crawford; and on the 21st of the same month, a certified transcript of the docket entries and judgment of the Justice of the Peace was filed in the'office of the Clerk of the Circuit Court, (no appeal bond having been executed), and an abstract of the judgment entered by the Clerk in the judgment docket.
On the 29th of June, 1878, the Clerk issued to the Sheriff a special execution (without the execution of any bond of indemnity) commanding him to sell the tract of land attached. The Sheriff advertised and sold the land, and it was purchasby Arthur B. Crawford for $45, who obtained a certificate of purchase, and on the 13th of June, 1881, and after the time of redemption expired, the Sheriff (the successor of the officer who made the salej executed to Crawford a deed for the land, acknowledged before a Notary Public.
On the next day Crawford and wife, by deed of that date, conveyed the land to Edward Visant.
On the 27th of June, 1881, Edward Visant commenced this action of ejectment for the land, in the Circuit Court of Arkansas County, against George W. Toland, a tenant of Willis P. Bush, exhibiting as evidence of title the deed from the Sheriff to Crawford, and the deed from Crawford and wife to himself, and alleging that Bush was the owner in fee of the land when attached, and that defendant Toland held possession of the land as his tenant, &c.
Toland was served with process, and Bush, on the application of Wm. H. Halliburton, Esq’r., as his attorney, was made defendant; and an answer filed for him, denying the title of plaintiff, and setting up title in himself; and making exceptions to the Sheriff’s deed exhibited and relied on by plaintiff, on the grounds
1. That the Justice of the Peace had no jurisdiction to condemn the land to sale, &c.
2. That the Justice had no jurisdiction after prayer and grant of appeal.
3. That no bond was filed by the plaintiffs in the attachment suit before the Clerk issued the execution to the Sheriff for the sale of the land, &c. t
The Court overruled the exceptions, and on trial of the case before the Court sitting as a jury, the plaintiff was permitted to read the Sheriff’s deed in evidence, against the objection of defendant.
Plaintiff also read in evidence, besides the deeds relied on by him,-from the judgment docket of the Clerk, an abstract of the judgment of the Justice of the Peace entered therein by the Clerk; and admitted that no bond had been filed before the issuance of the execution thereon,
Defendant read in evidence a deed exhibited with his answer, showing his title to the land; and also a transcript of the proceedings and judgment before the Justice of the Peace in the attachment suit.
Declarations of law were made by the Court, to which defendant excepted, and other declarations were moved by him, some of which were refused, and he excepted; which will be noticed below.»
The Court found for plaintiff, and rendered judgment in his favor for possession of the land; defendant moved for a new trial, which was refused, and he took a bill of exceptions, and appealed to this Court.
OPINION.
I. “A Justice of the Peace shall not have jurisdiction where a lien on land, or title or possession thereto is involved.” Constitution of 1874, Art. VII, sec. 40.
The act of 23d January, 1875, (acts of 1874-5, p. Ill) provides that when a Constable to whom an attachment is directed by a Justice of the Peace, can find no personal proper - ty of defendant, he shall levy the writ upon any lands, tenements, town lots, equity of redemption, &c., belonging to defendant, subject to execution, and make return, describing the property levied upon. Sec. 1.
Section 2d of the act provides that if plaintiff obtain judgment in the suit in which land, &c., has been attached, he may file a transcript of the proceedings and judgment of the Justice in the office of the Clerk of the Circuit Court, which, when entered on the judgment docket, shall have the same force and effect as a judgment rendered in the Circuit Court, upon which an order of sale may be issued by the clerk, directed to the Sheriff, under which the attached property may be sold, &c.
The act makes no provision for the Justice of the Peace issuing the attachment, and rendering the judgment, to make any adjudication as to a lien upon, or the title to, or possession of the land attached. It provides for a convenient and safe mode of subjecting lands of non-resident debtors, &c., to satisfaction, by attachment, of debts within the jurisdiction of Justices of the Peace.
The act is not in conflict with the clause of the Constitution quoted above, or any other. *
II. It appears that the attorneys ad litem appointed for Bush, by the Justice of the Peace in the attachment suit, asked for an appeal to the Circuit Court from the judgment of the Justice, which was granted on condition that the affiidavit required by law should be filed.
It does not appear that the affidavit was filed, but if it was, . and if the attorneys ad litem could take an appeal for the non-resident defendant, without authority from him, yet no appeal bond was given, and hence no stay of execution, (Gantt’s Dig., see. 3822, 96), and the plaintiffs in the attachment suit were not prevented by such grant of appeal from proceeding to execute the judgment by sale of the land in the mode provided by the act of January 23d, 1875; and the Court below correctly declared the law so to be.
HI. The second section of the act of 23d January, 1875, provides that “no sale (of the land attached) shall be made until the plaintiff shall execute bond to the defendant in the manner now prescribed by law.”
The bond so required to be given must be that provided for by section 4727, Gantt’s Dig,, where the defendant has been constructively summoned, and has not appeared, and who is allowed the right to a re-trial at any time within five years after judgment, by section 4732.
The Court below declared the law of this case to be that it was not necessary for the plaintiffs in the attachment suit to execute bond to defendant, Bush, because he appeared by the attorneys Freeman & Johnson, appointed for him by the Justice of the Peace, who entered a general denial of the account, and demanded a jury.
This Court has decided that an attorney ad litem appoint-4J xx ed under section 4727 Gantt’s Digest, for a defendant constructively summoned, cannot by virtue of such appointment enter the appearance of defendant so as to give the Court jurisdiction of his person. Henry vs. Blackburn, 32 Ark., 445.
It was not the duty of the attorneys ad litem, by virtue of their appointment by the Justice, to enter a general denial of the account, and demand a jury trial, and they could not thereby waive any legal right of defendant, without authority from him.
When a regular attorney, who is a licensed and sworn officer of a Coart, and acting in the line of his profession, appears for a party, his authority to represent him will be presumed, until properly questioned. Tally vs. Reynolds, 1 Ark., 99; Cartwell vs. Menifee, 2 I b., 356.
So here if the transcript of the proceedings before the Justice of the Peace, had merely shown that on the day fixed for trial, Freeman & Johnson appeared as attorneys for Bush, and entered a denial of the account sued on, and demanded a jury trial, their authority to represent him might be presumed. But the transcript shows that they were appointed attorneys for him by the Justice of the Peace, and that they accepted the appointment, and the presumption is that they acted by virtue of that appointment, in the absence of any showing or indication that they had authority from Bush.
Section 41, Chapter 17, of Gould’s Digest, required a bond of indemnity to be executed to the defendant in attachment, before execution could issue, or his property be sold. In Rust vs. Reives, 24 Ark., 359, the Court said it was unques tionably law, that no execution could be awarded, or property sold until such bond was executed. But as the Court had ordered an execution, it would be presumed that the law had been complied with.
Here there is no room for presumption, for on the trial of this case appellee admitted that no bond had been executed.
proceedings by attachment against the property of a non-resident is Statutory, out of the course of the common law,, and must be strictly followed to make a valid sale of property. The language of the Statute in question is preemptory: “No sale shall be made until the plaintiff shall execute bond to the defendant,” &c.
In this case the plain requirement of the Statute was disregarded, and we are not at liberty to treat it as merely directory, and hold the sale of the land attached to be valid.
Reversed, and remanded for a new trial. | [
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