text
stringlengths 8
185k
| embeddings
listlengths 128
128
|
|---|---|
Cockrill, C. J.
This appeal is prosecuted to reverse a judgment dissolving an attachment. Both parties were mercantile firms. Probst & Hilb brought the suit against the appellees upon an account due them for merchandise, and sued out an order of attachment upon the ground that they had disposed of their property for the purpose of defrauding their creditors. Subsequently the affidavit for attachment was amended, and the appellees were then charged with having shipped a part of their property out of the state, not leaving enough therein to satisfy their debts. No defense was made to the main action, and judgment was rendered for the appellants, but the grounds for attachment being controverted, and a jury called to try that issue, a verdict was returned for the appellees and judgment dissolving the attachment was entered upon it.
The only question at issue was the truth or falsity of the allegations in the affidavit for the attachment. As to the first ground for attaching, the substanntial facts are as follows: Several months prior to the institution of the suit the appellees, being in failing circumstances, made an assignment for the benefit of their creditors. The assignment purported to convey all of the debtors’ property of every character, to a trustee for the benefit of the creditors. A schedule or inventory of their property was made out by the debtors and delivered to the trustee with the deed of assignment. It was not referred to in the deed and did not state that it embraced all theproperty assigned. It was intended as a guide to the assignee in his effort to collect and identify the property. The schedule was made on the night of October 28, 18«1, at the time the assignment was finally agreed upon and drawn. The assignment bears date and was delivered the next day. The proof shows that at the time of making out the' schedule the debtors owned six bales of cotton, some promissory notes of the face value of $300, or more, and several hundred dollars in currency, which they intentionally omitted from the schedule and failed to deliver to the assignee. Their explanation of this was that they intended to use these assets for the purpose of paying off the claims of certain home creditors, and they actually devoted them to that purpose, except the proceeds of two bales of cotton, which they say their agent embezzled. Before the assignment they had agreed to deliver the cotton to one of their creditors in payment of a debt due by the firm. The settlement was not consummated, but after the assignment the four bales were delivered on account, in pursuance of the agreement. The notes had been offered to another creditor in payment of his debt a short time before the assignment, but as his debt was already secured he declined to receive them in satisfaction; but when the schedule was made the assignors resolved to withhold them for the purpose of effecting a settlement with the creditor, and subsequently had them pledged to a bank in Port Smith as collateral security for a loan of money to the creditor to discharge his debt.
The currency that was on hand at the time of making the schedule was delivered to their attorney just before the assignment was consummated, with instructions to carry it to Port Smith and there pay off a note of the partners upon which a neighbor, whom they desired to protect, was liable as indorser. The attorney accepted the commission for them and discharged the debt after the assignment was executed.
The.assignors do not deny that it was their intention, at the time of making the assignment, to withhold a valuable part of their assets from the assignee and to withdraw that property from the operation of the assignment. As the assignment purported to convey all their property, and the schedule was in effect an assurance that it embraced, if not the property conveyed, at least all that the assignors were then mindful of, with nothing concealed or intentionally omitted, the intentional withholding of a valuable part was a manifest deception. The suspicion of creditors would, naturally, be disarmed by the fair appearance of affairs, and they would be induced to rest quiet in the belief that the debtors had, in fact, appropriated all their property to the payment of their debts. The assignment would thus enable the debtors more successfully to convert the property reserved to their own use — it would become a cloak for the accomplishment of their secret designs. “An intentional omission” of property from a schedule under such circumstances, as is well said1 by the New York court of appeals, “calculated (as it is) to deceive and lull into slumber and inactivity the interest and diligence of the creditor, would plainly argue a fraudulent purpose.” Shiltz v. Hoagland, 85 N. Y., 464; Bank v. Halsey, 57 Barb., 249; Craft v. Bloom, 59 Miss., 69.
Here the withholding was confessed to be intentional, the design was coeval with and. entered into the execution of the assignment, and if the facts were not explained by the debtors, the court or jury trying the issue were not at liberty to withhold the brand of fraud — so far at least as the assignors were concerned.
The only explanation offered was that the assets were reserved with the intention of devoting them to the payment of certain home creditors, who were not preferred by the terms of the assignment. The fact remains, however, that the property was really reserved for the time to the use of the assignors. That, the law inhibits. The preconceived intention, to devote the property to the payment of debts, could not change the legal effect. There was nothing to prevent a change of the purpose at any time; and, moreover, the commission of an act unlawful in itself is not made legal by the fact that it proceeds from a commendable, motive. In Sparks v. Mack et al., 31 Ark., 666, it was ruled that a deed fraudulent in its inception could not be made good as to third persons by a subsequent parol agreement. The deed under consideration-designated the creditors who were to receive a preference-under its operation, and each of the other creditors had a right to infer that when those named were paid, the residue of the assets would be distributed ratably among the-others. Besides, if the assignors could administer upon any part of the property they affected to assign, or control it for a purpose not contemplated by the assignment,, what would prevent them from secretly enjoying the fruits of it if they so elected ? The creditors for whose benefit the reservation was intended had no power or control over it. It was not their property, and when the two bales of cotton were lost, the creditor for whom they were intended did not pretend to assume the loss. It is-true it was the duty of the assignee, if he assumed to act under the assignment, to take possession of this property as of the other assets, but that would not affect the intention of the debtors in making the assignment. In contemplation of law, that act was a fraud upon the appellants’ rights. It is not necessary for us to determine-whether the assignee participated in the fraud, or whether-his participation was essential in order to avoid the deed. The only parties concerned in this litigation are the attaching creditors and the assignors in the deed. The real and personal assets assigned by the debtors are attached as-their property in this action, but neither the assignee nor-any one else has seen fit to intervene and assert a claim to-any part of it. The title to the property is therefore not in issue, and we can make no adjudication about it that would be binding on an adverse claimant, if there is one. The- ■defendants to the action having made the conveyance with a fraudulent intent, the attachment should have been sustained, regardless of any other question. Enders v. Richards, 33 Mo., 598.
Upon the second ground the appellants sustained their position without contradiction under the rule announced in Durr v. Hervey, 44 Ark., 301.
As the judgment is contrary to the evidence, it must be reversed, and the case remanded for a new trial. | [
-80,
108,
-4,
45,
26,
96,
40,
-70,
-47,
64,
55,
87,
-7,
-57,
1,
127,
-11,
105,
117,
106,
-107,
-73,
3,
-23,
-46,
-109,
-77,
-59,
-76,
109,
-28,
87,
12,
33,
66,
-39,
-26,
-126,
-63,
92,
-50,
5,
-119,
-28,
-39,
-128,
52,
-69,
20,
79,
113,
-116,
-70,
38,
29,
67,
73,
46,
107,
57,
-48,
-8,
-85,
7,
127,
86,
-111,
103,
-112,
67,
-40,
46,
-112,
61,
-127,
-23,
122,
-74,
-122,
84,
3,
25,
-116,
102,
39,
20,
-92,
-27,
-68,
12,
46,
126,
-65,
-89,
-77,
88,
11,
65,
-66,
-99,
116,
71,
-105,
-2,
-5,
-115,
29,
108,
5,
-57,
-44,
-45,
-81,
62,
-100,
19,
-17,
-89,
16,
97,
-51,
-96,
92,
103,
57,
-101,
-122,
-13
] |
Battle, J.
Plaintiff, Levi H. Springer, states, in his complaint on file herein, among other things, as follows: That he was the owner of the east half of section 30, in township 18 south, and in range 2 west, in Chicot county, and of personal property; that this tract of land was assessed for taxation for the year 1884 at $320, and his personal property at $360; that the total valuation of the assessment of the real estate of Chicot county for 1884 is $983,032, and of the personal property $346,385, amounting in the aggregate to the sum of $1,329,417.
That various persons, having judgments in the circuit court of the United States for the eastern district of Arkansas against the county of Chicot on coupons of bonds issued to certain railroad companies, amounting in the aggregate to over $120,000, obtained various writs of mandamus from the said circuit court of the United States, commanding the county court of Chicot'county to levy a tax sufficient to pay the aggregate amount of said judgments ; and that thereafter the county court, composed of the county judge and some of the justices of the peace of Chicot county, met on the third Monday in July, 1884, at the court-house of said county, “ for the purpose of levying the county taxes and making appropriations for the expenses of the county,” for the year 1884, and levied, among other taxes, a tax of 20 mills on the dollar on the taxable property of the county to pay said judgments so far as it would extend; that the tax of 20 mills is illegal and void, for many reasons stated, which are unnecessary to mention in this opinion.
The prayer of the complaint is that the collection of the 20 mills tax be perpetually enjoined.
The defendant, Abner Gaines, collector of Chicot county, demurred to the complaint, because the facts therein stated were not sufficient to constitute a cause of action. The court overruled the demurrer, and the defendant electing to rest on his demurrer, a decree was rendered perpetually-restraining and enjoining the collection of the 20 mills tax, and the defendant appealed.
“As a general rule the state courts refuse to trespass uPon the clearly established jurisdiction of the United g^tes courts, and refuse to grant injunctions against the enforcement of judgments recovered in those courts, preferring that whatever ground of equitable relief may exist against such judgments should be urged in the United States courts themselves. Especially will the state courts refuse to interfere in cases where jurisdiction is expressly conferred by statute upon the federal courts, as in the case of a judgment for an infringement of letters patent. And as between the state and federal courts, in which this jurisdiction is co-ordinate over the same subject matter, that court which first obtains jurisdiction will be left to retain it to the end, and its process will not be interfered with by injunction from the other tribunals.” 1 High on Injunctions, sec. %66.
In Taylor v. Carryl, 20 How., 583, it was held “ that the property seized by the sheriff under the process of attachment from the state court, and while in the custody of that officer, could not be seized or taken from him by a process from the district court of the United States, and that the attempt to seize it by the marshal, by a notice or otherwise, was a nullity, and gave the court no jurisdiction over it, because to give jurisdiction to the district court, in a proceeding in rem, there must be a valid seizure and an actual control of the res under the process.”
Freeman v. Howe, 24 How., 450, was an action of replevin instituted in a state court against a United States marshal to recover possession of property held by the marshal under process of attachment issued by a clerk of a United States circuit court io a suit instituted in the last named court. It was contended by the plaintiff in the replevin suit that the process of attachment was directed against the property of the defendant in the attachment, and conferred no authority upon the marshal to take his property. In reply, Mr. Justice Nelson, in delivering the opinion of the court, said: “But this involves a question of right and title to the property under the federal process, and which it belongs to the federal, not to the state courts, to determine. This is now admitted; for though a point is made in the brief by the counsel for the defendant in error, that this court had no jurisdiction of the case, it was given up on the argument. And in the condition of the present case, more than this is involved; for the property having been seized under the process of attachment and in the custody of the marshal, and the right to hold -it being a question belonging to the federal court, under whose process it was seized, to determine, there was no authority, as we have seen, under the process of the state court, to interfere with it. We agree with Mr. Justice Greer in Peck et al. v. Jennis et al., 7 How., 624: ‘It is a doctrine of law too long established to require citation of authorities, that where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every court; and that, where the jurisdiction of a court, and the right of plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court.’ ‘Neither can one take the property from the custody of the other by replevin, or any other process y for this would produce a conflict extremely embarrassing to the administration of justice.’ ”
He adds further on: “Reference was made, also, on the ■argument m the present case, to an opinion expressed by Chancellor Kent, in his Commentaries, as follows: ‘ If the officer of the United States who seizes, or the court which awards the process to seize, has jurisdiction of the subject matter, then the inquiry into the validity of the seizure belongs exclusively to the federal courts. But if there be no jurisdiction in the instance in which it is asserted, or if a marshal of the United States, under an execution in favor of the United States against A, should seize the person or property of B, then the state courts have jurisdiction to protect the person and property so illegally invaded.’ ”
“The error into which the learned chancellor fell, from not being practically familiar with the jurisdiction of the federal court, arose from not appreciating, for the moment, the effect of transferring from the jurisdiction of the federal court to that of the state, the decision of the question in the example given; for it is quite clear, upon the principle stated, the jurisdiction of the former, and the validity and effect of its process, would not be what the federal, but state court, might determine. No doubt, if the federal court had no jurisdiction of the case, the process would be invalid, and the seizure of the property illegal, for which the aggrieved party is entitled to his remedy. But the question is, which tribunal, the federal or state, possesses the power to determine the question of jurisdiction or validity of the process? The effect of the principal stated by the chancellor, if admitted, would be most ■deep and extensive in its operation upon the jurisdiction ■of the federal court, as a moment’s consideration will •show. It would draw after it into the state courts, not ■only all questions of the liability of property seized upon mesne and final process issued under the authority of the federal courts, including the admiralty, for this court can be no exception for the purposes for which it was seized, but also the arrests upon mesne, and imprisonment upon final process of the person in both civil and criminal cases, for in every case the question of jurisdiction could be made; and until the power was assumed by the state court, and the question of jurisdiction of the federal court was heard and determined by it, it could not be known whether, in the given case, it existed or not. We need scarcely remark, that no government could maintain the administration or execution of its laws, civil or criminal, if the jurisdiction of its judicial tribunals were subject to the determination of another.”
In Riggs v. Johnson County, 6 Wall., 166, plaintiff recovered judgment in a circuit court of the United States against a county for interest on railroad bonds, issued under a state statute, in force prior to the issue of the bonds, which made the levy of a tax to pay such interest obligatory on the county. A state court perpetually enjoined the county officers against making any levy of taxes to pay such bonds and the interest thereon. After the injunction granted by the state court had been issued, plaintiff applied to the circuit court in which he had recovered his judgment for a mandamus to compel the county officers to levy a tax to pay his judgment. The county officers answered, making as return the injunction previously granted by the state court. The circuit court refused to grant the application. The Supreme Court of the United States, holding that mandamus against the county officers to levy the tax was the appropriate and proper remedy in the case, said : “ Authority of the circuit courts ” of the United States “ to issue process of any kind which is necessary to the exercise of jurisdiction and agreeable to the principles and usages of law, is beyond question, and the power so conferred cannot be controlled either by the process of the state courts, or by any act of a state legislature. Such an attempt was made in the early history of federkl jurisprudence, but it was wholly unsuccessful. Suit in that case was ejectment, and the verdict was for the plaintiff. Defeated in the circuit court, the defendant went into the state court and obtained an injunction staying all proceedings. Plaintiff applied for a writ of habere facias possessionem, but the judges of the circuit court being opposed in opinion whether the writ ought to issue, the point was certified to this court; and the decision was that the state court had no jurisdiction to enjoin a judgment of the circuit court, and the directions were that the writ of possession should issue. Prior decisions of the court had determined that a circuit court could not enjoin the proceedings in a state court, and any attempt of the kind is forbidden by an act of congress. *****
‘State courts are exempt from all interference by the federal tribunals, but they are destitute of all power to restrain either the process or proceedings in the national court. Circuit courts and state courts act. separately and independently of each other, and in their respective spheres of action the process issued by the one is as far beyond the reach of the other as if the line of division between them ‘ was traced by landmarks and monuments visible to the eye.’ ******
“Viewed in any light, therefore, it is obvious that the injunction of a state court is inoperative to control, or in any manner to affect the process or proceedings of a circuit court, not on account of any paramount jurisdiction in the latter courts, but, because, in their sphere of action, circuit courts are wholly independent of the state tribunals. , Based on that consideration, the settled rule is, that the remedy of a party, whose property is wrongfully at tached under process issued from a circuit court, if he wishes to pursue it in a state tribunal, is trespass, and not replevin, as the sheriff cannot take the property out of the possession and custody of the marshal. Suppose that to be so, still the defendants insist that the writ was properly refused, because the injunction was issued before the plaintiff’s application was presented to the circuit court. Undoubtedly circuit court's and state courts, in certain controversies between citizens of different states, are courts of concurrent and co-ordinate jurisdiction, and the general rule is, that as between courts of concurrent jurisdiction, the court that first obtains possession of the controversy, or of the property in dispute, must be allowed to dispose of it without interfei’enee or interruption from the co-ordinate court. Such questions usually arise in respect to property attached on mesne process, or property seized upon execution, and the general rule is, that where there are two or more tribunals competent to issue process to bind the goods of a party, the goods shall be considered as effectually bound by the authority under which they were first attached or seized. *****
“ The argument for the defendants is, that, this rule controls the present controversy, but the court is of a different opinion, for various reasons, in addition to those already mentioned. Unless it be held that the application of the plaintiff for the writ is a new suit, it is quite clear that the proposition is wholly untenable. The theory of the plaintiff' is, that the writ of mandamus, in a ease like the present, is a writ in aid of jurisdiction which has previously attached, and that, in such cases, it is a process ancillary to the judgment, and is the proper substitute for the ordinary process of execution, to enforce the payment of the same, as provided in the contract. Grant that such is the nature and character of the writ, as applied in such a casé, and it is clear that the proposition of the defendants must utterly fail, as in that view there can be no conflict of jurisdiction, because it has already appeared that a state court cannot enjoin the process or proceedings of a circuit court.
“ Complete jurisdiction of the case, which resulted in the judgment, is conceded ; and if it be true that the writ of mandamus is a remedy ancillary to the judgment, and is the proper process to enforce the payment of the same, then there is an end of the argument, as it cannot be contended that a state court can enjoin any such process of a federal court.”
Mr. Justice Strong, in delivering the opinion of the court, in the Supervisors v. Durant, 9 Wall., 417, said: “ Indeed, it is not now contended that mandamus is not a proper remedy in . cases like the present, where a relator has obtained a judgment, which can be satisfied only by the levy of a tax, and when the proper officers of a municipality, against which the judgment has been obtained, refuse or neglect to levy it. That it is a legitimate remedy has been ruled in very many cases.
“In such a case ‘the writ is * * * neither a prerogative writ, nor a new suit. On the contrary, it is a proceeding ancillary to the judgment which gives the jurisdiction, and, when issued ’ it ‘ becomes a substitute for the ordinary process of execution, to enforce the payment of the same, as provided in the contract.’ It is a step toward the execution of the judgment, and necessary to the jurisdiction of the court.
“ It is insisted, however, that even if the circuit court may award a mandamus to aid in the enforcement of its judgments, the writ should not have been awarded in this case, because the district court of Washington county had enjoined the defendants against levying and collecting any tax for the payment of the bonds and coupons, for a portion of which the relator had obtained his judgment. This injunction the defendants pleaded, and to the plea the relator demurred. That such an injunction was wholly inoperative to prevent the circuit court of the United States from enforcing its judgment by mandamus to the defendants to compel them to levy the tax which the law authorized and required, is no longer to be doubted. * * * The true reason why the injunction was not a bar to the mandamus is, that the district court of the state and the circuit court are independent courts, and that neither can interfere with the process or proceedings of the other. It would hardly be contended that a state court can enjoin a defendant against paying a judgment which has been, or may hereafter be, recovered in a circuit court of the United States. If it may, federal jurisdiction is a myth. It is at the mercy of the state tribunals. Yet there is no substantial difference in principle between the allowance of such an injunction and that of one against a proceeding in aid of an execution — a mandamus to levy an authorized tax to pay a judgment.”
In The Mayor v. Lord, 9 Wall., 409, it was held: “An injunction from a state court against a city’s levying a tax to pay certain bonds of the city cannot be set up to prevent a mandamus from the federal courts ordering the city to levy a tax to pay a judgment obtained against it in the federal court on those same bonds.” Mr. Justice Swayne, in delivering the opinion of the court, said: “The injunction eannpt avail the respondents. The relator was not a party to the proceeding. If he had been, it is not competent for a state tribunal thus to paralyze the process issued from a court of the United States to give effect to its judgment. This is a sound and salutary principle. It is vital to the beneficial existence of the national courts, and has heretofore been applied by this tribunal, upon the fullest consideration, in other cases presenting the same question.”
The questions involved in the cases cited may now be regarded as finally settled in the manner decided by the Supreme Court of the United States, as we have shown. According to the opinions cited, it must follow that a state court cannot enjoin the collection of- a tax levied pursuant to a mandamus issued by a federal court to enforce the payment of its judgments. There is no difference in the right to enjoin the levy and the right to enjoin the collection of a tax, the grounds of injunction being the same before and after its levy. If the mandamus of the federal court would be sufficient to defeat it in one case, it would be in the other.
If the appellee is entitled to the injunction asked and contended for, he should go into the circuit court of the United States for the eastern district of Arkansas to seek it. That court can grant the relief, if he is entitled to it. A bill to enjoin the collection of the tax filed in that court-, on the equity side thereof, would not be an original suit, but ancillary and dependent, supplementary merely to the original suit in which the mandamus was issued, and would be maintained without reference to citizenship or residence of the parties. Freeman v. Howe, 24 How., 460; Kippendorf v. Hyde, 110 U. S., 276; Pacific R. R. v. Missouri Pacific R. R., 111 U. S., 505.
The judgment of the court below is, therefore, reversed, and the complaint is dismissed without prejudice. | [
-76,
-18,
-3,
124,
-8,
-32,
26,
-70,
82,
33,
-28,
83,
-19,
78,
16,
45,
-14,
29,
113,
104,
68,
-73,
19,
98,
-112,
-77,
-103,
-43,
59,
77,
-28,
-10,
8,
56,
-54,
-11,
71,
98,
-51,
-36,
-114,
8,
-85,
76,
-43,
64,
56,
47,
82,
11,
49,
-81,
-9,
42,
21,
-55,
73,
47,
-35,
-85,
-47,
-45,
-78,
93,
60,
6,
-127,
54,
-104,
1,
-56,
56,
-104,
49,
68,
-8,
115,
-90,
-126,
84,
9,
-103,
13,
104,
102,
35,
61,
-49,
-96,
-120,
46,
-13,
-99,
-89,
-110,
88,
67,
-49,
-66,
-107,
118,
-48,
-121,
-10,
-27,
4,
21,
44,
7,
-114,
-108,
-89,
-89,
100,
-106,
83,
-21,
47,
48,
64,
-113,
-110,
93,
-57,
50,
-101,
-105,
92
] |
Lawson Cloninger, Judge.
This is an action brought to recover sales commissions alleged to be due the appellee, Ron W. Collar, for radio advertisements sold while in the employment of appellant, KLAZ Radio. Appellee was a commission salesperson for appellant from May of 1979 until July 25, 1980, at which time he resigned his position. Appellee was compensated on a commission basis amounting to 15% of his gross sales collected by appellant within 60 days of billing. Appellee brought this suit, alleging that he was also entitled for sales made by him and collected within 60 days of billing, but collected after the effective date of his resignation. Appellant argued that it was their policy to not pay after the effective date of termination of employment regardless of when collections were made.
A jury trial resulted in a verdict finding the appellee entitled to commissions for collections after his resignation in the amount of $3,500.08 for which judgment was entered. Appellant now brings this appeal.
Its first point for reversal is that the verdict is contrary to a preponderance of the evidence presented at trial. However, this is not the correct standard from an appeal of a jury verdict. It is only when there is no substantial evidence to support a jury verdict or where fair minded men can only draw a contrary conclusion to that reached by the jury that an appellate court can set aside a jury verdict. B. J. McAdams, Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519, 579 S.W.2d 608 (1979).
In the instant case, there was a fact question presented regarding whether or not appellee was entitled to additional compensation. Collar and two other employees of appellant testified that it was their understanding that they would receive commissions if an account was billed and paid within two months, even after termination of employment. Two employees of appellant testified that the company policy had been that a salesman was paid on collections received through his last day of employment. This presented a fact question for the jury and there was substantial evidence to support the verdict.
Appellant’s second point for reversal is that the instructions to the jury were confusing and erroneous in the statement of law in this case. Specifically, appellant alleges that plaintiff’s jury instruction No. 6 was an erroneous instruction. There is no evidence in the transcript that appellant ever objected to the instruction, or that he proffered his own instruction. No party may assign as error the giving of an instruction unless he objects thereto before or at the time the instruction is given. Arkansas Rules of Civil Procedure, Rule 51. Further, a party’s failure to offer an instruction of his own on the issue precludes him from raising the argument on appeal. Baxter v. Grobmyer Bros. Construction Co., 275 Ark. 400, 631 S.W.2d 265 (1982).
Appellant’s third point for reversal is that the court erred in failing to instruct the jury on the statutory definition of wages. Appellant asked for an instruction based on Ark. Stat. Ann. § 81-1103(n) (Supp. 1983) which states in pertinent part:
'Wages’ means all remuneration paid for personal services including commissions and bonuses and cash value of all remuneration paid, in any medium other than cash and all remuneration paid as ‘back pay’ in settlement of a claim or grievance involving a discharge. The reasonable cash value of remuneration paid in any medium other than cash shall be estimated and determined in accorance with the rules prescribed by the Director . . .
Appellant cites no authority for his argument that this should have been included in the instructions to the jury. As appellee points out, this definition of wages is only relevant when used in the text of the Employment Security Act. See Ark. Stat. Ann. § 81-1103, supra. There is no issue involved in this case which deals with the Employment Security Act. Further, appellant has not shown how he was prejudiced by refusal to give the instruction.
Appellant’s fourth point for reversal is that the court erred in failing to grant the appellant’s motion for a mistrial on the basis of misconduct of appellee’s attorney. Specifically, appellant argues that it was prejudiced by appellee’s attorney asking the witness, Debbie Gilstrap, if she remembered the radio station being sued on several occasions. Appellant argues that this was an obvious attempt to prejudice the jury against appellant. No authority is cited for this position. It is further argued that the trial judge neglected to instruct the jury to disregard counsel’s prejudicial remarks. However, appellant did not ask the trial judge to admonish the jury. All it requested was a mistrial, which the trial judge refused. The granting of a motion for mistrial is an extreme remedy and has generally been held to be within the province of the trial court. Gustafson v State, 267 Ark. 830, 593 S.W.2d 187 (Ark. App. 1980).
Appellant’s counsel, on re-direct examination, asked the witness if all employees were treated the same upon termination. On re-cross examination, appellee’s attorney asked if other employees had contended that they were entitled to wages which had not been paid. When the witness stated she could not remember, appellee’s counsel asked, “You don’t remember the station getting suéd on several occasions on wages?” Appellant’s counsel objected to the question which was sustained. Although we believe, as the trial judge did, that the question was prejudicial, we hold that he did not abuse his discretion in denying a mistrial, since the witness did not answer the question. Further, appellant’s attorney invited the line of questioning when he asked the witness if all employees were treated the same upon termination.
Affirmed.
Corbin and Glaze, JJ., agree. | [
-112,
-24,
-7,
-116,
8,
96,
34,
-72,
66,
35,
55,
82,
109,
-62,
29,
47,
-33,
-3,
85,
104,
-44,
-89,
3,
99,
74,
-77,
-39,
-63,
-75,
79,
-90,
-43,
77,
48,
-62,
-59,
-26,
66,
-51,
126,
-82,
-122,
-119,
105,
-7,
-64,
48,
-88,
20,
11,
17,
-84,
-5,
46,
25,
-61,
77,
46,
127,
57,
-64,
-8,
-29,
-123,
127,
22,
-79,
53,
26,
7,
-40,
62,
-108,
49,
-128,
-24,
114,
-74,
-122,
52,
11,
29,
8,
98,
51,
36,
-111,
-27,
-68,
-68,
46,
-83,
-113,
-25,
-103,
124,
11,
37,
-74,
-99,
98,
6,
7,
-2,
-6,
-108,
-99,
108,
3,
-98,
-44,
-109,
77,
102,
-98,
-118,
-49,
-93,
16,
113,
-49,
-96,
93,
71,
82,
-101,
-122,
-46
] |
Cockrill, C. J.
This is a continuation of the case reported in 40 Ark., 124. As will be seen1 from the statement of the case then made, it is an action of ejectment,' the plaintiff’s title being based upon a purchase made in pursuance of a sale of the land in controversy in an attachment proceeding instituted before a justice of the peace. The attachment was sued out against Bush, as a non-resident, upon constructive service only. The justice’s record recited that Freeman & Johnson were appointed attorneys ad litem for the defendant, and that they accepted the appointment; it afterwards recites that they appeared as the attorneys of the defendant and filed an answer and made defense for him, which was in part successful. Upon the former appeal this court ruled that, iu the absence of a showing to the contrary, the authority of the attorneys to .appear in the case must be referred to the appointment by the justice, and as they could not, by virtue of such appointment, enter the appearance of the defendant so as to give the court juristiction of his person, the case was treated as a proceeding against a defendant summoned by constructive service only, and. reversed the judgmeut (which was then in favor of plaintiff’ below) because no bond had been filed by him before the sale of the land as in such cases is required.
On the trial, after the appeal, the plaintiff offered to ■show by parol testimony that Ereeman & Johnson had been retained by Bush after their appointment by the justice, and were authorized to answer and defend for him as they had done. .The court excluded the evidence, and-treating the attachment proceeding as this court had done, gave judgment for the defendant.
The evidence offered tended to explain and make certain what is not apparent from the justice’s docket. It was a presumption of fact only, raised by a prior recital of •the record, that the attorneys appeared by virtue of the .appointment- by the justice. The question of the capacity in which the attorneys appeared was not at issue before the justice, and was not adjudicated by him-"When the attorneys appear for the purpose of filing an .answer, they are described as the defendant’s attorneys without qualification., Evidence that they were in fact his attorneys did not contradict the record (Freeman on ■Judgments, sees. 274-5), and we think it is indicated in the former opinion that it would be competent to show by parol the capacity in which they acted. Justice’s records are not required to be strictly formal and great latitude is indulged in permitting the facts upon which jurisdiction is based to be shown. Their affirmative recitals of jurisdiction are only prima facie evidence at best. Jones v. Terry, 43 Ark., 230; Easton v. Bratton, 13 Tex., 30.
In Jolly v. Foltz, 31 Cal., 321, under circumstances similar to those here presented, evidence aliunde the record was held competent to show that the justice had jurisdiction of the person of a defendant in an attachment proceedings the record not disclosing the fact. Vandeutzen v. Sweet, 51 N. Y., 381.
It was determined on the former appeal that the bond referred to in section 4126, Mansf. Digest, is the bond required by section 5190. Now, the latter bond is required! only when the proceeding is against a defendant constructively summoned. It follows that if the justice had jurisdiction of the person of Bush, the bond was not required. It was error, therefore, to exclude the testimony offered to establish that fact.
Reverse and remand for new trial. | [
-80,
-18,
109,
-84,
10,
96,
56,
62,
81,
-29,
103,
83,
-83,
-53,
8,
113,
-47,
109,
117,
123,
-57,
-77,
119,
-62,
-10,
-109,
90,
-43,
-75,
76,
-10,
119,
76,
-88,
-62,
85,
70,
74,
-59,
84,
-54,
1,
57,
110,
-53,
-64,
48,
57,
80,
15,
97,
-34,
-29,
46,
53,
-57,
-24,
44,
106,
61,
112,
-39,
-114,
-123,
-1,
22,
-77,
101,
-102,
3,
-40,
46,
-112,
48,
0,
-23,
114,
-90,
18,
-12,
15,
57,
8,
-30,
98,
35,
-47,
-87,
-4,
72,
79,
58,
31,
-90,
80,
88,
-53,
105,
-106,
-99,
53,
16,
-89,
102,
-8,
77,
28,
108,
15,
-49,
-42,
-77,
-49,
-78,
-98,
11,
-17,
65,
20,
80,
-49,
-30,
92,
103,
48,
-47,
-116,
-94
] |
Battle, J.
Some time about the latter part of 1879 plaintiff- George C. Shaw and others rented to the defendant, George W. Hill, the land in controversy for the year 1880, in consideration of his promise to pay the taxes assessed against the same for-the years 1878 and 1879, and a reasonable sum of money in addition thereto; and plaintiff- also agreed to deduct from the rent, and give to defendant credit for the value of such improvements as he should make upon the land during the year 1880. On or about the 1st day of January, 1880, he took possession under his contract to rent, and did some repairing on a house and fence on the land, which he testifies was worth as much as the rent of the laud for 1880. The land was returned delinquent at the time this contract was made on account of the non-payment of the taxes of 1878. Instead of paying the taxes as he agreed, he suffered the land to remain delinquent for one yeai’, and then, on the 2d day of June, 1880, attempted to redeem the same and take a deed of conveyance thereof by the clerk, in his own name, under and by virtue of an act entitled “An act to provide for the redemption of delinquent lands,” approved March 14, 1879. He claimed the land, under the deed, as his own, and held adverse possession thereof, and at the same time knew plaintiffs claimed it. He paid taxes on it for the years 1880, 1882 and 1883, amounting in the aggregate to the sum of $2.86, and with full knowledge of plaintiffs’ title, and that they claimed it, made improvements thereon before and after the commencement of this action.
The court below found that the land was the property of plaintiffs; that they were entitled to the possession thereof; that defendant paid taxes and made improvements on it, before the commencement of the suit, of the value of $89.74, and after, of the value of $125; that the rents of the land were worth $125; and rendered a decree in favor of plaintiffs for the land, and directed that a writ of possession in favor of plaintiffs be issued after the expiration of ninety days upon plaintiffs paying to defendant the $89.74; and plaintiffs appealed.
The act of March 14,1879, is unconstitutional. The deed made by the clerk under that act is void. Bagley v. Castile, 42 Ark., 77. The defendant is entitled to a credit for the improvements made under his rent contract on the rent of the land for 1880, according to the terms of his contract. The other improvements made by him were made with full knowledge of plaintiff’s claim to the land and under a pretended title acquired by a violation of his contract with plaintiffs. He is, therefore, not a bona fide occupant and not entitled to offset plaintiffs’ claim for rents with the value thereof, or to compensation therefor. As a general rule, only the bona fide occupant is entitled to mitigate the owner’s claim for damages and mesne profits, by offsetting the value of bis improvements, or to compensation therefor, under the laws of this state. It would be manifestly inequitable to the owner, and, indeed, a highly dangerous policy to make allowances to one for the expenditures he has made for improvements, i$' disregard of the owner’s rights, with full knowledge of Ibis claim. Fee v. Cowdry, 45 Ark., 410.
The decree of the court below is therefore reversed, and this cause is remanded with instructions to that court to enter a decree herein in favor of appellants against appellee for the lands, and for the.rent thereof for the year 1881 and every subsequent year it has been occupied by appellees, less the $2.86 paid for taxes, and for costs incurred in the court below, and to enforce the same by appropriate orders and proceedings. Judgment will be entered here against appellees for the costs of appeal. | [
-15,
74,
-40,
110,
-54,
64,
8,
-102,
67,
35,
-90,
95,
-3,
64,
16,
105,
-13,
125,
113,
104,
70,
-77,
7,
98,
-112,
-13,
-39,
-43,
-79,
77,
-26,
-42,
12,
36,
-54,
-97,
66,
-90,
-87,
-36,
-114,
-115,
-85,
108,
-43,
64,
52,
63,
16,
11,
113,
-89,
-9,
45,
49,
-37,
72,
61,
-113,
41,
-47,
-5,
-122,
-123,
-18,
6,
33,
100,
-98,
7,
-54,
24,
-112,
53,
-124,
-88,
115,
-90,
-106,
118,
5,
-71,
40,
34,
102,
0,
-27,
-1,
-8,
-120,
39,
-10,
-113,
-89,
-60,
64,
10,
72,
-66,
-99,
109,
80,
-57,
118,
-27,
20,
20,
44,
7,
-49,
-106,
-95,
-113,
40,
-118,
3,
-29,
47,
48,
113,
-113,
-90,
92,
103,
56,
-101,
-115,
-36
] |
Tom Glaze, Judge.
This case arose from appellees’ purchase of a home that Bennie Montgomery and his wife were building in the North Hills Subdivision in Ashdown, Arkansas. Appellant supplied Montgomery with building materials which were delivered to and used in the con struction of appellees’ home. Appellees paid the contractor, Montgomery, but Montgomery failed to pay the appellant, the supplier of the materials. As a consequence, appellant filed its lien against the appellees’ property. It is undisputed that neither Montgomery nor appellant gave appellees the notice required under Ark. Stat. Ann. § 51-608.1 et seq. (Supp. 1983), that their property could be subject to a lien if persons supplying materials to improve the property were not paid in full. No such notice was required prior to §§ 51-608.1 et seq., which became effective on October 1, 1979. The issue in this appeal springs from the fact that appellant supplied and delivered materials to appellees’ homesite twice before October 1, 1979. Its other deliveries, a total of nineteen, came after October 1. Appellant argues that because it commenced deliveries to the worksite before the effective date of the new statutes, notice to appellees was not required. The trial court rejected this argument, finding that appellant had no valid, enforceable lien for the materials furnished after October 1, 1979; however, it found appellant entitled to a lien for $887.84, covering the two deliveries prior to that date. We believe the trial court’s findings were correct.
Relying on Kizer Lumber Co. v. Mosley, 56 Ark. 516, 20 S.W. 409 (1892), appellant contends the materials sent to appellees’ homesite were supplied under a single or executory contract that existed at the time the first materials were delivered—September 27, 1979. Thus, appellant concludes, if the new statutory notice provisions were construed to apply to an agreement preceding their effective date, such a construction or application would be an impairment of a contract prohibited by the Constitutions of both the United States and Arkansas. U.S. Const. art. I, § 10, cl. 1; Ark. Const. art. 2, § 17.
First, we note that appellant fails to cite any case in support of its constitutional argument. However, assuming such argument has validity — which we seriously doubt — we need not reach it because the evidence supports the trial court’s finding that appellant’s agreement with Montgomery to supply materials was severable and terminable after each purchase rather than a single contract to supply all the necessary materials to build appellees’ house. Of course, if each purchase by Montgomery was a separate contract, the notice provisions in §§ 51-608.1 et seq. clearly applied to each purchase made and delivered beginning on October 1, 1979.
Appellant’s single-contract theory is based on its reading of Kizer, supra, but that case simply does not support appellant’s position. The Court in Kizer was confronted with a statute of limitation issue — when the materialman, Kizer Lumber, was required to file its lien. Citing the applicable law, the Kizer court stated:
If the materials were furnished under one contract, he [the materialman] should file the account. . . after the last was delivered; but if the materials were furnished under separate and distinct contracts, it [the account] should be filed under each contract.... If, however, he [the materialman] began to furnish “without any specific agreement as to the amount to be furnished,” or the time within which they were to be furnished, and there was a “reasonable expectation that further material” would “be required of him,” and he was “afterwards called upon from time to time to furnish the same,” he should file it. . . after the last item was delivered.
Id. at 519, 20 S.W. at 410.
In reviewing the evidence, the Court found that when the contractor Mosely purchased his first lumber from the Kizer Lumber Company, he made no contract to buy any other, but said to them that he might need more. Under these facts, the Court held the materials were presumed to have been furnished under one contract and the amounts due under the contract should be treated as one demand.
Here, appellant’s president testified that materials for appellees’ home were supplied on an open account in Montgomery’s name. Appellant presented no evidence showing it was to supply all materials for appellees’ home. Nor was it shown that Montgomery, either expressly or impliedly, gave appellant any “reasonable expectation” that he would — or even might — purchase other materials with which to build appellees’ house. While Montgomery did purchase other materials from appellant for that project, he could have terminated those purchases at any time. This being true, we conclude the trial court correctly found that §§ 51-608 et seq. and the notice provisions contained therein applied to the deliveries of materials by appellant to the appellees’ property after October 1,1979. Because there is no dispute that appellees did not receive the notice required under those statutory provisions, appellant simply is not entitled to a lien for the value of the materials delivered after October 1, 1979,
We affirm.
Mayfield, C.J., and Cloninger, J., agree. | [
112,
110,
-35,
124,
-118,
64,
122,
-104,
121,
-91,
37,
87,
-17,
-58,
28,
113,
-95,
121,
113,
104,
84,
-78,
35,
74,
-46,
-77,
-15,
-43,
-72,
79,
-92,
-98,
76,
37,
-54,
-107,
-58,
-126,
-35,
88,
46,
-123,
11,
100,
-7,
64,
52,
-121,
92,
79,
49,
-92,
-13,
45,
24,
-53,
40,
44,
125,
61,
-48,
-15,
-101,
13,
127,
7,
-109,
68,
-104,
-123,
-8,
10,
-124,
49,
1,
-24,
115,
-74,
86,
108,
65,
25,
9,
38,
98,
2,
-115,
-17,
-52,
-104,
14,
-10,
29,
-89,
-112,
121,
11,
9,
-66,
-107,
120,
22,
36,
118,
-26,
5,
95,
124,
-126,
-114,
-10,
-96,
15,
112,
-100,
3,
-18,
7,
48,
117,
-50,
-30,
92,
102,
51,
27,
-114,
-39
] |
James R. Cooper, Judge.
In this workers’ compensation case, the appellant challenges the Workers’ Compensation Commission’s finding that the appellee was an employee of the appellant and thus entitled to benefits for injuries he received while working for the appellant.
The appellant purchased a truck stop in April of 1982 and immediately began to remodel it for reopening the following month. The appellant was hiring new employees to operate the restaurant and to help with the remodeling. The appellee applied for work with the appellant as a cook. No openings were available for this position, but the appellee was persistent in his desire for employment. The appellant needed a cabinet built for the kitchen of his truck stop and the appellee, who professed to have carpentry skills, was given the job of constructing this cabinet. The appellant informed the appellee that the cabinet would have to be built so as to have an existing cabinet top fit it. The appellee measured the area where the cabinet was to be placed and left to pick up his tools and to purchase the materials for the job. Upon returning that same afternoon, the appellee began to build the frame for the cabinet. He worked on the back of his pickup truck. He completed the frame but found that it needed modifications so it would fit. He carried the cabinet frame back to his truck and either while altering the frame or cutting a bracket for another part of the kitchen, he suffered an injury to his hand.
The evidence in this case is not undisputed and there is some inconsistency in the testimony of the interested witnesses. There was a conflict in the testimony regarding the length of the appellee’s employment, the anticipated method of payment, whether the appellee was asked to perform other jobs the day he was building the cabinet, and whether the appellee was to be retained by the appellant upon completing the cabinet.
On appeal, we review the evidence in the light most favorable to the Commission’s decision and affirm if it is supported by substantial evidence. Office of Emergency Services v. Home Insurance Co., 2 Ark. App. 185, 618 S.W.2d 573 (1981). Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W.2d 692 (Ark. App. 1979).
The issue of whether, at the time of an injury, an individual was an independent contractor or an employee, depends on the facts of each case. Franklin v. Arkansas Kraft, Inc. 5 Ark. App. 264, 635 S.W.2d 286 (1982). In determining whether an injured person is an employee or an independent contractor for purposes of workers’ compensation insurance, there are a number of factors to be considered. Some of these factors are:
(1) the right to terminate the employment without liability;
(2) the method of payment, whether by time, job, piece, or other unit of measurement;
(3) the right to control the means and the method by which the work is done;
(4) the furnishing, or the obligation to furnish, the necessary tools, equipment, and materials.
The right to control the method and manner of the work is the traditional test derived from the common law master and servant type cases where the liability of the master for torts of the servant was the issue. This test is often limited in the modern context of business and commerce and has recently shown signs of yielding to the more flexible relative nature of the work test as set out in Sandy v. Salter, 260 Ark. 486, 541 S.W.2d 929 (1976); and Franklin, supra. This test, first articulated by Professor Larson in his treatise on Workmen’s Compensation Law, has gained approval for its more realistic approach to the issues related to a worker’s status. The main consideration in this test is “the relationship between the claimant’s own occupation and the regular business of the asserted employer.” Sandy. Larson, Workmen’s Compensation Law, § 43.51 (1973).
In the case at bar, the Commission specifically adopted the detailed findings of the administrative law judge. Although all of the findings may not preponderate toward a finding of an employer/employee relationship between the parties, we find substantial evidence to support the Commission’s decision. The fact that we might, faced with the same facts, have reached a contrary conclusion does not require reversal. This Court does not determine where the preponderance of the evidence lies. The conflicts in the testimony were for the Commission to resolve. As we pointed out in Franklin, supra, cases involving the independent contractor versus employee question are frequently very close, as in this one. A contrary decision would undoubtedly have been supported by substantial evidence, but we cannot say that fair-minded persons, with these facts before them, could not have reached the conclusion arrived at by the Commission. Therefore we must affirm. Office of Emergency Services v. Home Ins. Co., supra; Bunny Bread v. Shipman, supra.
Affirmed.
Corbin and Glaze, JJ., agree. | [
80,
106,
-40,
-83,
10,
98,
58,
26,
48,
-124,
37,
87,
-17,
-60,
29,
79,
-25,
93,
-43,
59,
-105,
-77,
3,
-86,
-13,
-77,
-13,
-59,
-72,
75,
-76,
84,
76,
112,
74,
-47,
-26,
-64,
-63,
28,
-56,
-124,
-85,
-22,
121,
0,
56,
-22,
80,
71,
49,
-74,
-109,
40,
25,
-49,
45,
46,
91,
57,
-15,
-79,
-46,
13,
127,
21,
-95,
36,
-98,
39,
-48,
28,
-104,
49,
32,
-23,
80,
-74,
-125,
52,
99,
-85,
0,
98,
98,
34,
-103,
-59,
108,
-72,
22,
-86,
29,
-91,
-71,
24,
27,
11,
-65,
-99,
90,
20,
12,
124,
-3,
85,
31,
108,
-125,
-122,
-74,
-78,
-115,
49,
-100,
-117,
-17,
-113,
-80,
113,
-52,
-30,
125,
71,
115,
27,
-101,
-70
] |
Tom Glaze, Judge.
This appeal arises from the property settlement provisions of a divorce decree entered in Pulaski County on March 3, 1983. The divorce came nearly two years after the first action was filed between these parties. In that initial action, the appellee, Bessie Duncan, filed for divorce and on January 7, 1982, during the pendancy of the suit, the parties executed a property settlement agreement. On May 21, 1982, appellee’s complaint was dismissed and appellant filed for divorce in Pulaski County. Before that divorce action was concluded, appellee went to Florida, where she filed another divorce action on June 2, 1982. However, on March 3, 1983, the Arkansas court awarded appellant a divorce and adjudicated the parties’ property rights. Appellant urges the chancellor erred (1) in not considering the partial performance of the parties’ previous property settlement agreement; and (2) in not stating the reasons for an inequitable division of marital property as required by Act 705 of 1979.
For his first point for reversal, appellant argues that because the parties had partially distributed their personal property prior to the hearing by the terms of their 1982 agreement, the chancellor abused his discretion in not upholding the agreement in its entirety. Appellant points to evidence of the parties’ intent to carry out the terms of the agreement. Appellant also maintains that appellee relied on the contract for benefits and is therefore estopped to deny its validity. In our search of the record, however, we find that the issue of upholding the agreement was not raised below. The appellant’s complaint for divorce, which was filed four- and-one-half months after the contract was executed, included no mention of the contract. In fact, the complaint provided, in part, “The parties own individually and jointly real and personal property which should be partitioned and divided as provided by law.” Even though the property settlement agreement was introduced as an exhibit at the divorce hearing, the appellant did not ask the chancellor to enforce it. It is well settled that appellant cannot raise an issue for the first time on appeal. Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982).
For his second point for reversal, appellant contends the chancellor erred in not stating reasons for an inequitable division of marital property as required by Act 705 of 1979. Both parties testified that after signing the property settlement agreement in January, 1982, they partially divided their jointly-held personal property. The most significant items included six $10,000 savings certificates which the parties divided evenly. At the time of the hearing, the appellant testified that he still had all his one-half, i.e. thirty thousand dollars, and that he had spent only a portion of the interest he had earned from his deposit. The appellee, on the other hand, testified that she had only seven thousand dollars remaining of her thirty thousand, and that she had spent the other twenty-three thousand dollars on living expenses for the year preceding the hearing. The chancellor ordered that all marital property be divided equally between the parties at the time of the divorce, thus requiring appellant to divide his thirty thousand dollars with appel-lee, and appellee to divide her seven thousand dollars with appellant. Appellant argues that the result of the chancellor’s decree is that appellant received less than one-fourth of the savings certificates, while appellee received more than three-fourths of the certificates. We agree with appellant that such a result is inequitable and is prohibited in view of the chancellor’s failure to set out in writing his reasons for an inequitable division of the parties’ property. Ark. Stat. Ann. § 34-1214 (Supp. 1983) provides, in part:
(A) At the time a divorce decree is entered:
(1) All marital property shall be distributed one-half [1/2] to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employ-ability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker; and (9) the federal income tax consequences of the Court’s division of property. When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties and such basis and reasons should be recited in the order entered in said matter.
In the case at bar, the chancellor ordered that all personal property be divided equally; he specifically included in his decree “all savings and investments held in the name of either party.” Nonetheless, the chancellor failed to credit the parties with those savings which comprised marital property previously and voluntarily divided between them. In failing to do so, he clearly erred by departing from the equal division mandated by § 34-1214(A)( 1), supra. If the chancellor had specific reasons for not equally dividing the parties’ marital savings, he failed to state those reasons in compliance with § 34-1214, supra. Cf. Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982) (Chancellor erred in ordering wife’s one-half interest in marital home to be applied to net worth of family partnership in which she had only a one-fourth marital interest and further erred in awarding her one-fourth partnership interest to her husband).
The chancellor no doubt considered the parties’ disparate positions; this is evidenced by his awarding $780 a month alimony to the wife to offset the obvious inequality in the parties’ earning abilities. Therefore, we reverse only that portion of the decree which ordered a division of the savings certificates already divided by the parties and remand for the court to enter its order consistent with this decision.
Reversed and remanded.
Cloninger and Corbin, JJ., agree.
The question of whether jurisdiction lay in Arkansas or Florida was adjudicated below and is not an issue on appeal. | [
-80,
-20,
-43,
77,
-118,
64,
42,
-84,
99,
-121,
53,
83,
-19,
94,
24,
105,
66,
105,
96,
104,
-47,
-77,
22,
2,
98,
-77,
-39,
-35,
-67,
-17,
-12,
86,
76,
105,
-54,
-43,
70,
-62,
-63,
88,
74,
6,
-117,
108,
-39,
-58,
60,
105,
16,
15,
5,
-122,
-13,
-83,
49,
-63,
108,
46,
-115,
60,
-48,
24,
10,
5,
127,
7,
-111,
100,
-38,
5,
120,
78,
-112,
53,
0,
-84,
115,
38,
-106,
116,
105,
-103,
8,
98,
114,
3,
64,
-1,
-104,
-120,
38,
63,
13,
-90,
-14,
24,
107,
69,
-82,
-100,
127,
84,
69,
-10,
-16,
13,
31,
108,
7,
-50,
-108,
-75,
13,
120,
-102,
3,
-21,
-61,
48,
81,
-49,
-94,
93,
71,
123,
-101,
-98,
-46
] |
Cockrill, C. J.
Richardson filed his complaint in equity against Green and wife to enforce payment of the purchase-money of lands which he had conveyed to Green intrust for Green’s .wife. The consideration, it was alleged, was-$3,350, of which the sum of $2,687.50 was paid in cash* the husband executing his note for the residue. There- had been a suit at law, it was alleged, on the note, which resulted in a judgment in personam against Green, but nothing eould be made upon it owing to the defendant’s insolvency.
The defendants demurred to the complaint upon the grounds, 1st, that the plaintiff’s deed to Green as trustee was absolute in form; 2d, that the note executed by Green was not in his trust capacity, but to bind him personally ; 3d, that a judgment had been rendered against him on the note; and, 4th, that there was no equity in the bill. All the grounds set forth in the demurrer are properly embraced in the last cause assigned; but the court, to quote the language of the judgment, found that “the demurrer as to the several grounds was well taken,” and the bill was dismissed.
The deed executed by Richardson is not exhibited with his complaint, and it does not appear from the allegations whether the deed recites payment of the purchase price or not. That, however, is immaterial, as the question arises between the parties to the deed. It has always been the rule in this state, that an acknowledgment in the body of the deed of the receipt of the whole purchase money, if it has not in fact, been paid, is not a discharge of the lien. Shall v. Biscoe, 18 Ark., 142; Scott v. Osborn, 21 ib., 202; Harris v. Hanks, 25 ib., 510; Chapman v. Liggett, 41 Ark., 292.
Nor is the right to resort to the lands for payment affected by the fact that the vendor takes the note of the vendee for the unpaid purchase money. When the deed recites payment and is prematurely delivered, the vendor, so far from manifesting an intention to abandon his right, moves rather for the protection of it, in taking written evidence to countervail the acknowledgment of payment contained in the deed.
But it is alleged that the deed was executed to Green, as trustee, and that the note is his personal obligation; and it seems from the demurrer to be argued from this that additional security was thus taken by the vendor and his right to a lien consequently waived.
In the absence .of an express waiver of the lien, or some conduct or act which should be regarded as manifesting the intention to waive it, the vendor’s equitable right against the land, remains. It arises as an implication of law without an express contract to sustain it. The acceptance of personal security, however, other than the note of the vendee, is considered prima facie evidence of the intention not to rely upon it, and casts upon the vendor the burden of showing that such was not the intention. Lavender v. Abbott, 30 Ark., 172; Mayors v. Hendry, 33 ib., 240; Stroud v. Pace, 35 Ark., 100; Cordovers v. Wood, 17 Wall., 1; Mackreth v. Symmons, 1 White & T. Lead. Cas. in Eq., 447.
If Green were a stranger to the purchase, in the case presented, then the fact that the note for the deferred payment of the purchase money was executed by him, would raise the presumption that the vendor intended to look to him instead of the land for payment. But for aught that appears from the record, Green was, in fact, the purchaser. It is true his wife takes the beneficial interest in the estate by the conveyance, but the whole negotiation, as far as the complaint develops, was with the husband, and it is not alleged that the wife made the purchase and paid the money that was received by the vendor. Under these circumstances, the husband, in equity, should be regarded as the real purchaser as far as the vendor is concerned, and it would follow that accepting a note from him for the deferred payment would raise no inference of an intention to waive the lien. This is held to be true even where the deed is made directly to the wife, the husband executing the note without becoming a party to the conveyance. Hunt v. Marsh, 80 Mo., 396; Davenport v. Murray, 68 ib., 198.
The general doctrine relative to the equitable right of the vendor, “ rests upon the postulate that it is not equitable for one to absorb the wealth of another without recompense ; and, therefore, as between grantor and grantee, the court will intend that the purchased estate was to be held for the unpaid purchase money, unless circumstances are found which repel the presumption.” Hiscock v. Norton, 42 Mich., 320.
Here the husband, who executes the note, is himself the grantee in the deed. It is not material what interest in the estate the conveyance may vest in him — accepting a note from the grantee cannot alone be said to evince the intention to abandon the lien. The vendor seems to have done only what it was most natural for him to do from the nature of the transaction, and the relationship existing between the maker of the note and the cestui que trust in the deed.
It has sometimes been held necessary for the vendor to proceed at law for his debt and exhaust his remedy there, before equity would grant him relief against the lands, but it has never been regarded that obtaining judgment upon the note given for the purchase money was presumptive evidence of the abandonment of the equitable right. The allegation as to the judgment at law and Green’s insolvency were unnecessary and yrere harmless surplusage in the complaint. Mayers v. Hendry, sup.; Whittington v. Simmons, 32 Ark., 377.
Let the decree be reversed, and the case remanded with instructions to overrule the demurrer. | [
-78,
110,
-112,
13,
-54,
-32,
40,
-118,
81,
-128,
51,
87,
121,
-62,
8,
33,
-16,
73,
80,
106,
86,
-77,
111,
96,
-14,
-77,
-39,
93,
-75,
75,
-28,
-41,
76,
52,
-62,
21,
103,
66,
-63,
16,
6,
-123,
-119,
65,
-39,
-64,
48,
49,
0,
73,
97,
-49,
-13,
40,
57,
-61,
73,
42,
-1,
-87,
-48,
-24,
-101,
13,
123,
7,
-109,
71,
-36,
3,
-38,
106,
-112,
61,
0,
-24,
127,
-90,
6,
116,
79,
-99,
8,
102,
102,
48,
5,
61,
-104,
-103,
46,
-2,
13,
-90,
-46,
104,
11,
41,
-66,
-100,
-20,
6,
103,
118,
-6,
-115,
29,
108,
31,
-97,
-44,
-79,
-85,
-76,
-118,
3,
-18,
59,
-124,
97,
-49,
-94,
92,
97,
120,
-101,
-98,
-7
] |
Smith, J.
Sandy Smith sued the receiver of a railroad corporation to recover damages for being forcibly ejected from a moving train. His complaint alleged severe external and permanent internal injuries, and he recovered a verdict and judgment for $2000.
The testimony for the plaintiff tended to show that he was a colored man, above sixty years of age — one of a party of emigrants that included his wife and step-children, besides others ; that they had bought tickets from Dyers-burg, Term., to Surrounded Hill, in this state; that after leaving Memphis on the road operated by the defendant, it being now dark, the conductor demanded the plaintiff’s ticket, which was surrendered; but the conductor said it was not good, although the rest of the party were permitted to ride on similar tickets, purchased at the same time and place; that the plaintiff’ had been compelled, by threats and intimidation, to jump off' the train, and was thrown to the ground with great violence, sustaining contusions upon the head, right arm, shoulder and hip, and also being internally hurt, evidenced by frequent hemorrhages, and derangement and obstruction of the bowels ; and that his health and capacity to labor had been seriously impaired by the fall. It did not appear that any medical man had been called in, until a long time after the injury was received ; nor was any medical testimony given as to the nature and extent of the injuries.
After the plaintiff had rested, the defendant moved the court that the plaintiff be required to submit to an examination of his person by experts chosen in equal numbers by the parties, whose fees the defendant offered to pay, with a view to ascertain the character, extent and permanency of the plaintiff’s hurts. This motion was denied.
The earliest reported case on this subject, to which our attention has been called, is Walsh v. Sayre, 52 Howard’s Practice Rep., 334, decided by the superior court of New York in 1868. That was an action for malpractice against a surgeon, it being alleged that he had unskillfully performed an operation on the plaintiff’, a child of seven years. The defendant asked that the plaintiff be required to appear and submit to a personal inspection of the affected part by himself and such other competent surgeons as he might name, undér the direction of a referee to he appointed for that purpose. And it was held that the power of the court in the premises was analagous to the power to compel the discovery of books, papers and documents, in a case where a party to the litigation, knowing or having the means of knowing material facts, seeks to obtain an undue advantage by withholding and concealing the sources of information. And the judge who delivered the opinion after adverting to the natural delicacy which disposes the mind to shrink from such an examination, when the discovery asked is of a portion of the human body,'proceeds to show that such investigations are not unusual in cases of mayhem, of divorce for impotency, and of alleged pregnancy.
This case was approved in Shaw v. Van Rensselaer, 60 Howard’s Pr. Rep., 143. And the right of the court to order an examination, in an action for personal injuries, was considered unquestionable in Harrold v. N. Y. R. Co., 1 Hun., 268.
An important authority upon the subject is the case of Schroeder v. C. R. I. & P. P. Rd. Co., 47 Iowa, 375.
Upon this question the court says :
“ The issues of the case involved the extent of the injuries inflicted upon the plaintiff, and their effect upon his health and strength. He testified upon the first trial that he was so far disabled that he could not engage in labor requiring the exercise of common strength and activity. The testimony was to the effect that his hip and back were the seat of great pain, that the injuries had impaired his nervous system, and that his limbs and some of his internal organs were, to an extent, paralyzed.
“After the jury were impanelled, and before the introduction of any testimony, the defendant filed a written application asking that a proper order of the court be made, requiring the plaintiff to submit to an examination by physicians' and surgeons, that they might determine the true condition of his health, and the character and extent ■of his ailments, to the end that it might be known whether, indeed, he was suffering from any disability, and, if so found, whether it originated from the injuries sustained by the timbers falling upon him, as claimed by him in his petition and testimony. The defendant in its application •asked that such an examination should be made by a proper number of physicians, to be selected, in equal numbers, by plaintiff and defendant, and it was proposed by the defendant that its own medical officer should not be one of' the number, and that the expenses of such an examination would be paid by the defendant.
“Whoever is a party to an action in a court, whether a natural person or a corporation, has a right to demand therein the administration of exact justice. The right can ■only be secured and fully respected by obtaining the exact and full truth touching all matters in issue in the action. If truth be hidden, injustice will be done. The right of ¡the suitor, then, to demand the whole truth, is unquestioned ; it is the correlative of the right to exact justice.
* * * * * _ *
“ To our minds the proposition is plain that a careful •examination by learned and skilled physicians and surgeons would have opened a road by which the cause could have been conducted nearer to exact justice than in any other way. The plaintiff, as it were, had under his own control testimony which would have revealed the truth more clearly than any other that could have been introduced. The •cause of truth, the right administration of the law, demand that he should have produced it.
******
“ But it is urged that the court was clothed with no power ¡to enforce obedience of the plaintiff had such an order been made. Its power, in our judgment, was amply sufficient to coerce obedience. The plaintiff would have been ordered by the court, by submitting his person to examination, to permit the introduction of testimony in the-case. His refusal would have been an impediment to the-administration of justice, and a contempt of the court’s authority. He would have been subject to punishment as a recusant witness who refused to answer proper questions-propounded to him. Should such recusancy too long delay the court, or prove an effective obstruction to the progress-of the case, the court could have stricken from the pleadings all the allegations as to permanent injury, and withdrawn from the jury that part of the case. The plaintiff',, by voluntarily withdrawing his claim for such injury, would have been relieved from the necessity of such examination, and proceedings as for contempt would have been suspended. When it is remembered that plaintiff' was a witness before the court, that the examination of his person would have had the effect to elicit testimony from him, the-power of the court over him is readily understood.
“ It is said that the examination would have subjected him to danger of his life, pain of body, and indignity to-his person. The reply to this is, that it should not, and the court should have been careful to so order and direct. Under the explicit directions of the court, the physicians should have been restrained from imperiling, in any degree, the life or health of the plaintiff. The use of anaesthetics, opiates, or drugs of any kind, should have been forbidden,, if, indeed, it had been proposed, and it should have been prescribed that he should be subjected to no tests painful in their character. As to the indignity to which an examination would have subjected him, as urged by counsel, it is. probably more imaginary than real. An examination of the person is not so regarded when made for the purpose- of administering remedies. Those who effect insurance-upon their lives, pensioners for disability incurred in the-military service of their country, soldiers and sailorsenlisting in the army and navy, all are subjected to rigid examinations of their bodies, and it is never esteemed a dishonor or indignity. The standing and character of the physicians-who should have been appointed to make the examination would not only have secured the plaintiff from insult, or-indignity, but would have been a guaranty that nothing-would have been attempted which would have endangered his life or health.
* * * * * *
“It is the practice of the courts of this state, sanctioned-by more than one decision of this court, to permit plaintiffs who sue for personal injuries to exhibit to the jury their wounded or injured limbs, in order to show the extent of their disability or suffering. If for this purpose-the plaintiff may exhibit his injuries, we see no reason why he may not, in a proper case and under proper circumstances, be required to do the same thing for a like purpose-upon the request of the other party. If he may be required to exhibit his body to the jury, he ought to be required to submit it to examination of competent professional men.”’
White v. Milwaukee City Ry. Co. 61 Wis., 536, S. C. 24 Am. Law Reg., 527, was an action for personal injuries by a female. The defendant moved for an examination of the plaintiff’s person by competent physicians, and the application was refused, the judge remarking that he had no authority to grant the order.
The Supreme Court of Wisconsin thereupon use the following language:
“ It will be seen that thq court denied this request on the sole ground that it had no authority to compel the plaintiff to submit to an examination against her will. On principle and authority we are satisfied this was error. The then condition of the injured limb had a most important bearing upon the question whether the plaintiff's injuries were permanent, and an examination at that time, the results of which would have been put in evidence before the jury, would in ail probability have greatly aided them in determining the extent and consequences of the injury. It would, or might have been, more satisfactory and conclusive evidence on that subject than the statements of the plaintiff', or the opinion of the medical witnesses.”
The case of the Atchison, Topeka and Santa Fe R. Co. v. Thul, 29 Kansas, 466; S. C., 44 Amer. Rep., 659, is also in point. It is there said:
“The tendency of modern adjudications and of modern thought is to open the door as wide as possible to the introduction of all evidence that may throw light upon the particular subject then undergoing investigation. All the obtainable evidence and instruments of evidence, within certain limitations, may be presented to the jury for their inspection and consideration, and all proper modes of investigation or inspection may be resorted to for the purpose of enabling the jury to arrive at just and correct conclusions. Many instruments of evidence, however, can be examined only by the aid of experts, and in such cases the aid of experts is not only allowable, but may be demanded as a matter of right by the party needing such aid.
“ It was shown in the present case by the testimony of Dr. Williams that the nature, the extent, and the permanency of the injury to the plaintiff’s eyes could not be determined with any reasonable degree of accuracy except by a careful examination, made by some oculist or person who had made diseases and affections of the eyes a special study; and we would naturally suppose that such would be the case, independently of the testimony of Dr. Williams. Hence it would seem that in a ease like the present the evidence of some such expert who had made such .an examination would be an almost indispensable necessity ; but such evidence in many cases could not be obtained unless the plaintiff were first compelled by an ■order of the court to submit himself to a personal examination by some such expert.”
Bryant v. Stillwell, 24 Pa. St., 317, was a suit on a building contract and the defense was that the house had been improperly constructed. Before the trial the plaintiff sent a person to examine the house, so that he might be able to testify how the work was done. The defendant refused to let him go through the house for the purpose. Judge Black, in the course of his opinion, said: To smother ■evidence is not much better than to fabricate it. * * * It .ought to be understood that where one party has the •subject matter of the controversy under his exclusive control, it is never safe to refuse the witnesses on the other side an opportunity to examine it, unless he is able to give a very satisfactory reason. Here there was no ground to ■believe that the witness would misrepresent what he might see. If the defendant had felt such a suspicion, he could have shown the house to as many others as he chose, and ■overwhelmed the one perjured man by a host of honest ones.”
The only case that militates against these views, that we are aware of, is Lloyd v. H. & St. Joe R. Co., 53 Mo., 509, where it is said: “The proposal to call in two surgeons .and have the plaintiff examined during the progress of the trial, as to the extent of her injuries, is unknown to our practice and to the law. There was abundant evidence on ■this subject on both sides; any opinion of physicians or surgeons at that time would have only been cumulative evidence at best, and the court had no power to enforce such an order.”
The refusal may have been proper enough in that case, as it appears that expert testimony had already been introduced, which, in the opinion of the court, was sufficient. But upon the question of power, and the means of enforcing obedience to the order, the decision seems not to have been well considered. Courts have very efficient remedies in their hands for the punishment of recusant witnesses or parties to suits.
The rule to be deduced from these cases is that where the plaintiff in an action for personal injuries alleges that they are of a permanent nature, the defendant is entitled, as a matter of right, to have the opinion of a surgeon upon his condition — an opinion based upon personal examination.
In refusing to order the examination, as it may do when the evidence of experts is already abundant, the circuit court must exercise a sound discretion; and its action is subject to review in case of abuse.
There could not be a more flagrant instance of the evils resulting from such a refusal than the present case affords. The plaintiff was an uneducated man, incapable of estimating the consequences of his injury, except by the pain and inconvenience which it had caused him. He was able to walk five or six miles the day after, the injury, and, indeed, then stated that he had not been hurt at all. No physician attended him or testified on the trial. His claim for damages was based principally on alleged internal injuries, which could only have been understood and properly estimated by a physician. The verdict must have been largely founded upon such injuries; for there were no visble wounds which the jury could appreciate. And yet the plaintiff was allowed to testify to great and permanent in juries, without the possibility of successful contradiction, the only means of ascertaining the real facts being denied to his adversary.
It was not disputed that the plaintiff leaped from the train while it was in rapid motion. The court referred it to the jury, under appropriate instructions, to say whether he acted voluntarily, or from a fear, generated by the conduct of the conductor, that worse consequence might befall him if he attempted to remain in the car.
For the error aforesaid, the judgment is reversed and cause remanded for another trial. | [
-80,
-24,
-84,
-66,
58,
96,
40,
26,
65,
-62,
-26,
115,
-51,
4,
1,
39,
-95,
59,
81,
51,
-10,
-45,
7,
-94,
-110,
-109,
123,
-57,
-78,
-53,
100,
-75,
77,
56,
66,
-103,
103,
74,
-51,
56,
-114,
-95,
-24,
-23,
27,
0,
56,
126,
-126,
71,
17,
-97,
-21,
46,
24,
81,
77,
61,
-5,
-88,
-56,
121,
-110,
5,
-11,
18,
-93,
100,
63,
35,
94,
24,
-40,
21,
50,
-8,
114,
-10,
-125,
-10,
109,
-87,
12,
98,
102,
49,
21,
-9,
16,
-72,
47,
38,
-99,
-90,
-93,
124,
67,
13,
-66,
-103,
106,
16,
-66,
56,
-3,
89,
81,
32,
-125,
-101,
-74,
-71,
-35,
-96,
-98,
51,
-30,
63,
4,
113,
76,
50,
92,
69,
127,
-101,
-114,
-98
] |
Smith, J.
The bill states that Mrs. Tate, through Radcliffe, her trustee, is the owner of and in the possession of the west half of east half of section 5, township 1 north, range 10 west. That she claims title through the following chain of conveyances: 1. Certificate of purchase from the state to John A. Winston, dated November 18,1856. 2. Warranty deed from Winston to Albert Rust, dated December 17, 1868. 3. Deed from a chancery commissioner to James T. Pace, conveying all Rust’s interests, dated February 7, 1874. 4. Deed from Pace and wife to RadclifFe, as trustee for Mrs. Tate, dated March 3, 1874. 5. Swamp land patent to RadclifFe as trustee of Mrs. Tate, dated December 10,1879, based upon and relating back to Winston’s original entry. 6 and 7. Deeds from RadclifFe and wife to Mrs. Tate, dated January 26,1876. 8. A deed from the commissioner of state lands to Mrs. Tate, dated February 1, 1879, for an undivided one-fourth interest in west half of southeast quarter of said section, based upon a previous forfeiture for taxes.
The bill further states that the defendant, Scruggs, holds under two donation deeds from the auditor of state, executed in 1875, one to M. N. Kerr, conveying the undivided three-fourths of the west half of northeast quarter of said section; and the other to E. W. Kerr, conveying the undivided one-fourth of the tract last mentioned and the undivided three-fourths of the west half of southeast quarter of said section. The Kerrs, in 1879, sold and conveyed to Scruggs. That the state acquired her title by the forfeiture of said lands, a part of them, for the taxes of 1868, a part for the taxes of -1869. That the defendant has no claim whatever to the undivided one-fourth of the west half of the southeast quarter of said section, for that is not included in his donation deeds. That the forfeitures under which defendant claims gave him no title, for the reason that the assessment and delinquent lists were not sworn to, and the taxes levied for 1869 were in excess of the legal limit. That the donations are void for the further reason that while at the time of their execution all the tract had been forfeited to the state, the said deeds purport to convey only undivided interests. Said deeds are also void because no improvements have ever been made under them, and they were obtained by fraud and misrepresentation. That nevertheless the defendant constantly asserts said land to be his own, impairing thus its market value, constantly trespasses upon it, and by his trespasses and menaces is about to drive the plaintiffs’ tenants out of possession. Prayer, that the defendant be enjoined, and that plaintiffs’ title be quieted, and for general relief.
The defendant filed an answer aud cross-bill, denying the ownership of plaintiffs and their possession.' Denies that Winston ever claimed said lands, or ever pretended to convey them. States that the duplicate certificate was procured from the land commissioner by fraud, and that Winston never assigned his certificate of purchase to any one. That plaintiffs’ tax deed is void, for the lands were not subject to sale. That the Kerrs donated said lands as stated in the bill, and went into immediate possession, and made the required improvements. That they procured from a justice of the peace the required certificate, showing their improvements, and on that obtained the donation deeds. That from the time of their donation to February 12, 1877, the Kerrs remained in the peaceable possession of the land, and then sold it to defendant. Thereupon defendant took possession, and has been in possession ever since. That defendant and his grantors have paid taxes thereon to the amount of $80, and have placed improvements thereon to the value of $600. The prayer was that his title be quieted.
The plaintiff answered the cross-bill, denying its allegations specifically.
The proofs showed that Scruggs had put into cultivation fifteen or eighteen acres on the north end of the tract in controversy; and that Mrs. Tate had built a house on the south end of it and had placed a tenant in possession, who proceeded to make a small clearing. The chancellor at the hearing dismissed the bill on the ground that Mrs. Tate’s possession was litigious and merely colorable, having been wrongfully acquired and incapable of being used as the basis of a suit to quiet title; her remedy being ejectment. This was error. Mrs. Tate was in the peaceful possession of a part of the tract. She had the right to enter, if not under her chain of title, which extended to the entire tract, yet by virtue of her purchase from the state of an undivided one-fourth interest in the south half of the tract, to which Scruggs had no claim at all. This made her a tenant in common with Scruggs.
But even if Mrs. Tate was not in a situation, by reason being out °f possession, to maintain a bill of this nature, yet when Scruggs filed a cross-bill founded on matters clearly cognizable in equity, this supplied any defect of jurisdiction, placed the court in possession of the whole cause and imposed the duty of granting relief to the party entitled to it — the original and cross-bill being but one cause. Cockrell v. Warner, 14, Ark., 345; Sale v. McLean, 29 ib., 612; Missouri v. Iowa, 7 Howard, 660.
As the testimony was all in and the cause ripe for hearing, we proceed to consider the merits and to render such decree as should have been entered below.
It may be conceded that Mrs. Tate would have a clear title to the whole land but for the intervening tax sale. The effect of a forfeiture for non-payment of taxes, if valid, is to divest the estate of the former owner. The donation deeds were prima facie evidence of a good title in the donees and that the land, or the interest in them which they purported to convey, had been regularly forfeited by the previous owners. Maxxsfield’s Digest, sec. 1$57.
It is argued, however, that the forfeiture for the taxes of . 1868 was illegal because the proofs show that the assessment roll was not returned until February 18, whereas section 26 of the act of July 23,1868, required it to be returned on or before December 31,1868, on which day, by section 29 of the same act, the county court was to hold a term and sit for three days as a court of appeals to hear grievances and correct assessments. Of this argument it is sufficient to say that no such issue was made or tendered by the pleadings. The tax title of Scruggs was not attacked for this reason, but for other and different reasons. The proofs taken were not directed to this point. But the county clerk attached to his deposition an extra-official certificate of the assessor for the year 1868, which bears the date of February 18, 1869. And the date of this paper, it is argued, fixes the date of the filing of the assessment list, in the absence of evidence to show the true date; according to the presumption, to which force was given in Moore v. Turner, 43 Ark., 243.
It would be an injustice to parties litigant to adjudicate their rights upon issues that were never raised in the court below. A plaintiff cannot be permitted to recover upon a case not made by his bill. The allegata and probata must correspond.
An inspection of the levies made for county purposes in 1869 fails to disclose that they exceeded the limits prescribed by sections 115-6 of-the act of April 8, 1869. One mill was levied for road purposes, two mills for bridges and for rebuilding certain bridges that had been washed away, and two mills for the support of the poor. A levy •of three and one-half mills was made to defray ordinary county expenses; and this was not excessive, provided the taxable property of the county did not amount to more than $4,000,000. There is nothing in the record to show what the amount of taxable property in Pulaski county then was. Six and one-half mills were levied for payment of county indebtedness, principal and interest. It is probable that the rate of taxation for the last mentioned purpose would be governed by the law that was in force when the debts were contracted. But at all events that levy does not violate the provisions of the act of April 8, 1869. For, while this act contemplates that a levy of ten mills on the dollar will ordinarily suffice for the current expenses of county government, yet it distinctly provides that for the payment of debts already contracted, the rate of taxation may be increased 50 per centum. So that the true limit of taxation for county purposes, in the case of a county burdened with an outstanding indebtedness, was not ten, but fifteen mills.
This leaves to be considered only the objection that the assessment roll for 1869 was not sworn to. Section 60 of the act of April 8, 1869, directs the assessor to return in tabular form the extent, description and value of real property in his county subject to taxation. This return is to be verified by an affidavit of its correctness and that the assessor has not appraised any tract or lot of land at less than its true value in money. The question is not so much whether this is a mandatory provision, as whether Mrs. Tate can, at this distance of time, take advantage of the omission of the required affidavit. For section 138 of the same act reads as follows:
“All actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot thereof, and all proceeding whereby is soughts to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform under the provisions of this chapter, in the assessment, appraisement, levying of taxes, or in the sale of lands or lots delinquent for taxes, or proceedings whereby is sought to avoid any sale under the provisions of this chapter for irregularity or neglect of any kind by any officer having any duty or thing to perform under the provisions of this chapter, shall be commenced within two years from the date of sale,, and not afterwards.”
What effect, if any, has this provision ? Taken in connection with section 140, which undertook to give to the recitals of the tax deed the force of conclusive evidence that each and every act and thing required to be done in order to constitute a valid tax sale had been done, the intention of the legislature undoubtedly was to cut off all defenses against the title after the lapse of two years, ex-' cept that the land was not taxable, or that the taxes had been paid before sale, or that the sale had been redeemed from. Later acts allowed the further defense that the owner labored under the disabilities of coverture, infancy, insanity or imprisonment.
But in this sweeping enactment the legislative department transcended the boundaries of its powers. It could not, under the constitution of 1868, or any similar constitution, enact a statute which should transfer one man’s property to another, under a guise of a sale for non-payment of taxes, when there had been no assessment or no levy of taxes. This would not be due process of law. Neither could it prescribe a short period of time, nor indeed any period, within which the owner must make his objections for such fundamental defects, he remaining in possession and being, in the instance supposed, in no default for not paying his taxes.
This two years statute came before this court in C. & F. R. Co. v. Parks, 32 Ark., 131. The substantial defense in that case was that the county court had attempted to levy a school tax without being thereunto authorized by a ■vote of the qualified electors' of the school district. It was •decided that the statute had no application to such a case. And the decision was sound,, since the objection went to the jurisdiction of the county court to levy the tax. • It was not a question of irregularity, but of power.
But the reasoning of Mr. Justice Walker leads inevitably to one of two conclusions: Either that the statute is inoperative for any purpose, or else it only begins to run from the expiration of the period of redemption. The reporter, who was counsel for the successful party, has drawn the last mentioned conclusion and in his head note has ■stated it as a point decided. But this is a mere inference ■or deduction, and is not justified by any announcement of the result reached contained in the opinion itself.
On the other hand, Mrs. Tate’s counsel contend that the ■case decides that the statute was void for the reason that no limitation could run in favor of a tax claimant without •actual possession. Certainly succeeding legislatures have not considered the effect of that decision to be to wipe out this section. For we believe it has been re-enacted in terms in every subsequent revenue law we have had. Neither the validity nor the construction of this statute has been ■settled by previous decisions of this court further than that it does not operate to deprive the former owner of any meritorious defense. And by meritorious defense we mean any act or omission of the revenue officers in violation of law and prejudicial to his rights or interests, as well as those jurisdictional and fundamental defects which affect the power to levy the tax, or to sell for its non-payment.
But while the act cannot have the free course that its framers intended, it is still our duty to give it such effect as may be consistent with legal and constitutional principles. And this may be best accomplished by restricting its operation to mere irregularities or informalities on the part of officers having some duty to perform in relation to the assessment, levy of taxes, or sale. Our legislation and previous decisions have always distinguished between this class of defects, which have no tendency to injuriously affect ■the tax payer, and substantial defects, such as go to the jurisdiction of the levying court to levy a particular tax, or to the power of the officer to sell for non-payment, or the omission of any legal duty which is calculated to prejudice the land owner. Thus the revised statutes of 1888 provided that no exception should be taken to any tax deed except such as applied to the real merits of the case. And this continued to be the law down to 1868. JRev. Stat., chap. 128, sec. 97; Gould’s Dig., chap. 11^8, sec. 131.
We have no doubt of the power of the legislature to • , _ , . , •cure any irregularity or illegality in a tax sale, which con- , •sists in a mere failure to observe some requirement imposed, not by the constitution, but by the legislature itself, and the non-observance of which does not deprive the former owner of any substantial right; such as the failure •of the collector to give bond (Powers v. Penny, 59, Miss., 5) or the failure of the assessor to take the oath of office, or to verify his assessment list by affidavit. The legislature might have dispensed with one or more of these requirements, as was done in the revenue act of July 23, 1868. So it might provide that a failure to comply with any or all such formal requirements by any officer who was charged with any duty in the proceeding, from the assessment to the execution of the tax deed, should be cured after two years from the sale.
We further hold that the limitation begins from the day the property is stricken off by the officer who conducts ■the sale. All technical objections to the sale, not actually prejudicial to the former owner, must be brought forward within two years under- penalty of not being afterwards regarded when the tax title is assailed.
In Waln v. Shearman, 8 Serg. & R., 357, and in Eldridge v. Kuehl, 27 Iowa, 160, u date of sale ” in similar statutes was construed to mean the completed sale, when the purchaser received his deed. But in Mitchell v. Etter, 22 Ark., 178, where the five years limitation statute in regard to judicial and tax sales was under discussion, such construction was declared to be at war with both the letter and spirit of the enactment. And whatever may be thought of the correctness of that decision on the main point involved — the running of the statute against all defenses in favor of the tax purchaser, whether he be in or out of possession — yet the case authoritatively fixes the legal signification of such language, and any future legislature, using the same language, will be presumed to have used it with reference to this judicial exposition of it.
The affidavit in question appears to have been intended to protect the interests of the state, rather than of the tax-payer, by guarding against an under valuation of property. And no owner of real estate could have been injured by its omission.
Again: it is claimed that the donations were void by reafa^ure t° make the required improvements. This, if it were so, would not benefit the plaintiff. The land would simply revert to the state. No doubt the improvements made by the Kerrs were of the most flimsy description. The act then in force was by no means stringent as to the character of the improvements. But the evidence, shows that some ten acres of land were cleared and fenced by the two donees. The nature and extent of the improvements were certified by a justice of the peace of the township in which the lands lay, to the auditor; and th'e state has made no complaint of their insufficiency. Perhaps no individual has such interest in the matter as to entitle him to be heard when he complains of the fraud practiced upon the state.
The decree is reversed and a decree will be entered here quieting the title and possession of the plaintiff, to and of an undivided one-fourth interest of the west half of southeast quarter, and of the defendant in and to the remaining three-fourths of that tract, and to all of the west half north-east quarter, as against all claims of each other. The appellant will recover the costs of this court; and the costs in the lower court are' to be divided equally between the parties. | [
-10,
106,
-40,
126,
58,
-32,
10,
-102,
107,
-95,
-31,
115,
-1,
0,
1,
53,
-29,
57,
81,
107,
-26,
-29,
79,
-93,
-78,
-77,
-37,
-49,
-73,
-43,
-18,
-42,
76,
40,
-54,
-35,
70,
-126,
-19,
-40,
-114,
1,
-87,
-63,
95,
-32,
56,
43,
16,
13,
85,
-34,
-77,
44,
113,
111,
105,
46,
-21,
-71,
64,
-24,
-65,
-41,
95,
7,
32,
-57,
-100,
-125,
-54,
42,
-110,
49,
8,
-24,
115,
-74,
22,
84,
13,
-119,
40,
34,
102,
1,
-3,
-19,
-104,
-120,
6,
118,
-115,
-90,
-48,
73,
99,
40,
-66,
-99,
124,
16,
39,
118,
-90,
-43,
21,
104,
37,
-113,
-106,
-79,
13,
-20,
-120,
3,
-13,
51,
48,
80,
-61,
-30,
93,
71,
60,
27,
-113,
-39
] |
Smith, J.
Lowenstine & Bro. sued Malpas for a debt alleged to be due by contract, and swore out an attach ment against his property. The defendant, in his answer, denied the indebtedness, because, as he said, he had transferred to the plaintiffs certain notes of third persons, which they had taken in satisfaction of their demand. He alsc* controverted under oath the ground of attachment. There was a jury trial and a verdict for the defendant, upon which a judgment of nil capiat and for costs was entered against the plaintiffs. And a motion for a new trial was overruled.
At an adjourned term of the court the plaintiffs, upon notice of the defendant, moved for a modification and correction of the judgment, to the extent of awarding all costs growing out of the attachment proceeding against the defendant. They alleged that the testimony upon the trial showed that they had realized a portion of their claim, from collaterals in their hands, after the commencement of the action, and that the court had, in fact, sustained the attachment and adjudged the costs thereof against the defendant, but by a clerical misprision the judgment had not been so entered. At a subsequent term the court granted the relief prayed, ordering the defendant to pay all costs which accrued in the action up to a certain date, when, as it appeared, the plaintiffs had received the balance that was due them.
When a creditor receives from his debtor the note or bill of a third party, the presumption is he takes it by way of security. Nevertheless he may take it as absolute payment, if such is the agreement. Aikin v. Peters, 45 Ark., 313. The issue raised by the pleadings in the main action was, debt or no debt, at the commencement of the suit. That issue the jury determined in favor of the defendant, and their verdict was approved by the trial court. This carried the costs of the ancillary attachment, as well ‘ as of the action. The burden of costs was not subject to be adjusted according to the discretion of the presiding judge, as in equity causes. But the statute provides that, when final judgment goes against the plaintiff, the defendant shall recover costs, and the attachment shall, be discharged. Mansf. Dig. secs. 1043, 378.
If the court was dissatisfied with the result it should have ordered another trial, unless the defendant would consent that the costs, down to a certain stage in the proceedings, should be taxed to him. But it could not sustain the attachment, and, at the same time, allow the verdict to stand. For judicial proceedings are required to preserve a semblance of consistency. The verdict declared that Malpa3 owed no debt to Lowenstein & Bro. when he was sued. If this was so, they could have no cause to attach his property.
But, in truth, there is nothing in the record to show that the court did sustain the attachment. And the doings of a court of record can be shown only by its record. Circuit courts have no power, after the expiration of the term, to vacate or modify a judgment or final order, except in the mode and for the causes specified in the civil code. The error complained of was not the mistake of the clerk, but, if there was any, it was in the judgment itself, and nothing existed in the record by which it could be amended. Badgett v. Jordan, 32 Ark., 154; Turner v. Vaughan, 33 Ark., 454; Leigh v. Armour, 35 ib., 123; Izard County v. Huddleston, 39 ib., 107; Gardenhire v. Vinson, ib., 270; Hocker v. Gentry, 3 Metc. (Ky.), 463; Dodds v. Combs, ib.,28; McManama v. Garrett, ib., 517; Bennett v. Tiermay, 78 Ky, 580; Long v. Eifort, 80 ib., 152.
The judgment is reversed and cause remanded, with directions to set aside all the orders and proceedings which were made and had subsequent to the rendition of the final judgment in September, 1883. | [
-80,
-8,
-96,
125,
-120,
96,
48,
-104,
-39,
96,
55,
87,
-17,
-61,
0,
97,
-28,
121,
117,
106,
71,
51,
39,
97,
-42,
-105,
-80,
-123,
-72,
-51,
-28,
-43,
4,
56,
-30,
-35,
-25,
-61,
-47,
-112,
-50,
2,
-119,
69,
-23,
2,
48,
97,
16,
95,
113,
-108,
-21,
38,
17,
71,
73,
46,
111,
61,
-64,
-8,
-98,
5,
127,
21,
-79,
55,
-98,
75,
72,
44,
-112,
57,
3,
-24,
114,
-74,
6,
84,
1,
-71,
-88,
98,
98,
16,
85,
-5,
-104,
-115,
47,
-10,
31,
-89,
83,
88,
11,
15,
-74,
-99,
109,
65,
-89,
126,
-12,
-99,
28,
109,
11,
-50,
-44,
-77,
-113,
60,
-98,
3,
-18,
-105,
-76,
97,
-51,
-96,
92,
65,
59,
-109,
14,
-97
] |
James R. Cooper, Judge.
The appellees owned approximately 511 acres in Van Burén County, which they listed for sale with the appellant, who is a real estate broker in Clinton, Arkansas. The appellant found a buyer, but the appellees refused to close the transaction due to the parties’ inability to agree upon the buyer’s right to prepay the note. When the appellees refused to close, the appellant brought suit to recover his commission. The trial court denied the appellant’s motion for a directed verdict, and the jury found for the appellees. From that decision, comes this appeal.
For reversal, the appellant first argues that it was error for the trial judge to refuse to direct a verdict in the appellant’s favor when the appellees failed to rebut the appellant’s prima facie case that the appellant was entitled to his commission.
George and Jean Pike were contacted by the appellant, and, after several offers and counter-offers, an offer and acceptance was executed on July 8, 1980 by all the parties. The contract provided for a sale price of $244,600.00 payable as follows: $24,600.00 down, and the $220,000.00 balance payable in twenty annual installments of $25,845.00. The interest rate was 10%. The parties later agreed to reduce the down payment by $5,525.00 when it was determined that the mineral rights had been severed from 221 acres.
The appellees refused to consummate the sale because the note and mortgage, (which were prepared by Mr. Pike) included a provision allowing prepayment of the balance without penalty. The appellees testified that they did not want the buyer to be able to prepay the note. Mr. Pike testified that he would have agreed to a note which was silent on the point. The offer and acceptance was silent on the question of prepayment, but the listing contract had, as one of its terms, a requirement of a penalty if the note was prepaid within the first two years. The appellant argues that as of July 8, 1980, he had produced a ready, willing and able buyer and therefore he had fulfilled his contract with the appellees and was entitled to his commission.
In Whitefield v. Haggart, 272 Ark. 433, 615 S.W.2d 350 (1981) the Arkansas Supreme Court stated that “the broker earns his commission by producing a purchaser ready, willing and able to take the property on the seller’s terms . . .” (citations omitted). The appellees freely entered into the offer and acceptance contract which did not contain a provision prohibiting prepayment or providing for a penalty for prepayment. An offer and acceptance is an enforceable contract between the buyer and seller, and the contract in the case at bar could have been enforced by either party. By the offer and acceptance contract the appellees reaffirmed their obligation to pay the appellant a 6% commission for his services in procuring the contract. See Walker v. Huckabee, 10 Ark. App. 165, 661 S.W.2d 460 (1983).
In Pinkerton v. Hudson, 87 Ark. 506, 113 S.W. 35 (1908) the Arkansas Supreme Court stated:
“The law is well settled that ‘where a real estate broker contracts to produce a purchaser who shall actually buy, he has performed his contract by the production of one financially able, and with whom the owner actually makes an enforceable contract of sale. The failure to carry out that contract, even if the default be that of purchaser, does not deprive the broker of his right to commissions.’ ”
This language is applicable to the case at bar. The sellers entered into an enforceable contract with the buyers who were supplied by the appellant. It does not matter for purposes of the broker’s commission that the parties subsequently could not agree on the completion of the land sale, but the fact that they had entered into an enforceable contract, the offer and acceptance of July 8,1980, entitled the broker to his commission, in the absence of a showing of fraud or misrepresentation.
It is undisputed that the Pikes were ready, willing, and able to perform their part of the contract, without the stated right to prepay. Were this judgment tostand, itwould allow any seller to avoid paying a commission by insisting on provisions in the note and mortgage which were not part of the contract. The offer and acceptance contract was clear and unambiguous, freely entered into by all parties, and, as stated earlier, was enforceable by either the appellees or the Pikes. The prepayment issue was between the appellees and the Pikes, and its resolution, if the Pikes ever elected to attempt prepayment, was for another day. It is worth noting that the appellees never insisted on any prepayment clause during the two months of negotiations, which involved three offers and two counter-offers.
The test as to whether a trial court may direct a verdict without abusing its discretion has been clearly stated by this Court. The evidence and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the directed verdict is sought, and if there is any conflict of evidence or the evidence is not in dispute but is in such a state that fair-minded persons might draw a different conclusion therefrom, a jury question is presented. Arkavalley Farms v. McCollum, 271 Ark. 840, 611 S.W.2d 201 (Ark. App. 1981). Applying this standard to the facts before us, we find that the trial court erred in refusing to grant a directed verdict at the close of the appellees’ case.
The evidence was undisputed that the appellant produced a ready, willing and able buyer who entered into an enforceable contract with the appellees. The appellees asserted the affirmative defenses of misconduct on the part of the appellant in representing the interests of the buyer as well as the appellees, and also fraud and bad faith. The appellees’ case consisted of testimony that was-designed to substantiate these allegations. At the close of the appellees’ case, the trial judge ruled that the appellees failed to present sufficient evidence to prove these defenses and would not allow the appellees’ case to go to the jury on these defenses. When this ruling was made, the appellant was entitled to a directed verdict. At this time there was no disputed fact to be resolved by the jury and the appellant had proved his entitlement to the disputed commission.
The appellees argue that the appellant’s motion for a directed verdict was not specific enough. We disagree. Rule 50 of the Arkansas Rules of Civil Procedure requires that such a motion shall state specific grounds. The motion in the case at bar was specific. We therefore reverse and remand with instructions to enter judgment for the appellant for the amount prayed for, that being 6% of the purchase price according to the amount stated in the offer and acceptance contract of July 8, 1980, as reduced by the addendum. Because we reach this result, it is unnecessary to decide the other points raised by the appellant.
672 S.W.2d 914
Reversed and remanded.
Corbin and Glaze, JJ., agree. | [
83,
-18,
-79,
12,
-120,
96,
120,
-77,
65,
-85,
54,
83,
105,
-60,
20,
61,
-29,
-23,
116,
104,
-57,
-78,
7,
108,
67,
-13,
81,
-59,
-79,
77,
-76,
-41,
76,
40,
-54,
17,
-26,
-30,
-55,
-40,
-114,
3,
-101,
100,
-47,
-62,
48,
-85,
16,
11,
17,
-90,
-29,
45,
61,
75,
109,
46,
59,
57,
80,
-72,
27,
-121,
-1,
21,
-111,
53,
-102,
3,
88,
110,
-112,
49,
9,
-56,
118,
54,
-58,
116,
9,
27,
40,
110,
103,
34,
4,
-51,
56,
-120,
47,
-2,
-115,
-89,
-14,
88,
67,
8,
-66,
-97,
111,
16,
71,
-4,
-8,
13,
93,
108,
2,
-114,
-106,
-14,
47,
94,
-103,
3,
-21,
-57,
52,
112,
-49,
-30,
92,
71,
123,
-101,
-114,
-112
] |
James R. Cooper, Judge.
In this criminal case, the appellant was charged with robbery. After a jury trial, she was convicted and sentenced as an habitual offender under Ark. Stat. Ann. § 41-1001 (Repl. 1977) to twenty-three years in the Arkansas Department of Correction. From that decision, comes this appeal.
On January 28, 1983, the appellant was detained by employees of a Safeway grocery store after she was observed placing six steaks under her clothing. In the ensuing melee, the appellant was alleged to have bitten one of the employees and violently resisted her apprehension. She fled the store after breaking away from the employees and was arrested a short time later.
At the close of the State’s case, the appellant moved for a directed verdict asserting that the State failed to prove that the appellant’s resistance was close enough in time to her taking the steaks to constitute robbery as defined by Ark. Stat. Ann. § 41-2103 (Repl. 1977). The trial court denied the motion, and we think the trial court was right. Upon observing the appellant take the steaks, move down an aisle, and place them in her clothing, two employees sought to restrain her, but were met with violent physical resistance, which resulted in one of the employees suffering wounds from bites inflicted by the appellant. We believe that the evidence was sufficient to present a factual question for the jury.
The appellant urges us to adopt the reasoning stated in the dissent to Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979), which argued that since the only force which was exerted was when police officers attempted to hand-cuff the suspect, the offense of robbery had not been committed. In the dissenter’s view, the intent of the statute was not to proscribe such conduct. We do not agree. The clear legislative intent was to define robbery so as to cover situations where persons who have committed a theft choose to employ force to avoid arrest.
The appellant’s second argument for reversal is that the trial court erred by refusing to instruct the jury on assault in the first degree as a lesser included offense of robbery. The appellant cites no authority for this theory, and we are unpersuaded. On the facts of the case at bar, the appellant probably could have been convicted of disorderly conduct, some degree of assault, or some degree of battery, but those offenses are not lesser included offenses of robbery. They are simply offenses of a different class. Our criminal code deals with situations where an act may be violative of more than one statute. See Ark. Stat. Ann. § 41-105 (Repl. 1977). For example, a forcible act of intercourse with one’s child under the age of eleven would support a conviction for rape or incest, but not both, and neither is a lesser included offense of the other, though several elements are the same. Since assault is not a lesser included offense of robbery, the trial court correctly refused the requested instruction.
Finally, the appellant argues that it was error for the trial court to allow the testimony of a rebuttal witness. The appellant asserts that because the rebuttal witness was the court’s bailiff, and was present during the trial, it was error to allow him to testify on rebuttal. In Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975), the Arkansas Supreme Court stated:
The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free, in argument to the jury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule’s violation should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W.2d 277; Mobley v. State, 251 Ark. 448, 473 S.W.2d 176. Although the trial court has some discretion in the matter, its discretion is very narrow and more readily abused by exclusion of the testimony than by admitting it. Harris v. State, supra. . . .
It is clear from the record that the State sought the rebuttal testimony to impeach the credibility of the appellant’s witness, Mr. Parker, who had testified that he always went peacefully when arrested. The trial court stated that, if the violation of the rule was the only basis for the appellant’s objection, it was going to allow the testimony. We suspect the trial court wondered, as we have, how such testimony was relevant or proper for impeachment purposes, but no other objection was voiced. We find no abuse of discretion, based on the stated objection, in allowing the rebuttal testimony.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
80,
-18,
-39,
-66,
8,
96,
58,
-66,
82,
-126,
116,
19,
-87,
84,
21,
107,
-13,
-17,
84,
121,
-42,
-73,
55,
65,
-70,
-13,
-104,
-59,
-77,
75,
-28,
-12,
12,
112,
-54,
81,
102,
-54,
-61,
-36,
-118,
5,
-85,
-24,
112,
0,
40,
42,
80,
15,
49,
60,
-29,
42,
18,
-54,
-23,
108,
75,
61,
-16,
57,
-48,
77,
-19,
20,
-125,
38,
-97,
5,
-40,
60,
-100,
49,
0,
104,
115,
-74,
-118,
84,
125,
-101,
4,
98,
98,
34,
13,
-49,
8,
-128,
62,
127,
-115,
-90,
-48,
64,
67,
14,
-97,
-97,
122,
20,
-114,
-8,
-11,
92,
95,
108,
-123,
-50,
20,
-77,
-83,
60,
-10,
-5,
-29,
39,
-112,
117,
-50,
-30,
93,
84,
115,
-37,
-122,
-44
] |
John E. Jennings, Judge.
Dewey Magar was convicted in Pulaski County Circuit Court of the sexual abuse of an eight-year-old child. He was sentenced to thirty years imprisonment. The primary argument on appeal is that the trial court erred in refusing to suppress a statement, disclosing his age, made by the defendant to police officers shortly after his arrest. We find no error and affirm.
Janice Jensen, a North Little Rock police officer, testified that she filled out a fact sheet on Mr. Magar in the detention center. She testified that the fact sheet is “basically an identification form” and is separate from the arrest report. She obtained from Mr. Magar his name, date of birth, address, and “some contacts.” She did not advise the defendant of his Miranda rights before the interview.
One element of sexual abuse in the first degree is that the defendant be eighteen years of age or older. Ark. Code Ann. § 5-14-108(a)(3) (1987). Here Jensen testified that the defendant gave his date of birth as June 30,1957. The argument is that the use of this “unmirandized” statement at trial was error. We hold that the questions asked by Officer Jensen fall within the “routine booking question” exception to the Miranda rule. Pennsylvania v. Muniz, 496 U.S. 582 (1990). Questions that are asked to secure biographical data necessary to complete booking or pretrial services and which are reasonably related to the administrative concerns of the police fall outside the protections of Miranda. Muniz, 496 U.S. at 601. The answers to such questions are admissible even if they should turn out to be incriminating, United States v. Sims, 719 F.2d 375 (11th Cir. 1983), cert. denied, 465 U.S. 1034 (1984); and even when, as here, they establish an element of the offense charged. State v. Banks, 322 N.C. 753, 370 S.E.2d 398 (1988); State v. Herrin, 562 So.2d 1 (La. Ct. App. 1990). The circuit judge did not err in admitting Jensen’s testimony.
At trial there was evidence that the defendant had been convicted on four other occasions of the sexual abuse of children. In closing argument the prosecutor said, “Ladies and gentlemen, Dewey Magar has had many chances. And I don’t know how many more small children we are going to allow him to. . . .” Appellant objected and moved for a mistrial. The court overruled the motion for a mistrial but admonished the jury to disregard the prosecutor’s remarks about what the defendant might do in the future.
A mistrial is an extreme and drastic remedy that should only be resorted to when there has been an error so prejudicial that justice could not be served by continuing the trial. Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990). The decision whether to grant or deny a motion for mistrial lies within the sound discretion of the trial court. See Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). We will reverse only when an abuse of that discretion is shown. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). In the case at bar, we believe the court’s admonition was sufficient. See Ronning v. State, 295 Ark. 228, 748 S.W.2d 633, cert. denied, 489 U.S. 1040 (1988).
Appellant’s related argument that the precise language the trial court used in its admonition simply made the matter worse cannot succeed. We do not consider arguments made for the first time on appeal. Finn v. State, 36 Ark. App. 89, 819 S.W.2d 25 (1991). Appellant cannot acquiesce in the court’s admonition and then complain of it on appeal.
Finally, appellant argues that the trial court erred in permitting the State to close the argument during the penalty phase of the trial. This argument was clearly rejected in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).
Affirmed.
Cracraft, C.J., and Danielson, J., agree. | [
48,
-24,
-19,
-68,
11,
97,
-70,
-112,
83,
-77,
127,
114,
-17,
90,
4,
123,
-117,
111,
85,
97,
-34,
-77,
103,
-63,
118,
-14,
-8,
-43,
-77,
75,
-20,
-44,
12,
48,
-64,
-15,
98,
-56,
-25,
88,
-50,
2,
-104,
-46,
114,
68,
32,
45,
26,
-113,
49,
46,
-13,
104,
-70,
-53,
41,
36,
75,
-69,
-64,
9,
-101,
21,
-17,
52,
-77,
36,
-78,
12,
-8,
42,
-36,
49,
48,
-6,
51,
-74,
-126,
-12,
47,
-119,
-88,
96,
-30,
40,
92,
-58,
-27,
-127,
-49,
-86,
-83,
-90,
-102,
65,
74,
77,
-73,
-15,
104,
80,
46,
126,
119,
76,
127,
100,
1,
-113,
36,
-111,
77,
108,
14,
-78,
-21,
117,
20,
53,
-50,
-30,
84,
6,
50,
-37,
-90,
-11
] |
John E. Jennings, Judge.
The claimant, Eddie Patrick, worked for Arkansas Oak Flooring Company as a ripsaw operator. On January 9, 1989, Patrick injured his shoulder. He was seen by Dr. Troy Oxner, an osteopathic physician. He was referred by Dr. Oxner to Dr. Bob Gullett and Dr. John Lytle, orthopedic surgeons. Neither could find an anatomical basis for the claimant’s pain. He was apparently also seen by Dr. Brad Mosely. In an office note dated August 7,1989, Dr. Gullett wrote:
He relates that his shoulder hurts him. He can still move it well and there is no change really from what I have seen before. I have told him that I have done all that I am able to do to help him and perhaps he could visit back with his family doctor, Dr. Oxner, and perhaps referral to another orthopedic surgeon would be appropriate.
The claimant returned to Dr. Oxner and on August 8,1989, Oxner wrote:
I feel as though I have nothing else to offer this patient. Patient has been told that we have been unable to find anything that would point to the cause of his pain. Have instructed patient that if there was another physician that he thought might be able to help I would be glad to refer him at that time.
On September 7, 1989, Dr. Oxner’s nurse wrote in her office notes:
Patient comes in wanting appointment [with] Dr. Bishop as he feels his shoulder pain is due to a neurological problem. Dr. Oxner was consulted and it was agreed that we would set up appointment as requested.
Dr. Oxner also referred the claimant to Dr. Edward Weber, another orthopedic surgeon, at the claimant’s request.
Dr. Bishop had a MRI performed and diagnosed Patrick’s problem as impingement syndrome. Ultimately Dr. Weber recommended surgery, which has not yet been performed.
On these facts the Commission held that the employer was not responsible for the treatment by Drs. Bishop and Weber because their treatment was not a result of a “valid referral,” but rather were “referrals based upon a request by the claimant.” Whether the Commission’s decision may stand is the only issue presented on appeal.
Arkansas Code Annotated section 11-9-514(a)(1) (1987) provides:
If the employee selects a physician, the commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying a change.
The Commission’s authority to characterize a change of physician as a referral has its origin in the Commission’s own Rule 23 which authorizes the Commission to permit deviation from the Commission’s rule when compliance is impossible .or impractical. See Mohawk Rubber Co. v. Buford, 259 Ark 615, 535 S.W.2d 819 (1976); Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). We have held that whether treatment is a result of a “referral” rather than a “change of physician” is a factual determination to be made by the Commission. TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991). When the Commission’s findings of fact are challenged on appeal, we affirm if they are supported by substantial evidence. Hope Brick Works v. Welch, 33 Ark. App. 103, 802 S.W.2d 476 (1991). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). We do not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28,661 S.W.2d 403 (1983). The Commission no longer has the discretion to retroactively approve a change of physicians. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
It is true that in the case at bar, Dr. Gullett suggested the possibility that Dr. Oxner might refer the claimant to a third orthopedic surgeon. Nevertheless, it was apparently the claimant’s own idea to obtain referral to a neurologist. We conclude that the Commission’s determination that the treatment by Drs. Bishop and Weber was actually in the nature of a change of physicians is supported by substantial evidence.
White v. Lair Oil Co., 20 Ark. App. 136, 725 S.W.2d 10 (1987), is distinguishable. In White “emergency treatment” was involved and we said “the change was not of appellant’s seeking but was instead prompted by exigent circumstances. . . .” Appellant also relies on Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985), but in Electro-Air the referral was apparently a genuine one which merely coincided with the wishes of the claimant’s attorney.
We hold that the Commission’s decision is supported by substantial evidence.
Affirmed.
Cracraft, C.J., Mayfield, J., and Cooper, J., dissent. | [
81,
-22,
-35,
44,
9,
-63,
50,
122,
85,
-125,
55,
51,
-81,
-84,
29,
111,
-29,
63,
64,
101,
86,
-77,
83,
105,
-62,
-5,
115,
-57,
113,
110,
-28,
-75,
67,
56,
10,
-43,
-26,
-114,
-49,
28,
-126,
-124,
41,
-20,
121,
-128,
56,
-82,
-36,
15,
49,
30,
56,
44,
52,
-49,
108,
40,
90,
46,
-112,
-96,
-31,
13,
-17,
0,
-95,
4,
30,
13,
88,
10,
-104,
49,
112,
-24,
16,
-74,
-62,
116,
79,
-103,
4,
97,
34,
32,
25,
-83,
104,
-72,
31,
-116,
-99,
-121,
-101,
105,
-6,
11,
-105,
-68,
122,
84,
28,
60,
-20,
73,
-105,
108,
-126,
-114,
-126,
-77,
-1,
0,
28,
-126,
-29,
-113,
-108,
49,
-34,
-93,
93,
69,
123,
19,
-30,
-80
] |
Cockriil, O. J.
The appellees delivered an engine and some other machinery to the railroad company at Black River station to be transported to Walnut Ridge. The •company permitted the machinery to remain exposed to the weather about sixteen months before transporting and delivering it to the appellees at the place of destination. In the meantime it rusted, and from that cause deteriorated in value, and this action was prosecuted to recover for the injury. The only point made upon the appeal is as to the rule for the measure of damages laid down by the court for the guidance of the jury.
It is the general rule in this class of cases that the measure of recovery is the difference between the value of the property at the time and place it should have been delivered, and its value when it was in fact delivered, with interest, after deducting the charges for freight. It is immaterial whether the depreciation in value is caused by a fall in prices or by a physical injury sustained through the negligence of the carrier. Compensation for the actual loss sustained is what the law aims at, and the increased value at the place of delivery is what the owner, relying upon the carrier, has lost.
The complaint against the judgment here is that no proof was made, at the trial, of the value of the machinery, •at Walnut Rridge, at the time it should have been received there, but that the proof of value at that time was confined to the place of shipment.
The jury were instructed that the difference between that value and the value at the time and place of delivery was the proper measure of damages. The record does not apprise us tbat this worked unfairly upon the railroad, and no injury could have resulted unless the market price at the earlier date was less at the destination than at the place of shipment. Under the circumstances there is no-presumption that the machinery was worth-less at Walnut Ridge than at Black River at that time. The two points are stations on the same line- of road; they are not many miles apart, and it is common knowledge to all persons that both are dependent on the same general markets for supplies and articles of the kind in dispute. The conditions being the same at the two points, the prices cannot be presumed to be materially different. Seigbert v. Stiles, 39 Wisc., 533.
But the reasoning of the court in the Rome Railroad v. Sloan, 39 Ga., 636, is a complete apswer to the appellant’s, contention: “ We think it safe to lay down the rule, that the commodity shipped is presumed to. be worth as much at the point of destination as it is at the place of shipment. In fact, it is generally worth morei If it were not so there would be no inducement to ship. And the law allows the owner of the goods that increased price in case they are not delivered, if he chooses to avail himself of it by proof. But if he fail to do so, and only prove the value-at the place of shipment, which is not rebutted by the defendant, the latter is not injured, and has no just cause of complaint. Indeed, he is presumed to be benefited by the-plaintiff’s neglect to make the proof and- insist upon the full measure of his rights.”
The proof was that, at the time of shipment, the property was in good condition and worth $500. When received, its market value was much reduced, and the appellees sold it shortly afterwards at what was proved to belts then fair market value at Walnut Ridge, viz., $240v. The verdict was for $200.
If there was error in the instruction, it was harmless, and as it is not made to appear that the appellant has been prejudiced, the judgment is affirmed. | [
-16,
122,
-36,
-98,
26,
96,
42,
-38,
65,
97,
-89,
83,
-51,
-57,
1,
109,
-89,
123,
-11,
59,
-12,
-89,
87,
34,
-38,
-109,
-13,
-49,
-67,
-50,
100,
-58,
76,
32,
-54,
93,
-26,
-120,
-39,
92,
-50,
-84,
58,
-19,
93,
0,
52,
126,
84,
79,
17,
-113,
-53,
44,
24,
-57,
105,
44,
107,
41,
-47,
105,
-78,
13,
111,
20,
-112,
36,
-100,
35,
-56,
10,
-112,
53,
26,
-24,
115,
-92,
-122,
-36,
37,
-119,
13,
98,
103,
1,
5,
-49,
-72,
-120,
6,
-46,
-113,
-89,
-76,
88,
11,
99,
-105,
-97,
80,
80,
53,
126,
-6,
77,
93,
116,
-123,
-49,
-108,
-94,
-81,
38,
-102,
7,
-17,
-75,
22,
116,
-60,
-126,
93,
5,
122,
-101,
-105,
-1
] |
OPINION.
Cockrill, C. J.
We must regard the proof in this case as establishing the fact that James A. Brown acted as the agent of James A. McGaughey in purchasing the lands in controversy and conveying them to his wife, the mother of the principal appellants. Brown was only the instrument used to convey the title from McGaughey, as administrator, to McGaughey’s wife, the consideration being paid by McGaughey. As MeGaughey expected to derive a benefit fr.im the lands through the right of his wife, the purchase was a violation of his trust. The policy of the law is to demand so strict an adherence to duty that no temptation to weigh self-interest against integrity can be placed in the trustee’s way. The fact that he may seek to evade the law rather than openly violate it by causing another to appear as the purchaser, can avail him nothing. Freeman Void Jud. Sales, sec. 33, and cases cited in notes; Davoue v. Fanning, 2 John. Chy., 252. Where he has a duty to perform as vendor, and takes an interest by the purchase, the inquiry is not whether there was or was not fraud in fact; the law stamps the act as fraudulent per se, and the purchase will be set aside at,the instance of the cestui que trust. McNeil v. Gates, 4l Ark., 264; Mock v. Pleasants, 34 ib., 63.
The purchase of the estate in this case was a voluntary settlement by the administrator upon his wife, and a court of equity would have declared her a trustee for the heirs and creditors of the estate, and avoided the sale at once if any party interested had disapproved of it. But the sale was not absolutely void and the parties in interest who were sui juris had their election on being put in possession of the facts to disaffirm or allow it to stand. Jones v. Graham, 36 Ark., 383; Ives v. Ashley, 97 Mass., 198.
Nearly twelve years were allowed to elapse from the date of the sale to the institution of this suit. The appellants who were the defendants below, denied all charges of intentional fraud on the part of McGaughey, and claimed to have been in the notorious adverse possession of the land from the date of the deed to Mrs. McGaughey in 1868, to the institution of the suit in 1879. There was no contest about the fact of possession during this period. McGaughey aud wife lived upon the farm, made it their home and put valuable improvements on it, claiming it as the land of the wife. She died in 1873, and McGaughey with the appellants, her heirs, continued in the occupancy until his death, a short time after the bill was filed. The appellees alleged these facts substantially in their bills, but contended that the statute of limitations had no application to the facts of the case.
It is argued in the outset that this is not a suit for the possession of lands, and therefore that neither the act prescribing a limit of five years for actions against purchasers at judicial sale nor the general seven years statute is applicable.
There is no mistaking ihe object of the bill. It seeks to establish title to the lands in the appellees; and that being accomplished, to reap the advantages that follows ownership, i. e., possession. The prayer is that the sale by the administrator to James A. Brown, and the conveyance by Brown to the administrator’s wife “may,'by proper orders and decrees, be set aside and declared void; that a master be appointed to take an account of the rents and profits; that said conveyances be removed as a cloud upon the title of plaintiffs (appellees) to the lands aforesaid, and that they be put into the possession of the same.”
It was competent for equity to grant the full measure of A A ** ° re^eI- It frowns upon a multiplicity of suits, and when the appellees had successfully invoked its aid to'invest them with the legal title, it would not then remit them to an action at law to recover possession; but having taken jurisdiction of the case for its own exclusive purposes, it would retain the cause to administer the legal after the equitable relief.
It is long established that “courts of equity in cases of , concurrent lunsdiction consider themselves bound by the statute of limitations which govern courts of law in like cases, and this rather in obedience to the statute than by analogy.” Farman v. Brooks, 9 Pick., 212.
The evil resulting from delay in the enforcement of legal and equitable rights is the same, and the courts of equity take the same limitation for their guide that governs law courts in analogous cases. This is illustrated in this court by the application of the statute governing actions to recover real estate to a suit to foreclose a mortgage (Ringo v. Woodruff, 43 Ark., 469), as well as to remove a cloud from the title, as in Conway v. Kinsworthy, 21 Ark., 9.
It is argued further that Mrs. McGaughey and her heirs, aIter her death, held the land in trust for the heirs of Fountain Brown, and that the statute will not bar a trust. Express and positive trusts are certainly within the rule contended for. But this doctrine is subject to two qualifications, namely, that no circumstances exist to raise a presumption of the extinguishment of the trust, and that no open denial or repudiation of the trust is brought home to the knowledge of the parties in interest which requires them to act as upon an asserted adverse title. Angell on Lim., ; Wood on Lim., 212-13; Harriet v. Swan, 18 Ark., 495.
The rule with the exceptions was clearly stated by Judge Fairchild in Brinkley v. Willis, 22 Ark., 6, and the benefit of the statute was denied an executor, ten years after his breach of duty, because the trust was still subsisting — the executor not having been discharged therefrom by the probate court. But this does not help the appellee’s case, for if we should regard James A. McGaughey as in possession of the estate in his own right, still the facts remain that he was regularly discharged from the trust by the probate court in 1870, and the lands were held adversely for more than seven years thereafter.
The following language used in Clark v. Boorman’s executor, 18 Wallace, 493, is applicable to this case: “ It may be conceded that so long as a trustee continues to exercise his powers as trustee in regard to property, that he can be called to account in regard to that trust. * * * But when he has closed up his relation to the trust and no longer claims or exercises any authority under the trust, the principles which lie at the foundation of all statutes of limitations assert themselves in his favor, and time begins to cover his past transactions with the mantle of repose.”
But trusts which arise from the operation of law, that is constructive trusts, are subject to the operation of the statute. The possession of Mrs. McGaughey and her heirs falls under this class, and it was incumbent upon the appellees to assert their rights within the period limited by the statute after knowing the facts in relation thereto. Achhurst’s Appeal, 60 Penn., 290, 316.
They seek to evade the force of the statute by contending that the appellants’ title originated in a fraud which no time will bar. To warrant this conclusion not only must the trust be established, but the fraud must have been successfully concealed from the knowledge of the beneficiaries. Wood on Lim., sec. 275, et seq.; James v. James, 41 Ark., 301; Geisreiter v. Sevier, 33 ib., 534; Meyer v. Ruetmans, 28 ib., 145.
In Marsh v. Whitmore, 21 Wall., 178, the court quote approvingly this language from Badger v. Badger, 2 Wallace, 95: “The party who appeals to the chancellor in support of a claim, where there has been laches in prosecuting it or long acquiescence in the assertion of adverse rights, should set forth in his bill specifically what were the impediments to the earlier prosecution of his claim; how he came to be so long ignorant of his rights and the means used by the respondent to fraudulently keep him in ignorance, and how and when he first came to a knowledge of the matters alleged in his bill.”
Neither in the original nor any of the several amended bills in this case is any reason given for not beginning this suit earlier; and no concealment of any fact by the administrator or any one acting with him, is charged. The fact that the administrator had caused the lands to be bought in for his wife was known to the heirs of Brown’s estate from the outset. James A. Brown, one of their number, who was the nominal purchaser at the sale, wrote to the absent members of the family advising them of the fact and explaining that it was believed to be the only way by which the younger children could be maintained and educated, McGaughey having agreed to do that. It remained a matter of family history with the Browns, and McGaughey talked about it with one or more creditors of the estate. The fraud charged upon McGaughey in preventing competition in bidding at the sale is not sustained by the proof, and as to his accounts as administrator, there was nothing at any time to prevent the fullest investigation into all the transactions now complained of. The claims allowed in his favor by the probate court for the support and maintenance of the minor heirs of his intestate, were not proper allowances against the estate. But no effort at concealment either from the court allowing the claims or the parties in interest was made. The accounts were itemized with the utmost particularity; they were regularly presented for allowance and appear to have been acted upon with due deliberation by the court, and remained on file subject to the inspection of all concerned. All that is now shown in reference to these transactions could as readily have been ascertained at any time since the sale. Some of the illegal claims, in favor of the administrator, were allowed after the sale, and could in no event affect it. They were put in evidence by the appellees, doubtless, to show a fraudulent disposition on the part of the administrator. This is true, also, of the Embree judgment. No effort was made to show that this was not a valid claim against the estate to the extent of some $3,900, the amount the administrator paid upon it. This being true, no one could be heard to complain of the administrator’s action in paying it off except creditors of the estate who had not received a pro rata upon their claims as great as was paid upon it.
Ve do not wish to be understood as sanctioning the course of the administrator as to any of the acts complained of. But the statute prescribes a period of rest for such matters, and the parties in interest knowing, or in a position to know, all the facts,' have waited supinely until time has put a quietus upon the right to complain.
Several of the heirs were minors when the sale was made, but more than three years had elapsed since the removal of the disability of the youngest,when the suit was brought and their rights are cut off. Chandler v. Neighbors, 44 Ark., 479.
The statute of limitations protecting the purchaser at judicial sale makes no exception in favor of married women and the courts can make none. Pryor v. Ryburn, 16 Ark., 671; Gwynn v. McCauley, 32 ib., 97; Morgan v. Hamlet, 113 U. S., 449. This statute is a bar to Mrs. Price’s claim.
Some of the creditors of the estate were brought into the litigation and sought to surcharge the administrator’s accounts upon the ground of fraud referred to. As the bill alleges the insolvency of the administrator’s estate and the worthlessness of his bond, we presume that their only serious design was to effect a re-sale of the lands for the balance due on their claims, and that the other matter was thrown in as inducement to that end. What has been said of the effect of adverse possession of the lands in reference to the rights of the Brown heirs, is true also of the creditors’ claim to the lands as assets to pay their debts. The statute was set in motion, however, against their right to have the accounts overhauled, from the time of their confirmation by the probate court, and it had run the full period before they sawfit to move. Hanf v. Whittington, 42 Ark., 491.
Let the decree of the circuit court be reversed and set aside, and the case remanded with instructions to enter a decree for the appellants in accordance with this opinion ; to cause the receiver to pass his accounts, pay over the funds and be discharged, and for other proceedings that may be necessary in accordance with law and this opinion. | [
48,
110,
-40,
-67,
42,
-32,
42,
-70,
67,
-87,
-91,
83,
-7,
82,
20,
47,
-16,
-83,
85,
43,
-60,
-78,
23,
-128,
114,
-13,
-39,
-51,
49,
77,
-10,
-41,
76,
48,
-62,
117,
-58,
-118,
-49,
-38,
-114,
13,
10,
-60,
-35,
-32,
52,
123,
20,
79,
97,
-98,
-13,
42,
25,
78,
-23,
46,
111,
44,
-63,
-8,
63,
-124,
111,
31,
16,
101,
-72,
3,
-24,
46,
24,
-109,
9,
-24,
123,
-74,
-106,
-44,
79,
-99,
-119,
102,
98,
1,
-23,
-19,
-16,
-104,
47,
-74,
-115,
-90,
112,
72,
1,
104,
-65,
-99,
112,
0,
5,
-16,
-26,
-100,
16,
108,
13,
-113,
-106,
-91,
-83,
126,
-104,
19,
-9,
19,
-80,
65,
-49,
-94,
92,
67,
122,
27,
14,
-9
] |
Battle, J.
The Mt. Pleasant (colored) Baptist Church employed Peter Hatchett to serve as its pastor for an indefinite period of time. A portion of the members becoming dissatisfied with Hatchett, and disapproving his conduct, attempted to discharge him from the pastorage of the church and to exclude him and his co-defendants, on account of disorderly conduct, from the fellowship of the church. As to Hatchett’s discharge as pastor being the action of the majority of the church, the evidence is conflicting. Without undertaking to detail the evidence, it is sufficient to say we find it was.
After his discharge, he and his co-defendants took possession of the house of worship of the Mt. Pleasant Baptist Church, without its consent, and he preached therein and made appointments to preach therein, thereafter, with the view to their occupying and using the same permanently. They insist .that they have a right to occupy and use it in this manner; and that they would have continued to do so, unless prevented, is manifest.
The court below enjoined and restrained Peter Hatchett from preaching, or in any manner officiating in the Mt. Pleasant Baptist Church, and his co-defendants, Isaac Bracy, Ralph Williams and Jesse Patrick, from holding any meetings, or officiating in any manner at any meeting of the Mt. Pleasant Baptist Church, and from interfering or disturbing any regular meeting of said church ; and the defendants appealed.
It is said in High on Injunctions: “Upon the question of the right to the preventive aid of equity to restrain a deposed minister from continuing to exercise his clerical functions in the church from which he has been removed, the courts have not been in exact harmony, the ground of difference resting mainly upon diverging views as to whether such an act is an ordinary trespass, which may be remedied at law, or whether the trespass is of that continuing and irreparable nature which can be satisfactorily remedied only by the extraordinary aid of equity. Upon the one hand, it has been contended that a court of equity should- not enjoin a deposed clergyman from continuing his ministrations in the church from which he has been deposed, since he thereby becomes a mere trespasser, without right, and the courts of law afford ample remedy for such a grievance. Upon the other hand, it is held, and this doctrine has the clear weight of authority as well as principle in its support, that such an injury is of that continuous and irreparable nature that no rule of damages can rightly measure it,-and that it therefore falls within the well defined range of the preventive aid of equity. High on Injunctions, sec. 311; Trustees v. Stewart, 43 Ill., 81.
“ It has accordingly been held, and this doctrine is supported by the weight of authority, that where a minister of a congregational church has been dismissed by the action of a majority of the church, and he, thereafter, ‘usurps the pastoral office and attempts to exercise its functions by officiating as pastor, such majority are entitled to an injunction to prevent the deposed minister from continuing to officiate in that capacity.’ ” High on Injunctions, sec. 311; Perry v. Shipway, 4 DeG. & J., 353; and Cooper v. Gordon, L. R., 8 Eq., 249.
Says High on Injunctions: “Courts of equity, having no ecclesiastical jurisdiction, will neither revise nor question the ordinary acts of church discipline or the administration of church government. Their only power arising from the conflicting claims of the parties to the church property and its use, they will not decide as to the status of membership, and will not determine whether members have been properly or improperly excommunicated from a ■church, but accept the fact of their expulsion as conculsive proof that they are not members, and that, having been expelled by a vote of the church, they are no longer entitled to any of the rights or privileges of membership. Thus, where property has been conveyed in trust for the use and benefit of a religious organization, members of the church who have been excommunicated by a vote of the majority, but who still insist on their right to enjoy and use the church property, and who have taken possession and made periodical use of it without the consent and in defiance of the main body of the members, may be enjoined from interfering with or using the property.” High on Injunctions, sec. 308; Shannon v. Frost, 3 B. Mon., 253.
The above rule applies especially to congregational churches. How far i.t applies to other churches, we do not undertake to say. “ In a congregational church, the majority, if they adhere to the organization and to the doctrines, represent the church.” They control in the govern ment of the church, and have a right to select its pastor and control its property.
The Mt. Pleasant (colored) Baptist church, it appears, is a congregational church. The majority had the right to control in the church government and to select its pastor and control its house of worship. Hatchett was only employed for an indefinite period of time. The majority had a right to discharge him. He and his co-defendants had no right to take possession of its church and use and occupy it without the consent and in open defiance of the majority.
The decree of the court below is modified, and a decree will be entered here enjoining and restraining Hatchett from officiating in the capacity of pastor of the Mt. Pleasant Baptist church, without the consent thereof, and enjoining and restraining appellants from interfering with or using its house, without its consent, or against the wishes of the majority. | [
-79,
-8,
-36,
12,
10,
97,
34,
30,
115,
-93,
-25,
-45,
-19,
-13,
49,
41,
-29,
125,
81,
107,
-43,
-9,
-89,
97,
-80,
-45,
-5,
-59,
-80,
77,
-11,
95,
76,
59,
-62,
-35,
-121,
72,
-55,
20,
6,
37,
-86,
89,
-47,
-120,
52,
27,
80,
15,
85,
-98,
-77,
40,
24,
-49,
-53,
56,
79,
37,
116,
-71,
-100,
5,
77,
38,
-109,
38,
-104,
7,
-4,
109,
-104,
49,
-120,
-4,
115,
-90,
-70,
117,
5,
-87,
-83,
50,
98,
19,
41,
-19,
16,
-87,
47,
58,
1,
-90,
-110,
105,
33,
9,
-65,
-99,
119,
16,
6,
-28,
100,
84,
25,
36,
39,
-113,
-42,
-91,
-125,
36,
-98,
6,
-13,
25,
112,
112,
-52,
-18,
84,
-25,
115,
-33,
-82,
-111
] |
Tom Glaze, Judge.
This is an appeal from a denial of appellants’ petition to adopt Robert Craig Harrison. Appellants contend the probate judge clearly erred (1) in not finding that the mother failed to communicate with or to support the child for a period of one year, or (2) in not finding that the mother unreasonably withheld her consent to the adoption contrary to the best interest of the child. We have reviewed the record and find that the probate judge’s findings are clearly against the preponderance of the evidence.
On December 30, 1978, a son, Robert Craig Harrison, was born out of wedlock to appellee Lori Harrison. The appellant father, Robert Titsworth, did not visit or support the child or acknowledge paternity until sometime in June, 1980. Beginning then, Lori took the child to Robert’s place of business for visits. In September, 1980, Lori placed the child in the custody of Robert because, according to her testimony, she was having personal and financial difficulties. Since September, 1980, Robert Titsworth has had continuous custody of the child.
Apparently, between December, 1980, and March, 1981, Robert and his wife, appellant Sheila, would not allow Lori to see her son, so she sought and gained visitation privileges in a Pope County Court action. In that same proceeding, Robert was adjudged the natural father and granted custody of the child. Although Lori visited her son at times after the March, 1981, proceeding, she undisputedly had no direct contact with the child between September 16, 1981, and October, 1982. Lori’s lack of contact with her son largely resulted from her attempted suicide in October, 1981, and her commitment to the State penitentiary in March, 1982. She testified that she did not see her son after her suicide attempt because she was “just real upset” and “it took me awhile to get myself back together.”
In addition, between December, 1981, and August, 1983, the appellee was in jail or the penitentiary for a number of criminal offenses unrelated to this action. However, according to her testimony, she did attempt unsuccessfully to communicate with the appellants and the child, by mail and through the prison chaplain. Appellee testified her letter was returned stamped “not deliverable as addressed to this person,” and the chaplain’s attempts were rebuffed by appellants.
In their petition to adopt Robert Harrison, the appellants alleged that Lori Harrison had failed significantly, without justifiable cause, to communicate with and to provide for the care and support of Robert Craig Harrison as required under Ark. Stat. Ann. § 56-207(a)(2) (Supp. 1983). In their amended petition, appellants alleged that it was in the best interest of Robert Craig Harrison that appellants be allowed to adopt him and that Lori Harrison was unreasonably withholding her consent contrary to Robert Harrison’s best interest. See Ark. Stat. Ann. § 56-220(c)(3) (Supp. 1983). In denying the adoption, the probate j udge stated that he did not believe that the evidence was clear and convincing that the mother had failed to communicate with or to support her child without cause as required by law. He made no finding regarding appellants’ assertions under § 56-220(c)(3).
We review probate proceedings de novo on the record, but it is well settled that the decision of a probate judge will not be disturbed unless clearly erroneous; and we give due regard to the opportunity and superior position of the trial judge to judge the credibility of witnesses. Ark. R. Civ. P. 52(a); Taylorv. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983). Personal observations of the judge are entitled to even more weight in cases involving the welfare of a small child. Id. (citing Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500 (1958).
This Court recently has decided four cases involving Ark. Stat. Ann. § 56-207 (Supp. 1983), which provides, in part:
(a) Consent to adoption is not required of: . . . (2) a parent of a child in the custody of another, if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree. . . .
See Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983); McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983); Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); and Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983). See also Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Henson v. Money, 273 Ark. 203, 617 S. W.2d 367 (1981); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980); Brown v. Fleming, 266 Ark. 814, 586 S.W.2d 8 (Ark. App. 1979).
A party seeking to adopt a child without the consent of a natural parent bears the heavy burden of proving by clear and convincing evidence that the parents have failed sig nificantly without justifiable cause to communicate with the child or to provide for its care and support for the prescribed period. Taylor v. Hill, 10 Ark. App. at 47, 661 S.W.2d at 414 (1983) citing Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979).
Appellants contend that the evidence at the hearing showed undisputedly that Lori failed significantly and without justifiable cause to communicate with or to support her child from September of 1981 to October of 1982. They argue further, citing Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976), that the fact the appellee was in jail or the penitentiary for most of that one-year period does not constitute justifiable cause.
Zgleszewski involved the abandonment provision of our prior adoption law, Ark. Stat. Ann. § 56-106 (Repl. 1971), under which consent to adopt was not required of a parent who had abandoned a child for more than six months preceding the filing of the petition. In Zgleszewski, the mother and stepfather petitioned to adopt her children without the consent of the natural father, who was in prison in Pennsylvania at the time of the petition. The probate court denied the adoption, and the Supreme Court reversed. The Court noted that between 1969 and 1975, the father had seen his children for only about five minutes at his father’s funeral. Although he had saved $1,400 while in prison, he spent none of that to help his children; furthermore, at trial he indicated no intention to help them in the future. After reviewing the record, the Zgleszewski court, quoting from In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975), stated:
[A] parent’s absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child.
The Court found that the father’s interest in his children’s welfare was minimal and that his “criminal acts and the course of conduct followed thereafter indicate a conscious disregard of the children and an indifference to their welfare tantamount to voluntary abandonment.” Id. at 632-33, 542 S.W.2d at 768.
In the instant case, appellants were not required to show Lori abandoned her son but only that for at least one year she significantly and without justifiable cause failed to communicate with or support him — a less stringent standard than that required under the earlier adoption code considered by the Court in Zgleszewski. However, like the Court in Zgleszewski, we believe the facts here clearly demonstrate that Lori’s criminal acts and course of conduct indicate a conscious disregard of her child. By her own testimony, Lori committed her first felony when she was bearing Robert Craig, who later was born on December 30, 1978. By February, 1980 — when her son was fourteen months old — Lori had been convicted and entered the penitentiary for her first time. She was discharged in May, 1980, and in either June or July, 1980, she gave physical custody of Robert Craig to his father. In 1981, she admits she again was charged with felony crimes — at least fourteen. She subsequently attempted suicide by cutting her left wrist seven times and her elbow once. She was treated for these injuries in a private hospital; then, she spent a brief time in the State Hospital. Thereafter, she was incarcerated in a county jail for one month and then commenced her second penitentiary term in March, 1982. Lori concedes that she had not communicated with Robert Craig from the time she attempted suicide in October, 1981, until after she was transported from the penitentiary to Pope County on other felonies in October, 1982. Accepting Lori’s own testimony as true, her only efforts to contact her son were (1) by a letter that was returned as undeliverable, (2) through the prison’s chaplain, who called Robert Craig’s grandmother on behalf of Lori “to find out about him . . . but they wouldn’t talk to him [the chaplain],” and (3) through her sister, who took some clothes and toys to Robert Craig for Christmas in December, 1981. Based upon Lori’s testimony alone as set forth above, we believe she failed significantly and without justifiable cause to communicate with or support Robert Craig, and as a consequence, we conclude her consent was unnecessary in this adoption proceeding.
Even if we were to conclude that Lori’s efforts to communicate with Robert Craig were legally sufficient to require her consent, we believe the evidence clearly establishes that Lori unreasonably withheld her consent contrary to her son’s best interest. See Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983), and Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983). Lori argues that the facts presented in Wineman and Lindsey were worse than those here, and therefore those cases are distinguishable and inapposite. We find no meaningful distinction with respect to the requirements of the statutory provisions in question. Without being too repetitious, we will attempt to summarize the evidence that leads us to this conclusion. Lori first married at the age of fifteen years. That marriage ended in divorce eight months later on July 12, 1976. Sometime thereafter, she and Robert dated; she became pregnant and gave birth to Robert Craig on December 30, 1978. At this time, Lori was eighteen years old. Afterwards, she commenced residing at various places, living in at least eleven different dwellings until her second commitment to the penitentiary in March, 1982. During this period, she relied on friends and acquaintances to help care for Robert Craig. In 1979, she met a man named Louis Horton and married him; she later learned the marriage was invalid. Lori said that she lived with Horton three or four days, at which time he went to the penitentiary; she has not seen him since.
Lori’s lifestyle proved detrimental to her son. Mary McKinney, a psychological intern at Human Services in Russellville, testified that she had treated Robert Craig in a children’s communication and interaction group between June of 1981 and August of 1982. She described him as “socially maladjusted” with “very aggressive behavior” when she first saw him. McKinney testified that Robert Craig would point and grunt instead of asking for something. She said that he had “delayed speech.” He was very disruptive in the group. However, he made good progress, according to Ms. McKinney. She said that she had the full cooperation of Sheila and Robert Titsworth, who met with her privately to discuss problems and who also attended parenting classes.
Another witness, Ed Williams, who sponsored Lori after she left the penitentiary, testified that Robert Craig’s “best interests from a parenting standpoint never seemed to be a part of her thinking as far as her daily routine or her night activities or anything else.” Williams related a number of occasions on which she simply failed to properly feed Robert Craig or look after his hygiene requirements. From our de novo review of the entire record, we believe the evidence clearly manifests that Lori has largely ignored Robert Craig’s interests and at the same time has failed to demonstrate any stability in her own life. Unfortunately, she has shown during her young life that she has a propensity to violate the law, which, in turn, has caused her to serve a great deal of time in jail and the penitentiary — a fact not conducive to raising a child.
For the reasons given above, we reverse and remand.
Reversed and remanded.
Mayfield, C.J., and Cloninger, J., agree. | [
113,
-20,
-52,
60,
26,
97,
42,
10,
83,
-21,
119,
-13,
-81,
103,
80,
121,
56,
41,
33,
121,
-45,
-78,
71,
9,
122,
-14,
-72,
-42,
-14,
77,
-12,
-2,
72,
48,
-54,
-59,
98,
-54,
-57,
80,
-124,
23,
57,
-27,
80,
-110,
40,
99,
22,
15,
85,
-98,
-94,
42,
60,
78,
8,
46,
91,
-67,
-48,
121,
-83,
5,
-50,
0,
-95,
-76,
-112,
-91,
-40,
47,
-120,
-71,
16,
-24,
17,
-106,
-118,
116,
75,
89,
13,
100,
-58,
0,
76,
-11,
-7,
-56,
-18,
28,
-99,
-90,
-48,
112,
1,
47,
-65,
-75,
108,
84,
10,
124,
70,
12,
127,
-28,
96,
-50,
-2,
-79,
77,
56,
-120,
35,
-29,
34,
50,
113,
-49,
-32,
84,
71,
123,
-101,
-98,
-14
] |
Donald L. Corbin, Judge.
Appellee, Lavern Warren, instituted this action by filing a complaint for divorce seeking a divorce, possession of certain items of personal property and one-half of her interest in the sale proceeds of real property owned by the parties as tenants by the entirety. Appellant, Plesse Warren, answered and filed a cross-complaint seeking an adjudication of property rights similar to that requested by appellee. Appellant later withdrew his cross-complaint and the court granted a decree of divorce to appellee. The trial court awarded appellee an equitable lien 'in the amount of $3,200.00 on the proceeds from the sale of real property owned by the parties as tenants by the entirety. We reverse and remand.
Appellant appeals from that provision of the decree awarding appellee an equitable lien against the sales proceeds of a tract of real property situated on Rye Hill which was purchased by the parties approximately two months subsequent to their marriage and sold prior to their separation. It is well settled that equity cases are tried de novo on appeal upon the record made in the trial court, and the issues are resolved on that record. However, we do not reverse the chancellor’s findings unless they are clearly against the preponderance of the evidence, giving due regard to the opportunity of the chancellor to judge the credibility of the witnesses. A.R.C.P. Rule 52(a).
It is clear from the record that the parties purchased the Rye Hill property as husband and wife creating a tenancy by the entirety. Ark. Stat. Ann. § 34-1215 (Supp. 1983), provides that when a decree of divorce is rendered, any estate by the entirety shall be automatically dissolved unless the court order specifically provides otherwise, and in the division of the property the parties shall be treated as tenants in common. This statute is the only authority for dividing estates by the entirety, and it provides for the equal division of property without regard to gender or fault. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981).
In Yancey v. Yancey, 234 Ark. 1046, 356 S.W.2d 649 (1962), the Arkansas Supreme Court reversed a decree of the chancellor on a finding that the court had exceeded its authority in directing the appellant to give the appellee a quitclaim deed to his interest in the home held as an estate by the entirety. The Court stated as follows:
. . . we have stated on several occasions that in event of a divorce, property held as an estate by the entirety shall be treated as a tenancy in common. The court may then do one of two things; it may place one of the parties in possession of the premises, or it may order the property sold and the proceeds divided.
Furthermore, in Carr v. Carr, 226 Ark. 355, 289 S.W.2d 899 (1956), the Court stated that “The couple’s home was owned as a tenancy by the entirety and was correctly ordered sold, the proceeds to be divided equally.”
In Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975), the appellant appealed from the portion of a divorce decree relating to the division of property. The property involved consisted of promissory notes held as a tenancy by the entirety by the parties. The Court held that the chancellor erred in awarding one party a greater interest than the other in these notes and stated as follows:
The fact that the consideration given for the property taken in the two names belonged to the husband only is of little, if any, significance where he is responsible for the property being taken in both names and the presumption is that there was a gift of an interest by the husband to the wife, even though the wife may have no knowledge of the transaction, (cites omitted).
In the instant case, we find it to be equally true that there is a presumption that there was a gift of an interest by appellee to appellant. The Court in Ramsey, supra, went on to state:
The presumption is strong, and it can be overcome only by clear, positive, unequivocal, unmistakable, strong, and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof, (cites omitted)
Upon our de novo review of the record, we cannot say that there was proof that appellee advanced the consideration of $5,200.00 and expected it to be held in a resulting trust. The mere loan of money for the purchase of property does not result in an equitable lien in favor of the lender. Lowrey v. Lowrey, 251 Ark. 613, 473 S.W.2d 431 (1971). Where the evidence does not show an agreement to give the lender a lien, or that the loan was acquired through trickery or fraud, then it is error to impress an equitable lien upon property as security for the loan. Hunter v. Johnston, 226 Ark. 792, 294 S.W.2d 49 (1956). Accordingly, we hold that the chancellor erred in awarding appellee an equitable lien against appellant’s one-half interest in the Rye Hill property.
The decree imposing an equitable lien is reversed and remanded with directions to cancel the lien and divide the proceeds equally.
Reversed and remanded.
Cooper and Glaze, JJ., agree. | [
-44,
108,
-11,
124,
-120,
96,
58,
-84,
98,
-123,
103,
-45,
111,
-14,
16,
105,
-30,
-53,
101,
104,
-43,
-73,
55,
66,
-46,
-45,
-47,
-59,
-71,
109,
-25,
-42,
72,
32,
-58,
-35,
-58,
-32,
-59,
92,
-122,
11,
11,
100,
73,
-60,
52,
47,
80,
9,
97,
-90,
-77,
45,
53,
-53,
104,
44,
-49,
-95,
80,
24,
-113,
5,
127,
7,
17,
4,
-14,
69,
74,
-50,
-112,
49,
1,
-24,
51,
54,
-106,
116,
75,
-101,
13,
32,
99,
19,
5,
-1,
-112,
-120,
38,
123,
-115,
-90,
-80,
89,
67,
64,
-66,
-100,
125,
-48,
68,
-10,
106,
-99,
94,
104,
10,
-49,
-106,
-79,
1,
88,
-100,
26,
-21,
-25,
48,
116,
-49,
-90,
92,
-10,
17,
-101,
-50,
-110
] |
OPINION.
Smith, J.
Roberts complained that, on the -13th of October, 1882, he had been employed by Meyer, as a manager of his plantations, for the remainder of that year and also for the following year, provided neither of the parties should object on the 1st day of January, 1883, to the continuance of the arrangement; that his stipend was to be $100 per month, besides being furnished with a house to-live in and his horse to be fed at his employer’s expense; and that he continued to serve without objection until the 1st of May, 1883, when he was discharged without cause,, to his damage $600.
The answer alleged that the hiring was only from month to month, and set up the statute of frauds.
The jury returned a verdict of $400 for the plaintiff.
The exceptions to the charge of the court being general, not designating the objectionable portions, we confine our review to the sufficiency of the testimony to support the verdict, discarding all of the evidence adduced which tended to sustain the defendant’s version of the contract.
Roberts testified that Meyer wished to engage his services for five years, but that he declined on the score of health to enter into so extended an engagement. The parties finally came to terms on the 13th of October, 1882. It was orally agreed that he should undertake the superintendence of the defendant’s planting interests until the 1st of January ensuing, and that if his health permitted and the defendant was satisfied, he should continue in his employment for the year 1883, for the compensation mentioned in the complaint. When the 1st of January arrived, Meyer expressing no dissatisfaction and no communication or additional understanding having been had then or afterwards between them in relation to such employment, he continued to serve in the same capacity. In the latter part of April, Meyer, by letter, dismissed him from his service, assigning as a reason his inability to pay such high wages. Meyer paid him down to the 1st of May, but the plaintiff notified him that he considered himself hired for the year and that he stood upon his legal rights and the terms of the contract. Being thrown out of employment in the middle of the season, the plaintiff had been unable to obtain a place until the 10th of September, when he secured a situation at $75 per month. Another witness swore that, in the beginning of the year 1883, he had intended to propose to Roberts a co-partnership in farming, but received information from both the parties to this action that he was engaged for the year by Meyer.
See. 3371 of Mansfield’s Digest enacts that no action shall be brought to charge any person upon any contract that is not to be performed within one year from the making thereof, unless the contract or some memorandum, or note thereof, shall be made in writing and signed by the party to be charged or his agent.
The decisions upon this clause of the statute cannot all be reconciled. But ever since the case of Peter v. Compton, Skinner, 353; S. C., 1 Smith’s Lead. Cas., 8th ed., 614, it has been considered settled that the statute applies only to agreements which appear from their terms to be incapable of performance, or such as the parties never contemplated should be performed, within the year. Consequently, where the duration of the agreement depends upon a contingency, as the death or marriage of one of the contracting parties, a note in writing is not necessary, for the contingency may happen, and thus the contract be fully performed, within a year from the time it is made. So a contract determinable at any time by either party, is a contract which is to last during the pleasure of the parties or so long as they are mutually satisfied.
But a contract for personal services to continue and hold the parties together for a longer period than one year is plainly within the statute. Thus, if at Christmas I orally hire a servant for a year, to begin from New Year’s day, when he presents himself at the time appointed in fulfillment of that contract, I am not legally bound to receive him into my service; and if I do receive him, may after-wards discharge him without incurring any other liability than the payment of his wages for the time he actually served. Bracegirdle v. Heald, 1 Barn. & Ald., 721 (4 E. C. L. R.), 342; Snelling v. Lord Huntingfield, 1 Cr. Mes. & Ros., 19; Hill v. Hooper, 1 Gray, 131; Tuttle v. Swett, 31 Me., 555; Sutcliff v. Atlantic Mills, 13 R. I., 480; Kelly v. Terrell, 26 Ga., 551; Amburger v. Marvin, 4, E. D. Smith, 393; Nones v. Homer, 2 Hilton, 116.
Nor does it make any difference that the contract, if for more than a year, is subject to determination sooner on a given event. This is illustrated by the case of Dobson v. Collis, 1 Hurl. Nor. 81, where a traveling agent was employed for two years, with a proviso that the contract might be determined on three months’ notice. Pollock, C. B., stated that the object of the statute was to prevent contracts, not to be performed within the year, from being vouched by parol evidence, when at a future period any question might arise as to their terms, and that a contract was not the less a contract not to be performed within a year because it might be put an end to within that period. And Alderson B. observed: “When once the contract exceeds the year, the circumstance that it is defeasible will not make it other than a contract for more than a year. See the absurdity of holding otherwise; at the end of two years and a half one of the parties might claim a right to put an end to a parol contract for five years by giving three months’ notice; but the very subject of dispute might be, whether or no he had a right to give such notice. That shows that this is a contract within the statute.”
Here was an absolute agreement to take charge of the defendant’s business from October 18, 1882, to the end of the calendar year; and a further conditional agreement for the year 1883, which might have been annulled by either party on the 1st of January, 1883. If not annulled, the agreement could not possibly have been performed within a year from the making of it.
Beeston v. Collyer, 4 Bing., 309 (13 E. C. L., 517), relied on by the plaintiff, is distinguishable. There a clerk had been hired by afi army agent for a year, beginning on the 1st of March, but had remained in service for more than twenty years. He was dismissed without cause on the 23d of December, and it was held that his salary must be paid until March. This was upon the ground that the original hiring having been by the year, and the parties having gone on for a long time without any new arrangement, the law would imply from the circumstances a fresh contract for the same length of time at the commencement of each year. But in the present case there was an express contract for the year 1888; and the law does not readily imply contracts between parties when they have covered the same subject matter by their express agreement,
Moore v. Fox, 10 Johns., 243, was an action by the minister of a church to recover from one of his members for two years’ services as a minister. The proof was that the defendant, about six years before, had verbally promised to pay the plaintiff $2 a year, and had continued to pay at that rate, in semi-annual installments, until the last two years. And a recovery was allowed. But the action was brought on a bygone or executed consideration, and the statute did not apply. The plaintiff had continued to preach in the same church and to the same congregation. The defendant had enjoyed the benefit of his ministrations, although apparently he had not profited by them. The acceptance of a benefit, even under an invalid contract, obliges the party to pay for it.
There is, however, a case in 19 Hun., 234 (Smith v. Conlin), decided by a divided court, wM-ch, if correct, would lead to an affirmance of the judgment. In October, 1876, the plaintiff entered into a verbal agreement with the trustees of a school district to teach a school for the year, ending October 1, 1877, at a fixed salary, and for a further term of one year, at the same salary, to begin on the last-mentioned day, if no notice to the contrary should be given by either party, at least two weeks prior to that date. Such notice not having been given, the plaintiff continued his services for a few weeks into the second year, when he was -discharged. He claimed and was permitted to recover his salary for the entire year.
This is certainly contrary to the rule established in Eng-Hand by a long course of decisions, that an option to determine at any time a contract for a designated period ex-needing a year, has no effect in taking the case out of the statute of frauds.
As the plaintiff’s contract extended over a period of more than a year, and could not, in the nature of things, have been completed within a year from the time it was made, and as it was not manifested by any writing, there is no competent evidence to warrant the verdict.
Reversed and remanded for a new trial. | [
-80,
-18,
-120,
-49,
-118,
96,
42,
-102,
64,
-62,
-89,
87,
-23,
23,
20,
121,
-30,
109,
84,
106,
-58,
-77,
21,
33,
51,
-45,
-53,
-35,
-75,
77,
-12,
-43,
69,
60,
74,
-35,
38,
-62,
-55,
80,
-62,
37,
-87,
-20,
-71,
0,
52,
127,
-80,
91,
53,
-82,
-13,
42,
25,
-33,
44,
60,
127,
41,
-16,
-15,
-102,
4,
103,
29,
-112,
36,
-98,
67,
-56,
110,
-112,
21,
-128,
-55,
114,
-76,
-58,
84,
39,
-71,
8,
34,
102,
18,
-43,
-51,
32,
-104,
63,
94,
-115,
-90,
-111,
88,
-102,
76,
-98,
-97,
94,
20,
-122,
-10,
-11,
29,
24,
100,
11,
-101,
-106,
-125,
31,
-12,
-102,
11,
-29,
-109,
17,
113,
-50,
-94,
92,
69,
112,
-101,
-121,
-7
] |
Donald L. Corbin, Judge.
Appellants, Hunter Wasson and Rockwood Insurance Company, appeal a decision of the Workers’ Compensation Commission which allowed payment of nursing services to appellee’s wife. We affirm as modified.
Appellants contend in their first point for reversal that the Commission erred by failing to allow a contract for nursing services entered into between appellee’s wife and appellants to stand as a valid and enforceable agreement.
The Commission adopted the decision of the Administrative Law Judge who awarded the payment of nursing services to Mrs. Losey for the benefit of her husband, appellee Clinton Losey. The Administrative Law Judge calculated all nursing service benefits using minimum wage rates in effect at the time the services were rendered as follows: nursing service benefits provided by appellee’s wife during appellee’s hospitalization at Arkansas Rehabilitation Institute for 8 hours per day, 7 days per week; nursing service benefits for 24 hours per day, 7 days per week from May 29, 1980, until September 1, 1980; nursing service benefits for 12 hours per day, 7 days per week from September 1, 1980, until January 1, 1981; nursing service benefits for 8 hours per day, 7 days per week from January 1, 1981, until October 1, 1981; and nursing service benefits for 4 hours per day, 7 days per week for a period of time yet to be determined after October 1, 1981.
The Administrative Law Judge determined that the contract entered into by appellants and appellee’s wife was an attempt on the part of appellants to circumvent or abrogate appellee’s rights under Ark. Stat. Ann. § 81-1311 (Supp. 1983). The Administrative Law Judge disallowed the contract in toto on a finding that Ark. Stat. Ann. § 81-1320(a) (Supp. 1983), was controlling, which provides as follows:
No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation, or device whatsoever, shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this Act (§§ 81-1301 — 81-1349), except as specifically provided elsewhere in this Act. . . .
Ark. Stat. Ann. § 81-1311 (Supp. 1983), the statute providing for nursing services, states in part:
The employer shall promptly provide for an injured employee such . . . nursing service ... as may be reasonably necessary for the treatment of an injury received by the employee . . .
All persons who render services or provide things mentioned herein shall submit the reasonableness of the charges to the Commission for its approval, and when so approved, shall be enforceable by the Commission in the same manner as is provided for the enforcement of compensation payments, but the foregoing provisions relating to charges shall not apply where a written contract exists between the employer and. the person who renders such service or furnishes such things . . . (emphasis ours)
We believe the above is authority for the proposition that a provider of services to a claimant, in this instance appellee’s wife, is free to contract with an employer or carrier for services rendered or goods supplied. The record clearly demonstrates that appellee’s wife instituted the negotiations with appellants for the payment of nursing care provided by her to appellee. She bargained and compromised an agreement by letter dated May 29, 1980, which provided, among other things, for appellants to pay her $100.00 per week for nursing care to appellee Clinton Losey. Based upon Dr. Flanigan’s report dated April 30, 1981, appellants terminated the $100.00 weekly payment to appellee’s wife on May 15, 1981.
There was no evidence to establish that appellee did not receive adequate nursing care services by his wife. It is clear appellee received all of the nursing services which he required. Accordingly, we hold that the Commission erred in refusing to allow the contract to stand as a valid and enforceable agreement between the parties. We, therefore, modify its decision to the effect that appellants are only responsible for nursing care benefits at the contracted rate of $ 100.00 per week for the term of the con tract, May 29,1980, to May 15, 1981.
Appellants’ second contention for reversal is that the Commission erred in granting compensation to Mrs. Losey for her nursing services to appellee after May 15,1981, and in granting an award for nursing services for the period appellee was hospitalized at the Arkansas Rehabilitation Institute. We find no error on this point.
As noted in appellants’ first point, the contract was terminated effective May 15, 1981. Appellants had a responsibility to provide such nursing services for appellee as were reasonably necessary pursuant to statute. It is the prerogative of the Commission to determine from a preponderance of the evidence whether or not the charges were reasonably necessary. Furthermore, it is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its “. . . medical soundness and probative force . . .” Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977). Dr. Flanigan, appellee’s physician, testified that Mrs. Losey’s presence was necessary for appellee’s therapy at the Arkansas Rehab Institute and that her continued nursing services were needed on a more limited basis thereafter. The Commission also had the benefit of the testimony of appellee, his wife, and the physical therapist in regard to the extent of nursing care needed by appellee on a daily basis. We find substantial evidence to support the Commission’s award of nursing services provided by Mrs. Losey to appellee at prevailing minimum wage rates from May 15, 1981, up to and following a period of time yet to be determined after October 1,1981. We also find substantial evidence to support the Commission’s award of nursing care benefits provided by appellee’s wife while appellee was a patient at Arkansas Rehab Institute insofar as this rehabilitation pre-dated the contract between appellants and appellee’s wife. We, therefore, affirm on this issue.
Finally, appellants contend that appellee should not have been allowed to amend his claim to include nursing services provided by his wife while he was hospitalized. The amendment was made near the end of the hearing before the Administrative Law Judge. Appellants argue that the amendment both surprised and prejudiced them. We agree with the Commission’s finding that appellants had not demonstrated “. . . any prejudicial effect of this belated contention.” The Commission further noted that no request for an immediate ruling was made at that time. In any event, the question of nursing services was not an incidental part of the claim. It was the very essence of the proceedings. We affirm on this point.
Affirmed as modified.
Mayfield, C.J., and Glaze, J., agree. | [
16,
-8,
-43,
-4,
8,
-125,
48,
-102,
86,
-37,
39,
81,
-65,
-26,
21,
123,
-89,
45,
81,
97,
83,
-77,
21,
98,
-9,
-9,
-47,
-57,
-69,
79,
-76,
-106,
65,
40,
10,
-43,
-26,
66,
-51,
16,
-94,
6,
-117,
-19,
-7,
66,
48,
-82,
16,
75,
49,
-114,
-21,
46,
20,
-61,
45,
46,
121,
33,
88,
-71,
-126,
5,
111,
0,
-111,
-124,
-102,
47,
92,
14,
-100,
49,
72,
-40,
115,
-74,
-58,
52,
98,
-71,
12,
98,
99,
3,
1,
-2,
-128,
-68,
6,
94,
-99,
-121,
-110,
57,
114,
14,
-105,
-105,
124,
28,
-123,
124,
-14,
21,
95,
40,
66,
-114,
-36,
-93,
-52,
113,
-100,
-117,
-17,
67,
-80,
80,
-33,
-94,
93,
71,
115,
27,
78,
-118
] |
Cockrill, C. J.
The appellant’s arguments for the reversal of the judgment .in this case rest solely upon the evidence and the court’s directions to the jury. The counsel for the appellees contend that these matters cannot be reviewed because the bill of exceptions does not bring them to our consideration. The bill of exceptions, as certified by the clerk in the transcript filed here by the appellant, purports to set forth all the testimony adduced at the trial, the instructions of the court to the jury and the exceptions taken thereto. But, in return to a writ of certiorari sued out, for that purpose, the clerk has certified a copy of the bill as it was at the time it was allowed by the circuit judge and still exists among the records of the court.
It is a skeleton bill which not only casts upon the clerk the duty of filling the numerous blanks found in it, but gives him no reference, brand, mark or indicia of any sort, by means of which he may be safely guided in the discharge of his duty in some of its most material features.' Depositions were referred to by the name of the witnesses testifying, but as these were on file in the case, any proper reference to them was a sufficient identification to guide the clerk to a certain conclusion. But the testimony of a number of witnesses was heard ore tenus. As to that fea ture we will allow the bill of exceptions to speak for itself, viz.: “Defendant thereupon introduced C. H. Banks, who testified (clerk insert here his testimony), J. M. Daggett, who testified (clerk insert here his testimony), Tiros. Day» who testified (clerk will insert here his testimony),” and the testimony of many other witnesses for each party was called for in the same way. The clerk is also directed to insert the prayers for instructions that were given and those refused, without receiving any indication by which he should be guided in determining what had been asked, what given, or refused. It is also disclosed that the court gave to the jury a charge independent of that asked by the parties, but the only evidence of it found in the bill is a request that the clerk insert it.
From what source the clerk was to derive his information as to these matters is not pointed out. And yet, it is certain that nothing that is not reduced to writing can be embodied in a bill of exceptions by reference to it alone. Even where a writing is referred to, it must be so identified, by the reference in the bill, that when the paper and the reference to it are compared, the identification can be made with certainty. Any other rule would make the final record of a case as vacillating and uncertain as the memory or the will of the clerk to whom its final making up might be referred, and would place the rights of parties, who have judgments of record, entirely in the power of the person who eventually makes up the bill of exceptions for this court.
When a question arises as to whether any matter found in a bill of exceptions can hold its place there, we are not at liberty to look to extraneous proof to determine it, but are confined to the evidence that the bill itself gives for that purpose. It is a record and must carry with it its own verity. The record is made when the hill is allowed by the judge and filed by the clerk.
The questions presented upon the insufficiency of the bill of exceptions are ruled by the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Godby, 45 Ark., 485, and as none of the matters assigned as error are before us, the judgment must be affirmed. | [
-80,
-4,
-28,
-84,
90,
96,
32,
-66,
-127,
-127,
-89,
83,
105,
82,
0,
119,
-26,
9,
85,
107,
-50,
-73,
14,
-31,
-78,
-13,
-37,
-121,
-76,
78,
-26,
86,
12,
40,
-62,
-47,
103,
74,
-63,
20,
-50,
-115,
-87,
-53,
-7,
-128,
52,
115,
117,
79,
53,
-34,
-29,
40,
29,
-57,
107,
40,
107,
57,
80,
-72,
-114,
-115,
95,
18,
-77,
103,
-98,
69,
88,
42,
-110,
53,
1,
-8,
113,
-74,
-122,
-44,
43,
-71,
9,
102,
102,
33,
36,
99,
-72,
-24,
38,
59,
-67,
-90,
-110,
105,
67,
97,
22,
-99,
120,
16,
39,
126,
-22,
-43,
92,
44,
7,
-113,
-106,
-109,
-113,
126,
-98,
26,
-17,
-109,
16,
113,
-51,
-6,
92,
-59,
51,
-103,
-114,
-34
] |
Cockrill, C. J.
The Allendale Trust Company was carrying on a saw mill business in Clay county, and b¿came indebted to the mercantile firm of Hecht & Imboden in the sum of $1,500. Wishing to secure this amount and advances thereafter, to be made in money or merchandise by Hecht & Imboden, an agreement was entered into between the parties by which the company transferred all of its stock of saw logs and timber, and certain accounts due them, to the merchants, and agreed to carry on the saw mill business for the sole benefit, and in the name of the merchants, until the amount secured should be liquidated; the merchants upon their part agreeing to furnish the mill with logs, and to pay the wages of the employes, and other expenses of the business. The agreement was duly •executed, acknowledged and filed for record as a chattel mortgage, and the business was conducted under it. It was the custom of the company to issue due bills to the ■employes at the mill for their wages, payable at Hecht & Imboden’s store on the 15th of each month.
The appellee was an employe at the mill and purchased d.ue bills for wages from other employes payable at Hecht & Imboden’s place of business, which the firm paid. Subsequently the appellee presented a time check due him for wages, and several others which he had purchased as before, but payment was refused, the merchants claiming that the company had no money in their hands, but was indebted to them in the sum of $1,100. The appellee sued them to recover the aggregate amount of the several due bills, obtained judgment, and the merchants appealed.
On the trial the court permitted the appellee to read the jury the agreement between the company and Hecht •& Imboden, without proof of its execution. It purported to be a certified copy from the record, but there was no proof as to the original, and it is argued that the clerk’s •certificate to the -copy was informal and insufficient, and that the court erred in permitting it to go to the jury.
The action was begun before a justice of the peace, upon' a formal complaint containing several paragraphs, one of which sets forth the copy of the agreement offered in evidence. What issues were made in the justice’s court the record does not disclose, but in the circuit court the appellants filed a written answer. It was simply the old plea of nil debit. No written answer was necessary before the justice, or on appeal to the circuit court, but the appellants having elected to make their defense in writing, they must be held to the issues their answer tendered. Pennington v. Gibson, 6 Ark., 447; Bellows v. Cheek, 20 ib., 424. The general issue is not now permissible in practice, a specific denial of each material allegation of the com plaint which the defendant desires to controvert being required. The plea may be accepted by the parties as tendering an issue, and so be treated here as a valid answer,, but the scope of the issue will not be extended, as was-ruled in Tyner v. Hays, 37 Ark., 599, beyond such as the answer was obviously intended to make. The chief object of the reform system of pleading, it is said, is “ to compel the adverse parties to disclose to each other the facts upon which they rely to uphold the claim upon the one side and to maintain the defense on the other, in order that each may know what he is required to establish or repel by proof upon the trial.” Newman Pl. & Pr., 523.
It is obvious that the appellee could not have understood that the execution of the instrument sued on was denied,, and he was, therefore, not called upon to prove its execution. Martin v. Tucker, 35 Ark., 279; Tyner v. Hays, supra; Gwynne v. McCauley, 32 ib., 97.
But it is said the appellee was not a party to this contract and had no legal interest in it. The right of a party to maintain an action on a promise made to another for his benefit, although much controverted, is now the prevailing rule in this country, and has received the sanction-of this court. Chamblee v. McKenzie, 31 Ark., 155; Talbot v. Wilkins, ib., 411; 2 Whart. Cont., sec. 785, et seq.
One of two constructions must be placed upon the contract.. Hecht & Imboden either undertake to pay the wages and supply demands of the business,in consideration of the benefit to be derived by them from the company, or they constitute-the company their agent with power to bind them for the payment of these demands. In either event they are liable. In this view the instructions were not erroneous and the judgment must be affirmed. | [
112,
108,
-40,
-115,
-38,
-32,
48,
-102,
74,
105,
39,
87,
-1,
-46,
1,
97,
-25,
125,
81,
106,
70,
-77,
50,
99,
-46,
-69,
-69,
-51,
-68,
74,
-68,
85,
76,
52,
74,
93,
-30,
-112,
-49,
24,
-116,
-116,
-86,
-22,
-7,
64,
52,
-65,
101,
73,
113,
14,
-13,
44,
-99,
67,
73,
44,
111,
57,
80,
-8,
-70,
-59,
95,
23,
-125,
6,
-120,
19,
-56,
46,
-112,
53,
11,
-23,
122,
-74,
-58,
84,
11,
13,
13,
102,
38,
33,
-123,
-17,
-56,
-104,
-82,
30,
-115,
-89,
-112,
120,
50,
107,
-68,
-100,
116,
94,
-90,
118,
-18,
12,
25,
108,
-123,
-34,
-42,
-125,
-113,
-68,
-100,
3,
-17,
-78,
51,
80,
-51,
51,
93,
111,
56,
27,
-50,
-13
] |
Smith, J.
The railroad company brought an action of debt by attachment against Mrs. Adams before a justice of the peace. She filed a schedule, claiming that the property attached, consisting of household and kitchen furniture, aud wearing apparel, and amounting to $328, was exempt. A supersedeas was accordingly granted and the plaintiff appealed.
In the circuit-court the cause was tried upon an agreed statement of facts, to the effect that the account sued on was incurred in carrying on the separate business of the defendant, who was the keeper of a boarding-house for section hands, and who had a husband living with her; and that she was a resident of this state. The court found that she was, at and before the commencement of the action, a resident and a married woman, and that the debt sued on was a debt by contract, made in the course of business carried on by her on her sole account. And it declared the law to be, that, under the constitution of the state, she was entitled to claim and hold, free from seizure or sale under attachment, personal property not exceeding in value $500. The action of the justice, in issuing said supersedeas, was therefore affirmed.
The constitution allows to a resident of the state who, is not married, or the head of a family, a chattel exemption of $200, exclusive of wearing apparel, as against debts by contract; but to one who is married, or the head of a family, an exemption of $500, in addition to his or her wearing apparel, and that of his or her family. Art. 9, sees. 1 and 2.
The argument is, that Mrs. Adams is entitled to neither of these exemptions: Not to the first, because she is a married woman; nor to the second, because she is not the head of a family; that exemption laws, being for the benefit of the family as an entity, must be restricted to heads of families; otherwise, the same family might enjoy a double exemption, in case both parents are alive and the owners of property.
This reasoning, it will be observed, is bottomed on the assumption that the use of the phrase, “married, or the head of a family,” is nothing more than an instance of the tautology so common in legislative enactments, the intention being simply .to declare that marriage should, of itself, constitute a man the head of a family.
But the expressions are not synonymous, or mere equivalents the one for the other. A married person is not necessarily the head of a family; and one may be the head of a family without being married. If the debtor is either the one or the other, he or she is entitled to hold personal property not exceeding $500 in value exempt from execution or attachment.
The provision is not for the benefit of one sex alone, but for all of either sex who are or may be charged with the care and maintenance of a family. No reason can be advanced for the protection of a portion of the husband’s property from seizure and sale, which is not equally strong where the property belongs to the wife and she is the debtor.
There is no ambiguity in the language of the constitution and no room for construction. It is dangerous to interpret a statute contrary to its express words, where it is not obvious that the makers meant something diflerent from what they have said, and where no inconvenience will follow from a literal interpretation. Broom's Legal Max. 1*480).
If the framers of the constitution had intended to confine the privilege to heads of families, it would have been easy to say so, by omitting the mention of married persons.
The following cases have an indirect bearing upon the question: McHugh v. Curtis, 48 Mich., 262; Partee v. Stewart, 50 Miss., 717; Davis v. Dodds, 20 Ohio St., 473; Dwinell v. Edwards, 23 ib., 603; Crane v. Waggoner, 33 lnd., 83; Brigham v. Bush, 33 Barbour, 596.
Affirmed. | [
-16,
121,
-99,
-4,
-118,
96,
42,
-104,
115,
-62,
-91,
-45,
-53,
74,
20,
97,
-11,
121,
81,
107,
-43,
-77,
7,
-30,
-46,
-77,
-79,
-35,
-80,
77,
-27,
-10,
68,
32,
74,
-43,
71,
-117,
-63,
28,
-116,
-128,
-71,
101,
-7,
66,
52,
107,
16,
79,
81,
-50,
-77,
46,
29,
83,
40,
43,
91,
53,
-64,
120,
-98,
22,
95,
22,
51,
39,
-100,
-89,
-56,
10,
-104,
17,
0,
-24,
115,
-92,
-62,
86,
105,
-101,
-119,
98,
98,
2,
37,
-1,
-104,
-120,
46,
-46,
-99,
-121,
-112,
89,
11,
13,
-66,
-99,
77,
84,
-113,
126,
-18,
69,
92,
108,
13,
-113,
-106,
-93,
-115,
116,
-104,
3,
-26,
-95,
49,
113,
-52,
34,
93,
7,
123,
-101,
-114,
-36
] |
Melvin Mayfield, Chief Judge.
This is an appeal from the Workers’ Compensation Commission. The appellant was injured in May of 1980 while working for J & R Eads Construction Company. This resulted in surgery for the removal of a ruptured disc in June of 1980, and appellant was subsequently given a permanent partial disability rating of 10% to the body as a whole and released to return to work on January 5, 1981.
The appellant was paid the benefits required by the 10% disability, but he now contends that this rating is insufficient, that his healing period did not end in January of 1981, that he should be allowed a retroactive change in physicians so that a doctor who has treated him will be paid by appellant’s employer, and that he is entitled to future medical treatment. A hearing was held on these contentions and they were denied. The full Commission affirmed.
At the hearing before the administrative law judge the appellant testified that he returned to work for the appellee employer in January of 1981, but after working a few days fell off a ladder because his legs “just gave out.” The doctor who performed his original surgery had recommended that he go back to work and appellant was not satisfied with this recommendation so he went to see another doctor. The new doctor hospitalized appellant and on May 6, 1981, performed surgery. He reported to appellant’s attorney that a “huge extruded fragment of disc” was removed, apparently from the same disc space operated on by the first doctor. The second doctor estimated a disability of 20% to the body as a whole and another doctor, seen by appellant after this last surgery, estimated his disability at 30%.
At the hearing before the administrative law judge, the appellant admitted that he was involved in an automobile accident in November of 1980. He also admitted that suit was filed against the employer of the driver of the other vehicle for injuries alleged to have been received in that collision by appellant and his wife and daughter who were in the automobile with him. The complaint specifically alleged that appellant “suffered pain and injuries, including acute lumbar strain and acute aggravation of previous lumbo-sacral disc disease.”
In answers to interrogatories served on him in the tort case, the appellant stated under oath that the injury sustained in the automobile collision aggravated the previous back injury and further surgery was required; that the surgery was performed in the Baptist Memorial Hospital in Little Rock; that as a result of the accident he had been treated by three different doctors; and that he had lost wages at the rate of $5.00 per hour for forty (40) hours each week since the accident. He also admitted that the tort suit was settled but said his wife and daughter received all the proceeds of the settlement and he got nothing.
In denying additional benefits, the Commission said:
[I]t is apparent that claimant’s second injury was not as a result of the May 29,1980 injury but was as a result of either the automobile accident of November 7, 1980, or the fall from the ladder in January of 1981. In short, obviously, there was a new event that occurred that aggravated claimant’s prior injury, and it is axiomatic that aggravations of preexisting injuries are considered, in effect, new injuries and not recurrences of the original injury.
The above statement is then followed by this unfortunate statement:
In summary, the Workers’ Compensation Commission will not award benefits to a claimant who has previously given sworn statements in a pending lawsuit that his physical difficulties relate to a non-job-related automobile accident when he later changes his mind and decides to file a workers’ compensation claim for additional benefits.
It is, of course, the duty of the Commission to pass upon the credibility of the parties and witnesses who give evidence before it. It is not, however, the Commission’s prerogative to refuse compensation to a claimant simply because he is untruthful. But even when we regard the statement in the most favorable light, we think this matter should be remanded because the statement also contains the language “it is axiomatic that aggravations of preexisting inj uries are considered, in effect, new injuries and not recurrences of the original injury.” While the language may be correct in an appropriate situation, we are troubled by it in view of the appellant’s argument in this case.
The appellant cites Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528 (1963), and builds his argument around the following quotation that case makes from 1 Larson, Workmen’s Compensation La.iu, § 13.00.
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct.
Appellant’s brief contains the flat assertion, “There can be no independent intervening cause unless the claimant was negligent or reckless in causing a subsequent injury.” We think appellant has misread Larson and Moss v. El Dorado Drilling. In this case, appellant’s fall from the ladder was in the course of his employment by the appellee construction company, so the only independent intervening cause possible is the automobile accident. It did not, however, have to be caused by appellant’ negligence or recklessness in order to be an independent intervening cause.
This is made clear in 1 Larson, Workmen’s Compensation Law § 13.11 at 3-353 (1982), where it is said:
The issue in all of these cases is exclusively the medical issue of causal connection between the primary injury and the subsequent medical complications. By the same token, denials of compensation in this category have invariably been the result of a conclusion that the requisite medical causal connection did not exist.
Cases cited in the 1983 Supplement to section 13.11 of Larson’s treatise also make it clear that the question is whether there is a causal connection between the primary injury and the subsequent disability and if there is such a connection, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Medart Div. of Jackes-Evans Mfg. v. Adams, 344 So.2d 141 (Miss. 1977). See also Richardson v. Robbins Lumber, Inc., 379 A.2d 380 (Me. 1977); Schaefer v. Williamston Community Schools, 323 N.W.2d 577 (Mich. App. 1982), and 1 Larson, Workmen’s Compensation Law § 13.12 at 3-375 through 3-379 (1982). We think the point is plainly stated in this summary in the Schaefer case:
In light of our discussion of Larson and our interpretation of Adkins, in our view, where the primary compensable injury arises out of and in the course of employment compensability may be extended to a subsequent injury or aggravation of the primary injury where it has been established that the subsequent injury or aggravation is the direct and natural result of the primary injury and the claimant’s own conduct has not acted as an independent intervening cause of the subsequent injury or aggravation.
The Arkansas cases also make this matter plain. The Moss v. El Dorado Drilling case, relied upon by appellant, quotes from the Arkansas case of Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W.2d 315 (1960). In that case the Commission had found that a second surgical procedure was necessary because of an independent intervening cause. The court reversed that finding for lack of substantial evidence but made no reference to any requirement of negligence or fault on the claimant’s part. In Gibson’s Discount Center v. Bornmann, 252 Ark. 24, 477 S.W.2d 171 (1972), the appellant relied upon Moss v. El Dorado Drilling to support its contention that the claimant’s condition was the result of her original injury. The court, however, affirmed the Commission’s finding that her condition was the result of a second injury. Again, no discussion and no mention of the second injury being caused by the claimant’s fault or negligence. We therefore conclude - contrary to the appellant’s contention - not only can there be an independent intervening cause without negligence or recklessness on the claimant’s part, but unreasonable conduct on a claimant’s part may create an independent intervening cause which would otherwise not exist.
As we have pointed out, compensation cannot be denied to a claimant simply because he is untruthful. Moreover, as we have indicated, in view of the appellant’s contention that there is no independent intervening cause in this case, we are not sure that the Commission’s findings really met the issue presented. For these reasons this matter is reversed and remanded for reconsideration in keeping with this opinion.
Remanded.
Cloninger and Glaze, JJ., dissent. | [
16,
121,
-47,
-100,
26,
-63,
50,
2,
81,
35,
103,
89,
-17,
126,
29,
43,
-29,
125,
81,
97,
-1,
-77,
67,
106,
-22,
-77,
123,
-58,
-7,
79,
-12,
-76,
77,
56,
-118,
-123,
-26,
72,
-52,
20,
-54,
6,
11,
-20,
89,
3,
44,
46,
-112,
15,
17,
-113,
64,
46,
49,
-49,
109,
40,
91,
40,
-47,
-32,
-120,
5,
-17,
5,
-93,
4,
-102,
43,
124,
88,
-104,
-80,
48,
-20,
82,
-74,
-126,
52,
107,
-71,
4,
98,
98,
32,
21,
-59,
104,
-72,
31,
-86,
-115,
-124,
-101,
57,
-102,
3,
-106,
-68,
122,
20,
12,
92,
124,
93,
77,
44,
-117,
-114,
22,
-111,
-49,
96,
-100,
11,
-21,
-113,
-110,
117,
-50,
-29,
93,
71,
115,
-101,
51,
-110
] |
George K. Cracraft, Judge.
John Johnson, doing business as Johnson’s Jewelers, appeals from an order granting summary judgment in favor of Stuckey & Speer, Inc. on an open account. The appellant maintains that the trial court erred in granting summary judgment as there were genuine issues of fact to be determined. We agree.
The appellee instituted this action to recover an indebtedness in the amount of $27,635.96 alleged to be due and payable. Attached to the complaint was an unitemized statement showing only that on March 27, 1981 the amount due was the total of a “Balance Forward’ ’ of $27,249.59 and a “Service Charge” of $386.37. The statement did not show the date or dates that the balance forwarded had been incurred or the period for which the service charge was made.
The appellant answered and raised the affirmative defense that appellee was a foreign corporation not authorized to do business in this state and was therefore barred from bringing an action under the provisions of the so called “Wingo Act,” Ark. Stat. Ann. § 64-1201 et seq (Repl. 1980), and that the contract forming the basis for appellee’s complaint was usurious.
Thereafter the appellee filed a motion for summary judgment attaching to it the admissions of appellant that he had received all of the merchandise, that the principal balance was accurately computed, that all goods were accepted as conforming to the contracts, and that demand had been made for which payment had not been forthcoming. He denied only that the computations of interest were not usurious. Appellee further asserted that it was not barred under the “Wingo Act” because the indebtedness had been incurred in interstate commerce. Appellee submitted no supporting documents tending to establish where the contract had been executed, that the transaction was consummated wholly in interstate commerce, or that it was not otherwise “doing business” in this state.
The appellant answered that the transactions had not been interstate in nature but had been consummated by appellee’s salesman who regularly called on businesses within this state to solicit orders. He again asserted his defense of usury but submitted to the court no affidavits or other data supportive of these positions.
Summary judgment is granted in accordance with ARCP Rule 56 which provides in part that such a judgment may be rendered where the pleadings, depositions, answers to interrogatories and admissions are on file together with supporting affidavits, if any, to show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment is an extreme remedy which should only be allowed when it is clear that there is no issue of fact to be litigated. Saunders v. Nat’l Old Line Ins. Co., 266 Ark. 247, 583 S.W.2d 58 (1979). The burden is on the moving party to demonstrate that there is no genuine issue of fact for trial and evidence submitted in support of the motion must be viewed most favorably to the party resisting the motion. Where the movant makes a prima facie showing of entitlement to summary judgment the respondent must meet proof with proof upon a showing of a genuine issue as to a material fact. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980); Chick v. Rebsamen Ins.-Springdale, 8 Ark. App. 157, 649 S.W.2d 196 (1983).
While the granting of the summary judgment by the trial court might have been sustained had there been no issue raised other than the defense of usury, the answer of the appellant brought into question the status of appellee under our “Wingo Act” which provides that all foreign corporations wishing to do business in this state must file specified documents with the Secretary of State. It further provides that those corporations who have not complied with the Act cannot enforce any contract made by it in our courts.
In Miellmier v. Toledo Scale Co., 128 Ark. 211, 193 S.W. 497 (1917) it was held that a foreign corporation doing business within this state will be presumed to have complied with our statutes. In an action brought by a foreign corporation where its failure to comply with the statutes does not appear on the face of the complaint a defendant must plead that failure or it will not be available to him as a defense. Where that defense is raised the burden of showing its right to maintain the action is placed upon the corporation. Widmer v. J.I. Case, 243 Ark. 149, 419 S.W.2d 617 (1967). Here there was no proof in the record to show that this appellee had complied with the “Wingo Act” with regard to filing a certificate with the Secretary of State. Upon its failure to prove that it had complied with the Act, the appellee then had the burden to prove that the Act did not apply to the transaction in issue.
The Wingo Act applies only to those corporations “doing business” within this state and to contracts made within this state. It has no application to those contracts made and entered into outside this state and consummated in the channel of interstate commerce by a corporation which is not otherwise doing business within the state. The W.T. Raleigh Medical Co. v. Rose, 133 Ark. 505, 202 S.W. 849 (1918); Sunlight Produce Co. v. State, 183 Ark. 64, 35 S.W.2d 342 (1931); White River Valley Broadcasters, Inc. v. William B. Tanner Co., 487 F. Supp. 725 (E.D. Ark. 1979).
Our courts have had occasion to discuss those factors to be considered in determining the place of making contracts, whether a contract is interstate or intrastate in nature and whether a non-resident corporation is “doing business” in this state within the meaning of the “Wingo Act.” Uncle Ben’s Inc. v. Crowell, 482 F. Supp. 1149 (E.D. Ark. 1980); National Distributors v. Simard, 246 Ark. 774, 440 S.W.2d 31 (1969); The W.T. Raleigh Medical Co. v. Rose, supra.
We find nothing in the pleadings or supporting documents filed by appellee which would tend to establish where the contract was made; how the goods were delivered or that appellee was not “doing business” within this state. As appellee’s right to maintain the action had been challenged, it had the burden of proving that the Wingo Act had no application to the transaction in issue. Miellmier v. Toledo Scale Co., supra; Widmer v. J.I. Case, supra. It failed to do so, and the application of the “Wingo Act” to the transaction remained an unresolved issue of fact.
Reversed and remanded.
Cloninger and Mayfield, JJ., agree. | [
-111,
107,
-7,
-4,
26,
96,
50,
-118,
80,
-114,
-75,
-45,
-23,
-54,
4,
123,
-10,
59,
116,
120,
-111,
-77,
38,
104,
-42,
-77,
-23,
-35,
-80,
79,
-28,
84,
76,
48,
-54,
-59,
98,
-126,
-63,
30,
-50,
0,
56,
108,
-7,
1,
48,
59,
20,
11,
53,
-92,
-13,
46,
31,
75,
109,
42,
-21,
61,
-64,
-48,
-69,
5,
125,
21,
-111,
52,
-104,
5,
-40,
30,
-124,
60,
2,
-119,
115,
-74,
66,
116,
43,
59,
8,
102,
98,
-94,
1,
-17,
-68,
-100,
-82,
-98,
-97,
-89,
-112,
24,
98,
13,
-66,
-68,
126,
0,
-90,
-2,
-2,
76,
31,
108,
19,
-50,
-42,
-93,
-113,
116,
31,
-118,
-17,
-125,
-80,
96,
-33,
-126,
93,
87,
59,
-77,
-114,
-72
] |
ITon. O. B. Moore, Sp. J.
On the-,'1879, the town council of the town of Magnolia adopted an ordinance requiring a license tax to be paid for the purpose of selling liquors by the quart as a druggist in said town for the year 1880.
The license tax for that year appellees paid under formal protest, as recited in the receipt therefor, dated January 1, 1880, to the constable and revenue collector of the town, amounting to the sum of $50, as stated in the account sued on, and on the 3d of January,- 1881, the town council adopted another similar ordinance, numbered 50, requiring license from persons selling liquors in the town; and appellees, under formal protest, recited in the receipt, then paid the license for the year 1881, amounting to the sum of $100.
On the 29th of June, 1882, appellees brought this action before Thomas S. Mullins, one of the justices of the peace of Magnolia township, to recover back the license taxes amounting to the sum of $150 and interest, which they claimed had been illegally exacted from them and against their protest made at the time of paying the same.
Judgment was rendered in favor of Sharman & Co. An appeal was taken to the circuit court, where judgment was again rendered against the town of Magnolia. Motion for a new trial overruled, and an appeal taken to this court.
There are two questions involved in this case:
First — Had the town council of Magnolia authority to adopt and enforce the ordinance and collect the license taxes thereunder demanded and paid ?
Second — If the exactions were unlawful, did or did not appellees pay the same voluntarily; that is to say, was the compulsion, shown by the pleadings and testimony, sufficient to render the payment involuntary in the legal sense ?
The first of these can hardly be considered a question. Independently of the “ local option law,” or of any special prohibitory liquor law for the town of Magnolia, neither this town, nor any other town in the.state, has authority to deal with the liquor question, in any other way than to “license, regulate, tax or suppress tippling houses and dram shops, and other places of habitual resort for tippling.” This is candidly admitted by the learned counsel for appellant. It was definitely and authoritatively set at rest by this court in Tuck v. Town of Waldron, 31 Ark., 462.
As to the second question presented, R. R. Sharman, the only witness in the case, testified that he paid the license taxes referred to under protest, after they had been demanded by the collector for the town of Magnolia three several times. The constable was the collector, and at'the time of demanding the taxes made threats of arrest, and other penalties, if payment was not made — and that the payments were made after appellees had taken legal advice on the subject.
It is a general proposition that an action may be maintained to recover money paid under an illegal and void tax, if paid involuntarily or under compulsion. There are certain elements or conditions, however, which must exist in order to the maintenance of such an action.
The Supreme Court of Georgia, in the case of National Bank v. The Mayor of Americus, etc., 68 Ga., 119, thus states these conditions:
“ Three elements are essential and must concur to sustain an action to recover back money on the ground of the illegality of the tax.
“jFirst — The authority to levy the tax must be wholly wanting.
“ Second, — The money sued for must have been actually ■received by the defendant corporation.
“ Third — The payment of the plaintiff must have been made upon compulsion, to prevent the immediate seizure ■of his goods, or the arrest of his person, and not voluntarily made; unless these conditions concur, paying under protest will not give a right to recovery.”
Judge Cooley, in his work on Taxation, p. 565, says: “The authorities warrant us in specifying the following as the conditions on which any such action may be main-tained:
“First — The fax must have been illegal and void, not merely irregular.
“ Second — It must have been paid over by the collecting ■officer, and have been received to the use of the municipality.
“ Third — It must have been paid under compulsion.
“And to these should be added, perhaps,
“ Fourth — The party must not have elected to proceed in .any remedy he may have had against the assessor or collector.”
This doctrine is supported by reason and the weight of •authority as found in numerous decisions of the courts of last resort in many of the states of the union. Sandwich Glass Co. v. Boston, 4 Metc., 181; Joyner v. School District, 3 Cush., 567; Hubbard v. Brainard, 35 Conn., 563; First National Bank v. Watkins, 21 Mich., 483; Tuttle v. Everett, 51 Miss., 27.
The Supreme Court of the United States, in the case of Erskine v. Van Arsdale, 15 Wallace, p. 75, states the rule in these broad terms: “ Taxes illegally assessed and paid may always be recovered back if the collector understands from the payer that the taxes are regarded as illegal and that suit will be instituted to compel the refunding of them.”
This court has recognized the doctrine in its fullest extent in the case of Drew Co. v. Bennett, 43 Ark., 364. The county court of Drew county exacted from Bennett $450-for liquor license, when only $400 was the legal tax. Bennett paid under protest, and sued to recover the excess of' $50. This court said, in passing on the question: “ The-excess over $400, which Bennett was made to pay as a county tax, was an illegal exaction, and he was entitled to-recover it.”
The record in this case shows, beyond question, that the license tax was illegal and void, was received to the use of the municipality of Magnolia, and was paid under threats- and compulsion. All the elements concur to make it a proper case for maintenance of an action to recover an illegal and void tax.
• The judgment of the Columbia circuit court is affirmed.
Hon. B. B. Battle did not sit in this case. | [
-12,
-29,
-40,
-19,
106,
-28,
10,
-78,
18,
-79,
-75,
115,
-21,
48,
5,
105,
-69,
127,
17,
79,
-60,
-94,
103,
72,
-110,
-45,
-27,
-57,
-75,
109,
-28,
-9,
106,
48,
-54,
-67,
71,
-54,
-63,
-40,
-58,
1,
-87,
72,
-8,
-56,
48,
-87,
35,
11,
85,
14,
-77,
46,
24,
-37,
107,
44,
-39,
25,
-47,
-32,
-104,
29,
111,
6,
-111,
117,
-103,
-127,
-56,
44,
-104,
17,
64,
-8,
123,
-92,
6,
84,
13,
-103,
-115,
100,
-26,
97,
37,
-17,
-128,
-116,
46,
-86,
-115,
6,
-14,
89,
122,
10,
-74,
-107,
124,
80,
-113,
118,
-86,
-107,
-99,
44,
4,
-113,
-66,
-77,
-115,
60,
-110,
3,
-49,
103,
48,
85,
-57,
78,
93,
100,
50,
27,
-113,
-51
] |
Tom Glaze, Judge.
Appellant, Lloyd Jones, was convicted by a jury of murder in the first degree. The jury found that appellant had, with premeditation and deliberation as required by Ark. Stat. Ann. § 41-1502 (Repl. 1977), placed his 30-30 caliber rifle against the abdomen of his girlfried, Annie Terry, and shot her. Appellant was sentenced to twenty-five years imprisonment.
In this appeal, Jones raises two points for reversal. Appellant challenges the sufficiency of the evidence to sustain a conviction of first degree murder against him. He also contends that the trial court erred in not suppressing evidence against him obtained by the State’s search of his home.
The facts establishing the background of appellant’s relationship with Annie Terry are not in dispute. Appellant and Ms. Terry had lived together for over a year and a half. For the last fourteen months of their relationship, they lived near Paris, Arkansas. Appellant and Ms. Terry apparently cared for each other and had discussed the possibility of marriage. Ramona Whitman, who had known appellant and Ms. Terry for two years, testified, “They got along like — I guess, any other couples do.” Other witnesses testified to the same effect.
The facts leading up to the shooting are not disputed either. On May 20,1982, appellant and Ms. Terry entered the Rock Tavern around 3:00 P.M. in Paris and drank some beer. Appellant left with a friend named Jim Gilbert and went to a V.F. W. club in a nearby town and drank more beer. Ms. Terry remained in the Rock Tavern. Appellant and Gilbert returned to the Rock Tavern about 6:00 P.M. Appellant stayed there with Ms. Terry until approximately 8:30 P.M. Gilbert testified that appellant may have had as many as nine beers from 3:00 P.M. until 8:00 P.M. Appellant stated he may had had ten or twelve beers during this period. Gilbert said that Ms. Terry had two or three beers after he and appellant returned to the Rock Tavern. He also testified that appellant and Ms. Terry were “loving, kissing and hugging each other and things like that, that night” in the Rock Tavern.
Appellant was the only witness to the shooting. The following recitation of facts is his version of the incident. He testified that he and Ms. Terry left the Rock Tavern at 8:30 P.M. and arrived home at approximately 9:15 P.M. As they pulled into their driveway, a coyote ran across the road. Appellant stated Ms. Terry said that she wished she knew how to use a gun so she could shoot coyotes. The couple entered their house, and appellant went into the kitchen. Ms. Terry went into the living room and took the 30-30 rifle off the rack. She levered the rifle and handed it to appellant when he walked into the living room. Appellant put a shell into the magazine of the rifle and levered it to show Ms. Terry how to put a bullet into the chamber. At this time, appellant was standing near the end of a couch in the living room, and Ms. Terry was standing facing him to his left. Just as appellant was trying to let the hammer down to uncock the rifle, Ms. Terry grabbed the rifle barrel and pulled it toward her, saying, “Let me see it.” The rifle discharged when she grabbed the barrel. After being shot, Ms. Terry slumped down against the end of the couch.
Appellant took two or three steps to replace the rifle in its rack on the wall and then went back to Ms. Terry to see what he could do for her. He telephoned a married couple who were friends of his and asked them what to do. The friends told appellant to rush Ms. Terry to the hospital in Paris. Appellant did so, covering the thirty-minute drive down a steep, twisting mountain road in fifteen minutes. Ms. Terry was admitted to the hospital and subsequently transferred to a hospital in Fort Smith, where she died as a result of her wound.
Friends of the appellant, who met him at the hospital, testified that he was crying and seemed scared and upset. They stated thát he kept referring to the incident as an accident and kept asking himself what he was going to do.
Appellant was taken by police officers to the Fort Smith Police Station for questioning, where he was given a blood alcohol test that registered 18%. He was arrested at Fort Smith at 1:00 A.M. From Fort Smith, appellant was taken to the Franklin County Jail in Ozark, where he was interrogated by police officers at 3:40 A.M. Police officers stated that appellant consented to a search of his house during this questioning. Appellant says he did not consent to a search of his home. At approximately 5:00 A.M., police officers did search appellant’s home and removed a 30-30 caliber Marlin rifle, two pieces of wood paneling from the south wall of the house, a lead projectile recovered from the wall, a cartridge casing recovered from the couch, a cartridge casing recovered from the rifle, a fiberglass fishing rod which was on the couch, and two live cartridges recovered from the gun rack; officers made sketches of the crime scene that showed a two-foot blood stain on the floor of the house, thirty-six inches from the wall, and a bullet hole in the wall, seventeen inches from the floor. The piece of paneling removed from the house had traces of partially burned gunpowder, soot, gunshot residue, particles of barium, antimony, lead, intestinal matter and blood on it. The blood and intestinal matter were not visible to the naked eye.
Appellant also testified that Ms. Terry did not know anything about guns or how to handle them but that he was experienced in handling firearms. There was testimony from appellant and some of his friends that appellant’s 30-30 rifle was dangerous to handle because it had a hair trigger and because it did not have a safety device on it. The State’s firearms expert testified that after a bullet is levered into the chamber of appellant’s rifle, the trigger has to be pulled and simultaneously the hammer has to be slowly lowered to be certain the rifle will not discharge.
The State’s evidence consisted of the testimony of an associate medical examiner and the chief criminalist of the State Crime Laboratory, detailing the results of various tests they had performed. This testimony is too extensive to set forth in toto. We do, however, relate that part of the State’s experts’ testimonies that conflict in several crucial respects with that of Jones’. In essence, the State’s expert witnesses testified that: (1) Ms. Terry was squatting, not standing, when she was shot; (2) Ms. Terry was very near the south wall of the living room when she was shot — not near the couch, as appellant said; (3) Ms. Terry did not grab the rifle barrel — instead she pushed it away from her in a defensive motion; (4) Ms. Terry did not lever the rifle. The associate medical examiner’s autopsy of Ms. Terry showed that the bullet that killed her dropped three inches from entrance to exit in the victim’s body and showed lacerations to the left side of the liver. The associate medical examiner also testified that the exit wound was blocked by part of the intestines in such a way as to prevent bleeding from the exit wound. Based on these autopsy results, the associate medical examiner stated that Ms. Terry was not standing when she was shot, but “was leaning forward and most probably squatting.”
The chief criminalist testified that trace metal tests he performed on the corpse’s hands indicate that Ms. Terry did not grip the barrel of the gun and pull it toward her, but rather pushed it away from her in a defensive motion. He testified further that the trace metal test results were inconsistent with appellant’s statement that Ms. Terry levered the rifle before she handed it to him. The criminalist stated that his examination of the sweater Ms. Terry was wearing when she was shot and pieces of paneling taken from the crime scene containing a hole made by the bullet that killed Ms. Terry led him to believe “that this subject was most probably in a squatting position, or bending very low . . . and with the body being possibly adjacent to the wall, maybe the left shoulder or something of this closeness, or a short distance from it.” He also explained the absence of blood visible to the naked eye on the paneling by observing that the pressure generated by the gun blast and the vacuum created by the bullet as it left the body would force part of Ms. Terry’s intestines into the hole in her lower back created by the bullet’s exit, thus blocking any blood from spraying backward toward the paneled wall. He explained the presence of a large blood stain on the floor, thirty-six inches away from the wall, by noting that as Ms. Terry was squatting, she was probably off-balance and could have fallen forward away from the wall after being shot.
Based on the foregoing evidence, the j ury concluded the appellant deliberately and premeditatedly shot Ms. Terry. We must affirm the jury’s verdict if there is substantial evidence to support it. Stanley v. State, 248 Ark. 787, 454 S.W.2d 72 (1970). Substantial evidence is that evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). The jury may infer premeditation and deliberation from the circumstances of the case, such as the character of the weapon used, the manner in which it was used, the nature, extent and location of the wounds inflicted and the like. See McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982); see also Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972).
Glaring discrepancies existed between the State’s evidence and the appellant’s version of the shooting. Based on those crucial differences, we believe the jury permissibly could, as it did, infer the homicidal nature of Jones’ mental state at the time of the shooting. Viewing the evidence in the light most favorable to the appellee, we conclude the State, through expert testimony and circumstantial proof, contradicted appellant’s story of what happened on the night of Ms. Terry’s death. The State presented evidence to show that the appellant simply could not have been standing beside Ms. Terry, showing her how to load the rifle and that she did not grab the rifle, thus causing it to accidentally discharge. Instead, the evidence is sufficient to allow the jury to reasonably infer that the appellant, a knowledgeable gun handler, loaded the 30-30 Marlin rifle inside the house; he advanced toward Ms. Terry, and shoved the rifle’s muzzle into her abdomen, from which she retreated to, or close to, the south wall in the living room. While Ms. Terry cowered and attempted to push the rifle away, appellant pulled the trigger. He then walked to the opposite end of the couch and returned the rifle to the gun rack before administering aid to Ms. Terry or calling friends for help.
Appellant does not deny he shot Ms. Terry; instead, he argues that he simply did not intend to shoot her. Accordingly, appellant contends the State did not bring forward any motive which would suggest to the jury that he premeditated and deliberated the murder. To the contrary, appellant points out that the evidence shows he and Ms. Terry had a loving relationship and that he tried to get her to the hospital as quickly as possible after she was shot. The short answer to appellant’s contention is that the State is not bound to prove a motive for the killing, and the absence thereof is only a circumstance to be considered with other facts and circumstances in determining guilt or innocence. Ezell v. State, 217 Ark. 94, 229 S.W.2d 32 (1950); Dowell v. State, 191 Ark. 311, 86 S.W.2d 23 (1935). See also Murry v. State, 276 Ark. 372, 635 S.W.2d 237 (1982). Perhaps appellant did not premeditate the murder for long, but an instant of premeditation is long enough. Shipman, supra; Green v. State, 51 Ark. 189, 10 S.W. 266 (1888).
In addition to the lack of motive, the appellant contends the State’s evidence, which is circumstantial evidence consisting of experts’ testimonies, does not exclude an accidental shooting as a reasonable hypothesis to be drawn from the evidence taken as a whole. For circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis consistent with innocence. Drew v. State,, 8 Ark. App. 120, 648 S.W.2d 836 (1983). However, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974).
Appellant does not attack the qualifications of the experts or in any way impeach the witnesses themselves on appeal. He simply presents to this Court the testimonies of the State’s experts in his abstract and calls them “illogical” and “contradictory.” Of course, this part of appellant’s argument goes to the credibility and weight of the expert witnesses, and he presumably made such a plea to the jury at trial. Nonetheless, it is not our duty or function to assess credibility. Testimony of expert witnesses is to be considered by the j ury in the same manner as other testimony and in the light of other testimony and circumstances in the case; the jury alone determines its value and weight, and may, under the same rules governing other evidence, reject or accept all or any part thereof as it may believe to be true or false. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980), appeal after remand, 276 Ark. 149, 634 S.W.2d 92 (1982), cert. denied, 103 S.Ct. 386 (1982). See also Parris v. State, 270 Ark. 269, 604 S.W.2d 582 (Ark. App. 1980). The trial court instructed the jury on all degrees of homicide, and it was the jury’s agonizing duty to resolve the conflicting theories and evidence presented by the State and the appellant. Based on our careful review of the record, we are compelled to conclude that the State offered substantial evidence from which the jury could find the appellant guilty of the premediated and deliberate murder of Annie Terry.
Appellant also contends the State conducted an illegal search of his home, and the trial court erred in not suppressing the evidence against him obtained in this search. The trial court found appellant had consented to this search and that the search was also valid because it was incidental to a lawful arrest.
We agree with appellant that the search was not incidental to a lawful arrest. Appellant was arrested at 1:00 A.M. in Fort Smith. His home, in Paris, was not searched until 5:00 A.M. The search incident doctrine has two purposes: (1) to enable police officers to protect themselves by searching suspects for weapons, and (2) prevent the destruction of evidence. Chimel v. California, 395 U.S. 752 (1969). See also J. Hall, Search and Seizure § 8:7 (1982). Because of the remoteness in time and place of the site of the search from the arrest site, there was no danger appellant could produce a weapon or destroy evidence. There were no exigencies at appellant’s arrest that would justify a search incident to a lawful arrest. Cf. Chimel, supra; Van Cleef v. New Jersey, 395 U.S. 814 (1969); Shipley v. California, 395 U.S. 818 (1969); Preston v. United States, 376 U.S. 364 (1964); Jenkins v. State, 253 Ark. 249, 485 S.W.2d 541 (1972).
Even though the State’s search of appellant’s home was not a search incident to a lawful arrest, we agree with the trial court that appellant consented to the search. Of course, appellant argues he never consented to a police search of his home. However, the two police officers who questioned him in Ozark say he invited them to examine the crime scene. The State has the burden of proving by clear and positive testimony that consent to a search was freely and voluntarily given. Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980).
Appellant does not argue he was directly or indirectly coerced by the police officers into consenting. Nor does the appellant contend he acquiesced to a seemingly valid claim of lawful authority to search his home, which subsequently turned out to be invalid. Appellant simply argues that the State did not prove by clear and positive testimony that his consent to the search was freely and voluntarily given. To show. the State’s lack of clear and positive testimony regarding his consent to the search, appellant cites four facts: (1) his drunkenness; (2) the failure of the State in its answer to his motion for discovery to mention his verbal consent; (3) the belief of the police officers that they did not need a warrant to search a violent crime scene; and (4) the failure of the police to obtain from appellant a written consent to the search when such a written consent could easily have been obtained.
Appellant cites White v. State, 261 Ark. 23-D, 545 S.W.2d 641 (1977), and argues that the intoxication of the accused removes clarity and positiveness from the police officers’ testimony that the accused consented to the search. White is distinguishable, however. The accused in White was so drunk that he remembered almost nothing of his encounter with police officers in his home and was intoxicated enough to be placed by the police in a drunk tank after the search of his home was completed. Appellant was not so intoxicated. By his own testimony, appellant had drunk his last beer at approximately 8:30 P.M. Seven hours later, at approximately 3:30 A.M., police officers say he consented to the search. By this time, given what had transpired in the interim, appellant was soberer that the accused in White. There was also testimony in White by the accused that the police officers had shoved a pistol in his face. This evidence of coercion was considered by the court in holding:
When we consider all the circumstances in connection with the alleged consent here we are unable to say the State met its burden of proving consent freely and voluntarily given by clear and positive testimony.
Id. at 25, 545 S.W.2d at 643. There was no testimony of similar coercive tactics being used against appellant in this case.
The other three factors cited by appellant amount to a claim that the police never asked him if they could search his home and lied when they testified that he did consent. This argument notwithstanding, we agree with the trial court that given “all the circumstances in connection with the alleged consent,” the two police officers’ testimonies that appellant did consent is clear and positive testimony that appellant did so consent. It is for the trial court to determine the credibility of the witnesses, and it is not required to give the appellant’s testimony greater weight than that of the police officers. Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 324 (1982).
We affirm the appellant’s conviction for murder in the first degree.
Affirmed.
Cloninger and Corbin, JJ., dissent. | [
113,
-17,
-3,
-68,
9,
64,
42,
-68,
114,
-93,
-15,
83,
-91,
-53,
69,
105,
34,
75,
85,
105,
-110,
-73,
55,
65,
-78,
-5,
121,
-61,
-79,
-51,
-28,
-11,
92,
64,
-50,
89,
98,
-54,
-59,
88,
-114,
-124,
-69,
96,
80,
-110,
52,
43,
114,
15,
49,
-66,
-30,
43,
28,
-57,
73,
44,
75,
62,
80,
57,
72,
69,
-17,
54,
-109,
38,
-97,
-92,
-40,
46,
-104,
49,
0,
-24,
115,
-90,
-122,
116,
109,
-103,
12,
102,
99,
44,
20,
-53,
-83,
-119,
-66,
126,
-83,
-89,
-104,
65,
65,
108,
-65,
-99,
106,
-43,
-114,
118,
123,
76,
121,
108,
-122,
-50,
-76,
-79,
73,
56,
-44,
-78,
-23,
39,
112,
117,
-51,
102,
92,
68,
115,
-101,
-113,
-10
] |
George K. Cracraft, Judge.
Jackie Parks was found guilty of two counts of violation of the Controlled Substances Act. He was sentenced to a term of six years in the Department of Correction on one count and was fined $ 1,000 on the second one. He appeals only from the first conviction.
The appellant first contends that the trial court erred in denying his motion to sever the offenses and subjecting him to one trial on both counts. We do not agree.
Appellant was charged in separate informations with having violated the Controlled Substances Act by selling marijuana on October 20,1982 and on October 29,1982. The record does not contain the Information or any earlier pleadings concerning the charge growing out of the October 20th transaction which might have been filed prior to the date of arraignment on April 15, 1983. Although the record does contain the order of consolidation of the two cases it is clear that at least by the date of arraignment the cases had been consolidated and set for trial on May 9, 1983.
On the morning of trial, after the jury had been qualified and sworn, the appellant orally moved to sever the offenses. The court ruled that in its discretion it had consolidated the cases for trial and denied the motion to sever as untimely made. The appellant contends that this was error because there was no evidence that the two offenses were part of a single scheme and that they had been joined for trial solely on the ground that they were of the same or similar character. This argument was not made to the trial court, where no basis for the severance was asserted.
A.R.Cr.P. Rule 22.1(a) requires such a motion to be made before trial, or at the close of all the evidence if based upon a ground not previously known, and further provides that severance is waived if the motion is not made at the appropriate time. The record reflects that the fact that these two cases had been consolidated for trial was known to the appellant at least thirty-four days before the date of trial. He had full access to the prosecuting attorney’s files on both counts. No pretrial motion for severance was made. Appellant did not make his motion until the morning of the trial and after the jury had been qualified and sworn. It is well settled that the trial court’s action with regard to matters of severance lies within the sound discretion of the trial judge and will not be reversed absent a showing of abuse. Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982); Hallman & Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).
Furthermore, A.R.Cr.P. Rule 22.1(b) provides that if a pretrial motion for severance is overruled the appellant may renew the motion on the same grounds before or at the close of all of the evidence and the argument is waived by failure to renew the motion. At the time the oral motion was made there had been nothing presented to the court on which a determination of whether the two offenses were or were not part of a single plan or scheme could have been made. After evidence was presented on which the court might have made the finding there was no renewal of the motion. We find no error or abuse of the trial court’s discretion.
On April 15th the cases had been set for trial on Monday, May 9, 1983. On Friday, May 5 the appellant filed a motion to have the State disclose the identity of the confidential informant who had been working with the police officers in several transactions including those with the appellant. No action was taken on that motion until after the jury had been qualified and sworn. At that time the appellant presented his motion contending that the State should be required to disclose the identity of the confidential informant. The court noted that such matters should be taken up long before the day of trial and empanelling of the jury and denied the motion as untimely. Appellant did not move for a continuance on this basis.
The question of whether and under what circumstances disclosure of the identity of a confidential informant is required has been before the courts on many occasions. State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977); Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977); Hooper & Westlin v. State, 257 Ark. 103, 514 S.W.2d 394 (1974); West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973); Roviaro v. United States, 353 U.S. 53 (1957). Often this determination is based on whether the informant was present or participated in the illegal act or merely furnished information of criminal activity to law enforcement officers. The testimony of an informant who has been a witness or participant in the illegal activity may in most cases be the only means by which the accused can amplify, modify or contradict the testimony of a prosecuting witness and therefore may be essential to the preparation of a defense. Where the informant merely furnished information to the officers and has no knowledge of the facts and circumstances surrounding the arrest or illegal activity, his testimony in most cases may be neither relevant nor helpful to the defense.
The cases make it clear that there is no fixed or inflexible rule for determining whether disclosure should be required. That determination requires a balancing of the public interest in continued communication resepcting illegal activities by preserving anonymity, against the rights of the accused to prepare an adequate defense. It must depend on the particular circumstances of each case and generally disclosure is required when those circumstances reveal that the informant’s testimony may be relevant and helpful to the defense.
In the particular circumstances of this case we would find no error in the court’s determination that this informant possessed no knowledge which was vital to the appellant’s defense, and that he was not a participant in or witness to the illegal activity. The record reflects that the police officer who testified was engaged in an undercover narcotics operation in the Texarkana area utilizing information from a confidential informant paid by the Miller County Sheriff’s Office. He made contact with persons suspected of engaging in illegal activities through Johnny Sams who did not know that the other two were involved in law enforcement.
On October 29, 1982 Sams “set up a buy” for the officer from the appellant which was to take place in appellant’s apartment. The confidential informant was not present when Sams made these arrangements with the appellant but was informed of them by Sams. The informant then relayed this information to the officer by telephone. The officer and Sams went to appellant’s apartment and negotiated the purchase of a quarter pound of marijuana for $140. Appellant then made a telephone call and informed the officer that the marijuana would be delivered to his apartment “right away.” Sams and the officer waited for the delivery and when it did not arrive within a reasonable time they left and returned to the confidential informant’s apartment to wait for a call from the appellant. After waiting there for a period of time the officer and informant left the apartment and drove downtown for purposes which were not shown to have been connected with the appellant. While en route they passed a vehicle occupied by three persons, one of whom was the appellant, who signaled to the officer to stop in a parking lot. On the parking lot the informant walked over to the other vehicle and engaged the two occupants in conversation. The appellant walked over to the officer’s car, got in the back seat with the officer and delivered the marijuana in exchange for the agreed price.
The confidential informant was not present in appellant’s apartment when the sale was negotiated. He neither witnessed nor participated in those discussions in that part of the transaction but merely furnished information about it to the officer by telephone. At the time the transaction was consummated the informant was not present but was engaged in conversation elsewhere. There was no evidence that he witnessed the transaction or participated in it in any way. In the particular circumstances of the case we find no error in the court’s ruling.
At the same time the motion to disclose was presented, appellant orally moved for a continuance on the ground of inability to communicate with the appellant for preparation for trial. The appellant contends that it was error for the court to overrule that motion. We do not agree. Counsel stated that he had attempted to contact the appellant several times but had only been able to contact him on one occasion. He stated that he believed the appellant was reluctant to contact him because his fees had not been paid and that the first opportunity he had to discuss the case with appellant was on the morning of trial.
Whether to grant a continuance is a'matter lying within the sound discretion of the trial court and will not be overturned on appeal absent a showing of clear abuse of discretion. The burden lies with the appellant to demonstrate both the abuse and resulting prejudice. Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983), aff’d 280 Ark. 291, 658 S.W.2d 362 (1983); Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). It is noted here that the failure of communication was brought about by the appellant himself. Nor did the appellant support his request for a continuance with any information regarding additional witnesses or evidence which'might have been developed with more time. It has also been held that the fact that the motion is not made until the day of trial is an important consideration. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979). We find no error in the trial court’s ruling.
During cross-examination of one of the police officers the witness testified that Sams and the confidential informant involved in this case had arranged drug transactions with two or three other persons. The court sustained an objection to a question seeking the identity of those other persons. Appellant then asked the officer if he made buys from the other person. The trial court sustained the obj ection to that question. The appellant argues that he was attempting to show the jury that appellant’s role in the drug transactions was minor compared to that of the informant. We agree with the trial court that this was not relevant to any issue in the case or to the credibility of any witness or to the weight to be accorded to his testimony. The fact that other persons were more deeply involved in violation of the controlled substances law is wholly irrelevant to the issue of the guilt or innocence of the appellant.
The court also sustained an objection during cross-examination of the police officer as to the criminal record of Sams. He argued that this was material to his credibility and prevented the jury from hearing evidence related to the defense of entrapment. Sams did not testify and his credibility was not in issue. The only evidence of guilt presented was from the police officers involved in the actual transaction. Nor would the fact that the informant had been previously convicted of unrelated felonies be relevant to his conduct with regard to the defendant or probative on any issue surrounding the defense of entrapment.
During the direct examination of the police officer defense counsel objected several times to the witness’s testifying in narrative form. These objections were overruled. The record discloses that the answers referred to were in response to questions as to what discussions took place between the officer and the appellant at the time the purchase of the marijuana was negotiated. During the argument on objections the prosecuting attorney stated that he was “getting a little tired of Mr. Buckley’s running the court in trying to order the prosecution on how to answer questions, what to do and what is not proper.” Appellant contends that the trial court should have granted his motion for mistrial. The trial court is afforded wide discretion in controlling examination of witnesses during the course of the trial and may permit narrative testimony that will expedite the trial and create no prejudice. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980); 98 C.J.S. Witnesses § 325 (1957). The granting of a mistrial is a drastic remedy and should be granted only when justice cannot be accomplished by continuing the trial. It is a discretionary matter and we cannot say that the judge abused that discretion. King v. State, 9 Ark. App. 295, 658 S.W.2d 434 (1983). The remarks here were no more than that usually unnecessary banter which counsel often feel compelled to engage in. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981). If appellant felt that the trial court should have admonished the jury to disregard the statement he should have asked the court to do so but he did not.
Appellant next contends that the trial court erred in refusing to give his proffered instruction on entrapment. We conclude that the trial court ruled properly because the appellant failed to proffer a complete instruction and because the evidence did not support the giving of an instruction on that defense. Appellant offered an instruction containing the language of AMCI 4009 which did give an accurate definition of the defense of entrapment and told the jury that the defense must be proved by a preponderance of the evidence, but it did not contain a definition of preponderance of the evidence and failed to advise the jury how to weigh the evidence of an affirmative defense in light of the State’s burden of proof. A party may not complain of the refusal of a trial court to give an instruction which is only partially correct as it is his duty to submit a wholly correct one. Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 324 (1982); Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (Ark. App. 1979); Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977).
Appellant did not testify and there was no other evidence of any acts constituting entrapment. To warrant the giving of the instruction there must be some evidence on which the jury could find that the officers or the confidential informant had induced the commission of the crime by persuasion or other means. Based on the State’s evidence the narcotics officer acted on information supplied to him by an informant that the apellant would sell him marijuana. There is nothing in the record indicating that either the officer or the informant induced or persuaded the appellant to sell. To the contrary the evidence clearly indicates that the appellant was ready, willing and able to make the sale and was merely afforded the opportunity. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982).
During closing arguments the prosecuting attorney argued the fact that a drug dealer may be “part of a ring” in the sense that he goes and gets the substance from somebody else does not make him any less guilty. The appellant contends that this was reversible error because the argument was not supported by evidence of a “ring” and that the court in overruling the objection gave the argument the endorsement of the court. We do not agree.
Throughout the trial appellant attempted to show that there were people involved in these transactions other than himself and even argued that he was not the owner of the marijuana but was only the delivery person. In his argument to the jury appellant’s counsel emphasized the fact that on the two occasions in which the police officers came to appellant’s house he had no marijuana and “was sitting in his house minding his own business.” He argued that he had to go to someone else’s house to get it and bring it back to consummate the sale. He further argued that the informants who set up the sale had not been arrested and that the appellant was “what you call a conduit or an agent” just like Sams or the confidential informant who were not charged. He further argued that where the appellant had no marijuana when first contacted “if Jackie had had the marijuana, they would have gotten it two hours ago. This marijuana came from someone else.” Under the circumstances the State’s rebuttal argument would appear to be proper and invited by defense counsel’s remarks. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984).
Furthermore there was no request for a mistrial or an admonition to the jury at the time the objection was made. It was noted from the record that the jury was instructed by the court that remarks of counsel were not evidence. The appellant has demonstrated no prejudice resulting from the argument.
After the jury had retired to consider its verdict it returned a finding of guilty in both cases. The jury was polled and excused. The trial court sentenced the appellant in accordance with the jury’s verdicts. After pronouncing that sentence the trial court stated that the appellant was fortunate that the jury had not been aware of prior convictions for aggravated robbery, negligent homicide and theft by receiving. It was then established by appellant’s counsel that he had only been convicted of the robbery charge and that the theft by receiving charge had been dismissed. There was no conviction for negligent homicide. Appellant argues that this remark was critical of the verdict and an indication that the court felt the jury should have imposed a heavier sentence. We attach no such meaning to his statement. Furthermore defense counsel did not object to the court’s remarks. He also argues that the court did not ask appellant if he had any legal cause to show why judgment should not be pronounced against him as provided in Ark. Stat. Ann. § 45-2303 (Repl. 1977). These issues were not raised in the trial court and may not be raised here in accordance with our established rule. Brown v. State, supra.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
-80,
-22,
-35,
92,
27,
112,
58,
-72,
74,
-89,
50,
81,
-85,
-126,
4,
57,
115,
103,
84,
121,
-59,
-94,
71,
67,
-74,
-45,
-55,
-43,
-9,
79,
-20,
-43,
12,
52,
-126,
-75,
-26,
-48,
-52,
90,
-34,
49,
-104,
121,
26,
2,
52,
63,
50,
-97,
49,
30,
-117,
44,
21,
-33,
104,
40,
91,
63,
80,
-24,
-79,
13,
109,
18,
-79,
-91,
-99,
7,
-8,
47,
-104,
49,
0,
122,
51,
-74,
-114,
116,
75,
-101,
-116,
64,
98,
1,
85,
-19,
-80,
-120,
-114,
62,
-115,
-90,
-39,
-47,
65,
9,
-76,
-99,
102,
26,
46,
-2,
111,
-43,
21,
44,
-126,
-50,
-112,
-77,
76,
120,
-114,
-47,
-21,
39,
49,
1,
-51,
-90,
92,
119,
81,
-101,
-52,
-43
] |
James R. Cooper, Judge.
The appellant in this criminal case was convicted by a jury of delivery of a controlled substance under Ark. Code Ann. § 5-64-401(a) (Supp. 1991). He was sentenced to thirty years in the Arkansas Department of Correction and was subsequently denied post-conviction relief based upon his assertion that he received ineffective assistance of counsel. On appeal, he contends that the trial court erred in (1) denying his motion for a directed verdict, (2) overruling his objection to hearsay statements, and (3) denying his petition for post-conviction relief. We affirm.
Other than the chemist who verified that the substance sold was cocaine, the State called only one witness, Vernal Spears, the undercover officer participating in the transaction. He stated that on September 16,1989, he went to the appellant’s residence at the request of Sheriff Tommy Free. He had been told that the appellant was known by the name of “Lula Boy,” and that upon opening the door, the appellant identified himself as Lula Boy. He stated that they went down a hallway to a bedroom where Gary Davis, known as “Pluto,” gave him three rocks of cocaine and was told it would cost $100.00. Officer Spears gave the money to the appellant who was standing in the doorway of the room.
He stated that at that point in time, he knew the appellant only as Lula Boy, that he did not confuse Lula Boy and Pluto, and that he considered Lula Boy, the appellant, to be the main culprit and to be in control of the residence. He positively identified the appellant as the man he had known as Lula Boy. On this evidence, the jury found that the appellant was guilty of delivery of a controlled substance.
The appellant’s first argument is that the court erred in denying his motion for a directed verdict. A motion for a directed verdict constitutes a challenge to the sufficiency of the evidence. Duncan v. State, 38 Ark. App. 47, 828 S.W.2d 847 (1992). In reviewing the sufficiency of the evidence on appeal, the court must look at the evidence in the light most favorable to the State and affirm the judgment if there is any substantial evidence to support the jury’s verdict. Harris v. State, 284 Ark. 247,681 S.W.2d 334 (1984); Alford v. State, 33 Ark. App. 179, 804 S.W.2d 370 (1991). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other inducing the mind to pass beyond mere suspicion or conjecture. Duncan, supra. In determining whether there is substantial evidence to support the jury’s verdict, it is permissible to consider only the testimony that tends to support the verdict of guilt. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).
The appellant contends that Officer Spears’ testimony was rendered incredible due to discrepancies which arose each time he restated the facts. He contends these discrepancies resulted in three different versions of the transaction being told; however, the excerpts from the officer’s testimony that the appellant presented in his brief demonstrate only two versions. The first was that the appellant asked the officer for the money, and the second was that Pluto told him to give the money to the appellant.
As the appellant concedes, discrepancies in testimony are for the jury to resolve; the jury is free to accept or reject all of the testimony or any part thereof that it believes to be true or false. Larue v. State, 34 Ark. App. 131, 806 S.W.,2d 35 (1991). We disagree that this variance was of such degree as to render the testimony of the undercover officer incredible, and we find substantial evidence to support the appellant’s conviction.
The appellant’s second argument is that the court erred in overruling his objections to statements made by Officer Spears which the appellant considers to be hearsay. He objected when the prosecutor asked Officer Spears who he was expecting to see when going to this residence. The judge ruled that the witness could testify as to whom he was going to see. Officer Spears then stated “We were under the impression that Lula . . . .” The appellant objected based on Officer Spears’ earlier testimony that he had never seen this man and the only way he could form this impression was from information supplied by another person. The trial judge ruled that the witness could testify as to what was his impression. The third statement by Officer Spears was that the sheriff “had described him and gave me his name and told me that he was going by the name of Lula Boy.” The trial judge ruled that this was not elicited to prove the matters stated. The appellant again objected after Officer Spears responded to the question “what was your understanding as to the sheriffs knowledge of Lula Boy White?” The trial judge overruled the objection, stating the officer could testify as to whether Sheriff Free directed him to go to the residence.
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Arkansas Rule of Evidence Rule 803(c). Out-of-court statements are not hearsay if offered to show the basis of action. Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989). Officer Spears was working undercover at the request of Sheriff Free, and the information given to him was necessary in conducting the investigation. Thus, we cannot say that the admission of these statements to show the basis of Officer Spears’ action was error.
The appellant’s third and final argument on appeal is that the trial court erred in denying his petition for post-conviction relief, filed pursuant to Ark. R. Crim. P. 36.4, alleging that he was provided ineffective assistance of counsel. The basis of his argument is that he was represented by Thomas Brown, a part-time assistant public defender, and Gary Davis, his co-defendant, was represented by Timothy Bunch, the public defender. It is undisputed that there was an obvious conflict of interest between the two defendants as the appellant denied guilt of anything but being present during the transaction and Mr. Davis also denied guilt claiming that he was only present to purchase cocaine himself.
When a conflict of interest exists, the issue is whether or not the conflict adversely affected counsel’s performance. The appellant contends that Mr. Brown’s performance was so affected because he refused to'call Mr. Davis as a witness at the appellant’s trial.
At the hearing on the appellant’s post-conviction petition, Mr. Brown, the appellant’s attorney, testified that the appellant asked him to subpoena Mr. Davis to court; that he had talked to Mr. Davis twice; that the information elicited from Mr. Davis was detrimental to his client; and that as a matter of trial strategy, he elected not to call Mr. Davis as a witness. He further stated that he would have refused to call Mr. Davis as a witness regardless of who represented him.
Mr. Bunch testified that after speaking with Mr. Davis, and determining that a potential conflict existed, he assigned the appellant’s case to Mr. Brown. He stated that Mr. Brown’s office was in another city; that the cases were severed, though he did tell Mr. Brown that Gary Davis’ testimony would be harmful to the appellant’s case; that he had no part in negotiations with the prosecuting attorney concerning the appellant; and that the only participation by his office in the appellant’s case was some secretarial work.
It is well-settled that one attorney may be appointed to represent two or more defendants without such representation constituting a per se violation of the Sixth Amendment right to effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482 (1978). The Supreme Court, in Burger v. Kemp, 483 U.S. 776 (1987), acknowledged that there is a possibility that prejudice will result when two partners represent co-defendants, and that the risk is increased when the two lawyers cooperate with one another in the planning and conduct of trial strategy. Nevertheless, the Court maintained that this does not justify an inflexible rule presuming prejudice in all cases. Rather, the Court stated, prejudice is presumed “only if the defendant demonstrates that counsel ‘actively represented conflicting interest’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Burger, 483 U.S. at 650; Ingle v. State, 294 Ark. 353, 742 S.W.2d 939 (1988).
In the case at bar, the State correctly points out that whether Mr. Bunch and Mr. Brown may be considered “partners” is debatable. They worked together only part-time, their offices were in two different cities, they made a conscious effort to sever the cases, and they worked independently for their respective clients. Nevertheless, even if they are considered “partners,” we cannot say that any conflict affected the performance of Mr. Brown by his failure to call Mr. Davis as a witness. As both attorneys stated, Mr. Davis’ testimony would have been detrimental to the appellant’s defense, and the decision to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy and counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Mays v. State, 303 Ark. 505,798 S.W.2d75 (1990). We find no error, and we affirm.
Affirmed.
Cracraft, C.J., and Rogers, J., agree. | [
112,
-20,
-19,
60,
26,
64,
56,
-72,
3,
-89,
38,
115,
103,
116,
20,
121,
-85,
-1,
92,
105,
-52,
-73,
3,
97,
-62,
-9,
120,
-41,
55,
-51,
-84,
-44,
13,
48,
-62,
-75,
102,
72,
-29,
80,
-54,
17,
-118,
-26,
121,
-53,
36,
34,
22,
15,
53,
-98,
-30,
45,
24,
-50,
109,
44,
75,
-83,
88,
-71,
-38,
7,
-81,
20,
-95,
-92,
-101,
45,
-8,
62,
-44,
49,
0,
104,
115,
-74,
-126,
116,
97,
-101,
-84,
96,
98,
1,
29,
-17,
-72,
-120,
63,
-82,
-99,
-90,
-36,
9,
67,
47,
-65,
-100,
110,
80,
14,
-8,
-5,
45,
93,
44,
10,
-49,
-68,
-109,
45,
56,
30,
81,
-29,
-83,
48,
117,
-49,
-30,
92,
85,
120,
-102,
-58,
-41
] |
George K. Cracraft, Chief Judge.
American Transportation Corporation appeals from a decision of the Arkansas Board of Review holding that a number of drivers hired by appellant to deliver school buses assembled at appellant’s plant were employees for whom contributions were required under the Arkansas Employment Security Act. Appellant contends that the drivers were exempt as independent contractors within the meaning of Ark. Code Ann. § ll-10-210(e) (1987), which provides:
(e) Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common-law relationship of master and servant exists, unless and until it is shown to the satisfaction of the Director that:
(1) Such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and
(2) Such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(3) Such individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
(Emphasis added.) The Board found that appellant did not meet the criteria for any of the three prongs of the test provided in this section and was liable for contributions required by the Act. We affirm.
In order to obtain the exemption contained in the Act, it is necessary that the employer show to the satisfaction of the Director that the requirements of all three subsections have been met. Morris v. Everett, 7 Ark. App. 243, 647 S.W.2d 476 (1983). Therefore, if there is sufficient evidence to support a finding that any one of the three requirements were not met, the case must be affirmed. In reviewing decisions of the Board of Review, this court views the evidence in the light most favorable to the Board’s findings, giving them the benefit of every legitimate inference that can be drawn from the testimony, and will affirm the determination of the Board if its findings are supported by substantial evidence. Haig v. Everett, 8 Ark. App. 255, 650 S.W.2d 593 (1983). The issue to determine is not whether the evidence would support some different finding, but whether it supports the finding actually reached by the Board. Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986).
Appellant first contends that the Board’s finding that the drivers were not free from appellant’s control and direction is not supported by substantial evidence. We cannot agree. As a full recitation of the evidence presented to the Board would serve no useful purpose, we refer only to those facts essential to an understanding of our opinion.
Appellant introduced into evidence its contract with the drivers which purported to require the drivers to assume all responsibility for the “means and manner” of delivering the buses. Appellant’s president testified to the effect that the company followed the provisions of the contract and did not exercise control over the activities of the drivers.
However, despite the terms of the contract, there was evidence that the drivers were not in fact free from appellant’s control and direction in connection with the performance of the services. Even though the drivers were referred to as “independent contractors,” they were required to take a physical examination by a doctor designated by appellant before undertaking any duties. James Smith, a former driver, testified that the drivers were not permitted to negotiate the terms of the contract. Despite the provisions of the contract to the contrary, payment for services was based on a fixed fee of thirty-four cents a mile. All assignments for deliveries were made by the company’s represen tative and the driver had no input into which deliveries he would make. There was no bidding on jobs, and they were all assigned on a “take-it or leave-it” basis. Smith testified that he was of the impression that the assignment made by Mr. Kirby, the company’s representative, was the one he had to take. Smith stated that it was his belief that if a driver refused a job he would be fired on the spot or have some other punitive action taken against him.
Smith also testified that drivers had been fired for transporting passengers who had been picked up on the highway while in distress. Drivers were not allowed to use the bus to transport other materials for delivery. There were verbal instructions not to eat or drink in the bus, that the bus be clean when it was delivered, that the drivers be showered and shaved before delivering the bus because they were the corporation’s personal contact with the dealer. Drivers were not allowed to smoke on the bus. They were required to check the oil, all fuel levels, and make minor repairs on the bus before delivery. Smith further testified that, in addition to these duties, they were expected by appellant to furnish services at civic functions in Faulkner County. He stated that if a driver did not perform those services, he would receive no further assignments.
From our review of the record, including the evidence that the drivers’ activities, assignments, routes, and rate of wages were dictated by appellant, we conclude that there is substantial evidence to support the Board’s finding that the drivers were not free from appellant’s control and direction.
Appellant also contends that the Board erred in making this finding because it was based on hearsay contained in the testimony of James Smith, a former contract driver. Appellant argues that the Board of Review was not entitled to consider any hearsay as a basis for these conclusions, as “it does not qualify as substantial evidence.” Although some of Smith’s testimony was based on hearsay, we do not agree that it could not constitute substantial evidence.
The Board of Review is not bound by common law or statutory rules of evidence. Hearsay evidence can constitute substantial evidence in unemployment compensation cases, but the opposing party must be given an opportunity to subpoena and cross-examine adverse witnesses at some stage of the proceeding if he requests it. Haynes v. Director of Labor, 19 Ark. App. 71, 719 S.W.2d 437 (1986). Where, as here, the party does not request the right to cross-examine witnesses whose hearsay statements have been received in evidence, he effectively waives his right of cross-examination, and due process requirements are not violated. Edwards v. Stiles, 23 Ark. App. 96, 743 S.W.2d 12 (1988).
As we conclude that the Board’s finding that appellant failed to satisfy the first prong of the test of § 1 l-10-210(e) is supported by substantial evidence, we need not discuss the Board’s findings on the remaining two prongs.
Affirmed.
Cooper and Rogers, JJ., agree. | [
60,
-22,
-44,
-68,
10,
66,
26,
26,
85,
-49,
103,
81,
-81,
-57,
21,
113,
-29,
127,
-16,
27,
-41,
-78,
69,
97,
82,
-73,
-7,
-63,
51,
75,
-92,
28,
79,
48,
-54,
-43,
38,
65,
-56,
24,
-22,
6,
-86,
105,
-7,
-63,
56,
-82,
112,
15,
49,
-98,
-53,
44,
11,
-61,
45,
46,
89,
-84,
-48,
-15,
-118,
-121,
111,
20,
-77,
100,
-103,
37,
-8,
46,
-120,
56,
8,
-40,
114,
-90,
-62,
-12,
105,
-103,
9,
56,
98,
1,
28,
-59,
-36,
-104,
46,
-6,
15,
-89,
-40,
57,
19,
73,
-106,
28,
90,
18,
4,
-2,
-2,
77,
23,
108,
11,
-113,
-16,
-95,
5,
-27,
-98,
11,
-17,
-57,
-112,
116,
-52,
-14,
93,
7,
19,
27,
-106,
-112
] |
James R. Cooper, Judge.
Deffenbaugh Industries appeals from the Workers’ Compensation Commission’s decision finding compensable the injuries which Earl Angus sustained when a tornado totally destroyed the mobile home in which he lived on his employer’s premises. The full Commission affirmed the finding of the administrative law judge that Mr. Angus’ injuries “arose out of and in the course of’ his employment. The appellant claims the Commission erred in so finding. We affirm.
Earl Angus, the appellee, was manager of the appellant’s facility in West Memphis, which was engaged in the business of collecting and reselling waste oil. The business operated 24 hours a day, seven days a week, and one condition of Mr. Angus’ employment was that he reside on the premises, thus making himself available at all times. He obtained a zoning variance from the city of West Memphis which allowed a residence in a commercial area, and the minutes of the council meeting in which he was granted the variance stated that it was a “temporary permit for one year for security reasons.” His employer purchased a mobile home and enclosed it by a fence on the premises of the waste oil facility. The rental agreement signed by the parties stated that “this agreement is being entered into by lessor because of lessee’s employment relationship with lessor,” and that “it is further agreed that the quarters provided to lessee by lessor are furnished for the convenience of the lessor and that the lessee is required to accept such lodging on the business premises of the lessor as a condition of employment of lessee by lessor.” The appellee and his family lived in the mobile home, and though there was an office in another building from which Mr. Angus conducted business, there was a telephone installed in the mobile home which allowed truck drivers to contact him to notify him of their anticipated arrival.
On the night of December 14,1987, Mr. Angus went to the residence while waiting for a truck driven by Billy Harris to arrive. He had been there approximately fifteen minutes, eating dinner, when a tornado swept through the West Memphis area. It struck the mobile home, killing Mrs. Angus and severely injuring Mr. Angus and his daughter. Mr. Harris arrived minutes after the storm and discovered the Angus family.
After a de novo review, the Commission affirmed the decision of the administrative law judge that Mr. Angus’ injuries were compensable. It found that the constant presence of Mr. Angus on the premises was “partially necessitated for security purposes” and by the fact that he “had numerous duties which had to be performed as needed . . . twenty-four hours a day, seven days every week.” At the time that the tornado struck, Mr. Angus had just finished performing various duties and was expecting, within thirty minutes, a truck which he would be required to assist in unloading. Thus, said the Commission, his injuries arose out of and in the course of his employment.
On appeal from the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Tiller v. Sears, Roebuck & Company, 27 Ark. App. 159, 767 S.W.2d 544 (1989). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. San Antonio Shoes v. Beatty, 28 Ark. App. 201, 771 S.W.2d 802 (1989). In such a case, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable, i.e., that his injury was the result of an accident that arose in the course of his employment and that it grew out of or resulted from the employment. Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812 (1990).
In order for an employee’s disability to be compensable, he must prove that he sustained an injury “arising out of and in the course of his employment.” Ark. Code Ann. § 11-9-401 (1987); Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). The phrase “arising out of the employment” refers to the origin or cause of the accident. Id. The phrase “in the course of’ the employment refers to the time, place and circumstances under which the injury occurs. J&G Cabinets v. Hennington, 269 Ark. 789 (Ark. App. 1980).
The appellant first argues that the appellee was not injured “in the course and scope of’ his employment because he was not performing any job duties at the time he was injured, but rather was in his home eating dinner with his family. Nevertheless, Mr. Angus was a resident employee, on call 24 hours a day, seven days a week. Professor Larson states that in this situation “the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment.” 1A Larson, Law of Worker’s Compensation § 24.00 (1990). The controlling question as to whether an injury occurs “in the course of’ the employment is whether the activity is reasonably expect-able so as to be an incident of the employment, and thus, a part of it. J&G Cabinets, supra. Because one could reasonably expect an employee who was continuously on call and was required to live on the premises to, at some point, sit down to eat dinner, we hold that the Commission’s decision that Mr. Angus was injured while “in the course of’ his employment is supported by substantial evidence.
The appellant next argues that the Commission erred in declining to apply the positional risk doctrine. It discussed the doctrine but noted that Arkansas courts have not expressly adopted the positional risk doctrine. According to Larson, the doctrine is a substitute for the “arising out of’ test, and he states:
An important and growing number of courts are accepting the full implications of the positional-risk test: An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured. It is even more common for the test to be approved and used in particular. situations. This theory supports compensation, for example, in cases of stray bullets, roving lunatics, and other situations in which the only connection of the employment with the injury is that its obligations placed the employee in a particular place at the particular time when he is injured by some neutral force, meaning “neutral” neither personal to the claimant nor. distinctly associated with the employment.
1 A. Larson, The Law of Workmen’s Compensation, § 6.50 (1990). The only requirement to be met before positional risk may be applied is that the risk which causes the injury must be a neutral one. A tornado is an Act of God, and Larson states that Acts of God are classified as “neutral risks,” meaning that they are neither personal to the claimant nor distinctly associated with the employment. A. Larson, The Positional Risk Doctrine in Workmens’ Compensation, 1973 Dulce L.J., 761.
At least five states have adopted the positional risk doctrine in cases involving injuries due to tornados. They are as follows: Louisiana (Harvey v. Caddo DeSoto Cotton Oil Company, Inc., 199 La. 720, 6 So.2d 747 (1942)); Mississippi (Wiggins v. Knox Glass, Inc., 219 So.2d 154 (1969)); Michigan (Whetro v. Awkerman, 383 Mich. 235, 174 N.W.2d 783 (1969)); Georgia (National Fire Insurance Company v. Edwards, 152 Ga. App. 566, 263 S.E.2d 455 (1979)); and Nebraska {Nippert v. Shinn Farm Construction Company, 223 Neb. 236, 388 N.W.2d 820 (1986)). Eleven states have either specifically adopted the positional risk doctrine in “neutral risk” situations or applied its principles without expressly adopting it.
Arkansas cases have either discussed the positional risk doctrine or have reached conclusions consistent with the reasoning of the doctrine. For instance, in Kendrick v. Peel, Eddy, & Gibbons Law Firm, 32 Ark. App. 29,795 S.W.2d 365 (1990), we stated:
Although the positional risk doctrine has not yet been applied in Arkansas to sustain an award of compensation, our cases have indicated that the doctrine would be applied in a proper case. In Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989) , we cited the case of Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964), where compensation was awarded to a claimant who was injured at work by a gust of wind which ‘lifted appellee into the air, carried him approximately seventy-five feet, and dropped him on the concrete apron.’ We said in PiggthaX while the words ‘positional risk’ were not used in Parrish, that case represents the type of fact situation where the positional risk doctrine arises.
32 Ark. App. at 31 -32. Kendrick concerned an employee who was killed by an acquaintance. We found the risk to be personal rather than neutral and we declined .to apply the positional risk doctrine.
Again we refer to the ease of Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468, as being the type of fact situation to which the positional risk doctrine would be appropriately applied. See Kendrick, supra. The employee was picked up by a gust of wind and dropped onto concrete while securing his employer’s property. The Supreme Court applied the “increased risk” test in holding that the injury was compensable because the employment:
placed him at that moment in a more dangerous situation insofar as the ‘Act of God’ was concerned than that to which the general public in that vicinity was subjected; for the general public was not required to go outside at such a time but could remain in places of safety. Id. at 568.
In urging us to apply the positional risk doctrine, the appellant contends Mr. Angus’ injuries are not compensable because his employment did not expose him to a greater degree of risk than other members of the general public in the same vicinity. (Several people in the West Memphis area were injured or killed by this storm.) Though the appellant contends that it is applying “positional risk,” this approach is commonly referred to as the “increased risk test,” and, as applied by the appellant, it does away with our two-pronged test of “arising out of and in the course of’ the employment. The appellee also urges us to adopt the positional risk doctrine, suggesting a contrary result. He argues that but for the conditions and obligations imposed by his employment, he would not have been placed in the position to be injured by the “neutral risk.” This is a correct application of the “positional risk test.” We see no need to draw fine distinctions between types of “neutral risks.” A tornado or windstorm is no less “neutral” than a roving lunatic or a stray bullet.
We now join those courts which accept the positional risk doctrine to provide compensation for employees who are injured by neutral risks. The question of who should bear the burden of the costs of such an injury is a policy consideration, and use of the positional risk doctrine where the risk is neutral places the risk of loss on the employer, the party most able to sustain such a loss. This, we believe, is in keeping with the spirit of our workers’ compensation law.
We have repeatedly held that the Workers’ Compensation Act is to be liberally construed in favor of the claimant in accordance with the Act’s remedial purpose. Pinkston v. General Tire & Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990); Ark. Code Ann. § 11-9-704(c)(3). Contrary to the dissenting judge’s opinion, we are not abandoning our prior case law requiring a claimant to prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. We are simply liberally construing the statute in an extremely narrow class of cases, those which involve neutral risks. In applying the doctrine to the case at bar, Mr. Angus’ injuries “arose out of’ his employment because “but for” the employment, he would not have been in his home on his employer’s premises at the particular time at which the tornado hit the area. We hold that because substantial evidence supports the Commission’s conclusion that Mr. Angus’ injuries arose out of and in the course of his employment, it must be affirmed.
Affirmed.
Cracraft, C.J., Danielson, J. and Rogers, J., dissent.
We note that though Pigg v. Auto Shack did not adopt or apply the positional risk doctrine, discussion of it in the opinion incorrectly states that when applying the doctrine, it is a substitute for “in the course of’ the employment. The doctrine actually supplies a presumption that the injury “arose out of’ the employment.
See John F. Scarzafava, Areas of Changing Interpretation: The Positional Risk Doctrine 3 Workmen’s Compensation L. Rev. 204, 206 (1976). | [
-16,
-6,
-39,
-115,
8,
97,
26,
-80,
79,
-29,
-28,
123,
-25,
-4,
-115,
119,
-29,
91,
-44,
111,
-79,
-77,
19,
106,
-61,
-77,
49,
-59,
-79,
73,
-12,
84,
73,
33,
-54,
-43,
-26,
0,
-59,
88,
66,
32,
-118,
-27,
-7,
18,
52,
63,
4,
79,
17,
-115,
-70,
46,
17,
-53,
45,
44,
89,
45,
-46,
113,
-54,
5,
79,
23,
-79,
-28,
-104,
39,
-40,
14,
-104,
49,
32,
-88,
82,
-74,
-122,
52,
99,
-119,
12,
98,
99,
18,
13,
-27,
-24,
24,
7,
-2,
-97,
-92,
-114,
57,
27,
11,
-97,
23,
122,
20,
28,
124,
-10,
21,
90,
108,
-121,
-121,
-106,
-31,
45,
40,
-35,
-125,
-21,
-121,
50,
113,
-50,
-94,
92,
4,
83,
31,
-125,
-40
] |
George K. Cracraft, Chief Judge.
Kenneth Baker appeals from a decision of the Arkansas Board of Review denying him benefits on finding that he had been discharged from his last employment for misconduct connected with the work on account of dishonesty. He challenges the sufficiency of the evidence to support the Board’s findings. We find no error and affirm.
Misconduct in connection with one’s work, as used in our statute, has been defined as meaning more than mere inefficiency or unsatisfactory conduct; it is some act of wanton or willful disregard for the employer’s interest, a deliberate violation of the employer’s rules, or a disregard of the standard of behavior that the employer has a right to expect of his employees. Dillaha Fruit Company v. Everett, 9 Ark. App. 51, 652 S.W.2d 643 (1983). The misconduct found in this case was dishonesty, which has been defined as a disposition to lie, cheat, or defraud; untrustworthiness; lack of integrity. Olson v. Everett, 8 Ark. App. 230, 650 S.W.2d 247 (1983). Determining whether a claimant had been guilty of misconduct on account of dishonesty is a question of fact for the Board of Review to determine. Id.
On appeal of unemployment compensation cases, this court views the evidence in the light most favorable to the findings of the Board and will affirm if those findings are supported by substantial evidence. Exson v. Everett, 9 Ark. App. 177, 656 S.W.2d 711 (1983). The credibility of witnesses and the drawing of inferences from the testimony is for the Board of Review, not this court. W.C. Lee Construction Co. v. Stiles, 13 Ark. App. 303, 683 S.W.2d 616 (1985).
The evidence in this case reflects that appellant was employed by the Arkansas Department of Correction as a security guard at its “boot camp” facility. At the time appellant was hired, the department of correction had a rule that it would not employ anyone in that capacity who did not have a high school diploma or its equivalent, and that only those persons meeting that educational qualification would be considered for the job. Appellant admitted that he was aware of that rule at the time he made application for employment. Nevertheless, he submitted a job application in which he falsely represented that he had completed the twelfth grade and received a diploma from Mills High School. Sometime later, appellant was interviewed on his application for a promotion. Appellant’s responses to questions regarding his educational level were at first evasive and “[t]he rest of the interview, he was in a daze.” Soon thereafter, appellant told the interviewer that he had not completed high school, but he claimed that Warden Ray Hobbs, the hiring officer, was aware of that fact. A subsequent investigation by the department confirmed that appellant had not graduated from Mills High School, and Warden Hobbs denied that he had ever been made aware of the true facts. Appellant was then discharged, in accordance with rules of the agency, for falsification of his job application.
On this evidence, the Board of Review found that appellant had intentionally falsified his application to obtain employment that he otherwise would not have obtained, and thereby furthered his own economic interest at the expense of his employer. The Board concluded that appellant was discharged from his employment for misconduct connected with the work on account of dishonesty and denied his claim for benefits. From our review of the record, we cannot conclude that the Board’s findings are not supported by substantial evidence.
The case before us is distinguishable in many respects from Olson v. Everett, supra. When the appellant in Olson made application for his job, the employer did not supply an application for or otherwise make inquiry as to his physical condition. However, the appellant attached to his resume a form of his own, which contained the following: “Physical record: List any physical defects. [Answer:] OK.” Several months later, the appellant suffered an epileptic seizure at his home. When the employer was notified of the condition, the appellant was terminated because he had not disclosed his illness at the time of the hiring. The Board of Review denied benefits on finding that the appellant had been discharged for misconduct connected with the work on account of dishonesty.
On appeal, this court reversed the Board’s decision because we could find no substantial evidence to support a finding that the appellant had intentionally lied to the employer or had otherwise been dishonest with him. The evidence disclosed that although the appellant had a history of epilepsy, he had had no manifestation of it for at least ten years prior to the signing of the application. The employer had not asked the appellant whether he suffered from epilepsy, seizures, or related symptoms, or any other questions regarding his health. Nor had the employer relied upon the statement that the appellant submitted. The employer testified that had he known of the appellant’s condition, he still would have hired the appellant.
Here, the employer supplied a job application form on which appellant willfully falsified an answer that he knew to be material to the employment. In finding that action deceitful, the Board also referred to appellant’s subsequent attempts to conceal and/or explain his prior conduct with additional false statement. From our review of the record, we cannot conclude that there is no substantial evidence to support the Board’s finding that appellant’s conduct constituted misconduct in connection with the work.
Affirmed.
Jennings, J., agrees.
Mayfield, J., concurs. | [
48,
-22,
-36,
-3,
42,
-64,
58,
120,
81,
-115,
103,
81,
-17,
-12,
12,
127,
-16,
109,
-44,
106,
-41,
-77,
23,
65,
98,
-13,
-5,
-59,
-75,
91,
-11,
-36,
76,
48,
-118,
-43,
38,
-64,
-53,
-40,
-126,
7,
-86,
110,
88,
-60,
32,
38,
-80,
-49,
112,
-66,
-5,
40,
31,
79,
-116,
46,
90,
-82,
64,
-111,
18,
13,
127,
20,
-77,
39,
-97,
3,
-48,
46,
-100,
56,
1,
-8,
58,
-74,
-62,
68,
91,
-71,
13,
112,
98,
33,
-100,
-25,
44,
-128,
-74,
118,
-115,
-26,
-104,
89,
73,
75,
-106,
-100,
86,
54,
44,
120,
99,
-99,
23,
108,
-61,
-113,
20,
-79,
13,
100,
-98,
27,
-17,
-73,
16,
100,
-52,
-30,
93,
79,
81,
30,
-114,
-75
] |
Elizabeth W. Danielson, Judge.
The Arkansas Department of Human Services (DHS) was found to be in contempt and assessed a $150 fine by the chancellor when its representative failed to appear at a placement hearing for a juvenile offender. For reversal, DHS raises three points. We affirm in part and reverse and remand in part.
A juvenile offender was being held in detention pending an August 29,1991, disposition hearing. At the request of the court probation officer, DHS was contacted since the placement of the child at Youth Home, Inc., had not yet been approved and the child’s parents refused to allow him to return home.
Maurice Shirley, a DHS caseworker, was present at the August 29 hearing along with the prosecuting attorney and the public defender. It was necessary to continue the proceedings until September 3 because the juvenile’s application for placement at Youth Home, Inc., had not yet been approved. The public defender requested that Mr. Shirley return for the September 3 hearing in case the services of DHS were needed. The chancellor agreed and stated, “All right, we will give Mr. Shirley a copy of the order to appear.”
At the September 3 hearing, because placement at Youth Home, Inc., had not been finalized, the state requested that the juvenile be released to the custody of DHS immediately until placement could be obtained. Neither Mr. Shirley nor any other representative from DHS was present for the hearing. After the chancellor reviewed her notes of the August 29 hearing, which reflected that Mr. Shirley was present at the earlier hearing and was personally served with a notice to appear in court on September 3, the chancellor found DHS in contempt for failing to appear as ordered.
For its first point, DHS contends that the court lacked the jurisdiction necessary to find it in contempt of court. Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt; punishment for such contempt is an inherent power of the court. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991); Hilton Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980). Even one not a party to an action, who has been served with an order, or who has notice of it, may be held in contempt of the order. Id. Before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties imposed upon him and the command must be expressed rather than implied. Id.
According to the record, the representative from DHS was given notice in open court, as well as in writing, of the date and time to appear for the placement hearing of the juvenile. One who has full knowledge of a court order and its import, as DHS did, cannot flout it with impunity. Dennison v. Mobley, Chancellor, 259 Ark. 216, 515 S.W.2d 215 (1974). It is one of DHS’s functions and responsibilities to cooperate with, assist, and solicit the cooperation and assistance of all public or private agencies or organizations involved in or dedicated to providing services to youth. Ark. Code Ann. § 9-28-205(2) (1987). The Department of Human Services cannot fulfill its statutory responsibility to the youth of our state without the department’s full cooperation with the juvenile courts throughout the state.
The Department of Human Services next contends that it was denied procedural due process because it was not provided with notice of the accusation and a reasonable time to make its defense as required by Arkansas law and the Fourteenth Amendment of the United States Constitution. Although the chancellor did not designate whether she was holding DHS in criminal or civil contempt, the record reveals that the $150 was punishment for not obeying the court’s order to appear on September 3, rather than a fine imposed to compel DHS to act. Hence, this was criminal contempt. See Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). Arkansas Code Annotated § 16-10-108(a)(3) (1987) states that every court of record shall have the power to punish, as for criminal contempt, persons guilty of willful disobedience of any process or order lawfully issued or made by it. Under Ark. Code Ann. § 16-10-108(c), contempts committed in the immediate view and presence of the court may be punished summarily, and in other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his defense. See Fitzhugh, 296 Ark. 137. Notice of the charge of contempt and the nature thereof were not given to DHS in this case. Therefore, we reverse and remand on this point so that the chancellor can conduct a show cause hearing and afford DHS the opportunity to answer why it should not be found in contempt of the court’s order.
Next, appellant contends that there is insufficient evidence to support a finding of contempt, arguing that it did not willfully disobey Chancellor Gruber’s order to appear. We consider the evidence in the record in the light most favorable to the trial court’s decision concerning the contempt and affirm if there is substantial evidence to support its decision. Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992). There is evidence in the record that DHS was given notice to appear at the September 3 hearing and failed to appear. The absence of DHS from the hearing is evidence of their disobedience of the chancellor’s order. There was, therefore, substantial evidence to support the initial finding of contempt.
Affirmed in part.
Reversed and remanded in part.
Jennings and Mayfield, JJ., agree. | [
-80,
-20,
-11,
92,
43,
-63,
62,
-108,
83,
-13,
85,
83,
43,
-26,
20,
123,
123,
111,
116,
105,
-53,
-73,
-9,
65,
106,
-45,
-111,
-43,
-69,
111,
-20,
-36,
78,
112,
-54,
113,
102,
-127,
-9,
-48,
-114,
35,
-104,
109,
113,
-125,
96,
41,
26,
-117,
53,
47,
-93,
46,
23,
74,
-24,
104,
121,
53,
-56,
-46,
-37,
7,
123,
4,
-93,
-76,
-110,
7,
120,
127,
-114,
57,
1,
-8,
115,
-74,
-126,
100,
67,
-39,
33,
100,
106,
-63,
12,
-41,
-76,
9,
54,
-66,
-115,
-90,
-101,
121,
75,
13,
-106,
-67,
116,
22,
14,
126,
111,
-124,
87,
108,
10,
-50,
30,
-95,
-116,
21,
-34,
51,
-61,
69,
48,
17,
-116,
-10,
84,
67,
115,
-101,
-82,
-37
] |
John E. Jennings, Judge.
Jimmy Jones was employed by the City of Imboden, Arkansas, as city marshal from 1965 until the first week of July 1989. Mr. Bob Taylor also lived in Imboden and Jones had known Taylor and his family for many years.
On several occasions during 1988 and 1989, Mr. Taylor created disturbances and Jones, as city marshal, had to physically restrain him and take him to a mental hospital. Taylor threatened to kill Jones on each occasion.
On the evening of August 11, 1989, some thirty days after Jones had resigned as city marshal, Taylor appeared outside his bedroom window again threatening to kill him. Jones called the sheriff and after deputies arrived Jones and Taylor got into a scuffle and Jones suffered a ruptured disc.
Mr. Jones filed a claim for workers’ compensation against the City of Imboden and the administrative law judge awarded benefits. On appeal, the full Commission reversed. The Commission held that although there was a casual connection between the injury and the employment, the requirement that the injury occur “in the course of employment” was not met. See Ark. Code Ann. § 11-9-401 (1987).
We have said many times that “arising out of the employment” refers to the origin or cause of the accident while the phrase “in the course of employment” refers to the time, place, and circumstances under which the injury occurred. Franklin Collier Farms v. Bullard, 33 Ark. App. 33,800 S.W.2d 438 (1990); Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987); Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985); Owens v. National Health Laboratories, Inc., 8 Ark. App 92, 648 S.W.2d 829 (1983). In City of El Dorado v. Sartor, 21 Ark. App 143, 729 S.W.2d 430 (1987), we said:
With respect to course of employment, the test advanced by Professor Larson requires that the injury occur within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose, or advancing the employer’s interests directly or indirectly. 1 A. Larson Workmen’s Compensation Law §§ 14.00, 20.00 (1985).
One case relied upon by the appellant is Graybeal v. Board of Supervisors of Montgomery County, 216 Va. 77, 216 S.E.2d 52 (1975). Graybeal was a prosecuting attorney and in that capacity prosecuted Frank Dewease for murder. Dewease was convicted and sentenced to twenty years imprisonment. Dewease vowed revenge and five years later, Graybeal, while still employed as prosecuting attorney, arrived home late in the evening. He noticed a can on top of the family car and when he picked it up, it exploded, causing severe injuries.
Significantly, that court’s prior pronouncements on the “in the course of’ requirement parallel those of our courts. The Virginia Supreme Court said:
The “course of’ requirement, on the other hand, refers to continuity of time, space, and circumstances, only incidentally related to causation. This requirement must be satisfied by a showing of an unbroken course beginning with work and ending with injury under such circumstances that the beginning and the end are connected parts of a single work-related incident.
Considering, then, that in the context of the present case “arising” means “originating,” we believe the claimant’s nighttime injury from the exploding bomb placed on the top of his family car no less arose in the course of his employment than if he had been shot by his revenge- seeking assailant in the courtroom immediately following the murder trial, or if he had been injured by a bomb triggered to explode in his office upon his return from the courtroom. The difference is in degree only and not in substance. In the realities of the present case, the course from prosecution to desire-for-revenge to injury was unbroken, constituting a single work-connected incident.
This is essentially the same concept written of by Chief Justice Cardozo in Matter of Field v. Charmette Knitted Fabric Co., 245 N.Y. 139, 156 N.E. 642 (1927): “Continuity of cause has been so combined with contiguity in time and space that the quarrel from origin to ending must be taken to be one.”
More closely in point is Thornton v. Chamberlain Manuf. Corp., 62 N.J. 235, 300 A.2d 146 (1973). The claimant there was a production foreman who had, during his employment, reprimanded an employee named Sozio for his failure to wear safety glasses. Sozio had told the claimant, “I’ll take care of your eyes later.” Nine days after the claimant terminated his employment, he saw Sozio in a bar. Sozio attacked him and Thornton’s injuries included the loss of vision in one eye.
Chief Justice Weintraub, speaking for the court, said:
Thus an accident may fairly be said to “arise” in the course of the employment if it had its origin there in the sense that it was the end-product of a force or cause set in motion in the course of employment. That construction is reasonable and advances the basic purpose of the statute that an enterprise shall absorb the injuries reasonably related to it. Here the injuries were caused in every realistic sense by petitioner’s exposure at work. We can think of no reason why the Legislature would want to deny relief because the work-generated force overtook petitioner at one moment rather than another.
We are mindful that in the case at hand the employment relationship itself terminated before the work-initiated hazard ended in injury to him. In this respect, this case goes beyond the authorities cited above. But we see nothing critical in that further fact. In another case that fact might play a decisive role with respect to the work-connection of an injury, but in the case at hand it does not offer a rational basis to say the burden of this injury should not be borne by the enterprise from which it so clearly emerged. (Citation omitted.)
Similarly in Jones v. Jay Truck Driver Training Ctr., 736 S.W.2d 468 (Mo. App. 1987), the court held that an employer’s obligation under workers’ compensation may extend beyond termination when the activity causing injury is a normal and reasonable incident of the employment relationship.
In Bearshield v. City of Gregory, 278 N.W.2d 166 (S.D. 1979), William Bearshield, a police officer for Gregory, South Dakota, had had contact, in the line of duty, with one Norman Bluebird. Later, while Bearshield was on vacation, Bluebird stabbed him to death. The South Dakota Supreme Court cited with approval both Graybeal and Thornton. The court said:
We agree with these latter authorities and find their reasoning to be in line with the broad spirit of the worker’s compensation statutes and the liberal construction they are to be afforded. The case before us is not a typical industrial injury case involving the usual employer-employee and cause-result nexus. This is a situation where decedent’s employment, by its very nature, exposed him to injury of an unusual sort, i.e., a fatal assault by a revenge-seeking youth. This type of injury knows no particular location.or working hours.
Bearshield, 278 N.W.2d at 170.
There is precedent in this state for the principle that an injury may be found to have occurred “in the course of employment” despite the fact that the claimant had been discharged prior to the work-related assault. Johnson v. Safreed, 224 Ark. 397, 273 S.W.2d 545 (1954); Lundell v. Walker, 204 Ark. 871, 165 S.W.2d 600 (1942). In Lundell the court stated, “[T]he conversation and act of killing were so much a part of the same transaction that discrimination cannot differentiate between them.” In Johnson the court said, “We have held that the period between discharge and injury must be somewhat longer than the minute, or less, involved in the instant case.”
The principle applicable in the case at bar is the same as that involved in Johnson and Lundell: the difference is merely one of lapse of time. We agree with the Supreme Court of New Jersey in Thornton, supra, that the distinction is not a critical one in the case at bar.
For the reasons stated the decision of the Commission is reversed and the case is remanded for the purpose of the determination of benefits.
Reversed and remanded.
Cooper and Mayfield, JJ. agree. | [
48,
-23,
-44,
-36,
26,
-61,
26,
-94,
123,
-102,
-25,
19,
-25,
-9,
13,
109,
99,
125,
-44,
121,
-13,
-73,
115,
14,
-14,
-77,
73,
-59,
-66,
79,
-10,
-35,
95,
48,
-118,
-47,
-26,
64,
-56,
94,
-122,
7,
-118,
-8,
-40,
-112,
48,
63,
16,
15,
49,
46,
-86,
43,
48,
-55,
-19,
44,
78,
-82,
82,
49,
-40,
13,
-2,
20,
-125,
-59,
-102,
15,
-39,
30,
-104,
49,
112,
-20,
82,
-74,
-126,
-12,
101,
-115,
76,
98,
98,
50,
-99,
-25,
-24,
-119,
30,
-70,
-99,
-91,
-119,
56,
51,
15,
-105,
-99,
90,
20,
4,
124,
-15,
93,
89,
32,
1,
-114,
-108,
-13,
-51,
-124,
-108,
-69,
-29,
7,
48,
101,
-50,
-30,
124,
5,
115,
95,
-101,
-48
] |
Donald L. Corbin, Judge.
Appellant, Mary Nichols, appeals a decision of the Board of Review affirming the action of the Appeal Tribunal which affirmed an Agency determination denying benefits and reducing her base period wages pursuant to Ark. Stat. Ann. § 81-1106(a) and § 81-1104(h) (Supp. 1985). This action was predicated on the basis that appellant’s appeal to the Appeal Tribunal was untimely filed pursuant to the authority of Ark. Stat. Ann. § 81-1107(d)(2) (Supp. 1983). We affirm.
The record reflects that appellant quit her employment with J.J.’s Truck Stop on July 15, 1983, in order to get married and move with her spouse to New Mexico. The notice of the Agency determination was mailed on Sep tember 12, 1983, and appellant filed her appeal on October 17,1983. A telephone hearing was held on November 9,1983, before the Appeal Tribunal. Pursuant to Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App. 1980), appellant was afforded this opportunity to establish why the late filing was the result of circumstances beyond her control. Appellant testified that after receiving the Agency determination, she stepped up her search for work. She stated that her appeal was untimely because of this concentrated effort to secure employment. This clearly is not an acceptable defense.
We note that Ark. Stat. Ann. § 81-1106(a) was amended by Act 482 of 1983 to disallow benefits to a claimant who voluntarily leaves his or her last work to. accompany a spouse to a new place of residence unless he or she has done so prior to July 1,1983. Thus, it would appear that appellant would have been disqualified under this amended Act because she left her employment on July 15, 1983.
Affirmed.
Cooper and Cracraft, JJ., agree. | [
16,
-22,
-43,
-84,
10,
64,
26,
-66,
86,
-125,
53,
-45,
-89,
114,
92,
121,
83,
109,
81,
121,
-41,
-73,
21,
96,
120,
-1,
41,
-33,
-104,
79,
-28,
116,
76,
112,
74,
-57,
68,
64,
-125,
88,
78,
-121,
-21,
105,
-7,
-124,
56,
111,
48,
31,
49,
-90,
-29,
40,
25,
-62,
-20,
12,
11,
-92,
121,
49,
-126,
-115,
127,
4,
-79,
68,
-102,
-121,
-40,
123,
-100,
49,
32,
-40,
114,
-92,
-110,
52,
115,
-101,
12,
96,
98,
2,
-100,
-17,
-20,
-120,
14,
50,
29,
-90,
-40,
25,
75,
65,
-98,
-107,
124,
20,
12,
-2,
122,
5,
95,
108,
-116,
-114,
-44,
-79,
-115,
105,
-100,
-117,
-5,
-125,
-112,
117,
-34,
-22,
93,
7,
51,
-101,
-74,
-48
] |
Melvin Mayfield, Chief Judge.
Appellant was convicted of incest and second degree battery. He was sentenced to ten years in prison for the incest and six years for the battery, with the terms to run consecutively. The charges arose from incidents between appellant and his six-year-old son.
Appellant lived in a house trailer alongside his parent’s home. His son lived with him. The child’s mother was in California. The boy testified that his daddy stuck his "weenie” in the boy’s mouth, that a "weenie” was what his daddy went to the bathroom with, and that “he done it to me a bunch of times.” The child’s kindergarten teacher testified that he frequently came to school bruised and one time his whole ear was black. On another occasion, she discovered hog lice on the child. She took him to the gymnasium and had him take his clothes off and get in the shower. When he stepped out of the shower, she noticed that he was bruised from the neck down, back and front.
Appellant’s ex-girl friend testified that she had seen the defendant hit the child, knock him across the room, make him stay in bed all day, and knock him down when he raised up or asked to get up. On cross-examination she was asked if she and the defendant were living together, if there were hard feelings when they broke up, and if she had made threats to him at that time. She answered that they did not live together, that she had not made threats, but that there were hard feelings. On redirect the prosecution inquired as to the reason for the hard feelings. The witness replied that it was because of the way appellant treated the child and because appellant had asked her to perform oral sex on appellant. At this point, defense counsel asked that the court admonish the jury that this had “nothing to do with the case.” His request was denied and this is one of the points of error on appeal.
The child testified that he did not remember being hit at appellant’s ex-girl friend’s house, and neither did he remember what had caused his ear to be black and sore. He said his daddy whipped him with a belt or a switch for being bad. The appellant testified and denied doing more than spanking the boy. He denied ever bruising the child or having oral sex with him. He said the child fantasized a lot, that the prosecutor and social workers were out to get him, and that his ex-girl friend and the kindergarten teacher were lying.
Appellant’s first point of error is the ruling of the court denying his request to admonish the jury to disregard his former girl friend’s statement about appellant asking her to perform oral sex on him. In support of this argument appellant cites Philmon v. State, 267 Ark. 1121, 593 S.W.2d 504 (Ark. App. 1980), a drug possession case, which held that it was error to allow a weapon to be introduced into evidence as it was not relevant in a possession case. Appellant also says that Uniform Evidence Rule 404(b) makes evidence of other crimes, wrongs, or acts inadmissible to prove the character of a person in order to show that he acted in conformity therewith in committing another crime. The state contends, however, that under the guidelines of Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979), this evidence was proper on redirect examination.
In Parker the court said that the scope of redirect examination lies within the sound discretion of the trial court, and that a witness should be allowed full opportunity to explain matters brought out on cross-examination, or to rebut any discrediting effect they may have had, or to correct any wrong impression that may have been created on cross-examination, even though the evidence brought out on redirect would not have been admissible on direct examination. Under the circumstances in the present case, we think the rationale of Parker is applicable here, and we find no reversible error in the court’s ruling.
Appellant also argues that there was insufficient evidence to support the conviction of second degree battery. Ark. Stat. Ann. § 41-1602(l)(a) (Repl. 1977), provides that, “A person commits battery in the second degree if, with the purpose of causing physical injury to another person, he causes serious physical injury to any person.” Serious physical injury is defined as "physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark. Stat. Ann. § 41-115(19) (Repl. 1977). The difference between the crime of second degree battery and the crime of third degree battery, as it relates to this case, is that third degree battery concerns “physical injury” rather than "serious physical injury.” Sec Ark. Stat. Ann. § 41-1603 (Repl. 1977). Physical injury is defined as "the impairment of physical condition or the infliction of substantial pain.” Ark. Stat. Ann. § 41-115(14) (Repl. 1977).
In Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976), the court affirmed a second degree battery conviction, saying it was an issue of fact as to whether the victim sustained “serious physical injuries.” The injuries were described as “a broken leg, a fractured toe, bruised heel and pelvis.” The victim was hospitalized for about a month, was in a leg cast and traction for two or three weeks of that time, and about a month and a half later was still walking with crutches. The case says that our Criminal Code scales batteries in degrees of first, second, and third, with the severity of punishment being based, in part, on the result of the battery in terms of harm done to the victim..
Harmon is the only case cited in the briefs. Apparently this facet of our Code has not been the subject of much appellate court attention. We have set out about the entire evidence regarding the injuries received by the victim in this case. Given the definitions of “physical injury” and “serious physical injury,” considering that the Commentary to § 41-1603 says that first degree battery comprehends only life-endangering conduct, and considering the second degree injuries described in Harmon, we are persuaded that the injuries in this case will support only the lesser included offense of battery in the third degree. As the state’s brief points out, Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), holds that in this situation we may “reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally.”
In Scott v. State, 1 Ark. App. 207, 614 S.W.2d 239 (1981) and Griffin v. State, 2 Ark. App. 145, 617 S.W.2d 21 (1981), we remanded for the trial court to assess the sentence and we follow that procedure here. The judgment of conviction of incest is affirmed. The judgment of conviction of battery in the second degree is reduced to battery in the third degree and remanded to the trial court for impositions of sentence consistent with the conviction of that crime.
Affirmed as modified.
Cracraft and Cooper, JJ., agree. | [
112,
-4,
-51,
-4,
10,
97,
126,
28,
30,
-45,
-9,
-13,
-21,
-10,
4,
121,
-102,
127,
84,
113,
-47,
-77,
19,
65,
-94,
-5,
-6,
84,
-73,
79,
-3,
-100,
8,
112,
-46,
117,
-94,
74,
-26,
84,
-122,
15,
-86,
-20,
18,
-125,
36,
59,
67,
15,
53,
31,
-73,
42,
-107,
-33,
11,
44,
91,
58,
72,
41,
-70,
23,
-20,
52,
-77,
38,
-97,
11,
114,
42,
-40,
-79,
32,
-23,
51,
-78,
-126,
-12,
13,
-87,
-115,
-32,
102,
33,
-115,
-44,
56,
-56,
31,
127,
-99,
-90,
-102,
104,
2,
-116,
-65,
-105,
116,
86,
-116,
120,
67,
76,
106,
96,
46,
-57,
36,
-125,
-51,
-96,
-44,
32,
-29,
47,
3,
5,
-61,
-74,
84,
69,
121,
-41,
30,
-74
] |
James R. Cooper, Judge.
This appeal arises from a delinquent account owed the appellee by the appellant. The appellant ordered items of clothing from the appellee. The appellant received the merchandise it ordered, but was dissatisfied with the quality or condition of several of the items. Upon bringing this to the appellee’s attention, the appellant received a credit from the appellee for several items. The appellee billed the appellant for the amount owed on the shipment, less the credits given for the nonconforming goods. The appellant sent a check to the appellee in the amount of $11,520.00 which contained the following language: “Invoices 6852-6835 & 6508 This represents any & all debt paid in full.” The amount the appellant owed the appellee on invoice number 6832 was the amount of this check, $ 11,520.00. When no further payments on the appellant’s account were received, the appellee instituted this action to collect the amounts it alleged were owing on the remaining invoices, $3,633.29. The appellant answered, setting up the defense of accord and satisfaction. The appellant argued that there was a dispute as to the amount owed by the appellant on its account with the appellee, and its act in tendering the check with the above quoted language, and the appellee’s acceptance of it, amounted to an accord and satisfaction. The trial court rejected this argument and found there was no accord and satisfaction. Thus, judgment was rendered in favor of the appellee for the amount prayed for. From that decision, comes this appeal.
In Widmer v. Price Oil Co., 243 Ark. 756, 421 S.W.2d 885 (1967), the court stated, “[I]n accord and satisfaction there must be a disputed amount involved and consent to accept less than the claimed amount in settlement of the whole.” (citations omitted). Also, as stated by the court in Camfield Tires, Inc. v. Mosely, 253 Ark. 585, 487 S.W. 2d 268 (1972), quoting from 1 Am. Jur. 2d, Accord and Satisfaction, § 1:
. . . there must be an offer in full satisfaction of the obligation, accompanied by such acts and declarations as amount to a condition that if it is accepted, it is to be in full satisfaction, and the condition must be such that the party to whom the offer is made is bound to understand that if he accepts it, he does so subject to the condition imposed.
In the case at bar, the appellant asserts that there was a dispute between the parties as to the amount owed. The appellee testified that after giving the appellant credit for the merchandise rejected, the amount owed on the appellant’s account was then established. After these adjustments were made on the account, and were accepted by the appellant, we feel that there could be no good-faith basis for the appellant to then dispute the amount owed to the appellee and the appellant’s act of writing on the check that it represented “any & all debit paid in full” did not have the effect of discharging the remaining debt on the appellant’s account. Obviously, the trial court was of the same belief. Although the appellant’s president, Don Wilkerson, testified that the amount the appellant owed the appellee was disputed, the appellee testified to the contrary. The trial judge, sitting as the finder of fact, decided this issue against the appellant and we cannot say that his decision was clearly erroneous or against a preponderance of the evidence. ARCP Rule 52 (a).
The fact that the amount of the check tendered to the appellee was the exact amount owed on invoice number 6832 tends to support the finding that the language on the check was not such as would place the appellee on notice, or, as stated in Camfield Tires, supra, was not such an act and declaration that if accepted by the appellee, would be accepted as full satisfaction of the debt. Rather, we feel that the employee of the appellee who received this check would naturally consider this check as payment for invoice number 6832, as there was no knowledge of a dispute as to the other amounts owing on the appellant’s account and the employee’s act of accepting the check and depositing it, cannot be held to constitute an acceptance as full satisfaction of the debt owed by the appellant to the appellee.
We find no error in the ruling of the trial court as to the issue of accord and satisfaction and therefore affirm.
Affirmed.
Corbin and Cracraft, JJ., agree. | [
-110,
-8,
-39,
-20,
10,
96,
42,
-118,
84,
-95,
53,
83,
-19,
-58,
20,
123,
-12,
125,
97,
106,
103,
-77,
7,
64,
-62,
-77,
-71,
-43,
-75,
111,
-32,
92,
76,
-96,
-118,
-107,
98,
-128,
-63,
92,
-52,
-126,
-71,
-51,
-7,
78,
48,
-88,
24,
75,
97,
-122,
-29,
44,
25,
67,
111,
44,
123,
57,
-48,
-16,
-85,
13,
63,
20,
-109,
36,
-100,
39,
-40,
14,
-104,
49,
32,
-23,
122,
-74,
-122,
116,
43,
-69,
9,
98,
98,
18,
1,
-51,
-36,
-4,
46,
-38,
-99,
-90,
-110,
25,
11,
97,
-73,
-100,
100,
66,
-115,
-4,
-40,
29,
95,
-20,
11,
-50,
-76,
-110,
15,
118,
-36,
-117,
-17,
-78,
19,
113,
-49,
-16,
92,
71,
60,
-125,
-66,
-70
] |
Cockrill, O. J.
The marshal of the city of Port Smith, finding a hog belonging to the appellee at' large upon the streets of the city, seized and impounded it, and after-wards sold it at public outcry. The appellee recovered judgment for the value of the animal in an action against the city. On the trial the city offered to justify the act by proving a sale .under an ordinance passed-by the council, authorizing the impounding and sale of swine found running at large, but the court ruled that the ordinance was invalid, and rejected the evidence offered. This ruling of the court is the only question pressed by counsél for determination.
The ordinance is said to be invalid because not within the power specifically conferred upon the council by the act of the legislature. Under the title of “General Powers of Cities and Towns,” Mans/. Big., sec. 757, is the following provision:
“ They shall have the power to restrain and regulate the running at large of cattle, horses, swine, sheep and other animals within the limits of the corporation; to authorize the distraining, impounding and sale of the same, for any penalty imposed by any ordinance or regulation, and all costs of the proceeding.”
In execution of the powers conferred by this provision, the council of Port Smith passed the ordinance now in question. It forbids the running at large of hogs and other animals in the city limits; it establishes a pound and authorizes the city marshal or policeman to cause any hog found running at large to be seized and impounded ; it provides a reasonable fee for services performed in impounding, feeding and caring for the animal after seizure, .and makes it the duty of the marshal to sell any impounded animal after giving five days’ notice by posters in public places in the city — the proceeds of sale, after deducting the costs of seizure, impounding and keeping the animal, to be held for the benefit of the owner.
It is argued that where no penalty is imposed by the ordinance, no power to impound or sell any of the enumerated animals is conferred by the statute. This position assumes that the authority to impound and sell is granted only by that clause of the statute relating to the penalty. But this is a false hypothesis. The first clause of the section cited confers the power to “ restrain and regulate the running at large” of the animals enumerated. 'These words alone confer authority to establish the customary means of preventing the evil aimed at, according to the familiar principle, that all power is implied which is necessary to give effect to that expressly conferred. Town of Russellville v. White, 45 Ark., 485; Grover v. Huckins, 26 Mich., 476; Whitlock v. West, 26 Con., 406; Goselink v.Campbell, 4 Iowa, 296; Varden v. Mount, 78 Ky., 86; Whitfield v. Longest, 6 Ired., 268.
Hogs and other animals running at large, contrary to lawful prohibition, are regarded in the light of a nuisance, and the usual and established method of suppressing the nuisance is by impounding the animals and causing a sale for the costs of the proceeding. Cases sup. But the authority to impose a fine or penalty in personam upon the -owner would not arise by necessary implication from the first clause of the section, and the obvious intention of the ¡succeeding clauses in relation to the penalty was to enlarge rather than to limit the power granted by the preceding-clause, and enable the city not only to suppress the nuisance hut to punish the person responsible for it. As the ordinance attempts only to suppress the nuisance, it does-not reach the limit of the power granted, much less over-leap it. But the ordinance may be justified under the second clause of the section also. The power is expressly given to sell for costs when a sale is made for a penalty.. Now, as the costs referred to, by clear implication, include-the costs of “ distraining, impounding and sale,” the question arises: Is it necessary to a valid exercise of this-power that the council shall go to the full extent of the authority conferred, and impose a penalty for the nuisance-before they can render an impounding effectual by a sale for the costs and charges? In answer to this question the-supreme Court of Michigan, in Grover v. Huckins, sup., in a ease like this, say, “ A party is not to be heard to complain,, if, in the punishment for a breach of the penal laws, some severable part of what is or should be the legal penalty is omitted.”
Again, it is urged that the ordinance forfeits the-impounded animal without judicial proceedings and without “due process of law.” The ordinance does not,, strictly speaking, create a forfeiture, for after paying the-reasonable expenses of impounding and selling, provision is made for paying the residue of the proceeds of sale to the owner of the animal. Bagley v. Castile, 42 Ark., 77. A notice, such as is likely under the circumstances to-reach the party concerned, is required. This is all that is necessary in such cases. “In judging what is ‘due process of law’,” said Mr. Justice Bradley in Davidson v. New Orleans, 96 U. S., 107, “ respect must be had to the cause and object of the taking, whether under the taxing power,, the power of eminent domain, or the power of assessment for local improvements or none of these; and if found to Be suitable or admissible in the special case, it might be adjudged to be ‘due process of law’; but if found to be arbitrary, oppressive and unjust it may be declared to be not ‘due process of law’.” Such summary proceedings, without the form of judicial trial have universally been held valid as falling within the police power of the government. McKibben v. Fort Smith, 35 Ark., 352; Goselink v. Campbell, sup.; Gilchrist v. Schmidling, 12 Kans., 263; Grover v. Huckins, sup.; Campan v. Langley, 39 Mich., 451; Moore v. St., 11 Lea (Tenn.), 35; The Mayor of Cartersville v. Lanham, 67 Ga., 753; Whitfield v. Longest, sup.
The case of Varden v. Mount, 78 Ky., sup., relied upon by the appellee seems to be an exceptional case in this particular line. The city ordinance in that case presented the same essential features as the Fort Smith ordinance, but the court assume that its provisions created a forfeiture of the impounded animal and proceeded to determine that that could not be done without a judicial investigation. Before the determination of this case, the Supreme Court ■of Kansas, in disposing of a similar question, used this language: “When nothing is attempted to be imposed upon the owner of the stock as damages or penalty, but only the reasonable cost of taking up, impounding and keeping the same, and sufficient notice is provided for, and the ordinance authorized by the city charter, it is believed that no court has ever held the law or the ordinance founded thereon, to be unconstitutional or invalid, although the sale may not be made under judicial process, although there may be no provision for a judicial investigation, except the general remedies to determine whether the law or the ordinance has been complied with, and although the notice provided for may not be a personal notice, but only a notice by publication or by posting.” This, we think, the correct view. Certainly no greater right to a judicial investigation exists in such a matter than in the case of an estray or the sale of real or personal property for non-payment of taxes.
It follows that the court erred in excluding the evidence oflered by the city in justification of the sale, and the-judgment must be reversed and the case remanded for a new trial. | [
48,
-1,
116,
-116,
30,
64,
0,
-71,
67,
-87,
-28,
83,
77,
80,
5,
57,
99,
125,
85,
105,
-57,
-73,
69,
66,
-70,
-45,
-117,
-113,
-69,
79,
-17,
71,
74,
33,
-62,
29,
38,
-17,
-127,
-40,
-114,
33,
-120,
-55,
-11,
-48,
60,
43,
50,
79,
33,
29,
-29,
46,
25,
99,
-87,
44,
107,
45,
-55,
-7,
120,
-115,
127,
14,
-78,
118,
-71,
3,
-38,
110,
-112,
25,
8,
-24,
115,
-74,
-126,
84,
45,
-37,
-116,
34,
98,
1,
109,
-19,
-80,
12,
14,
90,
-55,
-122,
-112,
89,
98,
2,
-74,
29,
69,
-110,
4,
-14,
-26,
-75,
-99,
108,
7,
-34,
20,
-73,
-49,
-87,
-102,
81,
-9,
-57,
48,
113,
-49,
-6,
125,
69,
84,
91,
-122,
-14
] |
Smith, J.
LaCade sued Lawrence and Louis Phillipe before a justice of the peace for work and labor done. Lawrence answered that LaCade did not perform the labor charged for upon any contract to work for defendant, and was never in the employ of the defendant, and that defendant does not owe plaintiff any part of the sum charged; that the defendant had a contract with Louis Phillipe for the making of wine on the place of defendant, from the vintage of defendant’s vineyard, for the consideration agreed upon between defendant and Louis Phillipe, by which said Louis Phillipe was to employ all the assistance he might require, and pay himself for all labor, etc., and expense necessary in making wine; and if Louis Phillipe hired the plaintiff he did so upon his contract as principal party thereto, and not as agent of Lawrence; that the wine is not yet made under said contract with said Louis Phillipe and this defendant, and nothing was due Louis Phillipe from Lawrence.
Phillipe also answered, setting up his contract with Lawrence, substantially as Lawrence had stated it, admitting the hiring of LaCade by him, but alleging failure on the part of LaCade to perform his contract, and claiming recoupment for losses sustained.
On motion of LaCade, the case was transferred to the-court of common pleas, under the provision of law creating that court. It was there tried before the court, without the intervention of a jury, and LaCade had judgment against both defendants. They appealed to the circuit court. Pending the appeal LaCade died, and his whole-estate, being worth less than $300, was, by order of the probate court, turned over to his widow and four minor-children. The cause was revived in their names and proceeded to trial with the result of a verdict and judgment for the plaintifls.
The first error assigned is, allowing the action to be revived and prosecuted in the joint names of LaCade’s widow and children, when the latter had no interest. It is doubtless true that, under sec. 3, of Mansfield’s Digest, where-there is a widow, the estate is to be vested in her, and the-alternative, “ or children as the case may be,” has no place. But no objection was made to the order of revivor,, and the action of the court in the matter was not even made a ground of the motion for a new trial. It is in. vain to make such objections in this court for the first time.
Again: It is urged that the court erred in admitting the deposition of LaCade taken in the county of his residence, and within thirty miles of the place of holding the court. But no motion was made before the commencement of the trial to suppress it. And such a motion, if it had been made, should have been denied, the witness being dead. Mansf. Dig., secs. 2955, 2921.
But the court, did commit a substantial error, to the; prejudice of Lawrence, in rejecting so much of the testimony of Lawrence and Phillipe as showed transactions with the deceased. The rejected testimony tended to negative the existence of any partnership between the defend ants, or other joint‘liability to the plaintiffs. The action was neither by nor against fiduciaries.
In Bird v. Jones, 37 Ark., 200, this court, by English, C. J., said:
‘•None of the complainants sued as executor or administrator of Nathan Bird. Mrs. Bird sued in her own right as his widow, and the other complainants, claiming under him as heirs, sued in their own rights. The widow and heirs are not within the exceptions made by the proviso of the section (See. 2, Schedule to the Constitution of 187'4} to the general rule established by it.” See, also, McRae v. Holcomb, ante.
But the exclusion of the evidence worked no injury toPhillipe, as it had no tendency to disprove his individual liability to pay for LaCade’s work.
The judgment against Phillipe is. therefore affirmed, and the judgment against Lawrence is reversed, and as to. him a new trial is ordered. | [
-16,
-20,
-100,
45,
-120,
104,
10,
-70,
-15,
99,
115,
-47,
-19,
-33,
16,
97,
-31,
105,
81,
123,
-51,
-77,
23,
33,
-14,
-37,
-15,
-35,
-79,
109,
-2,
-15,
68,
60,
2,
-35,
-29,
-60,
-55,
88,
-114,
73,
107,
-19,
89,
-95,
48,
123,
22,
61,
117,
-98,
-13,
47,
21,
122,
-116,
46,
121,
63,
-15,
-16,
-66,
-99,
93,
23,
-112,
22,
-100,
3,
88,
12,
-104,
17,
1,
-24,
123,
-76,
-122,
84,
1,
-119,
12,
98,
99,
36,
65,
15,
-126,
-120,
47,
-2,
13,
5,
-47,
65,
107,
72,
-82,
-35,
92,
21,
-89,
122,
-4,
-37,
29,
56,
35,
-113,
-106,
-94,
-113,
86,
-100,
16,
-21,
-114,
32,
113,
-49,
42,
92,
67,
49,
-101,
-58,
-105
] |
Smith, J.
This .bill was filed to enjoin the execution of ■a judgment rendered by the Pulaski circuit court, in an ■action between the same parties, and afterwards affirmed by this court. See Jackson v. Reeve, 44 Ark., 496. A general demurrer to the bill was overruled, and upon the hearing the decree was for the plaintiff.
The demurrer should have been sustained. Section 1¡,932 of Mansfield’s Digest provides that “a judgment obtained in an action by proceedings at law shall not be annulled or modified by ariy order in any action by equitable proceedings, except for a defense which has arisen or been discovered since the judgment was rendered.” This is a plain provision of the code. It precludes the defendant in a judgment, when the alleged matters of defense were within his knowledge at the time the judgment was rendered, from bringing a separate suit in equity to obtain relief against the judgment; thus abrogating the old chancery method which was recognized in Hempstead & Conway v. Watkins, 6 Ark., 317, and many subsequent cases in our reports. Such is the construction placed by the court of appeals of Kentucky upon the same provision in their code. Chinn v. Mitchell, 2 Metc., 92; Ross v. Ross, 3 ib., 274; Moss v. Rowland’s ex’r, 1 Duval, 321; McCown v. Macklin’s ex’r, 7 Bush, 308; Emmerson’s admr. v. Hevriford, 8 ib., 229.
Under the present system of procedure, “the defendant may set forth in his answer as many -grounds of defense, counter-claim or set-off, whether legal or equitable, as he shall have.” Mansfield’s Diqest, sec. 1503. “ Under the head of equitable defenses are included all matters which before would have authorized an application to the court of chancery for relief against a legal liability, but which at law could not have been pleaded in bar.” Dobson v. Pearce, 12 N. Y., 156. And for the trial of equitable issues the cause may, upon motion, be transferred to the appropriate docket, to be there heard as a chancery cause. Provision is also made for bringing in all necessary new .parties and for filing cross-complaints against co-defendants and others. Mansfield’s Digest, secs. 929, 945-6, 5040.
The effect of all this is practically to modify and, to a certain extent, render obselete the ancient jurisdiction of equity over proceedings at law. A defendant who has an equitable defense to an action being now authorized to interpose it by answer, is bound to do so. The purpose is to compel parties to litigate the whole controversy between them in one action. This is the rule; and if there are any exceptions to it they will be found to be few in number and to stand upon special circumstances. 3 Pomeroy Eq. Jur., sec. 1368, et seq.; Erie Ry. v. Ramsey, 45 N. Y., 637 ; Winfield v. Bacon, 24 Barb., 154.
The former action was ejectment, Reeve claiming the premises under a purchase at administrator’s sale, and Jackson claiming as devisee by the will of the deceased owner. Jackson filed an answer, which he prayed might be taken as a cross-bill, containing substantially the same allegations that are set forth in the present bill. He moved a transfer of the case to the chancery court, and demanded affirmative relief, to the extent of vacating all the proceedings had in the administration of the estate, and of perpetually enjoining Reeve from prosecuting an action of ejectment for the premises. The motion to transfer was denied; and this court, on appeal, said that the answer tendered no issues which required to be tried in a court of equity. After the determination of the case in the circuit court, Jackson seeks to reopen the litigation by filing the present bill. There is no suggestion that he was deprived of his defense to the action at law by surprise, accident, mistake, casualty, misfortune or fraud; nor that he was ignorant of the important facts material to his defense. On the contrary, he had interposed the very same defense in the ejectment suit, and it had been disregarded; not because it was exclusively cognizable in equity; for, under the code, that is no reason at all for not entertaining an equitable plea; but because, in tbe opinion of tbe court, it was not a substantial defense. A court of equity does not sit as a court of errors upon tbe proceedings of tbe courts of common law.
This decision does not contradict Stewart v. Pace, 30 Ark., 594; for there tbe plaintiff in the injunction suit was not a party to tbe legal proceeding; nor Ryan v. Boyd, 33 ib., 778, for in that case the defendant was not served with process, and this constitutes an exception to tbe rule.. But the remark of Mr. Justice Walker, in Earle v. Hale, 31 Ark., 473, recognizing tbe old rule that a defendant, claiming to have an equitable defense, must first submit to judgment and then go into chancery to restrain tbe enforcement of tbe judgment, is misleading.
Tbe decree is reversed and tbe bill dismissed. | [
-74,
108,
-75,
-20,
-22,
96,
32,
-108,
99,
-128,
119,
83,
125,
70,
16,
103,
-25,
75,
81,
107,
84,
-121,
31,
97,
-13,
-109,
-45,
87,
-76,
-49,
-18,
-41,
76,
56,
98,
-43,
71,
-62,
-123,
28,
-114,
-120,
24,
109,
-15,
72,
116,
123,
84,
13,
33,
-113,
-13,
40,
16,
-50,
-23,
40,
74,
-71,
-47,
-40,
-97,
5,
95,
4,
-79,
-25,
-104,
71,
70,
14,
-112,
57,
11,
-24,
114,
-106,
2,
84,
77,
-71,
40,
102,
98,
-128,
65,
-21,
-104,
-72,
54,
63,
-115,
-121,
-112,
88,
72,
13,
-90,
-99,
125,
20,
-122,
114,
-30,
-107,
29,
108,
15,
-49,
-42,
-77,
-113,
120,
-100,
3,
-26,
-93,
48,
112,
-58,
-14,
94,
71,
81,
27,
-36,
-33
] |
George K. Cracraft, Judge.
Charles R. Beeson and Jeanne H. Beeson appeal from a decree of the chancery court imposing a constructive trust on the title to lands conveyed to Charles R. Beeson by his mother, Mary Lelia Beeson, and ordering him to account for rents and profits derived from the lands in issue during the period of trust. The appellants contend that the court erred in not ruling that the evidence of oral trust agreements was inadmissible under the statute of frauds, that the evidence did not support findings of those facts giving rise to a constructive trust, and in not finding that the claim of appellee was barred by the statute of limitations, laches and estoppel. We do not agree that the chancellor erred in his findings of fact and conclusions of law, but we do modify the relief granted.
There are four deeds in issue in this litigation. One of them was executed by the appellee on July 23, 1965 and another on July 26, 1965. Both of those deeds were duly recorded on July 26, 1965. The other two deeds were both dated August 2, 1967 but were not recorded until April 22, 1977. The appellant contended that the deeds in issue were intended to be absolute gifts and were part of a comprehensive “estate plan.” He denied that any agreements accompanied the execution of the deeds respecting the beneficial interest and asserted that these actions were brought solely as a result of difficulties which arose in 1981 with regard to the management of the lands and his subsequent efforts to have a conservator appointed to manage the affairs of appellee.
Appellee owned several tracts of land which she had acquired by inheritance and which had been in her family for several generations. Appellant testified that he was appellee’s only child and that for many years his mother had insisted that they develop an “estate plan” for her. As part of that plan she executed the deeds in 1965, one to a tract referred to as the “Hartley Farm” which she owned in fee and the other to an undivided one-half interest in what was known as the “Fairview Farm” which she owned as a tenant in common with appellant. These interests in Fairview had been acquired from appellee’s sister shortly before her death in 1954. The Fairview Farm had been in appellee’s family for several generations. Appellant testified that these two deeds were intended to be recorded promptly and he denied that the execution of these deeds had connection with any transaction other than the estate plan.
Appellant testified that in 1967 appellee executed to him the two additional deeds, directing these deeds not to be recorded immediately because “she wanted something to hold on to.” He stated, “Mother wanted to hold on to these things indefinitely, and before I accepted this we discussed this thoroughly. I told her that she could not transfer this land as a death bed transfer. I said that the deed must be recorded and transferred in my name.” He stated that he made it quite clear that he must exercise both ownership and management for a period of five years before her death or it would be considered as a transfer in contemplation of death by the Internal Revenue Service. He used actuarial tables of life expectancies in determining that the deeds should be recorded in 1977. He testified that there was, however, an agreement that the income from the land would be used in the “best interest of the entire family” and that it would be left entirely in his discretion as to where the best interest of the family lay and who was to receive the income and in what proportion. He testified that he was the only son and was helping the family do the estate planning, “and they trusted me and had confidence in me.”
The appellee testified that in 1965 the appellant was attempting to purchase what was known as the “Watkins Farm” which was adjacent to the Hartley Farm, but he was unable to obtain the required loan. She stated that she deeded the Hartley Farm and her interest in the Fairview Farm to him for additional collateral for the loan. She stated that she wanted him to purchase the Watkins Farm and encouraged him to do so. She deeded the lands to him merely as collateral for the Watkins loan on his promise that she could continue to manage and control her property and to receive the rents and profits from it for as long as she lived. She stated that all of these properties had originally been acquired by her great-grandfather. She stated that it was the custom in her family to hand land down through the bloodline and that "it was a birthright.” There was evidence that for this reason she did not wish her husband to acquire an interest in the properties at her death which he might convey to strangers. She stated that she executed the 1967 deeds for that purpose. She and the appellant had orally agreed that she retain the control of and the beneficial interest in the property for her lifetime and that the deeds were not to be recorded until after her death. She denied that there was any estate planning for tax purposes involved in these transfers and that she had rejected all planning proposals of the appellant. She testified that she did retain the management and control of the properties and the incomes from them until a few years before this action was commenced. At that time she had begun to have arguments with appellant about the management and control of her property and her right to the proceeds.
The testimony of appellee was corroborated to a large extent by her grandson Charles Rische Beeson who stated that he had always been close to his grandparents and had had “over a hundred conversations with her concerning the deeds.” He stated that the deeds to the Hartley and Fairview Farms were to collateralize the loan to his father to buy the Watkins place. He stated that the 1967 deeds were executed because his grandmother feared that something might happen to her before her husband’s death and that the ownership “as far as bloodline was concerned would be jeopardized.” He stated that she wanted to make sure that the title would remain in her bloodline. He testified that there were attempts to work out an estate plan by forming a family corporation and issuing stock in accordance with the value of the lands contributed. This proposal was submitted by the appellant but was refused by appellee and her husband. He testified further that you could not form a corporation without deeding real estate to it and they could never get appellee to do so because she wanted to “dictate all of the policies of the corporation.”
The chancellor found that the 1965 deeds were executed soley in order to provide appellant additional security to obtain the financing to purchase other lands and upon agreement that appellee retain the beneficial interest. With regard to the 1967 deeds he found that they were executed pursuant to an agreement and understanding that they were not to be recorded during the lifetime of the grantor and that she would retain exclusive right to manage and control the lands and the right to receive all income from them during her lifetime. The chancellor also specifically found that at all material times the appellant stood in a confidential relationship with his parents and that the deeds, which were made without consideration, were made pursuant to those specific agreements, undertakings and promises.
Although we review chancery cases de novo on the record we will not reverse the findings and conclusions of the chancellor unless they are clearly erroneous, giving due weight to the superior position of the chancellor to judge the credibility of the witnesses. Rule 52(a); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). We cannnot conclude that these findings of the chancellor with regard to the constructive trust are clearly erroneous.
It is well settled that a constructive trust will arise and be imposed in favor of persons entitled to the beneficial interest against one who secures legal title by an intentional false oral promise to hold title for specific purposes and having thus obtained title claims the property his own, or when that promise is given by a grantee who stands in a confidential relationship to the grantor, upon refusal to perform the promise. Edmondson v. Edmondson, 269 Ark. 664, 599 S.W.2d 765 (Ark. App. 1980); Walker v. Biddle, 225 Ark. 654, 284 S.W.2d 840 (1955); Andres v. Andres, supra; Armstrong v. Armstrong, 181 Ark. 597, 27 S.W.2d 88 (1930). The proof giving rise to a constructive trust must be clear, cogent and convincing. S & M Oil Co. v. Mosley, 227 Ark. 250, 297 S.W.2d 926 (1957); Edmondson v. Edmondson, supra.
Although a confidential relationship is not established merely by showing that the parties are related, it has been held that the relationship between mother and father and brother and sister is, in the absence of evidence of estrangement or other circumstances, one of confidence and they are not regarded as dealing with each other at arm’s length. Walker v. Biddle, supra; Edmondson v. Edmondson, supra.
In 3 Ark. L. Rev. 3 (1948), Justice George Rose Smith stated:
In the last series of cases which we will discuss, the recent decisions have unsettled principles that seemed to be firmly established in our law. We refer to the rules given in § 44 of the Restatement, to the effect that when land is conveyed in reliance upon the grantee’s oral promise to hold it in trust for the grantor, a constructive trust will be imposed if (a) the transfer was procured by fraud, duress, undue influence or mistake, or (b) a confidential relation existed between the parties. It is important to note that in the latter case fraud need not be shown; the mere existence of a confidential relation is enough to dispense with the requirement of a written momorandum.
The rules given in the Restatement are entirely sound. As to clause (a), the statute of frauds should not be used to permit the grantee to take advantage of his own fraud. And as to clause (b), a writing is not required simply because such a requirement is opposed to normal human conduct. Brother and sister, or others who stand in a confidential relation, do not ordinarily make a written record of their dealings with one another. A rule of law requiring such a standard of conduct would work injustice in the majority of cases.
There is no evidence here that the relationship between appellant and his mother was not a close and confidential one during the period in which these deeds were executed. Appellant himself testified that his parents placed full confidence in him. We can find no error in the chancellor’s application of the law of constructive trust to the facts as found by him.
Appellant next contends that the appellee’s suit was barred by the statute of limitations, laches and estoppel. These are affirmative defenses which must be pled. Sheffield v. Strickland, 268 Ark. 1148, 599 S.W.2d 422 (1980). Although the appellant did plead laches and estoppel, we find no pleading in which the statute of limitations was raised. Additionally we note that even when the statute of limitations has been pled, the one relying upon it has the burden of proving those facts giving rise to it. McCrite v. Hendrix College, 198 Ark. 1149, 133 S.W.2d 31 (1939). Appellant concedes in his argument that it is difficult to tell when the alleged breach occurred. He argued that as to the 1965 deeds the breach occurred when he recorded them in 1965. Appellee conceded in her testimony that she must have known that deeds that are to be used as collateral for a loan must be recorded, but she steadfastly maintained that there was an oral promise and agreement that she retain the management and control for as long as she lived or until the debt was paid. The chancellor expressly so found. The breach of this trust would not occur until that loan had been repaid. The chancellor further found that the 1967 deeds were executed on the understanding that they not be recorded during the lifetime of the appellee and that she was to retain management, control and beneficial interest. The appellant’s breach of his promise not to record the deeds occurred in 1977. The denial of appellee’s right to control and have beneficial interest occurred at the same time or thereafter. This action was commenced in January 1982, less than seven years after the breach occurred.
The doctrine of laches does not apply unless there is an unreasonable delay, coupled with some change of position of circumstance which makes it inequitable to enforce the claim. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W.2d 848 (1974). Estoppel only arises by a detrimental change of position of one party resulting from the conduct of another. Davidson v. Sanders, 235 Ark. 161, 357 S.W.2d 510 (1962); Collier v. Brent, 266 Ark. 1008, 589 S.W.2d 198 (Ark. App. 1979). We cannot find, and appellant has not pointed out to us, an inequitable circumstance which resulted from delay on the part of the appellee in bringing her action or any detrimen tal change in appellant’s posi tion by relying on the conduct of the appellee.
Although on de novo review in chancery cases we do not reverse unless we find the chancellor’s findings of fact and conclusions of law to be erroneous, when we do find error and the record is fully developed where we can plainly see where the equities lie, we do not remand for further proceedings but enter here the decree which ought to have been entered by the chancellor. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The chancellor ordered the 1965 deeds cancelled and set aside on a finding that the agreement of the parties was that the “land be reconveyed when the loan was repaid” and that this agreement between the parties provided for a reconveyance. The evidence of the appellee would establish only that the legal title was to be placed in appellant and that the equitable title would be retained by her during her lifetime with the right to manage and control and receive rents and profits. With regard to the 1967 deeds we likewise find no provision for reconveyance by appellant. The appellant did violate the terms of his trust in two material respects — he recorded the deeds during appellee’s lifetime and he interfered with her management and control. While we deem it proper for the chancellor to have ordered an accounting of those funds obtained by appellant as a result of his breach, we do not agree that the equities require that the deeds be set aside because it was the parties’ intention that appellant take absolute title after appellee’s death. The order the chancellor ought to have made would enjoin and restrain the appellant from interfering in any manner with the exclusive use and enjoyment of those properties by the appellee during her lifetime.
The decree as modified is affirmed.
Mayfield and Cooper, JJ., agree.
A fifth deed dated in 1954 and also “recorded on April 22, 1977” was mentioned in the pleadings, evidence and decree. The record, however, discloses that although that deed was “acknowledged in 1954” and “recorded in 1977” it was not signed by the grantor and conveyed no title. The lands described in the 1954 unsigned deed were included in the description of one of the 1965 deeds. | [
-16,
104,
-4,
-84,
10,
32,
58,
10,
67,
-17,
39,
85,
-67,
-45,
85,
47,
-25,
45,
-79,
123,
-41,
-77,
87,
-29,
-13,
-13,
-37,
-51,
-75,
77,
-26,
87,
72,
48,
-54,
23,
98,
-125,
77,
80,
-114,
-123,
-87,
77,
89,
52,
48,
103,
16,
79,
117,
-98,
-13,
-81,
61,
98,
120,
44,
75,
61,
72,
-87,
-82,
4,
95,
23,
-80,
68,
-68,
-61,
72,
42,
-112,
117,
-120,
-24,
31,
-74,
22,
84,
11,
-69,
8,
54,
98,
1,
-19,
-33,
-72,
-104,
14,
118,
45,
-89,
-46,
72,
97,
33,
-73,
-106,
120,
80,
119,
-12,
-26,
-52,
61,
100,
4,
-113,
-42,
-93,
-122,
-72,
-100,
1,
-1,
35,
48,
113,
-51,
-18,
93,
103,
17,
-101,
-98,
-94
] |
Melvin Mayfield, Chief Judge.
Pursuant to the Uniform Enforcement of Foreign Judgments Act, Ark. Stat. Ann. §§ 29-801 — 29-818 (Repl. 1979), the appellant filed an amended petition in Pulaski Chancery Court to register a foreign judgment against her ex-husband, appellee herein, who was residing in Little Rock and teaching at the University of Arkansas at Little Rock. The judgment was rendered by an Alabama court on March 4, 1980, and provided for child support arrearages, expenses, and attorney’s fees. The Arkansas court registered the judgment, but modified the child support payments and visitation rights provided therein. Appellant appeals only the modification of visitation rights.
The parties were divorced in Alabama in 1979. Appellant was awarded custody of their minor daughter with appellee receiving usual visitation rights. In late 1979, in violation of a court order that denied him permission, the appellee took the fifteen-month-old child to Turkey and the West Bank of the Jordan River. About two months later, the appellant secured the child’s return and, thereafter, obtained a judgment in Alabama against appellee for arrearages in child support and for the money she had expended in locating her daughter and regaining her custody. The judgment also modified the original decree by denying appellee any visitation rights except those which appellant determined to be in the best interests of the child. This is the judgment of March 4, 1980, which is involved in this appeal.
After the divorce, appellant moved to the State of Washington, her original home, and is still living there. She has registered the Alabama judgment in Washington and the Washington court also granted her a cost-of-living increase in child support. Upon learning that appellee was teaching in Little Rock, appellant first petitioned to register the Washington judgment here and then amended her petition to include the Alabama judgment. Appellee contended that the Washington judgment was void for lack of proper service and also asked for affirmative relief in the form of a reduction in child support and for the allowance of visitation rights. The chancellor refused to grant full faith and credit to the Washington judgment, holding that it was not based upon proper service, but did register the Alabama judgment. He assumed jurisdiction, however, over all matters covered by the Alabama decree and granted appellee certain visitation rights on the condition that appellee surrender his passport to the court and not regain it without a specific court order.
It is the appellant’s contention that under the Uniform Child Custody Jurisdiction Act (UCCJA), Ark. Stat. Ann. §§ 34-2701 — 34-2726 (Supp. 1983), the chancellor erred in assuming jurisdiction to grant appellee’s motion to modify visitation. We agree.
Some of the general purposes of the UCCJA, as set out in section 34-2701, are to avoid jurisdictional competition and conflict with courts of other states in matters of child custody; to assure that litigation concerning custody will ordinarily take place in the state where the child and his family have the closest connection; and to avoid relitigation of custody decisions of other states. The Act sets up certain criteria which must be met before a court can assume jurisdiction to make a determination about the custody of a child. The definition of “custody determination” includes visitation rights, Ark. Stat. Ann. § 34-2702(2) (Supp. 1983), and under § 34-2703(a) (Supp. 1983), an Arkansas court would not have jurisdiction over visitation rights unless:
(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding ... or
(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
Applying these requirements to the facts of the instant case, we find that the home state of the child was Washington. She was not physically present in Arkansas and never had been. Except for the period when her father had her in Turkey, the child has lived with her mother since November 1, 1979, in Seattle, Washington. Neither the child nor her mother has any significant connection with Arkansas. The sole reason for appellant’s petition to register the foreign judgment in Arkansas was that the appellee was living and working here and it was necessary to register the judgment before appellant could attempt to collect it by execution or garnishment. There is nothing in the record to indicate or suggest that it was in the child’s best interest for the trial court to assume j urisdiction to modify the visitation order made by the Alabama court — an order which both Arkansas and Washington agree is entitled to full faith and credit. Here, as in LeGuin v. Caswell, 277 Ark. 20, 638 S.W.2d 674 (1982), the only connection Arkansas has with the case is “that the father has moved here,” and we find, as that court found, “Arkansas did not have jurisdiction in this matter.” See also Biggers v. Biggers, 11 Ark. App. 62, 666 S.W.2d 714 (1984).
Appellee argues, however, that this issue was raised for the first time on appeal. In the first place, it is clear that jurisdictional issues may be raised at any time, even on appeal. Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982); Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976); and Hervey v. The Farms, Inc., 252 Ark. 881, 481 S.W.2d 348 (1972). In the second place, we do not agree that the issue is raised here for the first time. The record contains memorandum briefs filed in the trial court by both parties, and appellant’s brief specifically argued that custody and visitation rights were matters that should continue to be exercised in the Washington courts.
The appellee cites Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978), as authority for the proposition that once jurisdiction has attached, the trial court may settle all the rights of the parties as long as jurisdiction of the subject matter is not wholly beyond the power of the court. Appellee overlooks the fact that Holley was decided before Arkansas adopted the UCCJA by enacting Act 91 of 1979. Section 27 of that Act provides that “All laws and parts of laws in conflict with this Act are hereby repealed.” The appellant properly filed her petition under the Registration of Foreign Judgments Act, but the UCCJA prevented the court, under the circumstances in this case, from assuming j urisdiction to change the custody or visitation rights provided in the judgment registered. To hold otherwise, as appellant states it, “undermines the very purposes for which the UCCJA was enacted — to avoid jurisdictional conflicts, promote cooperation between courts of different states, and allow visitation decisions to be made by the state with the closest connection to the child.” The order appealed from is reversed as to the modification of visitation rights and the visitation arrangement as specified in the March 4, 1980, order of the Mobile County Alabama Circuit Court is reinstated.
Reversed.
Cracraft and Cloninger, JJ., agree. | [
-112,
-24,
-11,
108,
11,
64,
26,
10,
122,
3,
103,
-45,
-85,
67,
20,
121,
35,
107,
113,
121,
-47,
-77,
23,
64,
98,
-13,
-7,
-42,
-74,
95,
-19,
-106,
76,
104,
-53,
-41,
70,
-54,
-57,
-104,
-18,
6,
11,
93,
-40,
-57,
52,
105,
0,
15,
113,
-81,
-77,
47,
53,
66,
108,
46,
-99,
-84,
-38,
-53,
-118,
6,
127,
5,
-111,
36,
-102,
5,
80,
123,
-116,
57,
33,
-23,
51,
-90,
-126,
116,
126,
-71,
45,
116,
102,
1,
32,
-41,
-72,
8,
70,
-2,
-99,
-92,
18,
120,
75,
71,
-82,
-108,
126,
-43,
13,
-2,
106,
-116,
61,
104,
-122,
-54,
-42,
-79,
-115,
112,
-112,
11,
-29,
-25,
48,
85,
-53,
-30,
85,
70,
51,
-101,
-42,
-14
] |
Tom Glaze, Judge.
This appeal is from a jury verdict for $2,313.74 in favor of the appellee, which had filed an action against appellant on an open account. Appellee underwrote a number of various insurance policies for appellant, and the account which is the subject of this litigation covered these policies and other services furnished the appellant between December 25, 1975, and May 25, 1978. Seeking reversal of the decision below, appellant contends the trial court erred (1) in admitting certain business records into evidence, (2) in overruling appellant’s motion for directed verdict, and (3) in instructing the jury incorrectly. From our review, we conclude that none of the appellant’s arguments justifies the reversal of this cause.
Appellant first argues the court violated Rule 803(6) of the Uniform Rules of Evidence by admitting into evidence certain ledger cards reflecting appellant’s account and the amount he allegedly owed the appellee. His argument is premised on the fact that the testimony qualifying the cards as business records was inadmissible because the witness was not qualified to verify appellant’s account. We disagree. Under Rule 803(6), the custodian or other qualified witness can testify concerning business records. Here, the custodian (bookkeeper) did not testify, but appellee’s managing partner, Ray Reese, did. Reese testified extensively regarding the ledger cards, demonstrating a knowledge of and detailed familiarity with the itemized transactions chronologically listed on them. The trial judge has the discretion to determine the qualifications of witnesses and the admissibility of evidence, and upon our review of the record, we cannot say the judge abused his discretion in allowing Reese to testify concerning appellant’s account. See Cates v. State, 267 Ark. 726, 728, 589 S.W.2d 598, 599 (1979).
In his second argument, appellant contends the ap-pellee failed to establish that the appellant’s account was unpaid. His contention centers on a premium finance note he signed for the purchase of insurance from the appellee; the appellee “recoursed” the note to a bank, and the loan proceeds were credited to appellant’s account for that purchase. However, appellant still was required to pay the bank monthly on the note until it was satisfied. Later, appellant defaulted on the note; appellee paid the bank and charged the amount it paid on the note against appellant’s account.
Because the appellee did not introduce the paid note into evidence, appellant claims appellee failed to show he was liable on the note. However, appellee sued appellant on his account, not on the promissory note. In fact, the account listed numerous insurance purchases and service charges and was not limited to the note the appellee paid in the amount of $3,990.07. After all payments made by appellant were credited to his account, it still reflected a balance due of $2,313.74, the amount awarded by the jury.
Appellee filed a verified complaint that set forth appellant’s account and the payment due; by doing so, appellee made a prima facie showing under Ark. Stat. Ann. § 28-202 (Repl. 1979), on which a judgment could be satisfied. See McWater v. Ebone, 234 Ark. 203, 350 S.W.2d 905 (1961). Appellant never denied the correctness of the verified account by an affidavit or verified answer, although § 28-202 required him to do so in order to contradict such account. See Cawood v. Pierce, 232 Ark. 721, 722, 339 S.W.2d 861, 862 (1960). Nor did he offer any testimony after appellee presented its case. Instead, he moved for directed verdict. On these facts, the trial court was clearly correct in finding the appellee had proved the correctness of appellant’s account and in overruling appellant’s motion for directed verdict. See also Walden v. Metzler, 227 Ark. 782, 301 S.W.2d 439 (1957).
Appellant’s final argument, challenging a jury instruction, has no merit in view of our disposition of his second argument above. Appellant claims that any debt owed appellee resulted from the unpaid promissory note and that the trial court erred in ins tructing he could be found indebted to appellee on an account. The Courts instruction provided:
If you find from the evidence in this case that the plaintiff (appellee) furnished the items on the account as alleged and there remains an unpaid balance owing thereon, then you will find for the plaintiff and against the defendant (appellant) for such unpaid balance.
As we already have noted, appellee’s action was based on an open account, not on a promissory note. The foregoing instruction correctly reflects the basis on which appellee filed and proved its case. We affirm.
Affirmed.
Cooper and Corbin, JJ., agree. | [
48,
-20,
-27,
61,
24,
96,
50,
-118,
88,
-128,
55,
83,
109,
-64,
20,
43,
-44,
41,
113,
112,
-41,
-77,
39,
98,
-10,
-69,
-7,
-60,
52,
75,
-28,
-44,
12,
48,
106,
-43,
102,
2,
-63,
80,
14,
-106,
-71,
64,
-8,
68,
48,
-81,
48,
75,
49,
-105,
99,
42,
-103,
75,
105,
44,
91,
-71,
-48,
-71,
-126,
5,
127,
5,
-79,
52,
-102,
79,
-40,
42,
-112,
56,
1,
-55,
114,
-74,
-122,
116,
107,
25,
9,
102,
98,
33,
49,
-51,
-100,
-120,
39,
118,
31,
-89,
-46,
88,
-119,
45,
-74,
-99,
116,
8,
6,
-2,
124,
28,
60,
108,
3,
-114,
-42,
-78,
-87,
102,
-100,
-125,
-17,
-109,
-76,
112,
-50,
-32,
93,
79,
123,
-109,
-114,
-105
] |
George K. Cracraft, Judge.
Charlotte L. Hansen appeals from that part of the divorce decrees which provides that the custody of her three year old child should be joint with her husband Dennis Wayne Hansen. Under the provisions of the decree physical custody would be for alternating periods of approximately 3 months each, commencing July 15, 1983 and would provide for visitation by the absent parent for at least one three day period per month. The decree further provided that when the child started kindergarten in August 1985 physical custody would be placed with the appellant during the school years with specific reasonable visitations in the appellee, who would have custody during the summer months. Appellant contends that the court erred in awarding split custody and should have given her primary custody with specific reasonable visitation awarded to the appellee. We agree.
The law pertaining to joint or divided custody is now well settled in this state. Although equally divided custody of minor children is not generally favored, it may be ordered where the circumstances clearly warrant it. The paramount issue in all custody cases is the welfare and best interest of the child. If it is shown that the interest of the child is better fostered by divided custody we have held that this is a proper order for a court to make. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981).
In Drewry we affirmed an award of joint custody where there were factors which, when viewed from the superior position of the chancellor, clearly warranted the order. In Drewry both parents lived in the same community and each could rear the child in his accustomed environment, and had the same time available to devote to it. The parents had been sharing equally the care of the child who had no emotional or other problems. The only effect of that order was that the child merely changed the place of principal residence within the same community on a biannual basis. There was no evidence in that case that there was any disagreement between the parents as to the manner in which the child should be raised. The child could mature in the presence of both parents with a sense of security without being subjected to the emotional trauma of experiencing an abrupt severance of a relationship with both parents by a sudden change in custody and environment.
The circumstances in this record are quite different from those in Drewry. In this case the parties were living in Stuttgart at the time the child was born. The appellee testified that from the time of birth he shared equally in the duties of taking care of the child and attending to all of her needs. This was disputed by the appellant, who contended that she had the primary duty of caring for the child. The child was born in July 1980 and was one year and seven months old when the parties separated. At the time of separation the appellant returned to her home in Kennett, Missouri, taking the child with her. According to the testimony of the appellee, from the period between February 1982 and the date of trial his visitation with the child was “sporadic.” Both parties testified that there had been constant disputes with regard to visitation, each blaming the other for the problems. It is also clear from the testimony that the parties are not working in concert to raise the child. They have differing ideas in many areas as to her upbringing, including diet, discipline and even as to the length of her fingernails.
Appellee testified that on many occasions appellant appeared to be more interested in her own hair and makeup than she did in the child, and she testified that he spent too much time drinking and pursuing other women. The appellee accused her of having a tendency to be hysterical and she stated that he was short tempered and had no patience with the child. Both parents work and both testified that the child would have to be in day care during working hours. Additionally we note that from February 19, 1982 until the date of the decree on June 9, 1985, the child was in the principal custody of her mother in Kennett, Missouri with sporadic visitation with the appellee and that the temporary order entered on December 8, 1983 continued primary custody in the mother. Thus it appears that this child has spent the last year and three months of her life with her mother with only short, occcasional visits with the father. Unlike Drewry the present order will not avoid subjecting the child to the emotional and psychological trauma of adjusting to one parent and experiencing the abrupt severance of that relationship by a sudden change in custody and environment to another parent. She would now be abruptly removed from the primary custody of her mother and accustomed surroundings for three months and every other three months thereafter. She would have two homes located in different states. She would have to adjust to two day care facilities and two sets of companions and associates. Her environment, diet and disciplinary rules would change every three months.
The appellate court does not disturb a chancellor’s findings unless they are clearly against a preponderance of the evidence giving due regard to the opportunity of the chancellor to judge the credibility of the witnesses. In cases involving child custody a heavier burden is cast upon the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony and the child’s best interest. This court has no such opportunity and we know of no case in which the superior position, ability and opportunity of a chancellor to observe the parties carries as great a weight as one involving minor children. Calhoun v. Calhoun, 5 Ark. App. 270, 625 S.W.2d 545 (1981).
We do not depart from these well established tenets. However, after considering the age of the child, the attitudes of the parents toward each other, and their differing opinions as to how the child should be raised, we conclude that the chancellor’s finding that the child’s best interest would be fostered by ordering divided custody on a three month basis is clearly erroneous.
Chancery cases are tried de novo on appeal. On such a review all issues of law or fact raised in the chancery court are before the court for determination. Where error appears and the record is fully developed so that we can plainly see where the best interest of this minor lies we should correct the error by entering the decree which should have been entered by the chancellor. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The appellate court does have a discretionary power to remand an equity case for further testimony or proceedings on a limited point if that is necessary to achieve equity. Arnett v. Lillard, 247 Ark. 931, 448 S.W.2d 626 (1970); Ferguson v. Green, supra.
From our de novo review of the record we conclude that the order which the chancellor should have entered would award custody to the appellant, making adequate provision for periodic visitation by the appellee and an extended visitation during the summer months, not to exceed three weeks.
In the order appealed from the chancellor provided specific visitation for the absent parent while the child was in custody of the other. That visitation would not necessarily be fair and equitable under the order as we would modify it.The evidence on which that visitation schedule was determined does not appear in the record with sufficient clarity for us to make those determinations here. In the exercise of our discretion we remand the case for further proceedings on the issue of visitation of the minor child with the appellee.
The cause is remanded with directions that the chancellor enter an order not inconsistent with this opinion in which adequate rights of visitation are provided for appellee. In all other respects the decree is affirmed as modified.
Affirmed in part and reversed and remanded in part.
Mayfield and Cloninger, JJ., agree. | [
-47,
-40,
-43,
108,
26,
33,
59,
56,
114,
-21,
117,
-45,
-85,
-33,
85,
121,
19,
-29,
80,
112,
-127,
-77,
119,
64,
-4,
-13,
-79,
-35,
-69,
100,
-84,
-42,
93,
48,
-118,
-45,
70,
-62,
-51,
20,
-106,
-128,
43,
108,
81,
6,
36,
121,
82,
15,
49,
-121,
-9,
46,
60,
-49,
108,
44,
-104,
52,
-112,
56,
10,
23,
127,
6,
-77,
38,
-103,
101,
88,
46,
-52,
56,
-120,
-23,
51,
-74,
-122,
124,
75,
-65,
12,
113,
102,
19,
12,
-57,
-76,
8,
102,
-6,
-67,
-26,
-103,
120,
2,
3,
-73,
-78,
112,
16,
74,
-2,
103,
-123,
23,
-28,
4,
-114,
94,
-93,
5,
88,
-34,
32,
-29,
103,
33,
49,
-53,
-90,
84,
-57,
51,
-111,
-42,
-14
] |
S. W. Williams, Sp. J.
About 8 o’clock in the morning of the 4th day of January, 1883, appellee’s intestate, James Galloway, arrived at Texarkana, from some point in Texas, as a passenger on one of the appellant’s regular passenger trains, over its line of road. The weather was cool and damp, and the night was dark, and it had been raining. At the line in Texarkana, between the states of Arkansas and Texas, this train of appellant’s stopped, as all its passenger trains were required to do, by a statute of' Texas, thirty minutes. At this point, after a few moments delay, the engine, baggage and mail cars were uncoupled from the passenger cars, and were pulled at once up to the-depot of appellant at the Marquand Hotel platform, a distance of 150 or 200 yards; at which place was the ticket office of appellant, and where baggage and mail were delivered by it, being used jointly with the Iron Mountain-road. Erom this platform all its passenger trains started-when leaving Texarkana. By direction of appellant’s servants, as the testimony tended to prove, the deceased, James Galloway, and other passengers alighted at the state line, where those in charge of trains usually cried, “ Change-cars for all points north and east.” One of the main streets of Texarkana, which city, at that time, contained about 5000 inhabitants, ran along, from the state line where-appellant’s train stopped, beside the track, for about half the distance between that point and the point where the-accident complained of happened. At this half-way point the track diverges from the street at an angle of about, forty-five degrees to the depot at Texarkana, at the Marquand Hotel, and all the intermediate space, from the point of divergence, was open and unprotected, as appears from the-plat shown in evidence. "Within about fifty yards of appellant’s depot platform, in the track of appellant’s railway, was an open and unprotected ditch and trestle. At the time Galloway got off the train there were lights ahead, on the line of railway, at the Marquand Hotel, and. it does not appear that there were any on Front street, from which the track diverged. It was the usual route for passengers, when they thus alighted, to go up to the depot of appellant along and over this road-bed and across this trestle of appellant. This usual route of traveling, and the custom of passengers to travel over it, were known to the servants of appellant, and by them permitted, and in one instance, at least, it was proved that passengers had been directed by the conductor to pass along the track. The streets of Texarkana about the 4th of January, 1883, were muddy and in bad condition. Galloway, in passing along this route, in the exercise of due care as expressly found by the jury, fell into this open trestle and ditch, or exposed pit, and broke his leg. The evidence tends to prove he received other injuries internally, from which gastritis was superinduced, and he died in three days thereafter. He was a stout, healthy man, about forty-five years of age, a working man, engaged in the saw-mill business, having just been the owner of a half interest in such mill. He lived at or near Texarkana. The direct route to his home was past and beyond the depot of appellant. When he left the cars, he started for his home by this route.
The court below gave eight instructions at the instance of appellee. Appellant objected to and complained of the first, the third, the fourth, the fifth, the sixth, the seventh and the eighth. The instructions excepted to are as follows :
First — The jury are instructed that the owner or occupant of lands who, by invitation, express or implied, induces or leads others to come upon his premises for any lawful purpose, is liable in damages to such persons, they using due care, for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to the occupant or owner, and not to the person injured, and was negligently suffered to exist without timely notice to the public, or to those who were likely to act upon such invitation; and one who comes upon another’s land by the owner’s permission or invitation has aright to expect that the owner will not dig a pit thereon so that persons lawfully coming there may receive injury. If, therefore, the jury find that for a long time previous to the accident complained of, the defendant had permitted any and all persons who came over their road from Texas,, after alighting from the cars in the town of Texarkana, to travel upon their track from the place of alighting to the defendant’s depot in said town, and that numerous passengers had so traveled with the knowledge and without the’ disapproval of the agents and employes of said company ; and in fact that it had become the main traveled way for such passengers and others, and that upon said track was an open culvert. negligently constructed, or negligently,, by the defendant’s agents, permitted to remain open and uncovered and with their knowledge, and if you further find that the- deceased, having come as a passenger over defendant’s road to Texarkana, in accordance with said permission, attempted to travel to the depot of said defendant along said track, and if you further find that said deceased, in so traveling, used such care as a prudent man would have done under like circumstances, and notwithstanding such due care, fell into said culvert and received injuries whereof his death was either caused or hastened, then you may find for the plaintiff.
Third — If the jury find that the construction of a fence between said defendant’s road and the highway on Front street, in Texarkana, would have prevented this alleged accident, then was it negligence in said defendant not to have constructed said fence; and if the jury find that this alleged accident was caused by the negligence of defendant, unmixed with negligence of the deceased, and that this accident caused his death, then you may find for the plaintiff'.
Fourth — The jury are instructed that it is not necessary for the plaiutiff to prove that the alleged accident was the sole or direct main cause of the death, but if he prove from any facts or circumstances in evidence to the satisfaction of the jury that his death was superinduced by, or the result of said accident, and that it was the result of the negligence of the defendant as aforesaid, and unmixed with ordinary negligence on the part of the deceased at the time of the accident, they may find for the plaintiff.
Fifth — If the jury believe, from the evidence, that, as alleged in plaintiff’s complaint, the deceased purchased a ticket, or paid his fare over defendant’s road from Pitts-burg, or other point in Texas, to Texarkana, then was it a contract between defendant and deceased for carriage from defendant’s main passenger depot at Pittsburg, or such other point, to their main passenger depot in Texarkana; and if, before arrival at said main passenger depot in Texarkana, the deceased was compelled by the direction of defendant’s agent to change cars, or by their neglect to run the same up to said main passenger depot, to alight from said-cars before their arrival, then was it the duty of defendant to furnish a safe, easy and convenient walk upon which to travel to said depot building, and if they did not so furnish said safe walk or approach to said depot building, then was it negligence on the part of said defendant; and if the jury find that from said negligence the deceased, using due care, received the alleged injury which led to or caused the death of the deceased, you will find for the plaintiff.
Sixth — The jury are instructed that, if they find for the plaintiff, the measure of damages will be such pecuniary loss as can fairly be by them estimated from the facts proven, in connection with the knowledge and experience possessed by all persons in relation to matters of common observation.
Seventh — The jury are instructed that if they find from the evidence that the deceased received the injuries, to-wit: a broken thigh and severe shocks to the system from the negligence of the defendant, as alleged in plaintiff’s complaint, and that either said broken thigh, or some shocks, caused gastritis in the deceased to be produced or-accelerated, and that therefrom the deceased came to his death, then the jury will find for the plaintiff, even though they may find that the deceased did not receive the best medical attention, or receiving same, neglected or refused to follow it.
Eighth — The determination whether or not the defendant was guilty of negligence in constructing and maintaining the open culvert complained of, the jury may take in consideration the place where said culvert was located, the purposes for which defendant’s track was used at the place where said culvert was located, and the further fact, if so proved, of the absence of lights or other signals at or near said culvert, to warn those lawfully using said track of any danger, if danger existed under the proof; the light some distance ahead in the depot of the defendant, and all other facts and circumstances in evidence; and if, from these, you find that' defendant negligently constructed or maintained such open culvert, and that deceased, while exercising ordinary care and prudence, and while in lawful use of said track, fell into said culvert and received the injury complained of, which injuries caused or superinduced his death, then you will find for the plaintiff'.
The defendant below asked written instructions. The court gave all but the third, sixteenth and eighteenth.
3. When a person receives any injury by falling through an open trestle of a railway company, from which he dies, ■and neither the railway company nor its agents was the immediate cause of the fall, then the law presumes that his own negligence was the cause of his death, and before there can be a recovery in the action it devolves upon the plaintiff to show that said deceased was free from fault; so in this case it must appear by a preponderance of evidence that the deceased was free from fault.
This instruction was properly refused, because: First — In . view of the facts, it tended to mislead the jury from the real issue, which was as to negligence in allowing a nuisance to exist upon its grounds, where the company had invited the public to pass for its business and profit, to a consideration of the mere incidental question whether those agents themselves, instead of the nuisance, were the proximate cause. The act of negligence was complete when the nuisance was suffered to remain, and the connection of the agents with it in the further fact, that they induced, permitted and encouraged the public to pass over it, without taking necessary precaution to protect them from injury. Second — This instruction shifted the burden of proving contributory negligence on the plaintiff-, which, in this ease, rested peculiarly upon defendant. If the plaintiff, in any case of personal injury, can show negligence upon the part of defendant, without, at the same time, disclosing the inherent weakness of his own case by reason of contributory negligence, then such contributory negligence is a matter of defense — in confession and avoidance — affirmative in its character, and the burden is upon the defendant to establish the defense by a preponderance of testimony, as in all other affirmative defenses of like nature. It is true that in Massachusetts, and perhaps some other states, the rule has been carried to the extent claimed in this instruction, but this position is not sustained by principle or the weight of authority, and the Supreme Court ot the United States has put the question at rest in the case of Indianapolis Railroad v. Horst, 93 U. S., 291. This question is discussed by Shearman $ Redfield, in sec. 44i of their work on Negligence. They say parties were never required to prove negative matters of this kind, and also that it had never been held necessary in a complaint, upon negligence, to aver that plaintiff had taken due care, and they criticise a different ruling in Massachusetts. See, also, R. R. v. Gladman, 15 Wall., 401; Smoote v. Mayor, 24 Ala., 112; Gay v. Winter, 34 Cal., 153; 12 Bush (Ky.), 41; 31 Md., 357; 22 Minn., 152; 51 Mo., 190; 30 N.H, 188; Durant v. Palmer, 29 N. J., 544; 24 Oh. St., 631; 76 Penn. St., 157; 12 R. I., 447; 46 Tex., 356; 3 Sawy., 446; 1 Whart. Ev., 361; George v. R. R., 34 Ark., 613.
The sixteenth instruction of defendant is as follows:
16. If the jury believe from the evidence that the fall of the deceased at the trestle was the remote cause of his death,, then they will find for the defendant.
This instruction was obscure and misleading, when applied to the facts of the case, and was objectionable on the same ground as the first clause of the third instruction. The eighteenth instruction of the defendant was:
18. If the jury find from the evidence that, at the time the deceased met with the accident, he was under the influence of whisky, this is a fact that would go to establish contributory negligence.
This was properly refused: First — It was abstract, for the only witness who was with Galloway when the accident happened, states that he was not then intoxicated, and proves that the accident was caused entirely by the condition of the nuisance and the darkness of the night. Second — Intoxication would not here be evidence of contributory negligence, unless the proof showed that it tended to produce the result. Indeed, it might be doubted whether the fact that the blind, the lame, the sick and feeble, the aged and the child, as well as the occasionally festive, were likely to pass over this route according to the custom of the company, as proved clearly, would not have imposed a higher duty of diligence on the company to have taken some method, by fencing, by lighting, by covering up, or by timely warning, to have protected the helpless; and it would be going quite too far to hold, under the facts of this case, that, after the company had maintained this nuisance there, and invited its customers to pass over it, that the being blind, lame, feeble, sick or drunk, and the undertaking, in that unfit condition, the hazardous enterprise of traversing their customary foot route to the depot, in ignorance of its dangers, was of itself contributory negligence. The company owed a high duty here to all, who, as its licensees, passed over this route. As a general rule, railroad companies are bound to keep in a safe condition all portions of their platforms and approaches thereto, to which the public do, or would naturally resort, and all portions of their station grounds reasonably near to the platform, where passengers, or those who have purchased tickets with a view to take passage on the cars, or to debark from them, would naturally or ordinarily be likely to go; and especially by those routes and methods which the company have established by its own customs and practice, as here. This is well established. McDonald v. Chicago and Northern R. R. Co., 26 Iowa, 124; Stewart v. Int. & G. N. R. R., 53 Tex., 289; 2 Am. & Eng. R. Cases, 497; McKone v. Mich. Cent. R. R., 13 Am. & Eng. R. Cas., 29; Buneman v. St. P. & Ry., 18 Am. R. R. Cases, 153 and note; Martin v. R. R., 81 Eng. C. L., 186-7; Burgess v. R. R., 95 Eng. C. L., 923; Longmore v. R. R., 19 C. B. N. S., 183; S. C. cited in 115 Eng. C. L., 183; Nicholson v. Lancashire, etc., R. Co., 3 Hurl. & Cott., 534; Knight v. Portland, etc., R. R., 56 Me., 234; Beard, v. Con., etc., R. R., 27 Vt., 377; Patten v. Chicago and N. W. Ry., 32 Wis., 524; Columbus and Ind. Ry. v. Farrel, 31 Ind., 408; Gaynor v. Old Colony, etc., Ry , 100 Mass., 211
Some of these cases are much like this in some features. In McKone’s case, above cited, McKone was not a passenger, but had, at night, gone to the depot to meet his wife, who was coming in on a night train; having occasion to step aside, the regular urinal having been destroyed by fire, to get out of sight of passengers alighting from the train, he stepped four to eight feet beyond the sidewalk, on to a part of the railroad company’s premises that were used by the company and its patrons as a part of the station grounds, and fell down into a deep hole and was seriously injured. Held, that the plaintiff was entitled to recover, and was not a trespasser.
Before leaving the defendant’s instructions, we will say here that the court below gave, at the instance of defendant, liberal and fair instructions upon every point involved, and the whole case was fairly presented to the jury, and as favorable to the defendant as the evidence warranted; and the fifth and fourteenth instructions for defendant were more liberal than the law warranted. They wmre to the effect that if, by law, the train was stopped at the state line, and Galloway voluntarily debarked there, without any inducement being offered to him to do so, and that he had gone 100 yai’ds before the accident happened, then the relation of carrier and passenger had ceased, and the company was not liable for any injury by deceased in the capacity of carrier. This presented a totally immaterial issue. Under the facts 6f the case, the real issue here was: Did the company negligently permit a nuisance to exist, at or near their platform? Was Galloway lawfully there? Did the injury occur in consequence of it -without fault on Galloway’s part? These were the true issues, and the instructions were misleading, under the facts of the ease, especially the fourteenth, which went the length of directing that defendant was not liable in that contingency. There were some other instructions given for defendant that limited the issue unduly favorable to it.
The seventeenth instruction : “ If the jury believe from the evidence, that deceased died from a disease known as gastritis, or inflammation of the stomach, and not from the effects of the fractured thigh or other injury, then they will find for defendant.’'
This instruction was given, and the instruction number six given for plaintiff, all indicate that on both sides the theory seemed to be, at the trial below, that if there was no death there could be no damage. The above instruction need not be discussed here, as no point is made upon it. But the question would arise here on the instructions, special findings and motion for judgment on them,•whether an administrator may not sue for damages which the deceased might have recovered, had he lived, under sec. 5223, Mansfield’s Digest, as well as the pecuniary damage to the next of kin under secs. 5225, 5226, Mans/. Dig , the act of March 6, 1888.
These two statutes must sooner or- later be construed, and the question must be determined, how far, if at all, the later trenches upon the former act, or whether the one is cumulative of the other. As counsel have not raised the question, or given us the benefit of their assistance in its solution, we deem it safer to pass it for the present. Ward v. Blackwood, 41 Ark., 300; and Townsend v. L. R. & F. S. Ry., 41 Ark., 382, present the two phases of the question, and in the latter case, as it arose before the passage of the act of 1883, though this question was raised and discussed by counsel, this court decided that the case was controlled by the act of 1875, — still another and different act — providing for suits by administrators, in case of death caused by negligence of a railroad company.
The court amended and added to the fifth, sixth, ninth and fourteenth instructions. As to the fifth, sixth and fourteenth the instructions as asked were, as to voluntarily leaving the train by deceased, an immaterial issue, and might well have been refused. The court qualified them, as asked, to the effect that if deceased left the train at the-state line, under inducements produced by the conduct of defendant’s agents, the relation of carrier did not cease then. . The ninth instruction asked that the jury should be instructed that by the laws of this state, the defendant was not required to fence any part of “ their ” road-bed, and a failure to do so is not negligence. To this the court added “ ordinarily,” which was proper under the facts of this case; for the instruction, as asked, might have mislead the jury to believe that the defendant could leave an open culvert on its track, in a few feet of a public highway, on or near its depot grounds, and invite and allow its passengers to use its track as a foot-path. And if not its duty to fence, it was not to light if at night, nor to give any warning to those who might travel over it. This qualification was proper. If fencing, at the place, was the only reasonably sure mode of preventing their passengers from passing over it, then it was as much their duty to fence it, as to take any other reasonable precaution to prevent injury to its patrons. While it was not, ordinarily, negligence not to fence the road-bed, it was a question to be left to the jury, here, whether this, or some other precaution, should not have been used to prevent injury to its passengers.
There was a general verdict for plaintiff for $2,500 damages, and certain special findings. The defendant moved to set aside the general verdict and render judgment upon the special findings.
First, Because they showed that Galloway died from gastritis, and not from injury; and second,' That Galloway contributed to his own injury in the selection of the route he was traveling, when he received the injury.
The jury found specially: 1. That the train stopped at the state line in obedience to the laws of Texas.' 2. That the deceased did not leave the train there of his own accord, without inducement or solicitation of defendant’s servants, while they were stopped at the state line. 8. That, had he remained on the train until the thirty minutes were out, deceased would have been delivered at the platform of the Iron Mountain depot by the defendant’s employees. 4. That deceased would have avoided the danger if he had remained on the cars until he was delivered at the, Iron Mountain depot at the Marquand Hotel. 5. That the route he took was not the safest, but the usual route for the passengers. 6. That Galloway was not under the influence of whisky at the time he met with the accident. 7. That deceased acted with due prudence and caution in attempting to pass up the track of defendant, and in attempting to cross the trestle through which he fell. 8. That deceased, at the time of the accident, was not sufficiently familiar with the streets of Texarkana, so that he might know the safest route to travel after leaving defendant’s cars. 9. That deceased died from gastritis, caused by the accident.
The evidence in the ease supported these special findings, and in every .material particular they support the general ■eral verdict, and this motion was properly overruled. The defendant then moved for a new trial, setting out Dine grounds, which was overruled. The first and second grounds are the usual ones — verdict contrary to evidence — contrary to law. The third ground was for giving the first, third, fourth, fifth, sixth, seventh and eighth instructions of plaintiff. Fourth, in refusing to give the third instruction for defendant, which the court iefused, and the remaining grounds to the ninth were for refusing to give the instructions, as asked, and amending them.
The ninth ground was that the court had refused to permit defendant to prove by Ur. Allen, that, when he came to the deceased, a short-time after the accident, he found him in a state of intoxication. This point can be disposed of in a few words. Ur. Allen came to see the deceased after he was hurt, the same night, having been sent for. He did not see him at the time he was hurt, nor immediately after; and had not seen him immediately before, and could not until after he had been carried to the Marquand Hotel, and had called for and drunk whisky; and the witness, who was with him when the accident happened, and saw itr and helped him to the Marquand House, where he called for spiritB and drank, before the doctor came, says he was not intoxicated at the time of the accident. And Charles Wilson, the hostler of defendant, and George MeUonald, the yard-master, helped the deceased out of the trestle. The former says nothing of his drinking. The latter said, from the smell of his breath and his actions, he thought he was drinking at the time. These witnesses of défendant had helped to carry deceased from the trestle to the Marquand Hotel. So that this testimony could not have east any additional light upon his condition when the accident occurred. Besides, the use of spirits at the Marquand House, that night, and his condition there, is amply proved by other testimony, and was even drawn out of Dr. Allen on cross-examination, so that if it was an error to exclude it, it was harmless; for the facts — as it was stated Dr. Allen would prove them, after the fact — got before the jury in a prolix form, even, in the investigation of deceased’s stomach, for which purpose his after drinking, from the time he reached the Marquand Hotel, was proved.
The defendant filed a supplemental motion for a new trial, on the ground of newly discovered testimony ; that on the 23d of August, 1881, Galloway was, by the city council of Texarkana, elected street commissioner, which position he held until the 11th of April, 1882, and as such had the supervison of the streets. There was attached to this motion the affidavit of the recorder of the city to the fact of his office holding. The attorney swears to this motion, and that he used due diligence to prepare the defense, and did not know this fact. He does not show what diligence he used. ' Here, in the town where this attorney resides, where this matter was of record, where, if Galloway acted as such officer, so as actually to have given him the necessary knowledge, which was the material inquiry here, the fact must have been generally known in this city, where the defendant had an office, where it was served with process, and, if the knowledge derived of the streets of Texarkana, two year’s before the accident, would have had any weight in law or fact in this case, there is a total want of diligence. Besides, this testimony is cumulative. The defendant had examined witnesses as to Galloway’s knowledge of this open trestle over a ditch twelve or fifteen feet wide and five or six deep, and had submitted a special proposition upon it to the jury. It is true that it had failed to show such knowledge to the satisfaction of the jury; but it was a necessary question on the trial, and as a general rule newly discovered cumulative evidence presents no ground for a new trial. It was proved that it was the first time Galloway had been out on this road; that he lived on the opposite side of the city; that the route he took was the nearest way to his home ; that he had lived in the town nearly all the time for two years prior to the accident. There was no affidavit, or offer, to prove that Galloway ever performed the duties of the office actively, or that those duties would have led him off the streets on to defendant’s track, which they proved was not a part of the highway, though near it. The court properly overruled this motion for a new trial.
The plaintiff’s instructions — the third ground for new trial — alone remains to be considered. The first instruction was properly given, as shown by the authorities presented above, in connection with the defendant’s instructions. ”W e will add to them here: Bennett, admr., v. L. and N. R. R., 1 Am. and Eng. R. R. Cases, 71, S. C., reported in 102 U. S., 577. In 1876 the deceased was a passenger on the cars of the Louisville and Nashville Railroad Company from Yernon to Danville, in Tennessee. At Danville he left the train for the purpose of taking passage on a boat belonging to the Evansville and Tennessee River Packet Company, engaged in the navigation of that river. Its customary place of landing for Danville and immediate vicinity, on that side of the river, was a wharfboat, moored at or against a lot within a few hundred yards of the railroad station. Between the railroad company and the packet company there was, at the time, an arrangement, or contract, by the terms of which each party enjoyed a community of interest — in what proportion was not stated — in the freight and passenger traffic at that point. They were mutually at liberty to sell through tickets, and give through bills of lading, over their respective lines. Both the wharf and lot were owned by and were under the exclusive control of the railroad company. The wharf was used by the company and the public for storing freight, and for convenient place for landing steamboats navigating the river. The company had a shed on this wharf, where goods were drawn up the bank by an engine, by means of ropes attached to flat-cars run on a rail track. These cars were pulled up the bank into spaces left in the floor of thé depot. These hatch-holes reached from the river side of the depot nearly to its center, and were about ■eleven feet in width. The customary and, indeed, the only safe, available and convenient route, for persons passing from Danville to the steamboat landing, was along a plank-way, on each side of which the ground was low and marshy, put down by the railroad, terminating at or near the northern end of the depot, thence up a flight of steps to this depot and across it towards the southern end; thence down a flight of steps, located between two of these hatch-holes, to the wharfboat,-over a macadamized way, made by the railroad company for the convenience of its passengers and business, for those going upon business to ■or from the steamboat landing. The custom of travelers passing the railroad station at Danville and the steamboat landing, to use as a foot-way the plank road, the depot ■floor, and this macadamized. way leading to the wharf-boat, was not only a necessary one, but was known to and permitted by the company. The deceased reached Dan-ville by the cars of the company, and stopped at a hotel to await the coming of the boat. That night, some time .after midnight, the steamboat reached the vicinity of the lauding, and by whistle signaled for landing at the wharf-boat. Deceased started from the hotel for the boat, for the purpose of prosecuting his journey, taking with him a lighted lantern. The depot had no light. The deceased •did not know of the hatch-holes, and fell into one of them, ■breaking limbs and receiving some injuries, which confined him for a long time. The suit was revived in the name of Bennett, his administrator. The Supreme Court of the United States, by Harlan, J., says : “The facts disclosed by the pleadings, and by the demurrer conceded to exist, .seem to bring this case within the rule founded in justice- and necessity, and illustrated in many adjudged cases, in the American courts, ‘ that the owner or occupant of land' who, by invitation, express or implied, induces or leads-others to come upon his premises, for any lawful purpose, is liable in damages to such persons, they using due care,, for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to-them and not to him, and was negligently suffered to exist without timely notice to the public, or those who were likely to act upon such invitation.’ ” Citing R. R. Co. v. Hanning, 15 Wallace, 649; 99 Mass., 216; 10 Allen, 368; Wharton on Negligence, secs. 349, 352; Cooley on Torts,. 604-607, and several English cases.
The third instruction of plaintiff is correct. Under the-facts of this case it was the duty of the defendant, under the rule announced in Bennett v. The Railroad, ubi sup., either to remedy the “unsafe condition of the land” over which it induced the public to pass, or to take some other steps to warn or notify those passing of the danger, if it was not covered or lighted at night, nor warning given,, nor fenced so as to warn and prevent. Any one of these methods of prevention might have been submitted to the-jury hypothetically, as was correctly done in the eighth instruction of plaintiff. If to place a red lantern light at the ditch would have prevented, then was it negligence not to do that. Of course it was negligence not to do anything-to guard against the accident. Now, if the defendant had covered the ditch, or put a light there, or taken any other-similar precaution to avoid accident, and fencing had. been proposed as an alternative and better precaution, then the question which appellant’s counsel argues here with ability and force would have arisen. But where no precautionary method, was adopted by appellant to prevent accident, any one or all of the preventive methods might have been presented hypothetically to the jury, as was ■done in the third instruction as to fencing, and in the eighth as to other preventive methods. There are authorities for the method by fencing, but it is not material to the real question. In Marcott v. M. H. & O. R. R. Co., 8 Am. & Eng. R. R. Cases, 307, an instruction like this was approved by the Supreme Court of Michigan, where there was no statute requiring railroads to fence their track. See for this point page 309. In Beck v. Carter, 68 N. Y., 284, a land owner, who had lands on an alley adjoining a hotel, had, for a long time, allowed his grounds as a public pass-way. On commencing to build, he had left a cellar which was dug, preparatory to building, uncovered • and unfenced, and one passing over it, at night, was hurt. The court of appeals held that the owner was liable for the damages resulting from the injury, though the alley had never been accepted as a highway, but was simply used by the public, and had been so used, in connection with the adjoining open ground, by the public as a pass-way, to and from the United States Hotel, which had been burned down at the time of the accident.
The fifth instruction presented an immaterial question in this case, and was harmless, even if wrong. The authorities above cited upon other points, and especially the Bennett case in 102 U. S., shows that it was perfectly immaterial here whether the relation of carrier and passenger existed between deceased and defendant at the time of the accident; the sole question being the lawfulness of Galloway’s presence at the time and place of the accident. The fifth instruction, as well as the modification of the defendant’s instruction upon this point, were not erroneous.
The fourth, sixth and seventh of plaintiff may be considered together, as they pertain to kindred subjects. The sixth gave a correct rule of damage as far as it went, and taken in connection with the seventeenth given for defense,, and the special propositions submitted to the jury as to the death and its cause, the jury could not have understood the instruction to refer to anything but damages resulting from the death, which was perhaps more narrow than the-law warranted, so that the only particular in which the instruction is vague is cured by the seventeenth instruction of defendant, and is an error, if it be one, to appellant’s-advantage, in narrowing the measure of damages.
The fourth instruction was properly given, and the sevhad better been omitted. The last clause of it is somewhat ambiguous, and might, taken alone, tend to mis- . . . lead, m view of the testimony. Rut when taken m connection with the second, twelfth and seventeenth instructions of defendant, as to contributory negligence and as to the cause of death, that clause of the seventh instruction could not reasonably have been construed by the jury to mean that Galloway might have superinduced gastritis or produced his own death by neglect, after the accident, and his administrator have the right to recover for it. That the injured party does not follow the best remedies, or that he may not implicitly follow what his physician may direct, would not excuse a wrongful injury, which produced, as its direct effects, a disease from which death ensues. One man, knowing his own constitutional idiosyncrasies, might prefer to avoid medicine, another to take it. The law lays down no exact standard of duty here. It should be left to the jury as to the reasonableness of conduct, and whether or not death was caused by the injury, and it was fairly done in this case.
Finding no error, judgment affirmed.
Hon. B. B. Battle did not sit in this case. | [
-16,
97,
-36,
-1,
58,
-47,
42,
-70,
115,
-45,
-28,
83,
-19,
-33,
25,
121,
115,
5,
-12,
33,
-10,
-89,
-57,
-94,
-46,
83,
35,
-121,
55,
72,
100,
-42,
77,
32,
-54,
17,
-27,
72,
-59,
-100,
-114,
33,
-23,
-32,
27,
1,
34,
112,
23,
13,
113,
-82,
-14,
-86,
24,
91,
109,
61,
-17,
-82,
-39,
49,
-62,
6,
-106,
22,
48,
100,
-105,
39,
-8,
28,
-104,
21,
100,
-8,
112,
-92,
-112,
-11,
33,
-39,
8,
-30,
-30,
33,
13,
-81,
-68,
40,
110,
-70,
-113,
-89,
-90,
17,
43,
13,
-106,
21,
-1,
-48,
14,
120,
-8,
-60,
88,
48,
-125,
-117,
-106,
-127,
-11,
-79,
-107,
27,
-29,
-49,
50,
113,
-120,
-126,
73,
68,
48,
-101,
-97,
-40
] |
James R. Cooper, Judge.
This divorce case involves the chancellor’s award of alimony and the division of marital property. The chancellor ordered the appellant to pay $50.00 per week alimony to the appellee, and the sum of $6,000.00 was awarded to her as her half of the marital business. From that decision, comes this appeal.
The evidence indicates that the appellee suffered from poor health and that she could not work to support herself. She testified that she suffered from high blood pressure, back and side problems, and nervousness. The appellant, depending on whether one believed his version or the appellee’s, earned either $600.00 per month or approximately $5,600.00 per month gross from his cafe and tavern. He also received approximately $8,000.00 from the rental of non-marital farm lands.
The award of alimony is within the sound discretion of the chancellor and this Court will not reverse his decision on an award of alimony absent an abuse of that discretion. Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982). While we review chancery cases de novo, the chancellor’s findings will not be reversed unless they are against a preponderance of the evidence or are clearly erroneous. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404; A.R.C.P., Rule 52(a). Based on our standard of review and the evidence presented to the chancellor, we cannot say that his findings are either clearly erroneous or against a preponderance of the evidence.
The appellant also argued that the chancellor erred in finding that the cafe and tavern business was marital property. The appellant had opened the business in 1969 at a different location. In 1974, when the parties were married, they began jointly running the business. After the cafe burned in 1976, the appellant and the appellee borrowed $10,000.00 to rebuild the business. It is not contended that either the building, fixtures, or land upon which the business sits is marital property. The beer license for the business was in the appellee’s name alone, since, apparently, the appellant could not have obtained the permit. On these facts, we cannot say that the chancellor’s finding that the business constituted marital property was clearly erroneous or against a preponderance of the evidence.
Further, the appellant argues that the chancellor erred in determining that the business had a total value of $ 12,000.00 since the only thing which that could be based on was the goodwill of the business. We disagree. Goodwill of a business is a valuable assset subject to purchase and sale. Cherry v. Kirkland, 138 Ark. 33, 210 S.W. 344 (1919).
The appellant also argues that there was insufficient proof to show that the cafe had any goodwill. We disagree. There was ample proof that the business generated substantial income, was a going concern, and that the services it provided had substantial following in the community.
Finally, the appellant argues that the chancellor erred in the manner of computing the net worth of the business. Again, we disagree. The chancellor considered the testimony of the parties concerning the income of the business, and he observed the appellant’s income tax return. It is clear that the chancellor had some evidence before him upon which to base his conclusion as to the worth of the business. We cannot say that his finding was either clearly erroneous or against a preponderance of the evidence. The appellant has failed to bring us a record which demonstrates error, since he did not request that the chancellor make specific findings of fact concerning the manner in which he calculated the worth of the business. Therefore, we have no choice but to affirm. SD Leasing v. RNF Corporation, 278 Ark. 530, 647 S.W.2d 447 (1983).
Affirmed.
Cloninger and Cracraft, JJ., agree. | [
-112,
-22,
-39,
108,
-102,
-80,
58,
-100,
106,
-113,
55,
83,
-21,
-46,
17,
109,
-30,
73,
64,
106,
-41,
-77,
23,
64,
-10,
-13,
-39,
-59,
-79,
109,
-11,
87,
76,
96,
-126,
-43,
-26,
-54,
-63,
84,
-114,
4,
-117,
-3,
-39,
-62,
52,
107,
-64,
11,
48,
-113,
-45,
44,
61,
70,
104,
44,
-103,
61,
80,
-80,
-120,
5,
127,
23,
-111,
38,
-36,
-25,
88,
40,
-104,
-71,
9,
-24,
51,
-90,
6,
116,
99,
-69,
1,
98,
99,
18,
5,
-35,
-28,
-120,
15,
122,
29,
-91,
-101,
89,
75,
42,
-68,
29,
125,
84,
-123,
124,
-3,
-99,
91,
108,
8,
-38,
-108,
-13,
-115,
121,
-34,
-100,
-1,
-89,
49,
113,
-49,
-30,
93,
70,
50,
-101,
-46,
-74
] |
George K. Cracraft, Judge.
Margie Haynes and Clayton Haynes were divorced in 1979. In their court-approved property settlement agreement Clayton obligated himself to convey his interest in their former residence to Margie free of a $90,000 mortgaged indebtedness. He did not perform these obligations and contempt proceedings were instigated to seek his compliance. On July 21, 1981 the dwelling and its contents were totally destroyed in a fire which all parties concede was of incendiary origin. At the time of the fire Clayton had not conveyed his interest in the residence to Margie, had not discharged the mortgaged indebtedness against it, and still had contempt proceedings pending against him. At that time there was in force a policy of fire insurance on the dwelling issued by Farm Bureau Mutual Insurance Company of Arkansas in the name of Clayton Haynes only in the amount of $103,000.
After the fire Clayton conveyed all of his interest in the real estate to Margie who subsequently brought this action against Farm Breau Mutual to cover the fire loss. Farm Bureau Mutual had paid the mortgagee Bank of Parkdale according to its interest and had received an assignment of the bank’s interest under the mortgage. Over his objection the trial court granted Farm Bureau’s motion to make Clayton a party plaintiff in the action. Margie Haynes consented to making Clayton a party plaintiff. Although Clayton had objected, after the order was entered he filed a formal pleading in which he joined in Margie’s complaint against Farm Bureau Mutual. After Clayton was joined as a plaintiff Farm Bureau Mutual answered denying liability and asserting that the fire was the result of Clayton’s unlawful acts either in setting the fire or causing it to be set. The Haynes appeal from a judgment entered in favor of Farm Bureau Mutual on a jury’s special finding that the fire loss resulted from the unlawful acts of Clayton.
Appellants first contend that the trial court erred in requiring Clayton to join as an involuntary plaintiff. No authority is cited and no argument is made in support of this point other than that it somehow prejudiced the jury to see two divorced persons sitting at the same counsel table in a suit in which arson by one of them was an issue. Assignments of error presented by counsel in briefs unsupported by convincing argument and authority will not be considered on appeal unless it is apparent without further research that they are well taken. Gray, Director v. Ragland, Director, 277 Ark. 232, 640 S.W.2d 788 (1982); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
The appellants next contend that the trial court erred in denying plaintiffs’ motion that no testimony concerning arson be admitted unless it be directly connected with the appellant Clayton Haynes and in admitting such evidence. They also contend that the trial court erred in denying their motion for judgmet notwithstanding the verdict because the jury’s verdict was not based on substantial evidence.
Although these contentions are stated under two points, we are concerned only with the question whether there was substantial evidence to support the verdict. Steed v. Busby, 268 Ark. 1, 593 S.W.2d 34 (1980). As to the substantiality of the evidence we will not disturb the jury’s conclusion unless we can say there is no reasonable probability in favor of appellee’s version and then only after giving legitimate effect to the presumptions in favor of a jury’s finding. In testing that sufficiency as being substantial we need only consider the evidence which is most favorable to the appellee. St. Paul Fire & Marine Ins. v. Prothro, 266 Ark. 1020, 590 S.W.2d 55 (1979); Ark. Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976).
There are ordinarily no eye witnesses to an act of arson because the deliberate burning of an insured building by its owner is usually accomplished alone and in secret. Any material fact in issue, however, may be established by circumstantial evidence even though the testimony of other witnesses may be undisputed. The fact that evidence is circumstantial does not render it insubstantial as our law makes no distinction between direct evidence of a fact and circumstances from which it might be inferred. The circumstances may be such that different minds can reasonably draw different conclusions from them without resort to speculation. Where there are facts and circumstances in evidence from which reasonable minds might reach different conclusions without resort to speculation the matter is an issue of fact which must be submitted to the jury for its determination. Farmers Ins. Exchange v. Staples, 8 Ark. App. 224, 650 S.W.2d 244 (1983).
We agree that a mere showing of arson does not automatically relieve the insurer from liability under a fire policy excluding loss caused by the insured. It is also necessary to prove by direct or circumstantial evidence that the insured set the fire or caused the house to be burned. Our court on many occasions has declared that circumstantial evidence which is sufficient to warrant a jury in drawing a reasonable inference that the insured was the author of a fire is sufficient to sustain a verdict in favor of the insurer. Rankin v. Nat’l Lib. Ins. Co. of America, 188 Ark. 195, 65 S.W.2d 17 (1933).
A review of the evidence in this case convinces us that the jury’s verdict is supported by substantial evidence. It was not disputed that the fire was of incendiary origin. In 1979 Clayton Haynes had obligated himself in a property settlement approved and enforced by the chancery court to convey this dwelling to Margie free of the $90,000 mortgage by January 1, 1980. He failed to discharge the indebtedness by that date or to convey the property to her. It was shown that he did not have sufficient cash to liquidate the mortgage as he was then having “cash flow problems.” Contempt proceedings were instituted against him but an agreed extension of time until August 1, 1981 was set for his compliance.
Under the terms of the divorce settlement Clayton was obligated to maintain insurance on the premises. Six or seven months before the fire he directed the insurance agent to issue the policy in his name only. This coverage was cancelled on or about the 1st of July, 1981, and from that date until the night before the fire on July 21st there was no insurance coverage on the house. Although Clayton denied that he had knowledge of this cancellation, there was testimony from an employee of the insurance agency that Clayton was previously aware of the cancellation and came to her house on July 20th, the night before the fire, to give her a check in order to reinstate the policy. At the time of the fire Clayton had had only nine days remaining in which to liquidate a $90,000 mortgage on the house and he did not have the money to accomplish it because he had “cash flow problems.” There was outstanding a court order for him to appear and show cause why he had not done so. A j ury could easily infer that he had a motive for the burning of the house and there is nothing in the record to disclose that anyone else did. Westchester Fire Ins. Co. v. Tidwell, 199 Ark. 621, 135 S.W.2d 842 (1940).
It was also established that the fire was first observed around 11:00 p.m. on June 21st. Haynes admitted that he had been at the house during the day to leave Margie’s car there but had left before noon and had not returned. He stated that he had gone from there to attend a wedding in Texas. There was evidence that although Clayton went to Texas he had told people that he was going to Florida because he didn’t want Margie to know where he was. At the time of the fire, although Margie was in possession of the house, Clayton had a key and had complete access to the house and went there frequently. Margie was attending school in Bastrop, Louisiana, and staying with her friends there during the week and their daughter was away at school in another state, leaving the house empty. Although Clayton offered evidence tending to prove that he was not in the State of Arkansas at the time the fire was first discovered, the jury was not required to accept that evidence if it did not find it credible. There were a number of things in the testimony about Clayton’s trip to Texas which might have easily caused the j ury to question the complete veracity or purpose of this testimony. Our court has recognized that a trier of fact may know that an arsonist need not necessarily be personally present at the time the flash of the fire is observed because there are methods by which one can time the origin of an incendiary fire. Garmon v. The Home Ins. Co. of New York, 197 Ark. 1102, 126 S.W.2d 621 (1939).
From our review of the evidence in the light most favorable to the appellee we cannot say the verdict is not supported by substantial evidence.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
48,
104,
-36,
-20,
-118,
34,
58,
-88,
90,
-91,
55,
-45,
127,
-32,
85,
45,
54,
109,
69,
41,
-105,
-90,
23,
66,
-14,
-37,
121,
-59,
-71,
-49,
-68,
85,
76,
52,
-54,
85,
-94,
-128,
-123,
92,
6,
4,
-85,
100,
-39,
94,
56,
-21,
20,
79,
64,
-97,
-101,
40,
21,
67,
77,
110,
127,
41,
80,
49,
-117,
5,
127,
3,
-95,
102,
-108,
3,
120,
46,
-112,
49,
1,
-56,
115,
-90,
-98,
101,
67,
-101,
9,
54,
102,
3,
-19,
-49,
-84,
-120,
46,
54,
31,
-82,
-72,
89,
19,
10,
-74,
-99,
116,
53,
-74,
-8,
97,
29,
28,
108,
0,
-50,
-108,
-79,
-115,
112,
-98,
-101,
-17,
71,
48,
113,
-51,
-90,
93,
71,
83,
-101,
14,
-117
] |
OPINION.
Cock'rill, C. J.
It is probable that there was no real necessity for the appointment of an administrator de bonis non — at least none is apparent from the record. The probate court, having jurisdiction in the matter, has adjudged, however, that the necessity existed, and that adjudication is conclusive in a collateral issue. Adams v. Thomas, 44 Ark., 267.
Conceding that the appellee is the lawful administrator of the estate, his authority to sue for the rents of the real estate does not follow. The statute confers the power upon an administrator to control the lands of his intestate for the purpose of paying debts. His authority in that respect is derived solely from the statute, for at common law the administrator had nothing whatever to do with the lands of his intestate. But the charge created upon the lands by the statute for the purpose of paying the intestate's debts is not a perpetual one, even when the debts of the estate remain unpaid, as was ruled in Mays v. Rogers, 37 Ark., 155. The heirs cannot be forever deterred from the possession of the lands of their ancestor by the neglect of the administrator and the creditors to enforce payment of debts due by the estate. Ib. ■ And if the claims for which the estate is liable have in fact been discharged, there is no room to contend that the statute still confers the right upon the administrator to control the lands. Menifee v. Menifee, 8 Ark. 47-8; Reed v. Ash, 30 ib., 775; Tate v. Jay, 31 ib., 576.
There is no pretense that there were any demands of any sort against the estate of Davis at any time after the appointment of the administrator de bonis non. They had been paid off and the administration practically closed long before letters were granted to him. The lands had passed into the possession of the heirs and were not needed for any purpose of administration. The administrator then had no power to control the rents. Reed v. Ash and cases, supra; Flood v. Pilgrim, 32 Wisc., 376; Filby, as admr., v. Carrier, 45 ib., 469.
The court sustained the recovery, however, upon the assumption that the promise of the tenant to pay the rent to the administrator, after being informed by the agent who had negotiated the lease for the heirs that he was the proper person to receive it, conferred upon him the authority to sue for the recovery in his official capacity. The-judgment cannot be sustained upon that theory.
The administrator had not the right, against the consent of the heirs, to occupy the lands or collect the rents. If he had received the rents at their request, his receipt to the-tenant would have discharged the debt, upon the principle-that a payment to the agent is a payment to the principal. In such case the administrator would account for the rents with the general assets, not by force of any requirement of the statute, but rather in pursuance of his agreement to do so. Kimball v. Sumner, 62 Maine, 305; Lucy v. Lucy, 55 N. H., 9; Conger v. Atwood, 28 Ohio St., 134; Schouler Ex. & Ad., sec. 213.
Consent cannot add anything to his official capacity.. If the agent in this case was authorized to act for the heirs, in the dealing with the administrator about the payment of the rent, the most that can be said that was done was simply an agreement made to the effect that a debt due to the heirs should be paid by the tenant to the administrator. This conferred no power upon the administrator as such. Nor did it create the relation of landlord and tenant between him and the appellant. That relation already existed between the appellant and the heirs of Davis. The possession was derived from them. The administrator was never in possession, and had no control over or interest in the lands. Under such circumstances it is difficult to understand how an agreement that the rent should be paid to him, could convert him into a landlord. Hansen v. Price, 45 Mich., 519; Wood Landlord and Tenant, sec. 309. His is not the case of an original administrator who, by the terms of the statute, succeeds to the rights and remedies of his intestate. Mansf. Dig., sec. 4161. The authority of the administrator de bonis non is limited to the administration of assets not already administered. State, use of Oliver, v. Rottaken, 34 Ark., 144.
In no view of the case had the administrator a legal interest in the matter in controversy, and the judgment must be reversed and the case remanded for further proceedings. | [
113,
-20,
-36,
60,
-38,
96,
58,
-72,
91,
-21,
53,
91,
-19,
75,
80,
37,
-73,
45,
85,
123,
71,
114,
86,
64,
118,
-13,
-15,
-35,
-75,
108,
114,
87,
76,
49,
34,
-107,
-26,
98,
65,
-48,
14,
11,
26,
-19,
-23,
66,
48,
43,
18,
-49,
85,
-97,
-77,
44,
49,
-43,
72,
46,
93,
-91,
-12,
-88,
-97,
-124,
121,
22,
51,
5,
-8,
-121,
120,
44,
32,
25,
0,
-30,
59,
54,
-122,
116,
15,
25,
41,
67,
106,
1,
-23,
-3,
-64,
-103,
46,
-16,
-97,
-90,
-109,
88,
-118,
105,
-74,
-35,
125,
68,
39,
-4,
-25,
-107,
94,
44,
14,
-114,
-42,
-93,
28,
-5,
-104,
11,
-26,
67,
97,
49,
-113,
-30,
92,
67,
113,
-37,
-122,
-64
] |
Cockrill, C. J.
Chapman sued Hudson, in the Little River circuit court, to recover the value of a wagon and oxen which the complaint alleged belonged to the plaintiff and had been converted by Hudson to his own use. The conversion took place in the summer of 1879; the suit was brought in December, 1882, more than three years thereafter. The defense was the statute of limitations. The appellant sought to avoid the operation of the statute by proving that he hired the oxen and wagon to one Bales for the residue of that year, and that Hudson obtained his possession from Bales. It is argued from this that the appellant could have maintained no action for the property until the beginning of the year 1880, that is, ■until the expiration of Bales’ term of hiring. Now, as Bales was a bailee'for hire and had the right of possession and an assignable interest in the property, this argument would be unanswerable if he or his vendee had done no .act amounting to a conversion; for while the right of possession is in another, the owner cannot maintain an action in the nature of trover. But Bales, notwithstanding he had only the temporary use of the property, took it to the state of Texas, and, being followed there by the appellee and threatened by him with the levy of an attachment upon his effects, turned over the appellant’s property to the appellee in payment of the debt for which the attachment issued; that is, he exercised the right of absolute ■ownership over it. This conduct was inconsistent with his right as bailee and was an abandonment of it. It was a conversion of the property, and is likened, by the .authorities, to a destruction of it, and put an end to the ■contract of bailment, and the owner’s right to take possession of the property or to recover damages for the tort .accrued immediately upon the commission of the act. Brown v. Wallace, 17 Ark., 451-2; Spencer v. McDonald, 22 ib., 476; Baily v. Colby, 34 N. H., 29; Sargeant v. Gill, 8 ib., 325; Sanborn v. Cohuren, 6 ib., 14; Farrant v. Thompson, 5 B. & Ald., 826; Galvin v. Bacon, 8 Me., 28; Bigelow Lead. Cas. Tort, p. p. 429-80; Note to De Voin v. Mich. Lumber Co., 25 Am. Law Reg., 240-1.
It is true Bales testified that he notified the appellee that he surrendered nothing more than his own interest in the property, but that tended to prove only that he committed no wrongful act in making the sale, and, if true, it would have been a defense to an action against him for conversion. But his testimony and all the proof in the-case lead to but one conclusion as to the intention of his vendee, the appellee here. He avowed his design to hold the property absolutely at the time of the negotiation, and exercised absolute dominion over it when it came to-his possession. His version of the matter was that he believed Bales had purchased the property from the appellant on a credit and had the right to sell it. The appellant was not ig-norant of the adverse claim of title. A few weeks after the appellee’s purchase, he employed an attorney to bring suit for the recovery of the specific' articles,, and the attorney went to Texas, without delay, for that purpose, but the appellee prevented the suit, at that time, it is said, by an unexpected removal of the property. No-further attempt appears to have been made by the appellant to assert his rights until the institution of this suit.
The appellee testified on the trial that he had allowed the property to remain in Texas to prevent an action against him for its recovery, and it is argued that this should stop the operation of the statute of limitations in this suit. The position is untenable. There is absolutely nothing in the record to show that the remedy now adopted by the appellant could not have been pursued at any time after his cause of action accrued as readily as at the date of the institution of this suit.
It follows, then, the statute has run against the appellant’s action from the date-of the appellee’s possession in 1879, or at least from the time the appellant was apprised of the hostile attitude of the possession (Pickens v. Sparks, 44 Ark., 291; Lawson v. Cunningham, 21 Ga., 454; Wood on Lien, sec. 183), and as suit was not commenced within three years thereafter, the action was barred, and the judgment must be affirmed. | [
-16,
107,
-36,
47,
90,
40,
10,
-102,
67,
35,
39,
83,
-19,
-64,
0,
37,
-10,
125,
-11,
110,
-92,
-73,
87,
-89,
-126,
-69,
89,
-49,
61,
73,
100,
87,
8,
52,
66,
-99,
-62,
64,
65,
28,
-50,
-127,
58,
-24,
-39,
8,
48,
-6,
21,
79,
81,
-82,
-13,
42,
49,
67,
73,
42,
47,
41,
-40,
113,
-70,
-58,
127,
6,
-128,
36,
-68,
3,
104,
61,
-112,
21,
40,
-68,
115,
-92,
-122,
-36,
39,
-115,
8,
98,
102,
1,
5,
-59,
120,
40,
15,
-78,
-113,
-89,
-12,
8,
3,
65,
-66,
-98,
112,
6,
-121,
124,
-18,
-99,
29,
108,
7,
-17,
-108,
-125,
11,
38,
-98,
3,
-13,
55,
48,
117,
-50,
-94,
93,
101,
58,
-101,
-113,
-14
] |
Cockrill, C. J.
Donnelly sued the railroad company for work done by him in the construction of the road, under a contract made, as he claimed, with the company. As to whether there was a contract with the company, was the chief matter of dispute on the trial of this case, the •company contending that the contract to build the road through Arkansas had been let by it to one Hibbard, and that Donnelly had contracted with him to build a part of the road, and should look to him for payment.
The undisputed facts were that Donnelly entered into a contract with C. F. Stephens, who was the chief engineer of the railroad company, to do certain work on the line of the road east of Red river, and also certain other work cast of Camden. The contracts were oral, and were entered into at one and the same time, and after the contract was let by the company to Hibbard to construct-the entire line in this state. "When the contracts with Donnelly were entered into, the engineer of the company who was in charge of the construction, and was letting contracts to build the road in sections, did not disclose Hibbard as his principal.
After work had begun under the oral contract on the line of the road east of Camden, the terms of this contract were reduced to writing, or more properly, the appellee signed a printed form in which Hibbard appeared as the principal contractor, and the appellee’s contract by its terms is with him and not the company. No controversy arises about the work done under this contract. It was paid for, the appellee receipting to Hibbard for the money paid. Similar receipts were given by him for money received on account of work done under the Red river part of the contract. As far as this record discloses, however, the only active duty performed by Hibbard under his construction contract was to draw money from the president of the company for the purpose of causing it to be disbursed to contractors employed by the company’s engineer.
The jury under direction of the court, made a special finding of facts which amounts to this; that Stephens, the company’s engineer, was authorized by the company to let contracts for the construction of the road; and that the company, and not Hibbard, bad paid the appellee the-money received by him on the contracts made with Stephens. They returned also a general verdict for the appellee, awarding him $4,514.68. As the motion for a new trial does not question the sufficiency of the evidence to sustain either the general or special verdict, it does not become necessary to inquire into the evidence upon any of the points specially found. They must be taken as established by the proof.
The company offered in evidence a contract purporting to be made between it and Hibbard for the construction of the road, the terms, conditions and specifications of which run through many pages of the transcript. The court permitted the company to show by Stephens, its engineer, that such a contract existed, but refused to let the contract itself be read in evidence. This is assigned as error.
Clearly the appellant was not prejudiced by the action of the court. The issue for the jury to determine was whether there was a contract between the company and Donnelly, and the terms and specifications of a contract between the company and some other party, did not tend to throw light upon that issue. The utmost that the company could claim to prove was the fact that a contract with another to build the road existed, as a foundation for proof that Donnelly’s work was done under a sub-contract with the principal contractor. The company was permitted to show this much, as we have seen, and more than this would have tended to divert the minds of the jury from the issue.
The court excluded also the written contract entered into by Donnelly for the construction of the east Camden work.
The agreement as to both pieces of work was in the first instance oral, and the parties agreed in their testi mony upon the trial, and the jury found specially, that the terms of the agreement for both pieces were the. same. Afterwards the engineer and Donnelly saw fit to enter into a written agreement as to the east Camden work, but the Red river contract, about which the controversy arises, was left in parol. Upon no principle can it be said that a subsequently executed written contract should control and govern a parol contract previously entered into in regard to a different subject matter. But the appellant contends that the written contract was made in pursuance of the parol agreement, and that inasmuch as the former was between Hibbard and the appellee, it was a circumstance to ■show that the appellee had contracted with Hibbard in the first instance. The court permitted the company to show the fact by parol, and instructed the jury that this fact was to be taken into consideration in determining with whom Donnelly had contracted. This is as much as the appellant could have required if the contract had been read in extenso to the jury.
But if other reasons were wanting, the action of the •court was right, because the contract was not offered in apt time. It was offered upon the cross-examination of the appellee, the plaintiff below, before the close of his ■evidence and before laying any foundation for its reception. No subsequent effort was made to put it in evidence, the appellant being satisfied apparently with introducing parol evidence as to the facts of the contract.
The appellee for the purpose of impeaching the statement made by Stephens, that all of the contracts for labor •on the road were made by him for Hibbard, and not for the company, introduced an answer under oath made by Stephens on behalf of the company, in a garnishment proceeding against the latter, in which the company acknowledged itself indebted to one Nelson on account of work done in constructing its road under one of Stephens’ contracts. This was not error. The answer tended not only to contradict Stephens, but to show the scope of his authority.
The theory of the company seems to be that when it was proved that a contract had been made with Hibbard to build the road, the fact was established that the power to contract about the same subject matter was exhausted, and that any subsequent agreement entered into by it for the like purpose was void. If there was a binding contract with Hibbard, the company could not affect his rights under it simply by entering into a contract with another in reference to the same subject matter; but if the company saw fit to disregard the Hibbard contract, and enter into another with the appellee, the consequence would be not to enable the company to avoid the latter contract, but to render itself liable to Hibbard for a breach of the contract with him. No question arises between Hibbard and Donnelly, and the company cannot shield itself behind Hibbard for the purpose of avoiding liability incurred under a subsequent contract made with Donnelly. The jury, however, from their special findings, appear to have-believed that the Hibbard contract was a sham, and determined the case, in a measure, on that hypothesis.
The case of Rowland v. Ry., 61 Iowa, 380, relied on by the appellant, does not sustain the position taken. That was an action by a contractor to get the benefit of the laborer’s or mechanic’s lien on the railroad, under the Iowa statute, and the question was whether the plaintiff was a contractor or sub-contractor, his rights depending upon the position he occupied in that respect. The company had let a contract to another to build the road, and the plaintiff' afterward entered into a contract with an officer of the company to perform the work for which he claimed the lien. The officer had no authority from the company to bind it by contract, and his action was never ratified or the contract adopted by the company. This is expressly stated in the opinion, and the judgment is made to turn upon the fact of the entire absence of authority in the officer to bind the company. The unavoidable inference is, that if the company had undertaken to clothe the officer with authority to act for it, the plaintiff would have been regarded as & principal contractor, notwithstanding the company had actually paid the first contractor for the work done by the plaintiff.
It is not necessary to note the charge to the jury in detail. The court instructed them substantially in accordance with the views above expressed.
The appellee’s claim was based upon an account for $4,275, due some two years before judgment was rendered, He prayed judgment for this amount and for “ his costs and other relief.” The court directed the jury to add interest to the amount they might find due, from the time it was payable, under the contract, to the date of trial, and they brought in a verdict for $4,514.48. It is said that this is more than is claimed in the complaint. The complaint alleges that the amount was due and was unpaid, and the rule is that money due by contract shall bear interest from the time it is payable. Roberts v. Wilcoxson, 36 Ark., 355. The complaint contained all the data necessary to reach the conclusion arrived at by the jury. The contract was set out in it, the time when interest began to accrue was embraced within the issue, and the prayer for general relief was sufficient to indicate the intention to claim it. Harrison v. Perry, 3 Bush. (Ky.), 101; Lane v. Glauckauf, 28 Cal., 288; Cassacia v. Phœnix Ins. Co. ib., 628; Green Pl. & Pr., sec. 677; Bliss Code Pl., sec. 165; Byrd v. State, 15 Ark., 175.
In an • action sounding in tort where damages are claimed eo nomine, the judgment cannot exceed the demand •stated. See Cohn v. Hoffman, ante.
Affirm. | [
48,
106,
-74,
-20,
-22,
72,
26,
-102,
73,
-117,
-27,
87,
-1,
-42,
0,
99,
-29,
125,
-44,
43,
-12,
-109,
103,
96,
-46,
-13,
93,
-49,
-80,
73,
-28,
-42,
76,
62,
-56,
-99,
-25,
66,
-51,
24,
-114,
-20,
-19,
-56,
89,
-128,
52,
127,
20,
79,
21,
-106,
-13,
42,
24,
-53,
45,
62,
-1,
-87,
88,
114,
-102,
-57,
126,
5,
-79,
100,
-111,
19,
-56,
29,
-102,
53,
13,
-100,
115,
-92,
-58,
-12,
1,
-23,
8,
54,
98,
33,
5,
-125,
108,
-36,
23,
-70,
-119,
-89,
-78,
9,
67,
77,
-65,
-99,
120,
30,
-121,
126,
118,
-52,
17,
44,
1,
-113,
-110,
32,
31,
-18,
-98,
3,
-53,
15,
24,
102,
-49,
-14,
93,
69,
59,
-101,
-97,
-33
] |
Judith Rogers, Judge.
On March 4,1990, a stolen vehicle driven by appellant, John Eric Lawrence, crossed the center line of the highway and collided head-on with an approaching vehicle. Killed in the accident were Verla Chisum, a passenger in the oncoming vehicle, and Gregory Paul Gay, a passenger in the car appellant was driving. The other driver, Sandra Chisum, sustained severe injuries as a result of the collision. The wreck occurred just moments after police officers had broken off their high-speed pursuit of the vehicle operated by appellant.
Appellant was subsequently charged in the Circuit Court of Pope County with theft by receiving in connection with the stolen vehicle; two counts of manslaughter for the deaths of Chisum and Gay; and second degree battery related to the injuries received by Sandra Chisum. A jury found appellant guilty of these offenses as charged, and appellant received sentences of ten years for theft by receiving; ten years for manslaughter connected with the death of Mrs. Chisum; six and one half years for manslaughter for the death of Mr. Gay; and, six years for second degree battery. The trial court ordered these sentences to be served concurrently, but consecutively to the period of incarceration that had recently been imposed in a probation revocation proceeding.
On appeal, appellant advances the following three issues for reversal: (1) the trial court erred in not ordering a mental evaluation pursuant to Ark. Code Ann. § 5-2-305 (Supp. 1991); (2) the trial court erred in failing to find that double jeopardy was a bar to further prosecution; and, (3) the court erred in failing to find that his course of conduct was uninterrupted such that he could only be convicted of one offense resulting from the wreck. We find no error, and affirm.
Appellant’s first point is that the trial court erred in refusing to suspend the proceedings for appellant to undergo a psychiatric examination to determine his capacity to stand trial. For purposes of our review, it is necessary to set out the factual background relating to this issue. Appellant was also seriously injured in the collision. From the record, it appears that he sustained some form of head injury, as well as a badly broken leg. On March 20,1990, appellant’s counsel wrote a letter to the court in which he stated that appellant “presently lacks the capacity to understand the proceedings against him. I will advise the court when his incapacity ceases if it does.” This letter prompted the court to enter an order excluding for speedy trial purposes the period between March 20th and July 2nd, “[a]s defendant is unable to assist counsel and unable to proceed to trial.”
Since appellant had yet to appear before the court for arraignment, the court held a hearing on May 23, 1990, to entertain the prosecutor’s request that appellant be required to remain at the rehabilitation center in Hot Springs where he was recuperating from his injuries, or that he be placed in jail, or that he be released on bond. At this hearing, the court was generally informed of appellant’s physical infirmities, and the court learned for the first time that appellant’s mental difficulties involved the loss of memory. Specifically, the court was made aware of a letter written by a Dr. Michael Church which stated that appellant was “found to have a moderate impairment in his memory involving recent events as well as memory recall. He also has very severe impairment of his long-term memory.” The court entered an order requiring that appellant remain in the Hot Springs Rehabilitation Center, and that the court be informed of his release from that facility. In this order, dated May 30, 1990, the court also stated:
Defendant’s counsel, in a letter dated March 20, 1990, notified the Court that his client lacks the capacity to understand the proceedings against him and effectively assist in his own defense. The Court has previously entered an order tolling the running of the speedy trial time.
The defendant’s physicians at the Hot Springs Rehabilitation Center are hereby directed to provide this Court with a written report relating to the defendant’s physical and mental condition. Also, the defendant’s physician is to indicate in the report whether or not the defendant is able to appear before this Court for arraignment on July 2, 1990.
Thereafter, in June, the appellant appeared before the same trial judge for a revocation hearing held in Johnson County. There is no indication that appellant’s incapacity to proceed was questioned at that hearing.
Appellant’s trial was eventually scheduled for February 26, 1991. Five days before trial, appellant’s counsel filed a pleading entitled “Notice of Lack of Fitness to Proceed.” In this notice, counsel requested that appellant be mentally evaluated based on the assertion that appellant was unable to provide assistance in preparing for trial because he “has no memory of the events involving the allegations of illegal conduct which have been made.” At a hearing, appellant’s counsel maintained that, by filing this notice, the trial court was required to suspend the proceedings for the purpose of obtaining a mental examination. Counsel further argued that an examination was necessary because the trial court had earlier found appellant unfit to proceed and had ordered that a report of appellant’s mental condition be made. The trial court questioned the appellant who acknowledged that he understood the nature of the charges and the range of penalties that could be imposed, but said that he could not recall anything about the events surrounding the collision. Appellant also told the court that he had been in the rehabilitation center for treatment of his physical injuries, and stated that he had been advised that his memory would return over time, and that he had been given a memory notebook in which to write down things that he remembered. Appellant further stated that he was unaware that any doctor had recommended that he seek psychiatric counselling. The court also heard the testimony of a Pope County jailor, Jack Branch, who had known appellant prior to his incarceration. Mr. Branch stated that he had asked appellant why he was in jail and that appellant explained to him that he had stolen a white Trans Am and had been involved in an accident. Based on the conversations he had with appellant and his observation of appellant’s interaction with other inmates, Mr. Branch did not believe appellant’s assertion that he was suffering from a loss of memory.
The trial court denied appellant’s request for a mental evaluation based on a finding that the notice, which spoke only of memory loss as the basis of appellant’s incapacity, failed to put appellant’s mental competency in issue. On appeal, appellant asserts that the trial court’s ruling was in error.
It is recognized that the conviction of an accused while he is legally incompetent to stand trial violates due process. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). Thus, Arkansas Code Annotated § 5-2-302 (1987) provides that no person who, as a result of mental disease or defect, lacks the capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures. Arkansas Code Annotated § 5-2-305 (Supp. 1991) provides in pertinent part that “[w]henever a defendant charged in circuit court files notice that he will put in issue his fitness to proceed, or that there is reason to doubt his fitness to proceed, the court shall immediately suspend all further proceedings in the prosecution,” and that, upon the suspension of the proceedings, the court shall enter an order directing the defendant to undergo examination and observation by one or more psychiatrists at a local regional mental health center; or appointing at least one qualified psychiatrist to make an evaluation and report; or directing the Director of the Arkansas State Hospital to examine and report on the mental condition of the defendant; or other suitable facility for the purpose of the examination. See Ark. Code Ann. § 5-2-305(a)(2) & (b)(1) (Supp. 1991). It is clearly the intent of this statute to prevent the trial of any person who is legally incompetent. See Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983). However, a defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial. Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978). The test of competence to stand trial is whether an accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980).
In the case at bar, the nature of appellant’s claim of incompetence was specifically identified in the notice as being his inability to recall the event surrounding the wreck. In at least two cases, our supreme court has held that amnesia or lack of memory is not an adequate ground for holding a defendant incompetent to stand trial. Rector v. State, 277 Ark. 17,638 S.W.2d 672 (1982); Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978). In light of these decisions, we share the trial court’s view that appellant failed to put in issue his fitness to proceed under the statute in that the asserted ground is not recognized as a mental disease or defect for which an accused is considered incompetent to stand trial. Under the peculiar circumstances of this case, we perceive no error in the trial court’s refusal to halt the proceedings and order a mental evaluation based on the notice filed in this case. We also attach no significance to the previous orders entered by the trial court. We think that these two orders were simply responsive to counsel’s letter of March 20, 1990, and that it is clear that the court was repeating what counsel had averred in the letter as opposed to the court’s making a finding that appellant was not competent to proceed. Also, close inspection of counsel’s letter and the letter written by Dr. Couch reveals no specific assertion that appellant was suffering from a mental disease of defect which affected his competency to proceed, but rather that it was his lack of recollection that was affecting his capacity to proceed, which, as stated above, is not a proper basis for declaring an accused unfit to stand trial. In addition, the trial judge specifically stated at the hearing that his concern at that time was appellant’s physical ability to appear before the court, and not his mental condition. We also note that, after the entry of these orders, appellant participated in the revocation hearing without raising an issue of his mental competency. In sum, under the circumstances of this case, we find no error in the trial court’s ruling. We add that, even though we consider the notice which was filed ineffective, there is otherwise nothing in the record which would have given the court “reason to doubt” appellant’s fitness to proceed so as to trigger the requirements of Ark. Code Ann. § 5-2-305 See Hudson v. State, 303 Ark. 640-A, 801 S.W.2d48 (1990) (supplemental opinion denying rehearing).
Appellant next argues that the trial court erred in not granting his motion to dismiss made on grounds of double jeopardy. In October of 1989, appellant pled guilty in the Johnson County Court to charges of burglary and theft of property, and was placed on probation for five years. After the present charges had been filed, the state initiated revocation proceedings alleging that appellant had violated the condition of his probation which required that he not commit any offense punishable by imprisonment. As reflected by a judgment entered in the Johnson County Circuit Court on June 27, 1990, the court revoked appellant’s probation and sentenced him to concurrent terms of twenty and ten years, respectively, for burglary and theft of property. Appellant contends that he was twice placed in jeopardy because the charges for which he stood trial previously served as the basis for the revocation of his probation.
The double jeopardy clause protects defendants in criminal proceedings against multiple punishments or repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600 (1976). Jeopardy denotes “risk,” which in the constitutional sense, is traditionally associated with a criminal prosecution. Breed v. Jones, 421 U.S. 519 (1975). It has been held that the risk to which the double jeopardy clause refers is not present in proceedings that are not “essentially criminal.” Helvering v. Mitchell, 303 U.S. 391 (1938); see also Farris v. State, 303 Ark. 541, 798 S.W.2d 103 (1990). The Supreme Court has observed that probation revocation, like parole revocation, is not a stage of a criminal prosecution, even though it does result in the loss of liberty. Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Pylandv. State, 302 Ark. 444, 790 S.W.2d 178 (1990). Consequently a person on probation is not entitled to the “full panoply of rights” afforded a defendant in a criminal prosecution. Morrissey v. Brewer, 408 U.S. 471 (1972).
Our supreme court has dealt with the issue of double jeopardy in the context of revocation proceedings in the case of Townsend v. State, 256 Ark. 570, 509 S.W.2d 311 (1974). In Townsend, while the appellant was under a suspended sentence, he was charged with the offenses of burglary and grand larceny. Based on these charges, the state also filed a petition to revoke the appellant’s suspended sentence. At trial, the appellant was granted a directed verdict of acquittal, as the trial court found that the testimony of an accomplice had not been sufficiently corroborated. At the subsequent revocation hearing, it was stipulated that the court could consider the accomplice’s testimony taken at trial, and the trial court revoked the suspended sentence on the basis of that testimony. On appeal from the revocation, the appellant contended that he was placed in double jeopardy, arguing that the revocation hearing constituted a second trial on the charges for which he had been acquitted. The supreme court, however, did not agree that former jeopardy barred revocation after an acquittal on the underlying charges. In so holding, the court observed that “ [a] revocation of a suspension is in the nature of a revocation of a privilege previously extended,” and reasoned that “Townsend was not given an additional sentence following the revocation hearing; rather, the court only directed that he be required to serve the full sentence that had been rendered several years earlier.” Inasmuch as it is a fundamental concept that reprosecution of a defendant following an acquittal is barred by double jeopardy, see Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986), it is implicit in the court’s holding that former jeopardy does not apply to revocation proceedings. We consider the decision in Townsend instructive, even though the scenario differs in that there the revocation followed an acquittal, whereas here the revocation preceded the trial. We find this distinction immaterial for the reason that double jeopardy either applies to revocation proceedings, or it does not. If it does not apply to revocation, it makes little difference whether revocation precedes or follows a criminal prosecution. See e.g. United States v. Miller, 797 F.2d 336 (6th Cir. 1986).
A majority of courts which have specifically addressed this issue have also found that double jeopardy does not apply to revocation proceedings. State v. Quarles, 761 P.2d 317 (Kan. Ct. App. 1988). See United States v. Miller, 797 F.2d 336 (6th Cir. 1986); Jonas v. Wainwright, 779 F.2d 1576 (11th Cir. 1986); Thompson v. Reivitz, 746 F.2d 397 (7th Cir. 1984); United States v. Whitney, 649 F.2d 296 (5th Cir. 1981); State v. Chase, 588 A.2d 120 (R.I. 1991); Davenport v. State, 574 S.W.2d 73 (Tex. Crim. App. 1978); State v. Eckley, 579 P.2d 291 (Or. Ct. App. 1978). As said by the court in State v. Quarles, supra:
With the exception of Snajder [246 N.W.2d 665 (Wis. 1976)], these courts uniformly hold that, although a defendant is at risk at a probation or parole hearing, the risk does not rise to the level of being ‘put in j eopardy’ in the constitutional sense because the revocation hearing is not equivalent to a criminal prosecution; in other words, the hearing is not a proceeding which could result in a conviction. The purpose of a revocation hearing is not to punish a criminal for violation of the law, but rather to determine whether he has violated the conditions of his probation. The court’s authority to revoke probation does not depend on whether the defendant’s probationary conduct is criminal. Rather, the function of the court at the probation revocation hearing is to determine whether to impose or execute a sentence for an offense of which the defendant has already been convicted and for which probation was granted.
State v. Quarles, 761 P.2d at 320. Based on the guidance offered in Townsend v. State, supra, and the authorities mentioned above, we conclude that appellant was not placed in double jeopardy.
As his final issue, appellant contends that the trial court erred in not granting his motion to dismiss the charge of second degree battery and one of the counts of manslaughter. It is the appellant’s contention that the conduct upon which the charges of manslaughter and second degree battery, the car wreck, was a single, continuous and uninterrupted act out of which he could only be prosecuted for one offense.
In making this argument, appellant relies on Ark. Code Ann. § 5-1-110(a)(5) (1987), which provides:
(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(5) The conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
The supreme court has held, however, that in order for this subsection of the statute to be applicable, the prohibited “conduct must be defined as a continuing course of conduct crime.” Smith v. State, 296 Ark. 451,757 S.W.2d 554 (1988). See also Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987); Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980). In reference to the offenses here, a person commits manslaughter if he recklessly causes the death of another person, Ark. Code Ann. § 5-10-104(a)(3) (1987), while a person commits second degree battery if he recklessly causes serious physical injury to another person by means of a deadly weapon. Ark. Code Ann. § 5-13-202(a)(3) (1987). Thus, neither manslaughter nor second degree battery is specifically defined as a continuing course of conduct. Therefore, this statute is of no benefit to appellant and does not prohibit his being tried and convicted of these charges as separate offenses. Moreover, appellant’s argument is not consistent with the supreme court’s decision in Holder v. Fraser, 215 Ark. 67, 219 S.W.2d 625 (1949). There, the court held that former jeopardy did not bar successive prosecutions for charges of involuntary manslaughter that were based on the deaths of three persons in a single traffic accident. Focusing on the “reckless” element of intent contained in the former statute, Ark. Stat. Ann. § 41-2209 (1947), the court concluded the “ [p] etitioner risked a violation of the statute as to each person whose life he imperiled and may be held separately responsible for each death proximately resulting from the prohibited conduct.”
Affirmed. | [
112,
-22,
-15,
44,
24,
64,
26,
24,
115,
-117,
116,
19,
-83,
-41,
5,
121,
-29,
121,
85,
105,
-11,
-73,
23,
49,
-14,
-13,
105,
71,
-78,
75,
108,
-42,
78,
112,
-54,
13,
70,
72,
-25,
92,
-58,
2,
-22,
116,
91,
18,
44,
62,
-124,
7,
49,
-113,
-125,
47,
22,
79,
105,
40,
27,
-71,
-127,
-71,
-55,
7,
-17,
20,
-93,
4,
-68,
13,
-16,
56,
-100,
57,
0,
-8,
50,
-90,
-126,
84,
105,
-101,
-116,
98,
98,
0,
21,
-51,
-76,
-120,
38,
-6,
15,
-123,
-104,
1,
73,
76,
-105,
-97,
110,
118,
8,
124,
-3,
68,
81,
104,
37,
-50,
-108,
-111,
-51,
4,
-52,
114,
-21,
33,
34,
117,
-52,
-26,
94,
4,
82,
-101,
-45,
-10
] |
George K. Cracraft, Chief Judge.
Walter and Leone Hedlund appeal from an order dismissing their complaint, contending that the trial court erred in finding that their cause of action showed on its face that it was barred by the statute of limitations. We affirm.
On August 2,1991, appellants filed their complaint alleging that on February 7, 1985, appellee Charles O. Hendrix guaranteed payment of a promissory note payable to appellants in the amount of $143,500.00. Appellants alleged that they subsequently released appellee from his guaranty in consideration of Martha J. Vest and Jerry C. Husley executing an agreement substituting themselves for appellee as guarantors of the note. The complaint alleged that the substituted guaranty was null and void in that the signature of Martha J. Vest was a forgery and that Jerry C. Husley had subsequently been discharged in bankruptcy by the United States Bankruptcy Court. It further alleged that the release of appellee from his guaranty was likewise null and void because of a lack and failure of the consideration for the substitution of the new guaranty, and that appellee therefore remained liable as guarantor of the note. Appellants prayed for judgment against appellee for the full amount of the note with accrued interest.
Appellee filed a timely motion to dismiss the complaint on grounds that it failed to state facts upon which relief could be granted and that it showed on its face that the cause of action against him was barred by the statute of limitations. On Septem ber 24,1991, the court entered its order of dismissal. It concluded that the release dated June 21,1986, constituted an absolute bar to the cause of action on the note, because appellants had failed to bring an action to cancel that document within the time permitted by law, and that the complaint therefore failed to state facts on which relief could be granted.
Appellants contend that the court erred in holding that their cause of action was barred by the statute of limitations. They argue that the suit was one to collect on the note and not for cancellation of the release, and that the proper statute of limitation to apply would be five years from the date the note became due rather than five years from the date on which the release was executed. We do not agree.
On June 21, 1986, appellants executed a written document releasing appellee from all obligations as guarantor of the note. Until voided or cancelled, the document releasing appellee from his guaranty would constitute a complete defense to an action on the guaranty. The initial issue for the chancellor to determine was whether the appellants’ attack on that release for failure of consideration had been asserted within the period of limitation.
It is well settled that a statute of limitations begins to run when a complete and present cause of action first arises. Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1986); Holloway v. Morris, 182 Ark. 1096, 34 S.W.2d 750 (1931). The true test in determining when a cause of action arises or accrues is to establish a time when a plaintiff could have first maintained the action to a successful conclusion. Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991). A cause of action to cancel a written instrument arises when the ground for its cancellation first occurs. Burns v. Burns, 199 Ark. 673, 135 S.W.2d 670 (1940).
As the alleged forgery in this case existed on the date that the release was executed, the cause of action for cancellation arose when the release was executed, which was more than five years prior to the commencement of this action. Unless the period of limitations was tolled or otherwise suspended, the action to cancel the release was barred by limitations.
Appellants contend that they did not know they had a cause of action for cancellation until after they obtained the affidavit of Ms. Vest that her signature on the substituted guaranty was not genuine. However, it is well settled that one’s ignorance of the existence of his cause of action does not prevent the statute of limitations from running, unless his ignorance is due to fraudulent concealment or misrepresentation on the part of the one seeking to invoke the statute. Courtney v. First National Bank, 300 Ark. 498, 780 S.W.2d 36 (1989); Hunter v. Connelly, supra; Smith v. Olin Industries, 224 Ark. 606, 275 S.W.2d 429 (1955). Here, there was no allegation that appellee was aware of the alleged forgery, in any way attempted to conceal the facts, or was a party to any fraud practiced on appellants in the procurement of either the substituted guaranty or his release.
Appellants additionally contend that, as the complaint also prayed for a judgment against appellee as guarantor of the note, the court should consider the statute of limitations as running only from the date the note became due. In support of their position, they rely on those cases holding that where there is a reasonable doubt as to which of two statutes of limitations applies to a particular cause of action or proceeding, it will generally be resolved in favor of the statute containing the longer period of limitations. See Dunlap v. McCarthy, 284 Ark. 5, 678 S.W.2d 361 (1984); Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986).
Although this is a well-established rule, it is applied only in those cases where two or more statutes of limitations may be applicable to the same cause of action. The rule has no application to the case at bar. Here, appellants’ complaint contained two separate causes of action — one to cancel the instrument releasing appellee from his guaranty and a second seeking judgment for the amount of the promissory note for which appellee was the original guarantor. See Ark. R. Civ. P. 18(c). Appellants could not prevail on the second cause of action unless they were first successful in cancelling the release that otherwise constituted a complete defense to the second cause. Although there were two causes of action, there is only one statute of limitations applicable to the cancellation issue. That statute began to run from the date that cause of action first arose.
We conclude that the trial court correctly ruled that the statute of limitations had run on appellants’ cause of action to cancel the release. The release remained and was a complete bar to any action on the guaranty, and appellants’ complaint, therefore, failed to state facts on which relief could be granted.
Affirmed
Jennings and Danielson, JJ., agree. | [
-80,
106,
-48,
-66,
10,
96,
-86,
-102,
91,
41,
39,
81,
-19,
83,
4,
125,
117,
105,
-15,
122,
71,
-77,
54,
0,
-14,
-77,
-7,
-43,
-80,
111,
-28,
86,
12,
48,
-118,
-107,
102,
-62,
-63,
20,
70,
-122,
9,
-20,
-7,
64,
48,
123,
84,
13,
113,
-49,
-29,
47,
20,
79,
-24,
41,
73,
25,
-48,
-80,
-117,
5,
127,
21,
-79,
21,
-100,
78,
122,
46,
-120,
49,
1,
-24,
50,
-74,
-122,
116,
107,
25,
0,
102,
98,
1,
69,
-3,
-36,
-104,
6,
94,
13,
-90,
-110,
80,
11,
101,
-74,
-99,
124,
80,
-89,
118,
-26,
-116,
29,
44,
0,
-54,
-106,
-109,
63,
80,
-98,
3,
-26,
-94,
48,
112,
-49,
-28,
92,
103,
57,
-101,
78,
-74
] |
Smith, J.
Matthews applied by petition to the county court to reduce the assessment of his lands. He represented that he had given in for assessment fifty-nine tracts, within the time and in the manner prescribed by law, and the assessor had valued them; but the board of equalization had, arbitrarily and without any evidence, raised such valuations to the extent of $5,325; that this action was taken in his absence and without notice to him, but as soon as he learned what had been done he went before the board and unsuccessfully endeavored to induce it to reconsider its action. But the county court, finding that the petitioner had not asked for nor obtained the allowance of an appeal from the board, refused to entertain his petition or take jurisdiction of the matter.
Matthews appealed to the circuit court and was there confronted with a motion to dismiss his appeal, upon two grounds : First — The appeal should have been taken from and before the equalization board, the county court being powerless to grant an appeal from the board to itself; and, Second — The county court has no appellate jurisdiction under any circumstances. But the circuit court denied the motion and proceeded to give Matthews such relief as, in its opinion, the proofs showed he was entitled to.
The only question raised by the present appeal is one of jurisdiction.
See. 5687, Mansfield’s Digest, after creating a board for the equalization of taxable values in each county, provides that any party aggrieved by any action of the board may appeal therefrom to the county court. It is not prescribed when nor how the appeal is to be prayed, nor by whom, nor upon what conditions it is to be granted.
Our opinion is that, in this provision, the legislature did not use the terms “party” and “appeal” in their technical legal sense of party to a suit, and the removal of a cause from an inferior to a superior court for review; but in their popular signification of “person” in the one case, and “ invoke the aid of” in the other. This is the only construction upon which the provision can stand. For appeals only lie from one court to another; never from an executive officer to a court. By our constitution the powers of government are distributed among three distinct departments, each confided to a separate body of magistracy. And no person, or set of persons, of one of these departments, can exercise any power belonging to either of the others, except in certain instances, for which special provision is made, not necessary to be here enumerated. Now, the functions of the board of equalization are ministerial. Its members are assessors and valuers of property. None of the judicial power of the state is vested in them, either individually or collectively. 'Their power is limited to raising and reducing the valuation of property which the assessor has returned on his list. This is not a judicial proceeding. The conclusion reached by them is not the determination of a court. The board is not a court in any sense. No causes are pending before it for adjudication. Parties are not brought in by any sort of process. No judgment is rendered, and no means of enforcing any judgment are provided. Hence no appeal, strictly speaking, can be taken or authorized from its decision to the county court, or to any other court, because it is not a judicial tribunal competent to pass upon any case. Constitution of 1874 sec. 4, and art. 7, sec. 1; Dunn v. State, 2 Ark., 230; Allen, ex parte, 26 ib., 9; Logan Branch Bank, ex parte, 1 Ohio St., 432.
The revenue act of January 1, 1853, sections 3 and 4 (■Gould’s Dig., ch. 11¡.8, secs. 35 and 36), enacted that any person who might think himself aggrieved by the assessment of his property might appeal to the county court and have the assessment corrected, if found incorrect; the appeal to be in writing, to state specially the grounds of appeal and the thing complained of, and no other matter to be considered by the court.
In Redd v. St. Francis County, 17 Ark., 416, a land-owner filed his petition in the county-court to reduce and correct the assessment of his lands. And it was held the court had jurisdiction to grant the relief prayed for.
There is nothing in Randle v. Williams, 18 Ark., 380, to conflict with this view. Eor, although it is said that if the assessment and levy of taxes upon the property of an individual be excessive, the appropriate remedy is by appeal to the county court; yet “ appeal ” must be read as equivalent to application, as construed in the previous case of Redd v. St. Francis County.
No point is made as to the constitutionality of the act in creating boards of equalization. As was said by this court in Van De Griff v. Haynie, 28 Ark., 270, where the constitutionality of an act establishing a state board of equalization was challenged, the legislature has general power over the subject of taxation, and may select its agencies for determining and fixing taxable values. And this decision was adhered to in Edrington v. Matthews, 30 Ark., 665.
Affirmed. | [
-14,
-12,
-99,
-68,
-22,
-32,
58,
-124,
73,
-29,
-25,
115,
-17,
-38,
21,
57,
-13,
127,
117,
107,
-59,
-73,
70,
-29,
-78,
-77,
-53,
-35,
-76,
-20,
-12,
92,
12,
-79,
-54,
85,
102,
72,
-49,
-48,
-114,
9,
-88,
79,
-8,
64,
56,
74,
114,
15,
81,
-49,
-5,
44,
25,
67,
-24,
44,
89,
-87,
-111,
-8,
-102,
12,
95,
10,
48,
87,
-36,
-93,
72,
46,
-104,
25,
0,
-8,
49,
-90,
-126,
-11,
15,
-103,
-120,
98,
102,
1,
109,
-17,
-72,
-72,
46,
30,
-99,
-89,
-45,
24,
75,
-32,
-106,
-99,
124,
-106,
7,
124,
-18,
-107,
95,
108,
-113,
-113,
-110,
-89,
-49,
120,
-118,
67,
-29,
18,
16,
113,
-34,
-54,
94,
101,
114,
27,
-114,
-48
] |
Smith, J.
Turner sued the owners of a steamboat for the value of a box of dry goods, which they had undertaken to carry, but had never delivered, as it was alleged. He recovered judgment before the justice of the peace, where his action was begun, but, an appeal having been taken, was defeated in the circuit court.
The bill of lading shows a contract of affreightment for the transportation of five boxes of boots and shoes, one package and one box of dry goods, from Fort Smith to Childer’s Station, in the Cherokee Nation, to be delivered to Turner on the levee. As Childer’s Station is four miles distant from the river, and as goods destined for that point must be hauled in wagons from the river, counsel agree that the obligation upon the carrier was to deliver at the nearest landing, which was Bray’s, upon the river bank. In ascending the river to Webber’s Falls the boat put off •at Bray’s the rest of Turner’s freight, but carried on the box, which gave rise to this controversy. However, on its return trip next day, the box was carried ashore and deposited by the side of Turner’s other goods, which had not yet been removed. Turner was not notified, on either occasion, by any officer or agent of the boat, of the arrival of the goods, but received information from a teamster, on the Sunday that the boat passed up, that his goods were at the landing. Next day the same teamster saw the missing box on the landing with the rest of Turner’s freight; in fact it was pointed out to him by Bray. There was no warehouse at Bray’s, nor did the boat have any agent there. The testimony conduces to prove that there are no warehouses, wharf-boats or facilities for storing freight on the upper Arkansas, but that the custom is to blow the whistle to warn the neighboring settlers of the boat’s approach and to discharge the freight for a particular landing on the bank of the river, without notice to the consignee. Bray lived near the landing and sometimes sheltered goods left there by the different boats that navigated the river, when the weather was threatening; and was sometimes entrusted with the collection of special bills. He was usually requested to look after the freight and notify owners; but on this occasion was absent from home. This box of goods had never actually come to the hands of the plaintiff, and the main question was whether a delivery had been made according to the tenor and effect of the contract.
A carrier by water may deliver goods on the wharf; but as a general proposition the consignee is entitled to actual notice of their arrival, that he may have an opportunity to remove or safely store them. The necessity of notice may, however, be waived by the previous course of dealing between the parties. Here it was in proof that the plaintiff had previously received several consignments of freight by this same boat, which had been delivered on the bank of the river, without any notice to him, and no complaint had been made.
Moreover, it may be shown that the uniform usage and ■ . course of business of carriers m the same trade, is to leave-the goods at the landing place without notice; and that the manner of delivery adopted in the particular instance-conformed to the custom of the locality. And this, whether the usage was known to the shipper or consignee,, or not. Every person who contracts with another for services in his special trade, is understood to contract with reference to the usages of that trade. Hutchinson on Carriers, sec. 866, and cases cited in note.
Turner must have known the precise character of Bray’s Landing, the custom of the boats in delivering freight,, and the want of facilities for the proper care and custody of it, after it was left on the bank. He was a merchant trading in the vicinity, and this was his shipping and receiving point. If, therefore, he was unwilling to be-bound by the delivery in accordance with the custom of the landing, he should have attended in person to receive his freight, or have designated an agent for that purpose.
In the case of The Mill Boy, 13 Federal Reporter, 181, Caldwell, J., in discussing the question, when is the carrier discharged from liability, when the contract is to carry to a neighborhood or way-landing where there is no wharf and no warehouse, and where the consignee does not reside and is not to be found, uses this language:
“ Such landings are not uncommon on the rivers of the southwest. They are established, or rather named, by the settlers living in the vicinity for their own convenience, and to avoid the labor, expense and delay of traveling to some established wharf or landing, where the usual facilities for storing goods may be found. It is a well-known fact that on the Arkansas and other rivers .in the southwest, the distance between the towns or established ports where there are warehouses or wharfboats is often very great. The necessities and conveniences of the settlers imperatively require that their goods should be delivered on the bank of the river, as near their homes and plantations as practicable, regardless of wharves and warehouses. The practical sense and generous spirit of good nieghborship which characterized these settlers very soon devised means for accomplishing the desired ends.
“ It was perceived at once that the rules governing the rights and duties of carriers by water, where the contract is to carry to some established port having a wharf or warehouse, and where the consignee resided or might be found, or where he could be speedily notified by telegraph or otherwise, could have no application to these country or way-landings. It was seen that a boat could not be required to lay at each one of these landings until the consignees appeared to receive their goods, or until notice of their arrival could be sent to them. To impose such an obligation on a boat would protract her voyage unreasonably and indefinitely, and no boat would receive goods consigned to a way-landing, if such an obligation had to be incurred. Accordingly, some spot deemed most favorable for a boat-landing would be fixed by the settlers and given a name. Some settler living at or near the landing, for the accommodation of his neighbors, would take it upon himself to notify them, by some of those casual methods usual among people in the country, when goods were put off at the landing for them, and would assume such care and oversight over the goods in the meantime as good neighborship and the necessities of the case seemed to require. And the usage and custom has been uniform that, when the boat put off goods at such a landing in good order and condition, and the person living at or near the landing was notified of the fact, and requested to look after them and notify the consignee, the liability of the boat was at an end. And the person in whose charge, in a very general sense, the goods may be said to be left at these landings, and who is expected to notify the consignee, is, as between the carrier and consignee, to be regarded as the agent or bailee of tbe latter, and not of the former, although no such relation may exist in fact between him and the consignee, or certainly none other than that of a bailee without award.
“ The usage and custom relating to the delivery of goods at these landings is shown to have prevailed, and to have been generally known and uniformly acted upon, ever since boats have navigated the Arkansas river, now more than half a century. It is a reasonable usage, and contracts of affreightment will be presumed to have been made with reference to it. Persons consigning goods to such landings must, therefore, be held to know their character, and the usage and custom relating to the delivery of freight thereat.”
The only remaining question in the case relates to the exclusion of certain evidence. One theory upon which the plaintiff claimed to recover was that Bray was the agent of the defendants, and that it was by his inattention that the goods were lost. In support of this theory the plaintiff offered, but was not permitted, to put in evidence a letter addressed by Bray to Turner, before the loss happened, proposing to take charge of his freight in the future for a reasonable compensation. This letter was accompanied by a freight bill, signed by Bray as agent, for goods which had arrived on another boat running in the same trade.
The evidence was properly rejected. An agency cannot be proved by the declarations of the agent in pais, and in the absence of the party to be affected by them. 8 Wharton on Evidence, sec. 1188. Morever, full proof that Bray was agent for the last-mentioned boat would have no tendency to prove that he was the agent of the defendant’s boat. The two boats had no apparent connection, and did not, so far as appears, belong to the same owners. In fact, we may fairly infer, from all the evidence, that they were rival and competing packets. Bray testified that he was never the agent of any boat in the river. And there was no evidence to the contrary. Hence the court properly refused a request to submit to the jury the question of agency or no agency.
Affirmed. | [
-16,
98,
-84,
31,
58,
104,
42,
58,
-55,
122,
-28,
83,
-51,
5,
9,
113,
-29,
121,
85,
59,
-26,
-105,
31,
119,
-46,
-45,
123,
-57,
-66,
-55,
-84,
-42,
76,
52,
74,
-47,
38,
-54,
-63,
-100,
-52,
-71,
48,
-23,
-9,
1,
56,
78,
16,
78,
85,
-114,
-30,
46,
24,
-53,
11,
-83,
105,
-67,
-48,
113,
-70,
78,
23,
4,
-111,
52,
-69,
1,
64,
26,
-48,
53,
-104,
-7,
113,
54,
-126,
84,
1,
-51,
-120,
102,
-29,
97,
-115,
-23,
44,
12,
55,
-2,
-103,
-25,
-80,
65,
67,
69,
-74,
-35,
-22,
16,
62,
-38,
-22,
73,
89,
104,
-125,
-113,
-106,
33,
13,
40,
-116,
55,
-1,
-105,
38,
116,
-49,
-117,
93,
69,
113,
-101,
-113,
-5
] |
Eakin, J.
Birmingham, as landlord, sued out from a. justice of the peace an attachment against John A. and R. E. Rogers, claiming a lien upon a crop of onions and potatoes, in their possession, for rent. He states in his affidavit that he is the landlord, and is entitled to receive, as rent, a half of three acres of onions, worth $100, and a half of six acres of potatoes, worth $150. That said crops are upon his lands, and the onions should have been delivered ; that the potatoes would soon be ready for gathering and delivery. He charges that defendants have removed a portion of the crop without his consent, and therefore prays an attachment. There was a warning order against R. E. Rogers, as a non-resident, and the attachment issued on the 11th of October, 1881, and was levied on the crop, which was afterwards, by order of the justice, turned over to the plaintiff'. This seems to have been done to enable him to save it by gathering, the articles being of a perishable nature in the fields, and upon this point no question is made. He filed an account of his claim for $240, in accordance with his affidavit. Afterwards, on the 13th of December, 1881, he filed an amended account, in which the value of the half crops, due him as rents, was set down at $93.65, with additional charges for damages incurred by the failure of defendants to gather the crops, and by improper cultivation of the lands, etc., amounting to $109; .and charges upon contracts independent of rent amounting to something over $50, making a total of $229.
The defendant denied the facts set forth as grounds of attachment, to-wit.: That plaintiff was their landlord, and entitled to rents, as such, upon the crops; or that they had removed a portion of the crop without his consent; or had done anything else to justify the attachment. They aver that they were owners of the crop in common with plaintiff, without any relation between them of landlord and tenant, and say they were damaged by the vtrit of attachment to the amount of $260, for which they pray judgment and that the attachment may be dissolved.
Upon the issues the defendants demanded a jury, which found that the attachment should be dissolved, and the defendants have damages in the sum of $125, and that plaintiff should keep all the crop which had been turned over to him, and recover the rest. The justice entered judgment accordingly, and the plaintiff appealed to the circuit court. There he was allowed to amend his affidavit and state the value of the half crop of onions and potatoes to be $72.15. He also added that the defendants were about to remove the crop raised upon the land without paying the rent. Upon motion of the defendants, the court struck from the account that had been filed the additional claims for damages on the part of plaintiff, and the item of a promissory note due him from defendants, on the ground that they had not been filed at the commencement of the suit, and because the claim for damages was inconsistent with the nature of the action.
There was then a trial by jury of the issues made on the grounds of attachment, and a verdict for damages in favor of defendants for $81.65. After a motion for a new trial had been made and overruled, a bill of exceptions was filed and the plaintiff' obtained an appeal from the clerk of this court.
The right of the plaintiff to one-half the crop was conceded throughout. The whole contest was upon two points: First — Whether, in suing to recover that, he was entitled to a landlord’s lien ; and, second, whether he had truly alleged grounds for an attachment.
The plaintiff offered to establish the relation of landlord by the introduction of a written contract between himself and R. E. Rogers, executed in 1880. The court refused to allow this, upon the ground that the proffered instrument constituted the parties common owners of the crop, and so instructed the jury. This was a fundamental ruling, inasmuch as it decided the very question in issue, leaving nothing to the jury but the assessment of damages. For, if there were no relation of landlord and tenant, nor landlord’s lien, then the attachment was improperly sued out.
The instrument offered is inartifieially drawn, and somewhat prolix, but sufficiently certain. It was executed in September, 1880, to be in force for the year 1881. It expresses that R. E. Rogers “rents” certain lands described, and agrees to put it all in cultivation next year, in such crops as might meet the approval of plaintiff, and that in no case would he allow weeds to go to seed upon it whilst in his care. It stipulates that said Rogers was to receive for cultivating this the half of what he might make; except of the corn, all of which he was to deliver to plaintiff at the rate of 25 cents a bushel. Plaintiff, in addition to furnishing the land, was to furnish seed, and to allow Rogers to use the tools on the place. The plaintiff’s share was to be delivered to him in the crib, or place furnished to receive it, in good merchantable order. Rogers agreed not to “ sub-rent,” or to sell, or try to sell; any of the crop until it should be gathered and divided, nor “ rent any more land, nor undertake any other work than this contract without consent of plaintiff.” The land “ now rented” to be broke in the fall and cross-broke in the spring. He agreed to do certain outside work in order to get the use of plaintiff’s oxen,
It is tolerably plain from the words used, that the parties contemplated a contract for renting. None of the provisions, on the other hand, are such as might not be made between landlord and tenant, to insure proper care and cultivation of the land. Subject to these restrictions, the land by the contract passed under the control of the tenant, as tenant. His co-defendant, John A. Rogers, came in to assist him in making the crop on a contract between themselves, with the landlord’s concurrence.
In doubtful cases, if this were doubtful, we are not disposed to extend the doctrine applied in some cases, that where one makes a crop upon the land of another upon an agreement to receive a portion of it as compensation for his labor, he becomes a mere cropper, and part owner of the crop, as distinct from a tenant, but the intention should be clear and unmistakable. It is the policy of the state-, and the prosperity of the people as a whole requires it, that land owners, without the force or capital to work their own lands to their full capacity, should be encouraged to let them to those wno can furnish their own labor, at least, if no more. By this system the aggregate products of the state will be brought to the highest point, and the general prosperity increased by the impetus thus afforded to all other industries. This is the policy which has dictated the legislative provisions for the landlord’s lien, and it will be very materially neutralized, if the courts should lean to constructions of contracts, which destroy the relation of landlord and tenant. If cropping contracts for division of products as in case of partnership, be intended, they are valid; but it is certainly desirable that they be clearly expressed, as land owners may conclude that it is better to to hold their lands for speculative purposes, than to risk being entrapped into lettings under which their security for rents would rest only upon ■ the fidelity and bona Jides of the laborer. '
"We think the Hon. Circuit Judge erred in holding that this contract made the plaintiff and defendants owners in common of the crops, and that it did not tend to establish the relation of landlord and tenant. There were other errors growing out of this fundamental one, which are not likely to occur upon the correction of this, and need not be discussed. The fundamental error swept away all idea of a lien in any case, and made the verdict of the jury a foregone conclusion, save as to the amount of damage, without any necessity for considering whether the other facts authorized the specific attachment, or were true if they did. Eor this reason and for errors in instructions proceeding upon this basis, the court erred in overruling the motion for a new trial.
As the case must go back, we deem it proper to remark upon another point. After the commencement of action, the plaintiff before the justice amended the account filed by adding a claim upon a note against defendants, having no connection with the landlord’s lien. This the court, on motion of defendants, struck out; not, it seems, because the plaintiff might not have joined it at first. This he might clearly do, as decided in Kurtz v. Dunn, 36 Ark., 648; although the lien of the attachment would extend to the rent only. The court struck it out because it was not originally set forth as part of the cause of action. This was a matter subject to the sound discretion of the court, but' generally such amendments are allowable in furtherance of justice, and should be allowed when no unfair advantage may be taken of the defendant. The plaintiff, in all cases, may have a personal judgment for the full amount to which he may be entitled, although his lien may only secure a part.
For the error above indicated, reverse the judgment and remand the cause for new trial on the issues controverting the grounds of the attachment; and for such further proceedings as may be had consistently with law and this opinion. | [
-78,
105,
-88,
13,
-120,
104,
40,
-70,
66,
3,
116,
87,
-51,
86,
85,
101,
97,
121,
-44,
107,
86,
-77,
7,
98,
-38,
-5,
-61,
-59,
-103,
77,
-27,
-44,
76,
44,
-54,
23,
-58,
-16,
-55,
-36,
-50,
1,
-87,
104,
-67,
0,
52,
41,
32,
87,
81,
30,
-69,
102,
53,
-45,
73,
40,
-21,
61,
81,
-23,
-66,
76,
127,
6,
-110,
102,
-66,
-63,
-38,
108,
-112,
53,
6,
-24,
115,
-92,
-106,
116,
15,
-103,
8,
102,
98,
16,
-115,
-21,
-40,
28,
55,
-22,
-97,
-89,
-16,
72,
27,
3,
-68,
25,
34,
85,
55,
126,
-3,
-59,
22,
44,
-127,
-114,
-44,
-77,
-115,
56,
-100,
3,
-21,
-121,
16,
113,
-51,
-82,
93,
101,
51,
-37,
-114,
-6
] |
Smith, J.
This is a continuation of the case of the Bank v. Himstedt, reported in 42 Ark., 62. Himstedt had sued Prank Marko and Elizabeth, his wife, for a debt due by the hus band; had taken out an attachment and summoned the bank as a garnishee. The answer denied any indebtedness to Frank Marko, but disclosed that the bank held $75, which had been deposited by Elizabeth in her own name. The plaintiff discontinued his action against the wife, and the bank honored her cheek for the amount standing to her credit. Judgment having been rendered against the defendant and the attachment having been sustained, the garnishee was ordered to pay into court a sufficient sum to cover the plaintiff’s debt and cost of suit. But on appeal this last mentioned order was reversed.
Upon the second trial the evidence showed that Frank Marko, being indebted to Himstedt in a small sum, had sold his real estate in Little Rock and, by his direction, the purchase money had been paid to his wife, who deposited it in the bank. An attempt was also made to show that the bank had actual notice that the money deposited in the name of Elizabeth Marko belonged to her husband.
On this branch of the case the finding of the court below correctly summarizes the evidence, thus :
“ On the morning of the day on which the attachment was issued the plaintiff saw A. J. Thompson, who was the collector of the bank, and a director in it, and a member of the discount board, passing in front of his store. At the time Thompson was not engaged in the business of the bank, but was merely passing casually on the way to his dinner. -The plaintiff and Thompson were acquainted with each other, and a conversation took place between them. The plaintiff told Thompson that Marko was trying to beat him out of his debt, and was about to leave tow7n, -and that the money in bank belonged to him and not to his wife.
“ Himstedt did not tell Thompson that he asserted any claim to the money, nor did he direct Thompson to hold the money as the money of Marko. Thompson understood the conversation as only a friendly and social oner and did not understand that it was directed to him as an officer of the bank, or that he was expected to take any action, or refrain from taking any, in consequence of what Himstedt had said. He did not communicate the information which he had derived from Himstedt to the other officers of the bank, and never took any action in consequence of it.”
The issue was whether or not the bank owed anything to Frank Marko. And as it had never had any dealings with him, and the deposit it held had never been adjudged to belong to him, and no appropriate , proceeding, having that object in view, was then pending in any competent tribunal, with the necessary parties before it, the judgment was necessarily for the bank.
The attempt to reach this money by process of garnishment, indicates a misconception of the relation which ex- . ists between a bank and its depositors. A general deposit is not a contract of bailment, in which the title to the thing deposited remains with the owner. But the title to money deposited passes to the bank, and the bank becomes debtor to the depositor. In consideraton of the loan of the money, and the right to use it for its own profit, the bank agrees to refund the same, or any part thereof, on demand. The nature of the relation created by the transaction, as being that of debtor and creditor, and not bailor and bailee, was pointed out by this court as early as the case of Dawson v. Real Estate Bank, 5 Ark., 296. And such is the law everywhere. Foley v. Hill, 2 Clark & Finnelly, 28; Marine Bank v. Fulton Bank, 2 Wallace 252; Phœnix Bank v. Risley, 111 U. S., 125.
The debt which the bank owed was to Mrs. Marko, not to her husband. Marko may have given the money to- his wife, and his intention, in so giving it, may have been to defraud his creditors. But this would not alter the relation between the parties to the deposit, nor vary their rights and' duties. The money, if not exempt by law, might, no doubt, have been subjected to the satisfaction of the plaintiff’s demand by some proceeding, to which the debtor, his wife and the bank were parties. Éor instance, the plaintiff might have filed a bill in equity, setting up his claim and attachment, Marko’s insolvency and contemplated removal from the state, and fraudulent purpose in causing the money to be paid to his wife. And he might have obtained an injunction restraining the bank from paying to Mrs. Marko, pending the suit, and at the final hearing, a decree that the .money belonged to Marko, and should be applied for the benefit of the plaintiff. But the question whether the gift to the wife was fraudulent could not be tried in the garnishment proceeding. It did not concern the bank that Marko chose to sell his property and turn the proceeds over to his wife.
We have decided the case upon general principles of law, independently of the married woman’s act.
But the payment to Mrs. Marko was authorized by sec. £6£7 of Mansfield’s Digest-.
“ When any deposit shall be made in any savings bank or other institution by any woman, being, or hereafter becoming, a married woman, in her own name, it shall be lawful for the officers or trustees of such bank or institution to pay such depositor such sum or sums as may be due such woman, and the receipt or acquittance of such depositor shall be sufficient legal discharge to the corporation thereof.”
Judgment affirmed. | [
-80,
-1,
-88,
126,
42,
-32,
58,
-70,
99,
-126,
-75,
-13,
-35,
66,
28,
111,
-27,
61,
112,
96,
-57,
-77,
47,
100,
-6,
-77,
-103,
-43,
-72,
78,
-92,
-43,
77,
48,
-62,
-35,
102,
-110,
-61,
-68,
14,
4,
41,
105,
-39,
64,
48,
-17,
5,
3,
113,
29,
-29,
40,
21,
67,
77,
43,
111,
-84,
-16,
-12,
-102,
6,
127,
6,
-109,
52,
-116,
3,
-40,
44,
-112,
61,
9,
-56,
114,
-74,
2,
116,
109,
-103,
36,
98,
98,
34,
53,
-5,
20,
-104,
38,
-4,
-99,
-89,
-48,
72,
9,
111,
-66,
-99,
-26,
21,
-106,
-2,
88,
77,
20,
104,
7,
-38,
-46,
-78,
-83,
52,
28,
3,
-13,
-77,
36,
81,
-51,
-86,
92,
85,
126,
-101,
-122,
-79
] |
Battle, J.
On the 14th day of June, 1883, Frederic Bauer, the father of appellant, was killed by a locomotive of the Texas & Pacific Railroad Company in the yard and on the track of the St. Louis, Iron Mountain & Southern Railway Company, at Texarkana, in this state. He left Minnie Bauer, his'widow, and Frederic "W. Bauer, his only child and sole heir and distributee, him surviving. Frederic W. Bauer instituted this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages suffered on account of the killing.
The facts in this case are substantially as follows:
The road of the Texas & Pacific Railroad Company connects with the defendant’s road at Texarkana. The defendant had a great many tracks running parallel to each other through its yard at that place. The Texas & Pacific had no separate yard at that place, but some time previous to and on and after the 14th day of June, 1883, had used the tracks, depot and round-house of the defendant. Frederic Bauer was and had been in the service of the defendant, at Texarkana, as car inspector, for three years, at the time he was killed. On the morning of June 14, 1883, he was on duty, and had been inspecting the incoming trains as they arrived. There were at this time many trains running on the various tracks, and very much noise and confusion. There was, as the witnesses say, a great rush of trains, coming and going on the several tracks that morning, making a great noise by the blowing off of steam, ringing of bells, etc. Bauer had inspected one train, and in proceeding to another portion of defendant’s yard, stepped on one of its tracks, and was walking on it when he was run over and killed by an engine of the Texas & Pacific Railroad Company backing to defendant’s round-house along the track on which he was walking, and was running at the rate of abont four miles an hour. At the time he stepped on the track he was about the length of the tender in front of the approaching engine, with his back towards it, and had walked forty or fifty feet on the track when the engine struck him. This was about 9 o’clock in the morning. Bauer, it seems, did not see or hear the engine coming, and the engineer in charge-of the engine did not see Bauer before he was struck.. The engine had been taken out of the defendant’s roundhouse to the south end of the yard to take a train> out to Texas, but the purpose of taking the train out was abandoned, and the engine ordered back to the roundhouse, and the engineer in charge was taking the engine-back when the accident happened. The engineer was in the employment of the Texas and Pacific Railroad company. There was a space of eight or ten feet between the track on which Bauer was killed and the tracks nearest to it on each side.
The plaintiff asked the court to give two instructions to-the jury, which are as follows:
First — “ That if the jury believe that said Erederic Bauer was an employe of the defendant company, and charged with the duty of inspecting the trains of the defendant, and the cars of such trains at and within the yard of the-defendant at Texarkana as such trains arrived and departed, it was the duty of the company to warn the said Bauer of any extraneous and unexpected dangers to him-in the exercise of such duty, which were known to the-, company, or which, in the exercise of ordinary care,, should have been known.”
Second — “That if the jury believe that the deceased,. Bauer, was employed as car inspector within the yard at Texarkana and that while engaged in such employment,, he was run over and killed in the yard by a locomotive and tender of the Texas & Pacific railway, not belonging- to the defendant company, but in the yard by defendant’s consent, then the defendant company are liable for such death, unless the evidence shows that said deceased was warned by his company, or had knowledge or reason to know that said locomotive and tender would be on said track in defendant’s yard at the time and place where the killing took place.”
The court changed the first instruction by adding the words : “ Unless Bauer, from his position and experience, must or ought to have known of such extraneous or unexpected dangers,” and gave it as amended. The second was given as asked.
The court, then, upon request of the defendant, gave the following four instructions against the objection of the plaintiff, and exceptions were saved :
First — “ If the jury find from the testimony that the deceased was, at the time of the accident, in the employment of the defendant, and that the discharge of his duties required him to be on and about the different tracks in defendant’s depot yard, then the deceased (plaintiff’s intestate), is in law considered to have entered upon such employment, assuming himself the ordinary risks of such employment; and if the jury find from the evidence that one of the ordinary risks of such employment was the danger of being run over by an engine or ears; then if he was so run over, and the cause of such accident was a lack of prudence on his part, defendant cannot be held responsible for the result, unless, after becoming aware of the want of care on the part of the deceased, the defendant’s servants negligently caused the engine to run him down.
Second — “If the jury find from the testimony, that the point where the accident happened was the depot yard and grounds of the defendant; that there was a large number of parallel tracks; that there was a great noise .and confusion, caused by the passing and repassing of en.giues and cars; that the plaintiff’s intestate, Bauer, was familiar with all the usual circumstances and surroundings •of the vicinity, then it was the duty of Bauer to observe ■care and caution commensurate with the dangers to be avoided (and the greater the noise and confusion, and the number of cars and engines so passing, the greater the necessity on the part of Bauer to observe care and caution); and if the jury find from the testimony, that he failed to observe the degree of care and prudence necessary, under the circumstances, and that such failure on his part directly contributed to the injury, then the plaintiff •cannot recover, unless they further find that the engineer failed to make any effort to stop after he discovered the neglect of Bauer in not looking out for his own safety.
Third — “ If the jury find from the testimony that the •deceased, Bauer, was walking on the railway track at a point where he had reason to anticipate the frequent passing of engines and cars, that upon either side of said track there was sufficient space between said parallel tracks for him to have walked in safety, his choosing the more dangerous, if you so find, in preference to a safer path, without any impelling necessity, was such an act of contributory negligence as to preclude a recovery in this case, and the jury must find for the defendant, unless they further find from the testimony that the person in charge of the engine which caused the injury negligently and, willfully failed to give warning after seeing Bauer upon the track.
Fourth — “ Unless you find from the testimony that there was some defect of the mind or hearing of the person walking on the track, and that defect was known to the engineer or person engaged in running the engine, then such person so engaged should be justified in taking it for granted that the person walking on the track — if the jury find that the engineer saw said person — was of sound mind and good hearing, and that he would take such an ordinary precaution for his own safety as to step off the track in time to avoid being struck; and the engineer is only responsible for not making all possible efforts to stop the engine after he discovered, in exercising the judgment of an ordinary prudent man, that the person on the track is not taking any precaution to save himself”
The jury returned a verdict, and the court rendered judgment in favor of defendant against plaintiff. Plaintiff' moved for a new trial; (1) because the verdict was contrary to the evidence; (2) because the verdict was contrary to law ; (3) because the court erred in refusing to give to the jury the first instruction asked for by him, and altering it and giving it as amended; (4) because the court erred in giving to the jury the first, second, third and fourth instructions asked for by the defendant, and each of them. The motion was overruled, and plaintiff filed his bill of exceptions, sigued by the judge, and appealed..
When a person enters into the employ of another he assumes all the risks ordinarily incident to the business. “ He is presumed to contract with reference to all the risks ordinarily incident to the employment; consequently he cannot recover for injuries resulting to him therefrom.” But if the employer has, or in the exercise of ordinary care, would have “ knowledge or information showing that the particular employment is, from extraneous causes known to him, hazardous or dangerous to a degree beyond that which it fairly imports, or is understood by the employe to be, it is his duty to inform the latter of the fact,, or put him in possession of such information ; ” and failing in this respect, he is liable to his employe for all the-.consequences resulting to him from the lack of such infor mation. Baxter v. Roberts, 44 Cal., 187; Wood on Master and Servant, chapter 15.
In Clark v. Chicago, Burlington & Quincy Railroad Co., 92 Ill., 43, it was held that “ a person engaged in the service of a railroad company as an engine-driver, with full knowledge of the danger incident to the service, who receives an injury while in the discharge of his duties, by a collision with a train of another company using the same part of the road under a lease from his employer, through the negligence and recklessness of the employes of the lessee company in running the train in violation of the reasonable rules of the lessor company, cannot recover damages of the company employing him, such an accident being one of the ordinary risks of the service, and not attributable to any negligence on the part of the employer.” Mr. Justice Scott, in delivering the opinion of the court, said: “The running of trains is known to be a dangerous occupation, and that'in which plaintiff was engaged was, no doubt, rendered more so by reason of the fast trains that were run over the same track by two distinct companies. But it cannot, with any show-of reason, be claimed that plaintiff was injured by anything that defendant did to render the service more dangerous than it was known to him to be before he engaged in it. Opportunity was afforded him to ascertain and become familiar with the work to be performed and the peculiar dangers to which he would be exposed, and knowing them as wmll as he did, the law is well settled that he assumed all the ordinary risks incident to his engagement. The negligence of the employes of the lessee company is one of the hazards against which it must be presumed he contracted. There is no warrant in law or in any consideration that concerns the public welfare, for the proposition that defendant impliedly contracted with plaintiff that the employes of the lessee company would observe strictly the rules adopted to secure-safety in the running of trains over the road in which both companies were engaged. Experience teaches that in no-service do the employes always observe due care. In railroad, as well as in other hazardous labor, every cautious person cannot but anticipate that there may be omissions-of duty on the part of employes that might expose co-employes to injuries. Such are among the ordinary exposures, and if a party is unwilling to assume such risks, he must not engage in the service. It is a matter of no consequence whether plaintiff was in a common employment with the servant of the lessee company, whose negligence or willfulness caused the injury. Plaintiff was not injured by any cause outside of the ordinary perils of the service in which he was engaged. He was exposed to no new dangers by any negligent conduct of defendant that he could not have anticipated before he entered upon the performance of his engagement.”
The defendant, therefore, is.not responsible for the negligence of the engineer who was in charge of the engine-which killed Bauer. He was a servant of the Texas & Pacific Railroad Company. •
It is said, however, that the engine which ran over Bauer had been taken out in the morning to take out a-Texas train, but the trip had been abandoned and the engine came back through the yard, unexpectedly, at the time it struck Bauer; and that there is no evidence that Bauer had any reason to expect it along at that time. Neither is there any evidence that he did not, or that the defendant was guilty of negligence in its passing along at that time. Bauer had been in the service of defendant, at Texarkana, for three years, as car inspector. In that time the Texas & Pacific Railroad Company had been using the yards, tracks, depot and round-house of the de fendant. He knew, or ought to have known, that defend^ ant and connecting companies could not move their locomotives when their trains were being made up, or when being broken up, according to a time table, and that the locomotives, at all times, would not pass up and down the tracks at stated or certain times.
In order for an employe to maintain an action against the employer. upon the ground of his alleged negligence, he himself must be free from negligence contributing to the injury. Shearman § Redjield on Negligence lays down the rule thus: “One who is injured by the mere negligence of another cannot recover at law of in equity any compensation for his injury, if he, by his own or his agents’ ordinary negligence or willful wrong, contributed to produce the injury of which he complains; so that, but for his concurring and co operating fault, the injury would not have happened to him ; except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party’s negligence to use a proper degree of cai’e to avoid the consequences of such negligence.” Shearman Redjield on Negligence, sec. £5; Wood on Master and Servant, sec. JJ56.
Mr. Justice Swayne, in delivering the opinion of the court in Railroad Co. v. Jones, 95 U. S., 439, said: “Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in the omission or commission. The duty is dictated and measured by the exigencies of the occasion. One who by his negligence has brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in such cases is entitled to no relief. But where the defendant 'has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in •such cases is: First, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, second, whether the plaintiff himself so far -contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not, have happened. In the former case the ■plaintiff is entitled to recover. In the latter case he is not. Tuff v. Warman, 5 C. B. N. S., 573; Butterfield v. Forrester, 11 East, 58; Bidge v. Grand Junction Railroad Co., 3 M. & W., 244; Davis v. Mann, 10 ib., 546; Clayouls v. Detheck, 12 Q. B., 439; Van Lien v. Scoville Manufacturing Co., 14 Abb. (N. Y.) Pr. N. S., 74; Ince v. East Boston Ferry Co., 106 Mass, 149.”
In Schofield v. Ch., etc., Ry. Co., 114 U. S., 617, Mr. Jusfice Blatchford, in delivering the opinion of the court, ■said : “ Where a person in a sleigh, drawn by one horse, on a wagon road, approaches a crossing of a railroad track with which he is familiar, could have seen a coming train during its progress through a distance of seventy rods from the crossing if he had looked from a point at any distance within six hundred feet from the crossing, and was struck by the train at the crossing and injured, he was guilty of contributory negligence, even though the train was not a regular one and was running at a high rate of speed, and did not stop at a depot seventy rods from the crossing in the direction from which the train came, and did not blow a whistle or ring a bell between the depot and the crossing.”
In Williams v. C. M. & St. P. Ry., 24 N. W. Rep., p. 423, Judge Cassaday said: “But the tact is conclusively established by the evidence that had the driver, while approaching the crossing, exercised ordinary vigilance in looking in the direction of the coming engine, he would have discovered it in time to have stopped his team before reaching the railroad track, and thus have prevented the injury. Failing so to do, he was clearly guilty of contributory negligence under all the authorities. In support of this, the respondent’s counsel have cited so many cases that we do not feel called upon to cite any.”
But counsel for appellant say Bauer’s case was not like that of a traveler crossing the track on a highway and injured by a failure to look up and down for a train. They say: “He was employed to inspect all the trains on that yard as they came and departed. He was in his proper place when he was injured. He owed no duty at all to keep a lookout for such an engine as this coming over the track. There was no causal connection therefor between his not looking and seeing the train and the injury. In no sense can the case be likened to the case of a traveler crossing a railroad track at a public crossing, where it has been often held that he cannot recover for an ■injury unless he looked both up and down the track, for in that case the train is expected to be running at full speed — the traveler has no business or right on the track at all, except to cross and go about his business. His failure to look, in such case, is negligence contributing to the injury; i. e., a juridical cause of the injury, because common prudence would dictate that he should anticipate the danger of such passing train, and yet even this failure to look is not negligence per se, and is often no objection to a recovery.”
The opinion of the court in Holland v. Chicago, Milwaukee & St. Paul Railway Company, 18 Federal Reporter, 243, is a satisfactory answer to this argument. The facts in that case are as follows: The plaintiff was in the employ of the railroad company as a laborer, engaged in the exca vation of a certain part of the defendant’s road known as the short line. The tools which were used in this excavation were kept on one side of the track in a tool chest, and it was conceded it was a proper place or site for the tool chest, which was provided for the work upon the bank. The place where this tool chest lay was on the opposite side of the bank from where the excavation was being done, and across the railroad track, and at that place there were three or four tracks. The plaintiff came down to his work in the morning, and when he came there, in order to reach the tool chest, he had to cross these tracks. lie went that way across the tracks the first day to obtain his tools, and the second morning he came down the same way to go to his work, where he had a perfect right to cross. As he came down that morning he discovered upon the first track some empty flat-cars that were being pulled out of the way, or had just gone out of the way, so that he could get past the track without difficulty. Then, upon the next track, when he came to that, he looked up and down the track for the purpose of seeing whether there was anything in his way (to prevent his crossing, and coming in one direction he saw a freight train that was coming down on that second track. He waited for the train to go by. After the freight train passed by he passed immediately in the rear of it on to the main track, and in doing so he walked in front of a passenger train of cars coming toward him, and was injured by it.
Judge Shiras, in delivering the opinion of the court, said: “A very ingenious argument has been made by counsel for plaintiff, based upon a line of authorities produced before the court to show that, under the circumstances, the plaintiff had a right to do what he did, upon the theory that in the first place he had a right to rely upon the fact that the company itself would do whatever was proper for the company to do for his protection, in giving signals, or whistling, or warning him by ringing a bell, or anything that it should have done to protect its employes; that he had a right to rely upon it that the company would do all that care and prudence upon its part would require to be done; and that the court must hold that, under the evidence, the company did not do what was required of them, because there was no signal or warning given to the employes of the coming of the train.
“Argument is also made, based upon a line of authorities cited, that where the employe is, by reason of his employment, placed in a dangerous position, and he is required to devote his time and attention to the work that he is engaged in doing, that that will excuse him from being as alert as he otherwise would be to the danger of his position. The rule laid down in the authorities cited is to be applied when the facts of the case require it, and this arises ordinarily in cases in which the employe is required, by the very work he is to do, either to be upon the track, or in some place of danger. Many cases arise where employes are required to go upon or under cars to make repairs on the cars while on the track. It is plain that where the railroad company requires an- employe to go under a car to repair it, the duty devolves upon the company to see that no other ear is sent down upon that car, so as to move the car upon which the employe is at work. Or in case an employe is sent to work in a place where danger lies while he is performing such work, he has a right to rely upon the company exercising due care to protect him in his work.
“In the Derrick Case, 106 Mass., 461 (Goodfellow v. Railroad Co.), cited by plaintiff’s counsel, where the employes were required to be on the track and hold a rope attached to a derrick, it was necessary, for the safety and protec tion of others, that the men who had hold of the rope should give their attention to that matter. When they were placed in that position, and the railroad company knew that fact, there was a duty laid upon the railroad company to see that no injury happened to them ; and in all these cases, extreme as they are, the rule is still recognized by the courts that the employe is not relieved from exei’cising the care which he should exercise, considering the work in which he is engaged. In other words, if there is recklessness and carelessness on the part of the employe, it will still defeat his right of recovery.
“Now, in this case, the undisputed evidence, as I said before, shows that the man was not engaged in any work that required his attention. He was simply walking across the track, and if there is anything that becomes automatic, it is the act of walking or going from one place to another. We d@ not direct our attention to the act of lifting one foot and then putting it down; it is done without the exercise of thought on our part, and is necessarily an automatic action. It was not necessary for him to give much attention to it, aside from the fact of where he was walking. When he walked, he walked automatically. A man, when he is walking, can give his attention to what is taking place about him. It is a very different state of facts fi’om where a man is required to do a mechanical piece of work, and where he cannot do it propex-ly unless he directs his time and attention to that piece of work. In this case, therefore, the query is whether the jury would be justified, under the state of .facts as narrated by the plaintiff’ and his witnesses, in saying that where a person is coming down for the purpose of crossing a railroad track, or an employe is coxning down for that pux-pose, where are several tracks, and he finds a train upon one track, and waits for that to pass him, and after that goes past him he can deliberately walk across to another track, on which he knows trains frequently run, without using his senses of sight and hearing, and still be in the exercise of due care.
* * * * *
“To my mind the plaintiffs own testimony shows clearly that there was culpable carelessness on the part of this plaintiff; and if the jury should find, on its being submitted to them, that he was in the exercise of due care (and otherwise they could not find a verdict for him) it would be my duty to set the verdict aside.”
¥e find no error in the instructions given to the jury prejudicial to appellant. Construed as a whole and according to their manifest intent, they are correct. The questions of fact in the ease were fairly submitted to the jury, and the verdict was sustained by sufficient evidence. "We think that the court below did not err in overruling the motion for a new trial, and the judgment must be affirmed. | [
-16,
110,
-104,
-18,
-86,
96,
40,
-6,
97,
-61,
-26,
-45,
-51,
-53,
65,
49,
114,
31,
-15,
58,
-26,
-73,
22,
-94,
-110,
-45,
49,
-59,
-78,
73,
102,
-42,
77,
98,
-53,
-43,
34,
104,
-59,
90,
-122,
-88,
-23,
-32,
27,
48,
48,
127,
84,
15,
49,
-50,
-6,
43,
28,
-3,
12,
60,
-1,
41,
-48,
49,
-62,
-57,
-74,
18,
-96,
96,
-103,
103,
-56,
25,
-40,
-75,
20,
-68,
115,
-92,
-122,
117,
33,
-35,
8,
98,
67,
35,
21,
-81,
-20,
-86,
111,
-6,
-113,
-89,
28,
64,
35,
13,
-65,
-107,
127,
-47,
-106,
-14,
-20,
69,
25,
52,
7,
-113,
-106,
-126,
-81,
-26,
-106,
3,
-21,
-67,
54,
116,
-120,
58,
93,
4,
52,
-101,
-105,
-76
] |
Smith, <7.
This suit was brought by appellant to enjoin the collection of the taxes for the year 1885, assessed upon its “ railroad track” in the several counties through which said railway runs, upon the alleged ground that the board •of railroad commissioners exceeded its powers in requiring the railway company to include in the schedules required to be filed by it, a list and valuation of the “embankments, tunnels, cuts, ties, trestles and bridges,” and in considering said “ embankments,” etc., as elements of value in making the assessment of said “railroad track.”
Appellees answered, admitting the assessment of said “ railroad track ” in accordance with the provisions of the revenue act of March 31, 1883, but denying that said board of railroad commissioners assessed or valued the “ embankments, tunnels, cuts, ties, trestles and bridges,” upon appellants right of way, separately and apart from the other real estate constituting said “ railroad track; ” or according to the cost of constructing the same; but alleging that the value of said “ embankments,” etc., was considered in connection with the other property, constituting said “railroad track;” admitted that said board disregarded that part of said revenue act which attempts to exempt from assessment and taxation the “embankments, tunnels, cuts, ties, trestles and bridges” of appellants, as being unconstitutional, and assessed said “railroad track” at its true value, and that such assessment was not excessive.
Appellees also demurred to appellant’s complaint upon the ground that it does not state facts sufficient to constitute a cause of action.
The cause was heard by the chancellor upon the complaint, answer and demurrer, and exhibits; the relief was denied, the bill dismissed, and the railway appealed.
No question is presented as to the power of the legislature to provide for the manner of ascertaining the value of this species of property; but it is conceded that full power is granted by the constitution for the establishment of the board of railroad commissioners, and for the separate classification of railroad property for purposes of taxation. And it was, manifestly, the intention of the legislature that this board should have the sole power of assessing all railroad property in this state which is situated on the right of way.
The taxes upon the rolling stock of the railway company are not in litigation. That was assessed as personal property by the same board of railroad commissioners, under secs. 5651 and 5653 of Mansfield’s Digest, and the taxes have been paid.
Sec. 5647 provides that “ the governor, secretary of state and auditor of public accounts shall be, and are hereby, constituted a board of railroad commissioners for .this state; and on the first Monday in April in each year, shall proceed to ascertain the value of all property, including railroad track, rolling stock, water and wood stations, passenger and freight depots; offices, furniture and such other property, real and personal, as is owned by each of the railroads or railways of each company or corporation having existence under the laws of this state, or incorporated in whole or in part therein, and running through or in this state in the manner hereinafter prescribed.”
Sec. 5649: “They (the railroad companies) shall, in the month of March, in the year 1883, and at the same time every second year thereafter, when required, make out and file with the secretary of state a statement or schedule showing the main and all side-tracks, switches aud turnouts in each county in which the railroad may be located, and in each city and town in said county through or into which the road may run. They shall also state the value of all improvements, stations and structures, including the railroad track, located on the right of way, but such schedule shall not include nor value embankments, tunnels, cuts, ties, trestles or bridges.”
Sec. 5650: “Such railroad, as described and scheduled in the last preceding section, shall be held to be real estate for the purpose of taxation, and denominated ‘railroad track,’ and shall be so listed and valued, and shall be described in the assessment thereof as the railroad track of the-railroad company, in the county, city or town,, and such description shall be considered as embracing all the property required to be assessed by section 5649, and when advertised and sold for taxes no other description shall be necessary.”
Sec. 5652 : “ The board of railroad commissioners shall meet on the first Monday in April, in the year eighteen hundred and eighty-three, and at the same time in each year thereafter, at the office of the secretary of state for the state of Arkansas, and, after being duly sworn to fearlessly,,impartially and honestly discharge their duties, shall proceed to examine the lists or schedules of the description and value of the railroad tracks of the railroad companies filed with the secretary of state in accordance with the requirements of this act, and if said schedules are made out in accordance with the provisions of this act, and, in the opinion of the board, the valuation of said railroad tracks is fair and reasonable, said board shall appraise the same, and it shall be the duty of the secretary of state to certify to the assessor of each county in which such railroads are located so much of said list, as values such railroad'tracks as are located in such county, and in any city or town of such county, and such assessor shall list and assess the same as real estate, by the description, as hereinbefore specified.”
These are the principal provisions of the revenue act, so far as they affect this case. The whole controversy has arisen upon the meaning, effect and constitutionality of the italicised clause of section 5649. The railway com pany made a return of the length of its main line and side-tracks, and of the value thereof, and of the structures on its right of way, not taking into account embankments, tunnels, cuts, cross-ties, trestles or bridges. The board determined that all railroad property in the state should be assessed at its true value, like any other property, without any deduction on account of embankments, etc. The several railroad companies were notified and requested to render statements of the true value of their respective lines, without regard to the restrictions contained in section 5649, and were accorded a full hearing. Acting upon the advice of the attorney general of the state, that said clause was unconstitutional, and that they were not bound by it, they proceeded to assess the appellant’s railway at a sum nearly double what it had returned.
It is not complained that this valuation was excessive, but the contention is:
First — That the board has no power to construe the constitutionality of any part of the act, but must take it and act under it as it reads, without regard to the question of any part of it being in violation of the constitution.
Second — That it is in the power of the legislature, in providing for the manner of valuing railroad property, to determine what elements shall be taken into consideration as constituting such value; and that it was competent for that body to exclude the “embankments, tunnels, cuts, ties, trestles and bridges” from the^schedules to be filed, as not constituting elements of value; and that, therefore, such exclusion in section 56J¡,9, supra, is constitutional.
Third — That the board of railroad commissioners is created and its powers prescribed and limited by the statute, and that, consequently, it exceeded its powers in considering the value of “ embankments, tunnels, cuts, ties, trestles and bridges” when valuing the “railroad track” of appellant; that there is no manner provided by law for assessing “ embankments, tunnels, cuts, ties, trestles and bridges,” and, consequently, the same cannot be taxed.
The meaning of the clause in question is not self-evident. If the legislature intended to enact that the railroad embankments, tunnels, etc., should not be separately assessed, then the board has not attempted to do this. For the pleadings show that the constituents of value which enter into railroad property have not been assessed in separate items or parcels, but in solido. The line, considered as a thoroughfare and means of transportation, has been valued as a unit. If, on the other hand, the legislature meant to relieve any portion of the property belonging to railroad corporations from the duty of contributing to the rightful demands of the state, in the exercise of its powers of tax ation, they have undertaken to do something which is quite beyond their power.
Now, officers of the executive department are not bound to execute a legislative act which, in their judgment, is repugnant to the constitution. Their primary.allegiance is due to the constitution; and if there be a conflict between the two, the constitution is the higher law, or, rather, the supposed law is not a law at all, being null and void. They do, indeed, incur peril by deciding for themselves, in advanee of the courts, the unconstitutionality of an enactment. But they are also liable to be punished in damages if they carry into effect an act which violates the fundamental law. Rison v. Farr, 24 Ark., 161, affords an illustration. The constitution of 1864 prescribed the qualifications of voters. The legislature attempted to add to the qualifications by directing that the voter, before depositing his ballot, should make oath that he had not, since the 18th of April, 1864, voluntarily borne arms against the United States, nor aided the confederate authorities. Farr possessed the constitutional qualifications, but refused to take this oath. The judges of election would not allow him to vote; and he recovered judgment against them, which was affirmed by this court.
Judge Cooley, in his work on Constitutional Limitations, at page 74, says : “Whoever derives power from' the constitution to perform any public function is disloyal to that instrument, and grossly derelict in duty, if he does that which he is not reasonably satisfied the constitution permits. Whether the power be legislative, executive or judicial, there is manifest disregard of constitutional and moral obligation by one who, having taken an oath to observe that instrument, takes part in an action which he cannot say he believes to be no violation of its provisions.”
Article 16, of the constitution of 1874, contains the following provisions:
Sec. 5. “All property subject to taxation shall be taxed according to its value; that value to be ascertained in such manner as the general assembly shall direct, making the same equal and uniform throughout the state. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value.”
Sec. 6. “All laws exempting property from taxation, other than is provided in this constitution, shall be void.”
Sec. 7. “The power to tax corporations and corporate property shall not be surrendered or suspended by any contract or grant to which the state may be a party.”
The tunnels, tracks, sub-structures, superstructures, viaducts and masonry of a railroad are property — the private property of the stockholders. There must have been an interest in the land to justify the erection or affixing of these structures in the first instance, and the exclusive possession and use of them afterwards by the company. They are, in fact, part and parcel of the railroad. The company controls the improvements, and it is only by lease or other arrangement that the trains of other companies are permitted to run over it. Now, it can make no difference, in respect to taxation, whether the rails are laid upon the surface of the road, or placed on pillars, or carried through a covered way or tunnel. Smith v. Mayor, 68 N. Y., 552; People ex rel. v. Commissioners of Taxes, 82 ib., 459; Same v. Same, 3 Eastern Reporter, 569 (N. Y. Ct. of Appeals, Jan., 1886).
All railroads are declared by the constitution {art. 17, sec. 1) to be public highways ; but the public are entitled to use them only upon the condition of paying tolls.
The theory of our constitution is that the common burden shall be borne by common contributions. All property is to be taxed according to its value. “All ” does not mean all the legislature may designate, or all except such as the legislature may exempt. If this were so the whole burden of taxation might be thrown upon land, or upon any one species of property. It means all private property, of every possible description, or all property other than that belonging to the state, or the general government. The legislature cannot discriminate between different classes of property in the imposition of taxes. The only discretion with which it is invested, is in the ascertainment of values, so as to make the same equal and uniform throughout the state. People v. McCreary, 34 Cal., 432; Same v. Eddy, 43 ib., 331; C. & O. Ry. Co. v. Miller, 19 W. Va., 408; Zanesville v. Richards, 5 Ohio St., 589; Baker v. Cincinnati, 11 ib., 541; Ellis v. L. & N. R. Co., 8 Jere Baxter, 530; Fletcher v. Oliver, 25 Ark., 289.
But it is further contended that, as the whole authority of the board in the premises is derived from the revenue act, and as the act makes no provision for the assessment of “embankments, tunnels, cuts,ties, trestles and bridges,”therefore the same cannot be taxed. The argument, if limited to the separate assessment and taxation of these' things, is good. But, if it is meant that these necessary parts of every railroad are not to be considered in the estimation of the value of the whole line, the argument assumes two propositions: First — That the revenue act upon the subject of assessing and taxing railroad corporations* must be taken as it was passed by the legislature, as an entirety, and is either all good or all bad; if all good, then the “ embankments,” etc., are not subject to taxation, because expressly excluded, and, if all bad, then the legislature has failed to direct the manner in which the value of this species of property shall be ascertained; but, in either case, the board of railroad commissioners acted ultra viresSecond — that the act merely regulates the assessment of railroad property, and that it is within the power and is-the duty of the legislature to prescribe the manner or mode in which all property shall be assessed for taxation* and that, unless the mode so prescribed is pursued, no valid levy of taxes can be made.
It does not follow that the attempted exemption of ceirtain parts of railroad property avoids the whole revenue act. The exemption, being void, must be stricken from the act and the act read as if that provision had not been 'inserted. People v. McCreary, supra,
"When a statute is divisible and a portion of it is repugnant to the constitution, so much of the' statute is to be upheld as does not conflict with the constitution and the enactment sustained by rejecting the objectionable part Watkins, C. J., in Washington v. State, 13 Ark., 752.
Judge Cooley, in his Constitutional Limitations, at page 177, et seq., lays down the rule in such cases to be as follows : “ "Where a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is' in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other.”
This rule was applied by this court, in the case of The State v. Marsh, 37 Ark., 356, to a section of the act of 1879, regulating the sale of liquors in this state. This court, through its late learned Chief Justice English, declared that it would not undertake to say that the legislature would have passed the act without the section being just as it was enacted; but that, as passed, the section was in violation of the commerce clause of the constitution of the United States, and, for that reason, void; and the section was reformed by the court, by striking out the obnoxious words, and as thus reformed, it was held to be,valid and is now the law of this state.
The clause of section 5649, under consideration, may be stricken out without detriment to the remainder of the act and the consistency of its parts. It is useless and unneces- . . . sary m any view; and. construed as providing tor an exemption, it is ineffectual and mischievous.
• Of the proposition that the act is a mere regulation for the assessment of railroad property, it is sufficient to say that this clause, if enforced, would prevent the taxation of such property according to its value. An assessment is a prerequisite to a valid levy of taxes. And the legislature cannot, under the guise of regulating the duties of assessors, exempt property from taxation. People v. Eddy, supra.
If a law should be passed directing county assessors, in assessing farm lands, not to include nor value ditches, drains, wells, fences or other improvements, it would be their duty to go forward and assess the land at its real value, disregarding the directions.
The decree is affirmed.
SEPARATE OPINION BY
COCKRILL, C. J.
There can be no doubt that, under the operation of our constitution, the legislature can, when they see fit, classify railroad property as a separate class for purposes of taxation. This is sometimes thought necessary from the inherent nature of the property. A former revenue act of this state adopted, as a basis suitable for ascertaining a value for taxation, the receipts of the railroad from its business. But the act now in force passes the tangible property of railroads into the general mass of taxable property, making the division of real and personal estate that is made for individuals, and subjecting it to its quota, fairly due, to be leviedas a property tax on the common mass. 'The only difference made between that aud other property of the class to which it is assigned by legislative action, is the machinery provided for its assessment or valuation. One is fixed by the local assessors in the several counties, the other by a state board. The plan, however, provides but one measure of valuation, and that measure, .as the constitution provides, is the value, the true value of the property taxed. "When once assigned by the legislature to the class of property subject to the general property tax, there is no escape from its equal share of the ■common burden to be borne by that class. The constitutional command of equality and uniformity then presses the burden upon the whole mass alike, and prevents the possibility of legislative action oppressing one part for the benefit of the rest, or favoring one at the expense of the others. When a general system is provided for taxing a railroad track as real estate, it is no more competent for the legislature to say that it shall be returned for taxation at one-half its real value, than to provide for assessing it at double its value. Nor, after the adoption of such a system, would it be competent for the legislature arbitrarily to subtract from the mass of real estate, any particular part of it, whether it belonged to the agricultural or railroad class, and, under the plea of classification, exempt it from taxation. Classification may be resorted to for the purpose of separate taxation, but not for the purpose of permitting an escape from the burden of taxation. Under the searching provisions of our organic law no property ■can escape taxation, and no subterfuge can be successfully resorted to by the legislature to effect exemption therefrom.
It is proper to presume that the lawmakers "who passed the act in question knew the limitation of their power, and intended to keep within the bounds pointed out to them by the constitution. If the proviso which excludes from the return for assessment to be made by the companies the value of embankments, tunnels, cuts, etc., was intended as an exemption from taxation of a, part of the-real estate, it would be inoperative, as we have seen. But it does not appear to be necessary to so construe the act, and deference to a co-ordinate department should impel us to put that construction upon it which is consistent with the duty that was incumbent upon them to perform in its passage. I think the court should regard the proviso merely as a means devised for ascertaining the true value of the road. The cuts, tunnels, tressels and embankments-are all necessary parts of the road, but none of them in itself adds any separate value to it. They merely overcome the inequalities of the soil, and I think it was the intention of the legislature in requiring the company to-give in for assessment the main and all side-tracks, switches and turnouts, to give them in at their true value as a railroad, without adding to or subtracting from its actual cash or market value as such, anything by reason of' the accidental fact that it embraced costly cuts or embankments. The valuation of the “tracks,” as defined in the-statute, which is inserted in the schedules furnished by the companies, is not conclusive of the value of the road to the commissioners. It is only a means of obtaining information. The duty is devolved upon them of exercising-a sound practical judgment in ascertaining the value of the roads. The eminence of their official positions is a guaranty that the duty will be impartially performed. The company does not now complain of the performance of the duty, except in this: They appear to have been prevented by the board from deducting from the true value of the road as such, the cost or “ value,” as the statute has it, of their cuts, embankments, trestles, etc. The members of the board would have been derelict in their duty if they had permitted an assessment of the property at less than its real value, just as they would have exceeded their authority if they had undertaken to augment the true value of the property as a railroad by reason of the fact that it happened to contain in its make-up, trestles, cuts and embankments.
As the assessment is regular the decree should be affirmed. | [
-10,
122,
-100,
-2,
-6,
96,
-70,
-110,
65,
-29,
-27,
83,
-17,
74,
-112,
55,
-25,
-67,
113,
58,
-60,
-13,
83,
-29,
-101,
-77,
-37,
-49,
-73,
75,
-20,
-42,
76,
32,
106,
-107,
71,
-30,
69,
60,
-114,
-88,
-69,
-52,
-39,
96,
60,
-21,
6,
79,
19,
-49,
-5,
44,
24,
-29,
73,
44,
79,
-87,
-63,
121,
-78,
-44,
127,
6,
49,
118,
-104,
67,
-56,
10,
-104,
53,
14,
-8,
115,
-90,
-110,
-10,
9,
-7,
8,
98,
98,
1,
37,
-25,
-104,
-104,
46,
-40,
-115,
-25,
-46,
89,
82,
15,
-66,
-99,
-12,
-62,
-57,
126,
-17,
-59,
95,
108,
-123,
-49,
-74,
-121,
-113,
44,
-120,
3,
-53,
-77,
16,
112,
-62,
-102,
95,
103,
60,
27,
15,
-52
] |
Battle, J.
The lot in controversy is a part of the Hot Springs reservation. Eor a long time previous to, on and after the 24th day of April, 1876, Hiram A. Whittington held a claim on and occupied and improved it. On the 1st day of February, 1877, Francis B. Southerland rented of the receiver appointed by the United States court of claims to take charge of the Hot Springs reservation, a part of it, for the term of one year, and took possession thereof and built a residence thereon, of the value of $250 or $300. When the Hot Springs board of commissioners were appointed and qualified under the act of congress of March 3, 1877, Whittington filed before it, within six' months after its first session, his claim to purchase it, at its valuation to be fixed by the board, in preference to all other persons. On the 26th day of October, 1877, Whittington conveyed to Mrs. Southerland all his interest in the lot, with the understanding and agreement that she would file before the board her petition to purchase the lot at the appraised value thereof, in preference to and exclusion of all others; that if the board should adjudge she was entitled to the relief asked for in her petition and granted it, she would re- convey to him the lot, except a certain part thereof, by quit-claim deed, containing covenants of warranty against all claims and demands of herself, or of all persons deriving title by or through her, on condition that he paid to her the sum of $400 and the appraisement of the portion to be reconveyed within twenty days after the board should grant her petition and issue to her a certificate of that fact. The price or consideration of this conveyance of Whittington to Mrs. Southerland was $500. She executed her note to him for the $500 and afterwards only paid thereon $100. On the 27th day of October, 1877, she executed her bond for title to Whittington, and thereby bound herself to perform the agreement entered into by and between her and Whittington, as before stated. Whittington then withdrew his -petition from before the board and she filed hers, within the time prescribed by law, stating therein how Whittington had claimed, occupied and improved the lot previous to the 24th day of April, 1876, and thereafter conveyed his interest therein to her, and she had rented' and improved it, and was still in possession, and asked that she be allowed to purchase the lot, in preference to others, at the valuation to be fixed thereon by the board; and, afterwards, proved the truth of the allegations of her petition. On the 2d day of December, 1879, the board decided she was entitled to purchase at the appraisement and gave to her a certificate to that effect. Whittington then offered to perform his part of their agreement and she refused to perform hers; and, thereupon, on the 6th day of July, 1881, he instituted this action to compel her to do so. On the 2d day of August, 1881, she paid to the United States the appraisement of the lot, which was, at first, $600, and afterwards reduced to $240, the last amount being the sum paid. On the 30th day of March, 1882, she received a patent to the lot. On the 20th day of December, 1883, on the final hearing in this action, the court below decreed she should perform her contract, and she appealed.
Mrs. Southerland acquired title to the lot in controversy under and by virtue of the act of congress of March 3, 1877. This act provided for the appointment, by the president, of “ three discreet, competent and disinterested persons” to constitute a board of commissioners, and imposed upon them various duties. Among other things, it required them, under the direction and subject to the approval of the secretary of the interior, to designate a tract ■sufficiently large to include all the hot or warm springs on the land, embracing what is known as the Hot Springs mountain, which tract was declared to be reserved from •sale; and to lay out the residue of the land into convenient squares, blocks, lots, avenues, streets and alleys, the lines of which were to correspond with existing lines of occupants of the reservation as near as might be consistent with the interests of the United States. It also provided that they should, by a map prepared for that purpose, show the metes and bounds of the parcels or. tracts claimed by reason of improvements thereon, or occupied on the reservation ; should hear proofs offered by claimants and occupants in respect to the lands and improvements, and ■finally determine the right of each claimant or occupant to purchase the same, or any portion thereof, at the appraised value fixed by the commissioners; and to issue to ■each claimant a certificate, setting forth the amount of land the holder was entitled to purchase, and its valuation, and also the character and valuation of the improvements. It declared that claimants and occupants should file their claims before the commissioners, within six months after the first session of the board, or that their claims should be barred; and that no claim should be con•sidered which had accrued after the 24th of April, 1876. It is evident, therefore, that Mrs. Southerland derived her right and was allowed to purchase the lot in controversy through the deed executed to her by Whittington, and that her bond for title to him is based upon a good and valuable consideration.
There was no law forbidding claimants and occupants of the Hot Springs reservation to make contracts concerning their possessory rights, and concerning the title thereto to be acquired by them in the future from the United States. Such contracts are valid as between the parties to the contract. “ The right of the United States,” says Mr. Justice Miller, in Lamb v. Davenport, 18 Wal., 314, “to dispose of her own property is undisputed, and to make rules by which the lands of the government may be sold or given away is acknowledged; but, subject to these well-known principles, parties in possession of the soil might make valid contracts, even concerning the title, predicated upon the hypothesis that they might thereafter lawfully acquire the title, except in cases where congress had imposed restrictions on such contracts.” Hamilton v. Fowlkes, 16 Ark, 340; Cain v. Leslie, 15 Ark., 312; Thredgill v. Pintard, 12 How., 24; Gaines v. Molen, 41 Ark., 232.
The contract evidenced by the bond for title executed by Mrs. Southerland to Whittington is a legal and valid contract and is based on a valuable consideration, and should be enforced.
The decree of the court below is substantially correct, but is, in some respects, vague, indefinite and uncertain. This cause is, therefore, remanded with instructions to the court below to reform its decree by entering a decree herein ordering and directing appellant to execute a quitclaim deed to Whittington, when he shall pay or tender to her the sum of one hundred and seventy-one dollars and fifty cents, his proportion of the valuation of the lot in controversy, and the note executed by her to him, or a sum equal to the amount due thereon, and thereby convey to "Whittington that part of lot six, in block one hundred and thirty-three, in the Hot Springs reservation, lying southwest of a line running from Whittington avenue back through said lot, parallel with and fifty feet southwest of the southwestern boundary line of the land awarded to James O. Fox, by the Hot Springs board of commissioners, and running parallel with and fifty feet southwest of the northeastern boundary line of said lot, the fifty feet being the part of said lot reserved by her in her bond for title, and covenant against all claims and demands of herself, and of all persons deriving title by or through her; and in the event she shall refuse to accept such tender and execute the deed, authorizing Whittington to deposit the money and note so tendered with the clerk of the Garland circuit court, and ordering and directing a commissioner, appointed by the court, when such deposit shall be made, to execute the deed; and allowing appellant ninety days within which to move her improvements off that part of the lot to be conveyed to Whittington, she having reserved that right in her bond for title; and by entering a judgment in favor of Whittington against her for the costs incurred in the court below. Judgment will be entered here against appellant for the costs of appeal. | [
115,
109,
-48,
47,
120,
96,
58,
-78,
98,
-85,
117,
95,
-19,
-56,
24,
49,
-62,
-83,
-43,
107,
-26,
-73,
6,
6,
-16,
-13,
81,
-35,
49,
76,
-74,
-42,
72,
41,
74,
-99,
70,
-32,
-59,
86,
-50,
-95,
-119,
100,
-39,
-32,
58,
63,
82,
74,
97,
42,
-29,
44,
88,
89,
109,
46,
-17,
43,
-39,
-22,
-86,
-124,
-5,
6,
0,
38,
-128,
27,
-54,
78,
-110,
21,
64,
-24,
123,
54,
-110,
96,
0,
-85,
8,
32,
102,
17,
37,
-91,
-96,
12,
63,
-66,
-115,
-90,
-14,
64,
82,
64,
-66,
29,
-108,
-112,
87,
118,
-20,
-127,
92,
40,
38,
-58,
-106,
3,
13,
56,
-99,
3,
-13,
11,
116,
112,
-49,
-93,
93,
71,
49,
-109,
-113,
-5
] |
Hon. J. W. Martin, Sp. J.
The appellant, Fitzhugh, purchased of J. Cole Davis, appellee, on the 8th day of January, 1877, a plantation in Phillips county, of 960 acres, known as the “ Back Rabb ” place, described as follows: West half of southwest quarter of section 14; south half 15; southeast quarter 16 ; north half 22, and west half northwest 23, township 3 south, 4 east. The contract price was $12,000; cash $4,000, and two notes of $4,000 each, payable on the 1st days of April, 1878, and 1879, with 10 per cent, interest, from date till paid. These notes were secured by a deed of trust executed by appellant to appellee upon the entire plantation. Appellee executed to appellant a deed Ayith general covenants of war* ranty, and he entered immediately into possession of the place, and has since held and cultivated it, except as hereinafter stated. As the loss of a part of this place is the foundation of this case, we give the steps leading up to this in detail here.
On February 23, 1878, a little over a year from the time of purchase by appellant, Mrs. Whittaker, one of the heirs at law of John Rabb, former owner of the plantation, filed her bill to recover a part of the land ; appellant and appellee both being parties defendant thereto. In Decern ber, 1879, the Phillips circuit court in chancery sustained the claim of Mrs. Whittaker, and entered a decree in her favor for an undivided seven thirty-sixths of the 'entire tract. This decree was affirmed by this court at May term, 1882 (in case of Davis v. Whittaker, 38 Ark., 453.) At the following term of Phillips circuit court, the mandate of this court was placed on file, and on November 23, 1882, a final decree entered there and commissioners appointed to make partition of the land, which was done on report filed, and made final in December, 1883. In this partition, to which appellant was a party, 260 acres were given to Mrs. Whittaker; the balance of 700 acres, including all but 65 of the cleared land, was allotted to appellant.
O'n the 20th day of March, 1884, all that part of the place allotted to appellant, having been by appellee, advertised for sale, to pay the last note with accrued interest, the present suit was instituted, the object being to enjoin the sale, and for a rescission of the entire contract, and to have refunded to appellant the $8,800 which he had paid on the purchase.
The bill charged fraud and» imposition on the part of appellee in the original sale, in that he had fraudulently induced appellant to believe that he had good and perfect title to the whole place, whereas, in fact, the title had utterly failed, and he had been evicted from 260 acres of the land. That the part so lost was a material inducement to the purchase by appellant, without which he would not have enteredinto the contract at all; and that the portion cut off was so connected with, and essential to the use and enjoyment of the other 700 acres, that he had substantially lost the benefit of his purchase, and that compensation for the loss of this 260 acres could not be made in money, or by abatement from the purchase price. In the language of the bill, “ That said 260 acres of land are so laid off -that the value of the balance of the tract, and the whole tract, is greatly depreciated and lessened; by taking the woodland convenient and necessary for gin wood and timber for said place, it is rendered undesirable arid next to valueless to plaintiff or any one else.” A temporary restraining order was issued.
The appellee answered denying any fraud or misrepresentation in his dealings with the appellant, but alleging that he had conducted himself with the utmost good faith, and that all his statements in regard to his title were in perfect accord with his honest opinion and conscientious conviction in regard to it. That appellant had gone into possession and had for a long time held possession under his warranty deed, and had used and cultivated the place ; that he could not be placed in statu quo, and that rescission would be inequitable and unjust. Admitted that the title to 260 acres had failed, and that appellant had, on November 23, 1882, been evicted therefrom, and proposed to abate for the amount of purchase money remaining unpaid sufficient to cover the loss, charging that the part cut off was hot material to the place sold, and its loss could be readily compensated in money. And, further, that appellant’s long acquiesence had waived any right he might have once had to a rescission, if such ever existed. The answer also contained a cross-bill asking foreclosure for balance of purchase money after abatement for the loss.
The finding and decree of the court below were in accordance with the allegations and prayer of the answer. Rescission was refused. An abatement was made for the loss of 7-36 of the place by a credit of 7-36 of the original purchase price of $12,000, as of November 23, 1882, date of eviction, entered on balance of purchase money, and a foreclosure was decreed for the amount of the balance so-found due.
Since the appeal, J. Cole Davis has died and the case has-been revived in the name of his administratrix, but for convenience we have referred throughout to J. Cole Davis as “appellee.”
A large mass of depositions was submitted on the trial below; and while there is some little conflict in statements made, especially in dates and matters of opinion and calculation, yet in the main they agree as to the material matters of fact.
The sale was made January 8, 1877, the matter having-been under discussion for several weeks between appellant and appellee. Appellant, who lived in the immediate vicinity of several of the Rabb family and had heard that-they asserted claim to the place, seems from the outset to have had some apprehension of trouble from that source. He inquired of appellee if the Rabb heirs, and especially Mrs. "Whittaker, did not have a valid claim, and appellee-told him that there was no prospect, as he believed, of any such claim ever being pressed, and if it was he did not think it could ever succeed. And he further assured appellant that he would be liable on his covenants to make-good such a loss and that his financial condition was such as to afford ample security for this.
Appellant, accordingly, closed the trade, paid the cash, $4,000, executed the two notes of $4,000 each, and deed of trust to secure them, and went into possession of the whole place in January, 1877, there being then open and in cultivation about 373 acres, twelve acres of this being on the tract that was, afterwards, set apart to Mrs. Whittaker. The first $4,000 note was paid about the time it fell due, and on the 8th of July, 1879, $800 were paid on the last note. After this appellant refused to make further payments.
The rescission is urged here on the ground of actual fraud in appellee in procuring the sale on the ground: First — That appellant had been induced by appellee’s statements as to his title to go into the trade, believing that he was getting a perfect title, when his title to a large part of the tract had utterly failed. Second — That independent of any question of imposition, the loss of 260 acres was such a failure as to amount substantially to the loss of the benefits of the trade and to entitle him to rescission.
The statements made by appellee in regard to his title were, in the absence of artifice or concealment, mere expressions of opinion in regard to his title and could not be classed as fraudulent misrepresentations. The validity of the claim of Mrs. Whittaker depended upon the construction of a complicated will, about which learned counsel differed, and the vigor with which appellee, under advice of able attorneys, litigated the case through a long and expensive lawsuit, showed the sincerity of his belief in the construction he then put on this will. An honest' expression of opinion in such case, though erroneous, is not fraud. 5 Waite Ac. & Def., 515; Smith v. Richards, 13 Pet., 26; Maney v. Porter, 3 Humph. (Tenn.), 347; Speiglemyer v. Crawford, 6 Paige Chy., 254.
And on another ground appellant is precluded from setting up this erroneous opinion as a basis of rescission in itself. He had been living for several years in the immediate neighborhood of this Rabb place, and intimately acquainted with the Rabb family and the history of this title. The will of John Rabb was on record and all the means of investigating the title were as open to him as to appellee. He was a man of large property and evidently of no mean intelligence, and there was nothing in the personal relations of vendor and vendee of a confidential character to exempt appellant from investigating for himself. Nor is there anything to show that appellee, by any artifice, endeavored to forestall or prevenía full examination by him. The rule ‘in such eases in this state is thus stated in Hill v. Bush, 19 Ark., 522: “That a misrepresentation, in order to effect the validity of a contract, must relate to some matter of inducement to the making of the contract in which, from the relative position of the , parties and their means of information, the one must necessarily be presumed to contract upon the faith and trust which he reposes in the representations of the other on the subject of the contract. For, if the means of information are alike accessible to both, so that with ordinary prudence or diligence the parties might respectively rely upon their own judgment, they must be presumed to have done so. Or if they have not so informed themselves, must abide by the consequences of their own inattention and carelessness,” citing Yeates v. Pryor, 11 Ark., 66, and numerous authorities.
And even if there had been any element of fraud in the •conduct of appellee in the negotiations preceding the sale* it could have been, at most, only in reference to this "Whit-taker claim, and as to that, independent of the considerations already mentioned, appellant was, early in 1878, made defendant to her bill to enforce this claim. And yet we do not find him proposing a rescission until about the time of the bringing of this suit, in March, 1884. During all these years he had been in tho full enjoyment of the whole plantation, and not offering to rescind till he is pressed for final payment. The place has become greatly depreciated in value by reason of the breaking of the levees, overflow and washing away of fences and bridges, and is actually at the time most of it under water.
“ Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract as if the mistake or fraud had not occurred. He is not permitted to play fast and lo.ose. Delay and vacillation are fatal to the right which had before subsisted.” Grymes v. Sanders, 93 U. S., sup. C., 62. On same subject see 5 Waite Act. and Ref., 511.
It must be clear that there has been such a misstatement of the facts as to mislead the injured party and to induce-him to enter into the transaction. And he must be prompt to avail himself of the objection as soon as it is discovered. He must not wait to experiment and see whether the transaction may not after all turn out well. Acquiescence for a little time in such cases is condonation. Morgan v. N. O. R. R. Co., 2 Woods, 244; 7 W. Va., 273; 51 How. (N. Y.), 69.
In view of these principles, rescission cannot be sustained under the circumstances here presented, on the first ground of misrepresentation as to appellee’s title.
Can it be demanded on the other ground, which revolves itself really into the question of a mutual mistake as to the title to the 260 acres set apart to Mrs Whittaker? Was this such a failure as, in the absence of fraud or imposition, to entitle appellee to rescind?
We are cited by learned counsel for the appellant to a number of authorities to sustain this position: That where there is a mutual and honest mistake, even of both parties as to vendor’s title, equity will decree a rescission. A brief reference to these authorities will show that where a rescission was granted in executed contracts with warranty, it has been, in the absence of some element of fraud, upon the ground that there was a total failure of consideration, in the want of title to the whole, or a substantial part of the subject matter of the contract, and so rendering compensation in damages impracticable and inequitable. Let us examine some of these citations. 5 Waite Act. and Def., 513, as follows:
“Nothing is clearer than the doctrine that a bargain founded in a mutual mistake of the facts constituting the ■essence of the contract, or founded upon representations of the seller material to the bargain and constituting the ■essence thereof will avoid it, although made by innocent mistake,” citing Daniel v. Mitchell, 1 Story C. C., 173; Glassell v. Thomas, 3 Leigh (Va.), 113; Hammond v. Allen, 2 Sumner C. C., 387.
“ So if both parties to a contract for the sale of land are under a mistake as to the vendor’s title, which was supposed to be perfect but proves void, a court of equity will relieve the vendee from the contract,” citing here Haddock v. Williams, 10 Vermont, 570.
The first case cited of Daniel v. Mitchell, was a case of purchase of a tract of land for its timber solely; represented by vendor to have 6,000,000 feet of pine timber, whereas it only had one-twelfth of that amount. Judge Story says: “ Here, then, we have a tract represented by the vendors in their contract as containing 6,000,000 of timber, and that supposed fact constituting the very basis of the bargain; when in fact it does not contain more than one twelfth of that quantity. * * * We do not meddle with cases where the error in quantity is of a slight nature not going to the essence of the bargain. The purchaser here contracted to give $50,000 for a tract of land represented to contain 6,000,000 feet of pine timber. It cannot be possible that they ought in law or justice, or common sense, be bound to pay that amount for 500,000 feet only.”
And it may be further said of that ease, while Judge Story puts the decision on the ground of mistake, independent of intention, yet it is evident that he was strongly impressed by the suspicious circumstances of the case and especially the examination of the land. He says: “An exploration was accordingly made by an agent of the purchasers, accompanied by an agent of the vendors. How it was conducted the evidence sufficiently discloses. A more complete example of credulity and delusion on one side and of mistake and misrepresentation (whether innocent or designed is not material to be examined) on the other side perhaps cannot be found in the annals of our country.”
The next case cited of Glossell v. Thomas, was where both vendor and vendee were mistaken altogether as to the identity of the tract conveyed. The vendor did not convey, nor the vendee receive the tract of land or any part of it which was designed by both. Of course a case for rescission.
In Hammond v. Allen, decided also by Judge Story, was a case of executory contract for services to be performed in prosecuting a claim against the government of Portugal. The parties contemplating expensive and tedious services to be performed had stipulated for a very large fee. It turned out that, at the time of entering into this contract, the claim had been actually allowed, and all that was necessary was for claimant to present himself and receive his money. Of this fact both Allen ánd Hammond were ignorant at the time. The court, after referring to the delicate relation of the parties as principal and agent, says in closing: “It is a case of mutual error upon a matter of fact constituting the very basis of the contract and the whole consideration for it.
Haddock v. Williams was in like manner a case of entire failure of consideration and on that ground rescinded. The vendor had no title whatever to the land conveyed.
We are referred also to Bowlin v. Pollock, 7 Monroe (Ky.) 26. This, like the last, is a case of entire failure of consideration. In summing up, the court says : “In short he has gotten nothiug by the contract of the least benefit except a simple warranty against the heirs of Spillman. * * * If he had gotten a defective title by the contract we admit that the cases are not wanting to show that he ought to rely on his warranty.”
A very casual glance at the facts of case now before the court will serve to show the vast difference between the facts of these cases relied on by appellant and the one we are considering. Here we have a perfect title passing to appellant to all the plantation, except a little less than one-fifth in value. And that is cut off by an impassable slough from the main tract, and for five years appellant states his only revenue from it was a rent paid of $81 per annum on the twelve acres cleared there when he bought. During all this time he was running a large cotton plantation on the part which he retains and was enjoying the use, cultivation and profits of the 363 acres.
Kerr on Fraud and Mistake, p. 339, says: “If the false representation by which a contract has been, induced was not made fraudulently, but was made through mistake or misapprehension, and the subject matter of the contract, though differing in some respects and in certain incidents from what it was represented to be, is not so different in substance as to amount to a failure of consideration, the transaction will not be set aside, if the party who made the representations is willing to give compensation for the variance, and the variance is such as to admit of compensation by a pecuniary equivalent.” And on page 406 the same author says: “ "What is the nature or degree of mis-,, take which is relievable in equity as distinguished from mistake which is due to negligence, and therefore not relievable, cannot well be defined so as to establish a general rule, and must in a great measure depend on the discretion of the court under all the circumstances of the case.'”
And further on same subject, page 408, Mr. Kerr says: ■“ Mistake in matter of law or fact to be ground of equitable relief must be of a material nature, and must be the determining ground of the transaction. A man who seeks relief against a mistake must be able to satisfy the court that his conduct has been determined by the mistake. * * *
“ Nor, indeed, does the circumstance that the mistake may be in a material matter always in itself entitle a man to the interposition of the court. The law does not go to the length of requiring that parties who deal with each other at arms length should be on the same level as to information and knowledge. If parties stand upon equal footing, and the means of information and knowledge are open to them both, either of them is entitled to the benefit of his own judgment, skill and ability. If the parties act otherwise fairly in the transaction, and it is not a case in which one of them is bound, upon the ground of confidence or ■otherwise, to make a disclosure to the other of matters affecting the.subject, matter in respect of which they are dealing, the court will not interfere.”
“ A man cannot have relief on the ground of mistake, unless the party benefited by the mistake is disentitled in ■equity and conscience from retaining the advantage he has.”
The case of Thompson v. Jackson, 3 Rand. (Va.), 504, is very similar in its facts to the one at bar. Jackson sold to Thompson a tract of land by a survey showing it to be about 278 acres. A deed was executed and land mort gaged to secure a balance of purchase money. It appeared afterward and before payment that by a mistake in survey the tract embraced something like one-fourth less than shown by the survey. The land was advertised for sale under the mortgage, and Thompson filed his bill to rescind. The court in discussing the principles on which rescission is granted in cases of executed contracts, says:
“ The vendor has parted with his possession and has taken his money, bonds or other equivalent. The vendee has entered into possession clothed with the fee or other -estate purchased, and for security of his title has taken a deed with such covenants and warranty as his contract called for. To undo all this is a strong-handed measure, and none but a clear and strong case will justify it. * * * * When the application is to rescind an executed contract for land, the English books lay it down as a general rule, admitting of but few exceptions, that to justify such a, decree fraud must appear, and this fraud must be distinctly put in issue by the pleadings. If the charge be a mere failure of consideration arising from the sale of a defective title, unmingled with fraud or mala jides of ány kind, it is generally laid down that the vendee will be left to the covenants and warranty in his deed.”
“ To this general rule there are some exceptions of cases which may be classed under the head of mistake; but the mistake must be plain and palpable, and must affect the very substance of the subject matter of the contract.”
Arguing then as to the facts of the case, the court continues :
“ How stands the ease on the ground of mistake ? The vendee has bought a tract of land for 278 acres. It seems that in making the survey the surveyor ran in on Wright’s lines so as to take from him a slip of not more than 8 acres, I believe. But take the land lost at the largest esti mate, and say it was worth a fourth of the whole purchase money. Yet can it be said that it would furnish one of those cases of mistake that would authorize the rescission of the whole contract? Has not the purchaser got the substance of the thing bought ? The surveyor says this land is of no peculiar value, that it is maiden wood land and there is sufficiency of timber for the place without it.”
“ If you say that for such a deficiency as this, not affecting the bulk of the land, you will rescind, where will you stop ? * * * * I am clear, therefore, that the chancellor was right in refusing to rescind this contract.”
The rule is: To entitle a vendee of land, who has gone • n£0 p0ssessi0n under a deed with general covenants of warranty, to rescind on the ground of failure of title, the loss must be of such character as that he is thereby deprived substantially of the benefits of his purchase, but if the beneficial enjoyment of his contract be not materially taken away, and there is only a partial failure of consideration which can be compensated in damages, there is no case for rescission.
Applying the rules which the authorities, as well as common sense and justice indicate for our guidance to the case at bar, there are many considerations connected with this transaction tending to the conclusion that a court of equity should not grant the rescission asked for.
The appellant purchased and went into possession of this plantation in January, 1877, taking his deed with covenants of warranty. And evidently at that time, as his conduct showed in inquiring into appellee’s financial condition, contemplating this very contingency of the loss through Mrs. Whittaker’s claim, and that he would have to rely on these covenants, and the ability of appellee to perform them, for his protection.
When he took possession there was on the whole track 373 acres in cultivation of rich Mississippi bottom land, used exclusively for raising cotton. Of this, 361 acres (Eitzhugh puts it at 363) were on the part to which there is a good title, and only twelve acres of cleared land on that, afterwards, allotted to Mrs. Whittaker, 53 acres having since the sale been put in cultivation by tenants under a five year lease made by appellee before the sale. This tract called “ Buck Island ” is cut off and isolated from the balance of the place in a manner that cannot well be appreciated, without a plat, which accompanies the transcript as part of the depositions. The whole tract of 960 acres lay in a solid rectangular body, except 160 acres (the southeast quarter of 16) abutting upon the extreme northwest portion of the tract. This 160 acres, together with 100 acres cut off from the northwest corner of the rectangular body of land in the main tract, by a slough called West Bayou, running diagonally across from northeast to southwest, constitutes the portion, 260 acres, set apart to Mrs. Whittaker. West Bayou is a natural barrier by which this tract is divided from the main plantation; it is impassable except by ferry or bridge, and there is neither across it. Appellant built a bridge over it, but it was afterwards washed away in 1882, and he never rebuilt it. He says of it in his deposition :
“By the partition Mrs. Whittaker got all of the land known as ‘Buck Island,’ or all of the land lying west of West Bayou,” and‘Buck Island’ never realized me but one year’s rent from the time I bought it until Mrs. Whit-taker got it, * * * except for twelve acres I collected $81 every year.” This detached body of land, which the commissioners found to be of the value of 7-36ths of the whole 960-acre tract, and hence set apart to Mrs. Whittaker, seems to have been of little practical use to the bal anee of the land, and its. only value to appellant, practically, was the rent derived from it, and he complains that he had realized very little from it even in that way. Its relation to the balance of the place really seems to present an unusually clear case for compensation in damages. Even its exact relative value, with reference to the whole place, had been the subject of judicial ascertainment in the former suit to which both appellant and appellee were parties. And independent of this the deposition established beyond controversy that if there was any error in value, it was in favor of appellant in the partition made.
There is an effort made to show that there was an utter insufficiency of timber on the 700 acres set apart to appellant for the purposes of supplying the place with fire wood, fence and gin wood, and that the Buck Island place was essential for this reason to its beneficial enjoyment. But this claim is not sustained by the facts. To begin with, it does not appear that for seven years, from 1877 to 1884, that appellant had even depended on or used this tract for such purpose. Certainly for two years prior to his application for rescission in 1884, there had been no bridge across West Bayou, and he had been practically cut off” from it.
His gin and principal improvements were on the extreme eastern side of his place, more than a mile from the nearest timber on this Buck Island place, while there was on his 700 acres, besides the 361 acres in cultivation, timbered land variously estimated at from 100 to 250 acres, much of it large forest timber, suitable for any farm purpose that might be required, and a quantity of it young growth since the war, but which is shown by depositions on both sides to be of rapid growth and already fit to supply the place with fire wood for engine and other purposes. And this timber lies near to the gin and other im provements, where it can be readily and conveniently procured without going across the entire plantation, as was necessary to reach the Buck Island place, even when they could get across the bayou.
There are some statements made in response to leading interrogatories, giving as the opinion of the witnesses, that the place was materially injui’ed by the loss of this tract. But they all resolve themselves into one proposition, that the best timber was on the Buck Island place.
Indeed, considering that this 260-acre tract was so isolated at the extreme end of the place, remote from the cotton gin, press and other improvements; shut off as it was by an impassable barrier, and overflowed as it all was, and depreciated then in value, it would seem to have been a good bargain for the appellant to get rid of it, on the terms allowed by the chancellor, in a pro rata abatement from the original purchase price.
Moreover, the proceedings in the Whittaker suit greatly simplified the duties of the court in this case. It definitely set apart to Mrs. Whittaker a specific proportion, 7-36ths of the entire place, and hence furnished an exact basis for the pro rata abatement from the purchase money.
In view of all the facts in this case, that the posession and enjoyment of the place was held so long by appellant; that he never sought for a rescission till the place had, by reason of broken levees, deep overflows and destruction of improvements, greatly depreciated in value; that the main plantation, as used and enjoyed by him; is still in his undisputed possession ; that the part so lost was separate and isolated, and its loss could have but little effect upon the full beneficial enjoyment of the plantation; that such loss was not only susceptible of, but had been, the subject of judicial ascertainment; and that appellant gets substan tially all he bargained for, and a liberal abatement for what he lost, it is clearly not a case for rescission.
Let the decree of the court below be affirmed.
Hon. W. "W. Smith did not sit in this case. | [
-12,
103,
-48,
29,
-104,
-16,
2,
-70,
-54,
-93,
-10,
87,
-7,
2,
25,
117,
-86,
45,
85,
108,
102,
-93,
2,
-28,
-46,
-5,
-47,
-43,
-71,
65,
-12,
-41,
76,
120,
-54,
93,
70,
98,
-59,
28,
-50,
-124,
-23,
76,
-45,
114,
52,
41,
0,
75,
117,
39,
-77,
44,
17,
67,
105,
47,
-55,
41,
65,
112,
-118,
6,
126,
7,
17,
-89,
-126,
-125,
-56,
106,
-112,
53,
9,
-88,
83,
-76,
70,
84,
73,
-71,
12,
32,
102,
83,
-19,
-17,
-40,
-104,
47,
-10,
-99,
-90,
-14,
72,
75,
64,
-66,
-99,
78,
80,
-121,
120,
-28,
-51,
21,
104,
43,
-49,
-108,
-95,
5,
56,
-102,
7,
-29,
23,
52,
81,
-49,
-30,
93,
66,
55,
-101,
-113,
-99
] |
OPINION.
Cockrill, C. J\
It is claimed that the proceeding by scire facias to collect the penalty of a forfeited bail bond is exclusive of all other remedies, and that as this was an ordinary action upon a complaint filed in a different court from that in which the condition of the bond required the accused to appear, the court erred in refusing to grant the appellant’s motion to dismiss the action.
The statute requires the prosecuting attorney to sue out a scire facias where default has been made, but it does not negative or preclude the right to proceed by action on the bond. At common law such recognizances could be enforced by an action of debt, and while the proceeding by scire facias is the one primarily contemplated by the statute, it does not exclude the old action. The question has arisen in other tribunals, where it is held that either remedy may be pursued. Com. v. Green, 12 Mass., 1; State v. Gorley, 2 Iowa, 52; St. v. Glass, 9 ib., 325; St. v. Kinne, 39 N. H., 129; St. v. Welch, 59 ib., 134. The correctness of this practice was intimated in Cauthron v. State, 43 Ark., 128, and is now fully approved.
If this proceeding were by scire facias, instead of an ordinary action on the bond, it would fail, because in that form of proceeding the record must be in the same court in which the default was made. Cauthron v. State, supra.
But it is maintained that the prisoner was illegally restrained of his liberty, and the bond having been executed for the sole purpose of releasing him therefrom, could not be enforced. The caption, the original arrest of the person for whose appearance the bond was given, was illegal. It was made by the sheriff' of Yell county in the county of Logan, and not in hot pursuit of the offender. In Logan county the sheriff of Yell had no official authority and no power to execute the process. But the bond was taken by the sheriff of Yell, in the latter county, while the prisoner was in his custody, and there a charge was pending against the prisoner for an offense cognizable before the magistrate who issued the warrant of arrest. TJpon a trial for the offense under the circumstances, or upon an application by the prisoner to be released from imprisonment upon habeas <corpus, the courts refuse to inquire into the manner or circumstances of the arrest, even though it has been made by force in a foreign jurisdiction. Elmore v. State, 45 Ark., 243; ex parte Scott, Barn. & 9 Cress., 442; Davis’ Appeal, 16 Penn. St.; ex parte Coupland, 26 Texas, 386; People v. Rowe, 4 Park. (N. Y. Cr. Rep.), 253; State v. Ross, 21 Iowa, 467.
As the prisoner is entitled to discharge upon bail in every case of misdemeanor, it is difficult to see what greater right he has to have the court inquire into the manner or place of his arrest, after release, than he had before. As it is a question in favor of liberty, it would seem that the courts would more readily inquire into the cause of his complaint while the restraint is upon him. And so-it has been held that after bail in a criminal ease no objection cau be taken to the manner of the arrest. Peck v. State, 63 Ala., 201; Stever v. Stornberger, 24 Wend., 275; Springfield Man’f’g Co. v. West, 1 Cush., 388.
In Plummer v. People, 16 Ill., 358, in a proceeding by scire facias upon a forfeited recognizance, and where the principal was a party to the bond and pleaded duress, the test applied by the court was whether he would have been released on habeas corpus at the time of1 executing the bond.
But if the detention of the principal was illegal and would have avoided the recognizance as to him, it does not follow that the bail should be released. It is a general rule of law that duress to avoid a contract must have been laid upon the party pleading it. A principal can never be released for duress done to another. Some confusion in the cases exists as to whether a surety may avoid his obligation by reason of the duress of his principal. Without entering upon a review of the cases, it is sufficient to say that' the limit to which any ,well-considered decision that has come under our observation has gone, is that if one is a surety, and no more, and enters into the contract in ignorance of the duress of the principal he may avail himself of the duress as a defense, because if the privilege is denied him he would be deprived of redress against his principal without fault on his part. Griffith v. Sitgreaves, 90 Penn. St., 161; Brant on Surety, etc., sec. 5.
But that reason cannot apply in favor of bail in a criminal case, because the law affords them no redress against their principal upon payment of their recognizance. The recognizance is a primary undertaking on their part. It is not necessai’y that the prisoner should be a party to it. Tilson v. State, 89 Kans., 452. The statute does not require it (Mansf. Dig., secs. 2042, 2047), and in Highmore on Bail, p. 8041 it is said: “ The penalty in the recognizance is no other than as a bond to compel the bail to a due observance thereof and has no connection with the principal; they could not sue him thereon for money paid to his use or on his account, for it was paid on their own account and for their own neglect.” Payment of the recognizance, in no way, operates as a discharge of the principal’s obligation to appear in court, and that obligation may be enforced by the state after bail have been discharged by payment of the recognizance. The object of the state in requiring bail is not pecuniary compensation, but to require the presence of the accused to the end that justice may be administered; and in order that they may escape the payment of the penalty, extraordinary remedies are given to the bail against the person of the accused. They are his quasi jailors and it is to compel the performance of their duty as such that the bond istaken. Exacting the penalty of the bond of the bail is the punishment for neglect of this duty, not for any act of the accused. The relation, therefore, of principal and surety between the accused and his bail exists only in a qualified sense. The Supreme Court of the United States have recently reviewed the question of the relative rights of principal and bail, and conclude that it is against public policy to aid the bail to relieve themselves from the punishment meted out to them for their neglect in failing to surrender their principal to justice. U. S. v. Ryder, 110 U. S., 729.
This being true, no principle suggests itself which would permit the duress of the accused to inure to the benefit of his bail.. Huggins v. People, 39 Ill., 241; Plummer v. People, supra.
We are aware that there are cases upon bail bonds in which the suretiés have received the benefit of the duress of the principal, but an examination will show that in most of them there was a fundamental defect in the proceedings which led to the arrest that in effect rendered it and the bond taken-in pursuance of it void, as in Fisher v. Shattuck, 17 Pickering, 252, where the magistrate requiring the bond had no jurisdiction of the subject matter, and hence no authority whatever. The same court in later cases, without inconsistency, refused to receive the plea of duress of the principal from a surety. Robinson v. Gould, 11 Cush., 55; Bowman v. Hiller, 130 Mass., 153.
The ease of Blevins v. State, 31 Ark., 53, is of the same class as Fisher v. Shattuck. There the sheriff of Pope county, under process issued to him from Pope, made an arrest and took bail in Conway county. The court held that in Conway county the sheriff of Pope had no official capacity, and that a bond taken there by him was no more than a bond executed by a private citizen, and was, for that reason, a nullity.
Other cases, where the surety has been relieved, come within one of the generally recognized exceptions to the rule, as where the father is surety for the son, or the husband for the wife. Schee v. McQuilken, 59 Ind., 269.
The judgment of the courtis right and must be affirmed. | [
-80,
-4,
-40,
-66,
10,
96,
56,
-102,
-61,
-13,
-79,
-45,
-19,
-29,
0,
115,
53,
125,
117,
121,
71,
-74,
55,
65,
-14,
-13,
-64,
71,
51,
79,
-26,
84,
24,
-80,
-94,
-43,
-26,
8,
-127,
-38,
-50,
-123,
-104,
-31,
-39,
65,
48,
123,
18,
11,
113,
94,
-93,
42,
16,
-26,
41,
40,
75,
-84,
-32,
-16,
-99,
-123,
89,
22,
-111,
-122,
-72,
5,
-104,
46,
-104,
57,
11,
-24,
115,
-74,
-122,
-42,
111,
-103,
-20,
102,
98,
-95,
116,
-23,
-72,
-120,
14,
-100,
13,
-122,
-47,
81,
107,
45,
-90,
-99,
47,
20,
-90,
-20,
-30,
-84,
93,
108,
22,
-49,
-112,
-95,
-83,
116,
-46,
97,
-9,
33,
-80,
81,
-50,
104,
84,
101,
49,
-37,
-113,
-11
] |
Cookrill, C. J.
The appellants and the appellees each took a mortgage upon a stock of merchandise to secure the payment of debts due them. The mortgage to the appellees was prior in date and first recorded, and the ap peal presents the single question whether the court erred in refusing to declare the mortgage void as against the appellants’ mortgage. The clause in the appellees’ mortgage that gave rise to the controversy is as follows, viz.:
“ It is agreed that I” (the mortgagor) “am to hold possession of my said stock of goods during the will of said Orr & Lindsey, and retail the same and account to said Orr & Lindsey each week after this week for the proceeds of sales, and to pay $50 thereof, if not more, each week until said sum” (the mortgage debt) “is fully paid; said $50 per week to be paid without regard to the amount of sales.”
It is contended that this clause conferred upon the mortgagor the power to reserve the proceeds of the first week’s sales, after the execution of the mortgage, to his own use, and did not compel him to account, in any week, for more than $50, even though the proceeds should exceed that amount. If either branch of this argument is followed, it must be conceded that the mortgage is void, as far as the subsequent incumbrance is concérned. Gauss Sons v. Doyle, ante, and eases there cited.
The instrument is certainly ambiguous. The exact meaning of the contracting parties is not manifest. If the record informed us what the course of business, under the contract, was, that might throw light upon the meaning they assigned to it, and so give the basis of its correct construction.
“ Tell me,” says Lord Chancellor Sugden, “ what you have done under a deed, and I will tell you what that deed means.” Atty. General v. Drummond, 1 Dr. & W., Irish Chy., 353. But we are left to the naked legal construction without extraneous aid.
It is one of the cardinal rules of interpretation that where an instrument is susceptible of two probable conflicting constructions, one of which imputes bad faith to either party, while the other would be free from such taint; or, if one interpretation would render the contract unlawful and the other lawful, the latter construction should be adopted. The law does not assume that it was the intention of the parties to commit a fraud or violate the law. 2 Whart. on Cont., sec. 654; Bishop Cont., sec. 583; Best Pr. Ev., sec. 347; 2 Whart. Ev., sec. 1249; Lorillard v. Clyde, 86 N. Y., 384.
Applying this rule to the case in hand, the meaning of the clause is that the mortgagor should sell for the mortgagees’ benefit and account to them for the proceeds; that if the proceeds of sales should not reach $50 a week that sum should be paid nevertheless, and that the first settlement and account of sales should be made the next week after the mortgage was executed. The circuit court upheld the mortgage and the judgment is right. See Gauss Sons v. Doyle, sup., and cases cited.
Affirm. | [
-78,
122,
-40,
108,
74,
96,
42,
-102,
121,
-128,
39,
-41,
-51,
-62,
4,
109,
-11,
121,
-31,
106,
-43,
-77,
39,
72,
-46,
-77,
-47,
-43,
-75,
111,
-25,
95,
76,
36,
-62,
-43,
-30,
-117,
-63,
84,
14,
-119,
-104,
101,
-3,
0,
48,
59,
88,
77,
65,
-106,
-77,
32,
29,
-53,
104,
42,
105,
61,
-64,
120,
-65,
-115,
127,
7,
-111,
37,
-100,
71,
-8,
46,
-112,
53,
1,
-24,
115,
-108,
-106,
116,
15,
11,
41,
98,
98,
32,
97,
-21,
-36,
28,
46,
-49,
29,
-90,
-110,
88,
35,
41,
-65,
-99,
124,
0,
38,
118,
-26,
-107,
-97,
108,
19,
-49,
-44,
-125,
-115,
124,
26,
11,
-2,
-77,
49,
113,
-50,
-72,
92,
71,
110,
-111,
-114,
-7
] |
Smith, J.
Brewer & Son brought this action against Winston before a justice of the peace, on a promissory note and recovered judgment. The defendant appealed to the circuit court and there filed an answer, which he styles also a cross-complaint, alleging that the note is secured by mortgage on real estate; that he had sold his equity of redemption in the mortgaged premises to one Elliott, who had assumed the debt as part of the purchase price; and that the plaintiffs had consented to accept Elliott as their debtor and to release the defendant from further liability. And it was prayed that the plaintiffs be required to look to the substituted debtor and the mortgage security for payment of their debts; and that the defendant’s note be surrendered for cancellation. The cause was tranferred to equity and the court decreed for the defendant.
The answer and so-called cross-complaint introduced no new parties to the litigation, raised no issue that is exclusively cognizable in courts of chancery, and contained no element of equitable jurisdiction. Moreover, the provisions for the transfer of causes have no application to actions originating before justices of the peace. Whitesides v. Kershon, 44 Ark., 377.
But as the court below did not attempt to administer # any equitable relief the only effect of the transfer was to deprive the plaintiffs of a jury trial, in case they had de- ■ sired a jury. And since no objections were made to the removal, nor any exceptions saved to the decision of the court in that matter, the error was waived. Mansf. Dig., see. 4987.
But the judgment was wrong upon the merits. The burden was upon the defendant to prove that he had been discharged by a novation of the contract. The testimony showed the following state of facts: The mortgaged premises had a grist mill upon them and were valued by the owner at $325. Elliott was willing to purchase at the price, provided he was not pressed by the mortgage creditor, whose debt was already past due. Having received an assurance of one year’s indulgences to Winston, he-bought the property, agreeing to pay the mortgage debt of $240, and also a store account of Winston’s amounting to $6 to Brewer & Son’ and the remainder of the purchase money to Winston. Brewer & Son assented to this arrangement. They were willing to receive payment from Elliott and to give credit to Winston for any sum he might pay; but they expressly refused to give up Winston’s note and take Elliott’s note in lieu thereof. In point of fact, they took no obligation of any sort from Elliott. Subse •quently the mill was washed away by a freshet. Winston is the only witness of those who were present when the transaction occurred, who swore that the mortgagees consented to accept Elliott as their debtor and to release the original debtor. The Brewers (father and two sons) and Elliott contradicted him on this point. And they are corroborated by the circumstances, and also, to a certain extent, by the account given by Winston himself of the interview.
As there must be another trial, we caution the court below that the present record contains a good deal of hearsay, which should be excluded, if offered again ; such as declarations made by Winston and Elliott, before and after the consummation of their trade, in the absence of the plaintiffs.
Reversed and remanded, with directions to restore the cause to the law docket and for further proceedings. | [
-80,
-6,
104,
-20,
-102,
96,
40,
-72,
75,
-96,
103,
83,
-23,
67,
1,
109,
-26,
89,
113,
106,
69,
-77,
119,
14,
-46,
-109,
-45,
69,
-68,
-51,
-27,
-41,
76,
40,
-62,
-35,
-58,
-54,
-63,
-108,
14,
0,
24,
100,
-7,
64,
48,
-69,
84,
73,
5,
14,
-13,
44,
49,
79,
104,
46,
123,
41,
-48,
-104,
-104,
13,
79,
7,
19,
119,
-40,
67,
82,
40,
-112,
49,
41,
-23,
115,
-106,
-122,
116,
71,
25,
-120,
34,
103,
-110,
-127,
-17,
-112,
-104,
46,
-33,
29,
-90,
-111,
24,
75,
34,
-66,
-97,
124,
0,
-89,
124,
-22,
5,
29,
108,
15,
-49,
-42,
-73,
-113,
6,
-102,
7,
-18,
3,
32,
112,
-57,
-88,
93,
-25,
58,
-103,
-114,
-3
] |
OPINION.
Cockrill, C. J.
It sufficiently appears from the petition in this case that Lee county raised, by a tax levied for that purpose, a fund for the part payment of its indebtedness to the counties from which the territory was carved out for the purpose of its creation; and that $6,500 of the fund so raised has been apportioned, by the Lee county court, to Phillips, as one of the parent counties, for its proportion of the debt due to it. It is apparent that it was not within the power of the treasurer to divert this money from the purpose for which it was raised and subsequently apportioned by the court. Article 11, section 16, Constitution, provides that “ no moneys arising from a tax levied for one purpose shall be used for any other purpose.” If it is true, as appears from the petition, that the county court had apportioned to the several counties the amounts to be paid to them respectively out of the fund, this was a judicial appropriation of the several amounts to the counties named, and a sufficient compliance with the statute requiring an order of court authorizing the treasurer to pay out the money in his hands. Mansfield’s Digest, sec. 11¡,10. No additional order by the county court, as the judgment of the circuit court in tjiis proceeding commands, was necessary, but Lee county is not prejudiced by this, and the judgment should not be reversed for that reason.
The amount held by the treasurer of Lee county is sufficient to pay only a small part of the debt due from Lee to Phillips, and the* question of the effect of a tender by the former county to the latter of the bonds or other evidence of the latter’s indebtedness to third parties in payment of the debt due by Lee to Phillips, is not legitimately presented by the record.
The facts set forth, being admitted by the demurrer, it is-the plain legal duty of the treasurer of Lee county to pay to Phillips the money raised for its benefit and apportioned to its use by the Lee county court, and the judgment of the. circuit court is affirmed. | [
-16,
-18,
-12,
124,
74,
-96,
2,
10,
82,
-87,
97,
87,
107,
74,
16,
119,
-21,
121,
117,
104,
-57,
-73,
23,
97,
-112,
-77,
-3,
-41,
-79,
77,
-26,
-41,
12,
-80,
104,
-43,
103,
66,
-27,
-48,
-50,
-119,
-87,
65,
-47,
-128,
52,
100,
66,
11,
53,
-115,
-14,
32,
28,
99,
73,
44,
-39,
59,
16,
-6,
-98,
-123,
127,
5,
-111,
103,
-119,
-61,
-56,
46,
-112,
57,
0,
-23,
122,
-74,
2,
84,
15,
-115,
13,
48,
102,
1,
-67,
-17,
-88,
-87,
14,
-34,
-99,
-90,
-108,
89,
99,
9,
-66,
29,
124,
20,
15,
118,
-92,
5,
94,
46,
-107,
-50,
-44,
-93,
-115,
-28,
-118,
67,
-41,
-125,
16,
97,
-52,
-14,
92,
70,
58,
27,
-49,
-72
] |
Smith, J.
This case, when it was here before, went off upon a question of pleading. See 42 Ark., 305. It was now tried upon the first and fourth pleas set out in the previous report. The substance of those pleas was, that the defendant was owner of the demanded premises by virtue of a marshal’s deed made pursuant to a sale under execution against the plaintiff’s husband; and that the plaintiff’s deed, which was subsequent to the rendition of the judgment under which the defendant purchased, was void as against creditors, the purchase money having been furnished by her husband, who was then insolvent.
It was either proved or admitted that John B. Latham, the plaintiff’s husband, in 1867, sold and conveyed certain real estate in Fort Smith to General Cabell for the consideration of $5,000; that Mrs. Latham refused to join in the deed and renounce her dower until her husband agreed to cause the lots now in controversy, for the purchase of which he was negotiating, to be conveyed to her; that the value of these lots was $1,000 or $1,200, and they yvere paid for with part of the money that was received from Cabell; that the deed to Mrs. Latham was made shortly after she had relinquished dower in the property sold to Cabell; that Latham was insolvent at the time, but his wife did not. know it; that he was, at the date of these transactions, about forty-five years of age, and she about twenty-five; that the judgment, under which the defendant afterwards purchased, had been rendered before that time, and the marshal of the United States had afterwards levied on and sold the lots as the property of John B. Latham ; and that Mrs. Latham had no separate property of her own, or means independent of her husband.
The court refused the following prayer of the defendant, to which an exception was reserved:
“ The fact of a husband, while insolvent, conveying, or causing to be conveyed, to his wife, real property which was paid for with his money, and no valuable consideration moving between them, is prima facie evidence of fraud.”
The court then gave, of its own motion, the following charge:
“ This is an action by plaintiff against defendant to recover possession of certain city lots mentioned in the complaint, in the city of Fort Smith. The plaintiff alleges that she is the owner and entitled to the possession of said lots. The defendant denies that the plaintiff is the owner and entitled to-the possession of said lots, and pleads title in himself. The defendant in his answer alleges that the deed under which plaintiff claims title, was made and contrived by the husband of plaintiff' for the purpose of defrauding his creditors, and hindering and delaying them in the collection of their debts.
“It is admitted that by virtue of the deed read in evidence on part of plaintiff', the legal title to the property vested in her. It is also admitted that at the time of the execution of said deed, the husband of plaintiff' was insolvent, and that judgment was then pending against him, under which judgment the property was afterwards sold, purchased by defendant, and deed made to him by the United States marshal for the western district of Arkansas. Defendant, however, contends, that, on account of the insolvency of plaintiff’s husband at the time of the execution of the deed to plaintiff, and from the fact of her husband paying the purchase money for the property in controversy, and having the deed made to plaintiff, that a trust arose by virtue of the transaction in favor of the husband of plaintiff, and that his interest was such as to be.subject to sale under execution against him.
“The real issue, therefore, for the jury to try is whether or not the deed under which the plaintiff claims was fraudulent as respects creditors of the husband and plaintiff, and the court instructs the jury that the defendant, having ‘alleged’ fraud in the procurement and making of said deed, the burden of proving fraud is on the defendant; that if the jury find, by a preponderance of the evidence in the case, that the deed under which plaintiff claims was executed, or procured to be executed, by the husband of plaintiff' for the purpose and with the intent to defraud his creditors, or to hinder and delay them in the collection of their debts, they will find for the defendant.
“The court instructs the jury that a conveyance by a husband to his wife is presumed to be a provision for her, in which case no trust results; yet this presumption may be repelled by proof, and it is effectually rebutted by proof of actual fraud in the intent of making such a settlement upon the wife. It is the intent that makes a conveyance fraudulent as to creditors, and this intent must be participated in by both parties — by the grantee as well as the grantor. A conveyance is not necessarily void or fraudulent because its effect is to hinder and delay creditors, unless it was a fraudulent contrivance for that purpose, and the grantee or person to be benefited by the conveyance was privy to the design.
“ The court further instructs the jury that if they find from the evidence that the husband of plaintiff, in order to secure the relinquishment of her dower or rights in the property on which they were residing, and which was their actual homestead at the time, agreed to have the deed to the property in controversy in this suit (and for which the husband of plaintiff had verbally contracted already) made to plaintiff, and that the deed was so made at the time, or soon thereafter; that the jury may consider this circumstance, in connection with all the other evidence in the case, in determining whether or not there was a fraud perpetrated by the husband of plaintiff on his creditors by such transaction, and if they find that the deed was intended at the time as a provision for the wife’s interest of her dower, or the right she may have had in the home place, as aforesaid, and that the price paid for the lots in controversy was reasonable compensation for her interest in the said home place, which she had so relinquished, they will find for the plaintiff.”
The verdict and judgment were in favor of the plaintiff.. Counsel for appellant concede that the dispute is not as to the facts, but as to the law of the case.
However true the rejected prayer may be as an abstract proposition of law, it was inapplicable here. For it assumed that no consideration of any legal estimation supported the grant which was made to Mrs. Latham, but that it was a voluntary post-nuptial settlement by a husband, whose affairs were irretrievably embarrassed. No.money, or other thing of value, did pass directly from her to her grantor; nor was this essential. Regarding the husband as the real grantor, or author of the grant, the evidence shows that the material cause, or quid fro quo, which in duced him to take the conveyance in the name of his wife, was the renunciation of her dower in the property sold to Cabell. Hence, for the purposes of this case, the lots may be considered as paid for by the release of Mrs. Latham’s inchoate right of dower in other lands of her husband. Now, we are not aware of any well-considered case which denies that the wife’s relinquishment of dower in her husband’s lands, or cession by her of any other rights of property, is a sufficient consideration for a reasonable settlement upon her by the husband out of his own property; but the contrary has been frequently adjudged. Thus, in Clerk v. Nettleship, 2 Levinz, 148, the wife having land as heiress, and the husband being a tradesman and in debt, he promised her that if she would join with him in a sale of the land and permit him to receive the money for the use of his trade, to leave her £400 at his death. They sold and he had the money, and six months after he made an obligation to a stranger, conditioned to pay his wife £300 after his death, and two months later died. And by the direction of Hale, C. J., the jury found the obligation not fraudulent quoad creditors; though in law a man cannot make a good promise to his wife, and though the obligation was made so long afterwards. Compare Lavender v. Blackstone, ib., 146 — a case of a fraudulent conveyance, where it is said: “ The wife did not join in the fine, and therefore continues dowable. But, if she had joined, it might have made the settlement to be upon good consideration, which otherwise is merely voluntary.” The point has also been ruled the same way in the following American cases: Bullard v. Briggs, 7 Pick., 533; Nims v. Bigelow, 45 N. H., 343; Garlick v. Strong, 3 Paige, chy. 440; Quarles v. Lacy, 4 Munf. (Va.), 251; Harvey v. Alexander, 1 Rand., 219; Taylor v. Moore, 2 ib., 563; Hoot v. Sorrell, 11 Ala , 386; Powell v. Powell, 9 Humph., 477; Ward v. Cootley, 4 Metc. (Ky.), 59; Singer v. Welch, 32 Ohio St., 320; Caldwell v. Bower, 17 Mo., 564; Farwell v. Johnston, 34 Mich., 342.
It is, however, insisted that the court erred in instructing the jury that the burden was upon Hershy to prove the alleged fraud in the transactions between Latham and his wife. The general rule is, ei incumbit probatio, qui dicit, non qui negat. At the same time transactions between husband and wife, which may operate to the prejudice of the husband’s creditors, are closely scrutinized. The intimacy of that relation and the community of interest between the parties to it afford peculiar facilities for the perpetration of frauds. Purchases in the name of the wife are often resorted to as a cover for the debtor’s property, and a device for withdrawing it from the reach of his creditors, and preserving it to his own use. Hence, in a contest between her and those creditors, when she claims as a purchaser, a natural presumption arises, that the husband furnished the means of payment, which she must overcome by affirmative proof. Wait on Fraudulent Conveyances, secs. 300-1, 308, and cases cited; Seitz v. Mitchell, 94 U. S., 580; Keeney v. Good, 21 Pa. St., 355.
Now, an erroneous instruction upon the burden of proof is commonly fatal; for the court will not speculate upon the harm it may or may not have done. Nevertheless, in this case, there is so little controversy about the real facts, and the judgment is so obviously right upon the whole record, that it must be affirmed, notwithstanding the error in the charge. We mean to say that there is no possible doubt on this record that the lots were conveyed to the plaintiff’ by her husband’s direction and as a recompense for her relinquishment of dower in other lands. The jury could not have returned a different verdict, if they had been properly instructed; or, if they had, it should have been set aside as contrary to the evidence. L. R. & Ft. S. Ry. v. Turner, 41 Ark., 161.
That Mrs. Latham paid a valuable consideration for the conveyance was proved not alone by her own testimony, but by the testimony of a disinterested witness. There was no evidence to the contrary, Hence, the misdirection inflicted no injury upon the losing party and substantial justice has been attained. Eor, no matter upon whom the onus probandi rested, the verdict must have been the same.
It was not improper to tell the jury that, in order to avoid the deed, Latham must have had a fraudulent intent . . a-nd Mrs. Latham must have participated m such intent, L A N The deed was made upon a consideration deemed valuable in law. And the distinction established by our cases upon the point of the necessity for participation in the fraud is between the bona fide purchaser for value on one hand and a voluntary donee on the other. Dardenne v. Hardwick, 9 Ark, 482; Splawn v. Martin, 17 ib., 146; Hempstead v. Johnston, 18 ib., 141; Christian v. Greenwood, 23 ib., 264; Bertrand v. Elder, ib., 494; Galbreath v. Cook, 30 ib., 417; Erb v. Cole & Dow, 31 Ark., 554; Reeves v. Sherwood, 45 ib, 520.
We are not at liberty, in this action, to inquire whether the property settled upon Mrs. Latham, was not, out of all proportion, more valuable than the contingent right of ■dower ceded by her. For no actual fraud, or notice ot fraud, being imputable to her, the conveyance stands good for the whole at law. But in equity the consideration may be weighed, and if found grossly inadequate the conveyance will be declared partially voluntary and will be •ordered to stand as a security.for the consideration actually paid. 1 Am. Lead. Cas., 5th ed., *51, notes to the case of Sexton v. Wheaton; Bump Fraud. Conv., 3d ed, 294.
Affirmed. | [
48,
-18,
-96,
94,
90,
-32,
40,
-104,
8,
-85,
-28,
83,
-19,
74,
0,
109,
34,
25,
113,
105,
-57,
-77,
15,
99,
-14,
-78,
25,
-43,
-68,
-51,
-75,
-42,
76,
32,
66,
-35,
34,
-56,
-25,
24,
-114,
-127,
40,
109,
-39,
0,
56,
43,
20,
15,
113,
-98,
-13,
42,
61,
73,
8,
46,
79,
-71,
-16,
-7,
-102,
14,
-1,
23,
49,
100,
-100,
71,
-56,
14,
-48,
53,
8,
-24,
115,
54,
-126,
116,
109,
-101,
8,
100,
98,
34,
-27,
-1,
16,
-104,
34,
-66,
-107,
-90,
-30,
88,
-29,
105,
-66,
-107,
-3,
16,
6,
-14,
-25,
29,
24,
104,
15,
-17,
-106,
-127,
13,
120,
-99,
19,
-14,
-105,
32,
112,
-49,
-22,
92,
67,
59,
-101,
-114,
-15
] |
Smith, J.
Townsend & Morphy, a firm of lawyers, had a demand against Mendel & Bro. for professional services rendered. Morphy afterwards removed from the state, and Townsend sold the account to Davies, who brought an action. Mendel & Bro. pleaded accord and satisfaction; but on a trial before the court without a jury, the finding and judgment were against them.
The evidence tended strongly to show that Morphy, before leaving the state, had agreed with Mendel & Bro. to release or forgive this debt upon condition that they would place in the hands of his firm a certain claim, of which they had control, in favor of E. Kahn & C«., of Cincinnati, against a merchant of ITot Springs; and that the condition had been performed. The defendants had no pecuniary interest,-either as collection agents or otherwise, in the claim. They were merchants, and the claim had been sent to them with directions to select and employ some attorney to look after the creditor’s interests, the debtor being in failing circumstances. The circuit court declared the law to be, “ that the defendants, having been intrusted by E. Kahn & Co. with the duty of engaging for them the services of an attorney, and having assumed such duty, had no right to stipulate with such attorney that he should pay them a valuable consideration for such employment; and if the defendants, in employing Townsend & Morphy for Kahn & Co., and in consideration thereof agreed with Morphy that the claim sued on was settled, such agreement was invalid and no defense to this action-” The correctness of this declaration is the only point in the case.
The promise of Morphy to cancel the debt due his firm by the defendants was wholly gratuitous ; nothing of value, in the eye of the law, moved from the promisees; or, if there was a consideration, it contravened the general policy of the law, which is that a trustee, agent or bailee without reward cannot use the trust property or subject matter of the agency or bailment, or his relation thereto, for his own private advantage. And where the ground of the promise on one part, or the thing which is promised to be done on the other part, is unlawful, neither party can derive any assistance from a court of justice to carry it into effect. To enforce such contracts would encourge men to violate their duties, and engage in speculations for their own benefit, to the hazard -or possible detriment of those to whom they have assumed to render a voluntary courtesy.
Regularly, Townsend & Morphy should have been parties to this action, either plaintiffs or defendants; the assignment of an account not being authorized by statute. The defeet was, however, waived by going to trial without objection. The old rule was that an account was not assignable, so as to vest the legal interest in the transferee and enable him to sue in his own name. But now, with a few enumerated exceptions, all actions are required to be prosecuted in the name of the real party in interest. Mansf. Dig., secs. 4933-4; Anderson v. Lewis, 10 Ark., 304; Yonley v. Thompson, 30 ib., 399.
Affirmed. | [
-16,
104,
-8,
125,
90,
96,
56,
26,
25,
98,
55,
83,
-51,
71,
0,
113,
-92,
121,
80,
75,
93,
-109,
51,
35,
-46,
-77,
-53,
77,
-79,
-51,
-18,
-59,
12,
60,
-62,
-35,
-57,
-54,
-63,
-102,
-50,
-79,
40,
73,
-39,
-128,
48,
25,
16,
79,
65,
-114,
-13,
46,
25,
-53,
105,
60,
120,
57,
-48,
-11,
-65,
-113,
127,
21,
-94,
102,
-104,
71,
72,
30,
-112,
25,
9,
-24,
114,
-74,
102,
116,
13,
41,
-88,
98,
102,
-128,
17,
-17,
-46,
-100,
47,
-37,
-115,
-121,
81,
88,
10,
77,
-74,
-100,
120,
17,
-89,
90,
-10,
-107,
17,
44,
9,
-65,
-60,
-125,
-97,
118,
-34,
-125,
-6,
-73,
7,
112,
-50,
56,
93,
67,
58,
-101,
-98,
-36
] |
Battle, J.
The object of this action is the recovery of a balance due on certain promissory notes executed by James M. Collins to Elias Rector, in his lifetime, for the purchase-money of certain lands described in the complaint, which were sold by Elias Rector to Collins, and the ■enforcement of a vendor’s lien. The complaint alleges that Rector agreed to sell the land to Collins for the sum of $21,120, to be paid in three installments, and that Collins agreed to execute to him his three several promissory notes for the purchase-money, bearing interest at the rate of 10 per centum per annum from their respective dates until paid; “ and that in pursuance of such agreement, Rector executed a bond for title, and Collins executed to Rector three promissory notes, each for the sum of $7,040, bearing date respectively, one on the 23d day of November, 1866, and the other two on the 1st day of January, 1867, and payable respectively, one on the 15th day of January, 1867, one on the 1st day of January, 1868, and one on the 1st ■day of January, 1869, with interest at 10 per cent, per annum from their dates, but which were meant and intended by the parties to bear interest at the rate therein expressed from the dates thereof until paid, the words 1 until paid’ being by mistake, omitted at the end of the interest clause; and that in the computation and payment of accrued interest on the notes, from time to time, after their execution, both parties construed the notes as bearing the same late of interest after as before maturity, as it was understood and agreed before, and at the time of their execution, that they should.”
That Collins, shortly after the execution of the title bond, took possession of the bargained premises, and remained in possession thereof until evicted in the year 1878, as hereinafter stated.
That on the 30th of July, 1878, Rector by deed of that date, conveyed all his right, title and interest in and to the said premises to the plaintiff, Jemima C. Rector, his wife, and thereby, assigned and transferred to her the said purchase note, dated the 1st of January, 1867, payable two years after date, and a certain other note bearing date the 11th of April, 1874, executed by Collins to Rector for the payment of $3,8l3, due one day after date thereof, and bearing interest at the rate of 10 per cent, per annum from the 1st day of January, 1874, until paid, which said last mentioned promissory note was given for the principal and interest then remaining due and unpaid on the original purchase note payable on the 1st day of January, 1868, above mentioned.
That on the 7th day of July, 1878, the plaintiff instituted an action of ejectment against Collins for the recovery of the bargained premises, and that such proceedings were thereupon had, that afterwards, on the 24th day of August, 1878, the plaintiff by the consideration and judgment of the court recovered possession of said premises with nominal damages and costs, and that since said recovery said plaintiff was put in possession of the premises and had remained in possession thereof from thence hitherto.
That on the 6th day of April, 1876, Collins, who was then greatly in want of means and hard pressed by Rector and others of his creditors, proposed to Rector that if he would join him in the execution of a note to the defendant, William G. McPhetridge, and pledge the one he held on him, Collins, for $3,813.04 heretofore mentioned, as collateral security for the payment thereof, he would borrow that amount from McPhetridge, let him, Rector, have a part of it in part payment of what he owed him on said contract of sale and purchase and give him a mortgage upon his crop then planted, and to be planted and produced on the bargained premises that year, to secure the balance of what should be found due and unpaid upon said contract of sale and purchase, and to indemnify him against his liability on the note to be executed to McPhetridge, to which proposition Rector assented; and that he and Collins then proceeded to ascertain the amount then remaining due and unpaid on said contract of sale and purchase, after allowing all the credits to which Collins was entitled; and after stating the account between them and striking a balance, Collins was found to owe Rector the sum of $10,853.04, together with the interest thereon from the 1st day of January, 1874; and that thereupon Rector joined Collins in the execution of the note to McPhetridge, and indorsed' and delivered to him the note he held on Collins for $3,813.04 as collateral security, and Collins executed to Rector a mortgage upon his crop for the purpose proposed by him as aforesaid, whereby he acknowledged that he was then indebted to Rector in the just and full sum of $10,853.04, with interest due thereon from the 1st day of January, 1874, evidenced by two certain promissory notes therein described, as follows, to-wit.: “ The first dated January 1, 1867, payable two years after date to the said Elias Rector, or order, for the sum of $7,040 in current funds, with interest thereon at the rate of 10 per cent, per annum from date till paid; and the other, dated April 11, 1874, payable one day after date to the said Elias Rector, or order, for the sum of $3,813.04, with interest thereon at the rate of 10 per cent, per annum from January 1, 1874.”
That there is due and owing to plaintiff, for and on account of the principal debt and interest on said contract of sale and purchase,, after allowing all the credits thereon to which Collins is legally entitled, the sum of $14,422.74-
The prayer of the complaint is : “That the original purchase note described in the complaint as being for the payment of $7,040, dated 1st of January, 1867, payable two' years after date, and bearing interest at the rate of 10 per cent, per annum from date thereof, be reformed and corrected by the insertion of the words £ until puicl,’ so as to make it bear interest at the rate aforesaid, from date, until paid, according to the true intention of the parties thereto at the time it was made.
££Second — That an account be taken of the amount due and owing to her from Collins on account of said contract of sale and purchase.
££ Third — That judgment may be rendered against Collins for the amount which may be found owing by him to her on taking said account.
<£ Fourth — That the lands be sold to satisfy the judgment, and for other relief.”
Collins answered. “The answer admits the sale of the lands for $21,120, and the execution of the bond-for title; alleges that for one-third of the purchase money ($7,040), Collins drew a draft on the firm of Collins & Lanigan in favor of Rector, payable the 15th day of January, 1867, which was paid; and admits that for the residue of the purchase money Collins executed to Rector two promissory notes, each for the sum of $7,040, dated January 1, 1867, the one payable twelve months after date, and the other two years after date, each with interest thereon at the rate ■of 10 per cent, per annum; but denies that the notes were' meant or intended to bear interest at the rate therein expressed from the dates thereof until paid, or that they were ever so considered and treated by Collins in any manner whatever, or that he ever paid any sum of money as interest accruing thereon, or that he ever made or authorized any such computations of interest as was alleged in the complaint to have been made.”
It denies that Collins, on the 6th day of April, 1876, the time when he executed a mortgage to Rector, owed Rector $10,853.04, as mentioned in the mortgage; and states, that prior to that time he made numerous payments, in money and property, on the notes for the purchase money; that Mrs. Rector has been in possession of the land sold to him,, and that for the time she has been in possession she should' be charged with $3,520 per annum, and that the aggregate amount of such payments and rents exceed the entire-amount due on the notes, computing the interest on them at 10 per cent, per annum from date until maturity, and at 6 per cent, after maturity till paid.
On the hearing the circuit court found there was no mistake made in the draft of the original purchase notes; and referred the cause to a master to state an account between plaintiff and Collins. The master stated the account.. Both parties excepted. The court sustained a part of the-exceptions of both parties and overruled part; and found' Collins indebted to plaintiff in the sum of $1,649.67, and decreed accordingly. Plaintiff excepted and appealed-Neither of the defendants has appealed.
First — Appellant insists that the court below “ erred in-refusing to reform the notes for the purchase money of the-bargained premises, so as to make them bear interest at the rate of 10 per cent, per annum, after as well as before maturity.”
In Carnall v. Wilson, 14 Ark., 487, Mr. Justice Walker,, in delivering the opinion of this court, said:
“ The evidence upon which a written instrument or contract is altered or corrected must be clear and free from doubt. In Henkle v. The Royal Exchange Insurance Compand, 1 Ves., 317, Lord Hardwicke said the court had jurisdiction to relieve in respect to plain mistakes in contracts-in writing. In Ingram v. Child, 1 Bro., 94, Lord Thurlow said, ‘that a mistake creating an equity dehors the deed-should be proven as much to the satisfaction of the court as if admitted.’ Judge Story, in United States v. Monroe, 5 Mason, 577, said, ‘in cases of asserted mistakes in written instruments, it is not denied that a court of equity may reform the instrument, but such a court is very slow to exercise such an authority, and it requires the clearest and strongest evidence to establish the mistake. It is not sufficient that there be some reason to presume a mistake; the-evidence must be clear, unequivocal and decisive.’ And in Gillaspie v. Moore, 2 Johns. Chy., Chancellor Kent reviews-many of the English decisions, and fully recognizes the rule, that in all such cases the mistake must be clearly and fully proven.”
There was no evidence that the notes were not written as intended by the parties, or that they fail to express the real agreement between the parties made before their execution. It is, however,,in evidence that there was a mistake as to their legal effect.
It is said in Kerr on Fraud and Mistake, page IféS:
“ Though the court will rectify an instrument which fails through some mistake of the draughtsman in point of law to carry out the real agreement between the parties, it is not sufficient to create an equity for rectification that there has been a mistake as to the legal construction, or the legal consequences of an instrument. The proper question always is, not what the document was intended to mean, or how it was intended to operate, but what it was intended to be. For example, where an annuity has been sold by the plaintiff, and was intended to be redeemable, but it wras agreed that a clause of redemption should not be inserted in the deed, because the parties erroneously supposed that its insertion would make the transaction usurious, it was held that the omission could not be supplied in equity, for the court was not asked to make the deed what the parties intended, but to make it that which they did not intend, but which they would have intended had they been better informed. So, also, where a party making a voluntary deed supposes that he will have a power of subsequent revocation, though no such power is reserved, the deed cannot afterwards be rectified by inserting the power; the evidence merely showing that the power had been omitted under the erroneous belief that it was not necessary to insert it, not that the power was intended to be inserted, but was left out by mistake.”
In 2 Pomeroy’s Equity Jurisprudence, section 843, it is said :
“The rule is well settled that a simple mistake by a party as to the legal effect of an agreement which he executes, or •as to the legal results of an act which he performs, is no ground for either defensive or offensive relief. If there were no elements of fraud, concealment, misrepresritation, undue influence, violation of confidence reposed, or of other inequitable conduct in the transaction, the party who knows, or had an opportunity to know, the contents of an agreement or other instrument, cannot defeat its performance, or obtain its cancellation or reformation, because he mistook the legal meaning and effect of the whole, or of any of its provisions. Where the parties with knowledge of the facts, and without any inequitable incidents, have made an agreement, or other instrument, as they intended it should be, and the writing expresses the transactiqn as it was understood and designed to be made, then the above rule uniformly applies; equity will not allow a defense, or grant a reformation or rescisión, although - one of the parties, and — as many of the cases hold — both of' them, may have mistaken or misconceived its legal meaning, scope, and effect. The principle underlying this rule is that equity will not interfere for the purpose of carrying out an intention which the parties did not have when they entered into a transaction, but which they might, or even would, have had if they had been more correctly informed as to the law; if they had not been mistaken as to the legal scope and effect of their transaction.”
There was no error in the refusal of the court to reform the notes.
Second — In ascertaining the indebtedness of Collins to plaintiff, the court below credited Collins with the sum of $6,004.05, as so much interest paid by him, after the maturity of the notes, in excess of 6 per cent. We find no evidence on which this action of the court can be based.
The obligation given for the first installment was paid at maturity, and there is no controversy about it. Collins ■executed his two promissory notes for the other two installments and residue of the purchase money, each dated the 1st day of January, 1867, and maturing, the one at one year, and the other two years after date.
On examination of the two notes and the indorsement of the partial payments thereon, and of five annual statements, introduced in evidence by Collins himself, showing partial payments and the computation of interest, it distinctly appears that interest was computed on both notes at the rate of 10 per cent, per annum, after as well as before maturity, up to the 1st day of January, 1874, and was paid by Collins; and that on the 29th day of January, 1870, a credit of $2,112 was indorsed on the note last maturing, being for interest due on it at 10 per cent, per annum, up to the first day of Januuary, 1870, for which amount, together with the balance due on the note first maturing, amounting in the aggregate to $3,571.94, a new note at one day after date was executed by Collins, and the note first maturing taken up; leaving the new note for $3,571.94, and the note of $7,040, last maturing, subject to the credit indorsed thereon, as representing the entire balance of the purchase money due on the 29th day of January, 1870. Erom this time forward partial payments and the computation and payment of interest at 10 per cent-per annum were continued to be made annually, to the 1st day of January, 1874, showing a total balance then due of $10,853.04, consisting of the principal of the remaining note for $7,040, the balance due on the note of $3,571.94, and the amount due on another separate note of $960, theretofore executed for accrued interest; and thereupon, the two small notes of $3,571.94 and $960 were taken up; aud for the aggregate amount due thereon the note of $3,813.04, at one day after date, with interest at 10 per cent, from the 1st day of January, 1874, until paid, was executed;. which last mentioned note, with the original purchase note of $7,040, and the interest thereon from the 1st day of January, 1874, constituted the amount of an account stated by and between Collins and Rector on the 6th of April 1876.. The court below found that such an account was stated by and between Rector and Collins on the 6th day of April,. 1876, and that it was thereby ascertained that Collins was indebted to Rector in the sum of $10,853.04, and the interest thereon from the 1st day of January, 1874, on account of these notes. It accordingly charged Collins with the $10,853.04 as of the 1st day of January, 1874, and credited him with the $6,004.05 excessive interest, as of the same date, which is an amount considerably more than Collins paid on interest, after the maturity of the original purchase notes, in excess of 6 per cent.
Was Collins entitled to any credit for any amount paid on interest, after the maturity of the original notes, in excess of 6 per cent? Appellant insists he is not.
In Bank of U. S. v. Daniels, 12 Pet., 32, Mr. Justice Catron, in delivering the opinion of the court, said : “ That mere mistakes of law are not remediable, is well established, as was declared in Hunt v. Rousmanius, 1 Pet., 1; and we can only repeat what was then said, that whatever excep tions there may be to the rule, they will be found few in number, and to have something peculiar in their character, and to involve other elements of decision. What is this case, and does it turn upon any peculiarity? .Griffin sold a bill to the United States Bank, at Lexington, for $10,000, indorsed by three of the complainants, and accepted by the other, payable at New Orleans; the acceptor, J. D., was present in Kentucky, when the bill was made, and there accepted it; at maturity it was protested for non-payment and returned. The debtors applied to take it up, when the creditors claimed 10 per cent, damages, by force of the statute of Kentucky. All the parties bound to pay the bill were perfectly aware of the facts; at least the principals, who transacted the business, had the statute before them, or were familiar with it, as we must presume ; they and the bank earnestly believing (as in all probability most others believed at the time) that the 10 per cent, damages were due by force of the statute, and influenced by this opinion of the law, the $8,000 note was executed, including the $1,000 claimed for damages. Such is the case stated and supposed to exist by the complainants, stripped of all other considerations standing in the way of relief. Testing the case by the principle that a mistake or ignorance of the law forms no ground of relief from contracts fairly entered into, with a full knowledge of the facts; and under circumstances repelling all presumption of fraud, imposition or undue advantage having been taken of the party, none of which are chargeable upon the appellants in this ease, and the question then is, were the complainants entitled to relief? To which we respond decidedly in the negative.”
In Samyn v. Phillips, 15 Ohio, 218, where, under a statute of Ohio which provided that parties might stipulate in writing for interest at any rate not exceeding 10 per cent, yearly, and in case no special rate was stipulated, interest at the rate of 6 per cent, per annum should be allowed, a promissory note was executed which contained no stipulation as to interest, and a part of the interest thereon had been paid at the rate of 10 per cent, per annum: Held, that although in a suit upon the note, payment of so much of the interest as remained unpaid, could not be enforced at a higher rate than 6 per cent., yet, the interest which had been paid at the rate of 10 per cent., was not in excess, because it was at a rate for which the parties might have lawfully contracted under the statute, and should be allowed to stand without deduction. The court said: “In the case before us, there is no evidence of any contract for the payment of interest at a special rate, after the maturity of the debt, except the fact that such payments were, from time to time, made. Though such payments could not have been enforced for want of a contract evidenced as the statute required, yet so long as it was m the power of the parties to make such a contract valid, by express written stipulation, it was equally in their power to make it valid by actual execution. In our judgment, therefore, the payments of interest made while the 10 per cent, law remained in force, were not in excess of the rate allowed by law at the time, and should have been allowed to stand, without deduction ; and to this extent the judgment of the court below will be modified.”
It was not proven that Collins paid any interest under a mistake of fact, or that he was induced by fraud practiced upon him to do so. He is not entitled to any credit for excessive interest.
Third — The court below held that the payments made by Collins after the 6th of April, 1816, should be appropriated to the satisfaction of the note for $3,813.04 so far as they will extend. This was error; for this note was deposited, under an agreement between Rector and Collins, by Rector with McPhetridge, to secure a debt contracted by Collins, and was so deposited at the times these payments were made. Rector had no right, if he had desired, to credit Collins with them on the $3,813.04 note. They could only have been considered as part payments of the note for $7,040.
The decree of the court below is-reversed, in so far as it is inconsistent with this opinion, and in other respects is affirmed; and this cause is remanded with instructions to the court below to render judgment in favor of appellant against James M. Collins for $1,925.59, and 6 per cent..per annum interest thereon from the 10th day of February, 1881, the amount due on the note for $7,040, less any rents collected by appellant for lands described in her complaint for years subsequent to 1881, and for the further sum of $3,813.04 and 10 per centum per annum interest thereon from the first day of January, 1874, till paid, less so much of the rent collected for years subsequent to 1881, as may be in the hands of appellant after the appropriation thereof as herein directed, if any; and by proper decrees and orders cause said lands to be sold and the proceeds of the sale thereof appropriated to the payment of the judgment to be rendered herein in favor of appellant against Collins, so far as the same will extend ; and to adjust the costs incurred in the court below in such manner as the court, in the exercise of its discretion, may deem equitable. | [
-80,
121,
-104,
-66,
-102,
112,
42,
-72,
-23,
3,
-90,
-45,
-23,
-45,
16,
41,
-28,
105,
81,
107,
100,
-77,
31,
-62,
-14,
-77,
-63,
85,
-79,
77,
-27,
86,
76,
52,
-54,
53,
-62,
-126,
-63,
20,
14,
-95,
-87,
101,
-47,
64,
48,
59,
81,
13,
81,
-49,
-5,
44,
53,
74,
72,
40,
109,
9,
-63,
-19,
-101,
13,
89,
23,
-79,
101,
-100,
67,
-54,
72,
-112,
61,
0,
-8,
114,
-74,
-122,
84,
5,
-103,
8,
98,
102,
48,
-27,
-17,
-96,
8,
46,
-66,
-103,
38,
-47,
88,
3,
104,
-67,
-100,
116,
-48,
-89,
-10,
-27,
-107,
17,
108,
21,
-37,
-42,
-109,
31,
124,
-98,
2,
-1,
15,
48,
101,
-49,
-92,
92,
71,
50,
-101,
-114,
-39
] |
Cockrill, C. J.
This is a contest between two mercantile firms over a bale of cotton. One Robert Haley mortgaged the entire crop to be raised by him on a given farm during the year 1888 to Elinn as trustee for the benefit of Stallings & Hunt, merchants. Haley was indebted to Stallings & Hunt upon a running account for supplies in the sum of $60 or $65, when he executed the mortgage in May of 1883. Stallings & Hunt furnished supplies to Haley for the year, their account aggregating one hundred and ninety odd dollars. He delivered two bales of the mortgaged cotton to them with instructions, as he testified, to credit the proceeds on the mortgage debt. After this, he tendered to Stallings & Hunt the amount in cash he understood to be due for advances made by them after the mortgage was executed, and demanded the surrender and satisfaction of the mortgage. This was done upon the advice of the appellants, to whom he was also indebted, and whose theory was that the mortgage did not cover the indebtedness due at the time of its execution, and that the payment and tender would discharge the lien. Stallings & Hunt declined to surrender the mortgage; the appellants purchased the bale of cotton, the trustee recovered it in an action of replevin against them, and they appealed.
The mortgage was properly acknowledged and recorded, and the amount due under it after deducting the credits and the amount tendered by the mortgagor, was greater than the value of the bale of cotton, provided the debt due at the time of its execution was secured by it. The amount of this debt is not specified in the mortgage. The object of the mortgage is described in the following language: “ Whereas, the said Robert Haley is justly indebted to the mercantile firm of Stallings & Hunt, and, exclusive of the aforesaid indebtedness, the said Stallings & Hunt may make advances to the said Robert Haley in money, goods or supplies during the present year to the amount of $100; and the said Robert Iialey, being desirous of securing the full and prompt payment of what he now owes or may hereafter become indebted to the said Stallings & Hunt, this conveyance is now made.”
It is usual for the mortgage to set forth the amount of the debt to be secured and to recite that it is witnessed by a note, a stated account or other evidence of debt, but the neglect to do either or both does not necessarily invalidate the mortgage security. If the mortgage contains a general description, sufficient to embrace the liability intended to be secured and to put a person examining the records upon inquiry, and to direct him to the proper source for more minute and particular information of the amount of the incumbrance, it is all that fair dealing and the authorities demand, 1 Jones Mortg., secs. 70, 343-4; Jones Chat. Mortg., sec. 86; Herman ib., sec. 57; Carnall v. Duval, 22 Ark., 136; Jarrett v. McDaniel, 32 ib., 598; Fetes v. O’Laughlin, 62 Iowa, 532; Lashbrook v. Hathaway, 52 Mich., 124; Michigan Ins. Co. v. Brown, 11 ib., 265; Page v. Ordway, 40 N. H., 253; Machette v. Wauless, 1 Col., 225.
Enough is given by the mortgage here to satisfy this rule as to the account subsisting at the time the mortgage was-executed, as well as to the indebtedness thereafter contracted to the amount of $100 at least. It becomes wholly immaterial then how the credits are appropriated, as the balance due upon the mortgage debt will be greater than the value of the cotton in dispute. The right to maintain replevin under the circumstances is not open to dispute in this state.
The appellants were not prejudiced by the judgment or any ruling of the trial court, and the judgment is affirmed. | [
-80,
102,
-36,
45,
-38,
96,
41,
-102,
91,
32,
102,
87,
-33,
-10,
17,
105,
-27,
89,
52,
110,
-11,
-77,
49,
96,
-45,
-13,
-15,
-57,
-71,
77,
101,
87,
12,
60,
2,
-43,
-30,
-32,
65,
-100,
-114,
7,
-65,
100,
-35,
96,
48,
-85,
20,
72,
5,
-98,
-77,
33,
29,
79,
72,
42,
-19,
41,
80,
-15,
-72,
-116,
127,
7,
-112,
102,
-104,
3,
-56,
110,
-104,
53,
5,
-24,
123,
-90,
-106,
84,
0,
-119,
13,
102,
34,
0,
97,
-19,
-38,
-116,
46,
-37,
-113,
-90,
-96,
72,
35,
10,
-74,
-99,
102,
5,
-106,
84,
-81,
-107,
28,
108,
7,
-34,
-108,
-61,
45,
54,
-98,
11,
-26,
-9,
56,
85,
-49,
-85,
93,
7,
53,
19,
-121,
-86
] |
STATEMENT.
Hon. J. "W. Butler, Sp. J.
The act of the general assembly of the state of Arkansas, for “ the better government of the cities of the first-class, and to confer additional powers on such cities, and to provide in what manner •changes may be made in the number of aldermen and wards of such cities,” approved March 21, 1885, provides, in the fifth subdivision of section 3 of the act, as follows :
“The city council of any such city shall also have power to pass, by a two-thirds vote of all the members elected thereto, an ordinance requiring that any person or persons, ■company or corporation, who shall engage in, exercise, follow or carry on any trade, business, profession or-vocation, within its corporate limits, shall take out a license fherefor, and pay into the city treasury, before receiving the same, such amount of money as may be specified by such ordinance for such license, not exceeding fifty dollars ($50) per annum for any person for the trade or business,, vocation or profession he may be individually engaged in,, nor exceeding one hundred dollars ($100) per annum for-any company or corporation, to be graded in each class as-near as may be practical according to income, or amount, of business done or property therein invested, and shall-have full power to punish a violation of any such ordinance ; provided, that neither the above limitation as to-amount of license, nor anything herein contained, shall be construed as a limitation or restriction upon the power of auy such city to tax, license, regulate or suppress any trade, business, calling or vocation in any case where such power previously existed or may be conferred by any other-law; and that nothing herein contained shall be so construed as to apply to common laborers, artisans, mechanics and other persons working for wages by the day, week; or month; and, provided further, that every such ordinance shall direct that the money realized thereunder shall be sacredly kept as a fund to be used only for the improvement of the streets, alleys and public grounds of such-city, or to improve its sanitary condition.”
The city council of the city of Little Rock, on the 7th. day of July, 1885, under the authority of said act, passed Ordinance No. 7: “To require licenses tobe taken out for certain trades, business, professions, and vocations thatr may be engaged in, exercised, followed or carried on within the corporate limits of the city of Little Rock, and to-specify the amount of such licenses and grade according to which the same shall be regulated.”
A short time after the passage of the ordinance, D. J. Prather, a physician, and other persons of different callings, for themselves and all others interested, filed their- complaint in the Pulaski chancery court against the city of Little Rock, the clerk, the treasurer and collector of the-city. The scope of the bill is:
That the city council of the city of Little Rock, after having levied a tax of five mills on the dollar, on all real and personal property within said city for all purposes,, unlawfully and in violation of the constitution and laws of the state, passed an ordinance to require licenses to be taken out for certain business, professions and vocations that may be engaged in, followed or carried on within the-corporate limits of said city (the ordinance being set out in full in the bill, and styled “ Ordinance No. 7.”)
That plaintiffs desire to and will exercise and follow their respective professions and vocations within said city,, and that the defendant, the city of Little Rock, unless restrained, will undertake to enforce said ordinance, and. plaintiffs and other citizens will be subjected to numerous prosecutions, arrests and suits in the attempt to enforce-said ordinance.
That under said ordinance there are many citizens engaged in the various callings, whose incomes, gross sales and capital invested therein cannot be taxed; that there-are numerous citizens and tax-payers who will be required to pay and contribute largely in excess of their proportionate part of the burden provided for under the ordinance, and that the taxation imposed is not equal, uniform or just, that it is in violation of the constitution of' the state'and of the constitution of the United States.
Plaintiffs prayed that the city of Little Rock, her officials, etc., be enjoined from enforcing said ordinance, that the ordinance be declared void, and for a temporary restraining order until a final hearing of the cause, etc.
The city of Little Rock answered the complaint, stating:. That “Ordinance No. 7” was adopted by the concurrent vote of two-thirds of all the members elected to the city •council, and that in framing and adopting said ordinance •all of the requirements of the act of the general assembly of the state, appi’oved March 21, 1885, were observed. That the license taxes required therein are not unduly burdensome or oppressive, nor violative of any constitutional requirement of equality or uniformity, and that the said .act authorizing the passage of said ordinance is not contrary to the constitution of the state, nor are any of the provisions of said ordinance contrary to any of the laws of said state, nor to the constitution of the state, nor of the United States.
That the ordinance was published and notice given that all persons having complaints to make against the classifications and gradings of the licenses, should file them in the office of the city clerk. That all the complaints filed were investigated, and “Ordinance No. 15,” amending 'Ordinance No. 7, was passed by the concurrent vote of two thirds of all the members of the city council, “ Ordinance No. 15” being set forth in full in the answer.
After the adoption of Ordinance No. 15, it is alleged, in the answer, that the intention of the city authorities was to proceed against persons violating the provisions of said ordinance in no other manner than as provided for in :said Ordinance No. 7, as amended.
With defendant’s answer there was a demurrer to the •complaint. The several grounds were in effect:
First — That the bill did not show cause for equitable relief.
Second — There was an adequate remedy at law.
Third — That the bill sought to enjoin proceedings of a •criminal or quasi-criminal nature.
Fourth — That there was a defect of parties, plaintiffs ■and defendants.
Fifth — The court had no jurisdiction.
The demurrer to the complaint was overruled, and the ■cause was submitted for final hearing upon the complaint and amendments thereto, the answer of defendants and exhibits, and the motion to dissolve the temporary injunction.
The court refused to dissolve the temporary injunction and adjudged and decreed Ordinance No. 7 and the amendments thereto, to be null and void, and made the injunction perpetual. Defendants appealed to this court.
OPINION.
Counsel for appellants submit that this is a suit to enjoin criminal prosecutions for the violation of a city ordinance. We notice:
First — The question of the jurisdiction of the Pulaski , , chancery court.
The case of the City of Little Rock v. Barton et al., 33 Ark., 436, was similar to the present case, in many respects. The plaintiffs, in behalf of themselves and others interested, prayed that the city of Little Rock be enjoined from collecting the license tax required of brokers by an ordinance of thé city, the penalty for the violation of the ordinance being a fine, imprisonment, etc.
The court held that the chancery court had jurisdiction by the act of the legislature of 1873, which, in express terms, conferred the jurisdiction. See Mansfield’s Dig., sec. 3731; also, sec. 13, art. 16, Const. 1874
The case of Taylor, Cleveland & Co. v. The City of Pine Bluff, 34 Ark., 603, was a proceeding in chancery by the plaintiffs and others interested, to enjoin the enforcement of a city ordinance, a violation of which subjected the party to an arrest and fine.
In that case, the court decided that “ so much of the bill as sought to enjoin the city from prosecutions for violations of the ordinance was without the usual ambit of chancery relief.” * * * After quoting section 13, art. 16, Const, of 1871), the court added: “ This widens the range of equity jurisdiction, and will sustain the bill to the extent of giving the court power to inquire into the validity of the exactions, and if found void so to declare it, and restrain the city authorities from its collection.”
A later case, Waters-Pierce Oil Co. v. The City of Little Rock, 39 Ark., 412, it is contended, settles the law differently.
But that case was never intended to undermine Little Rock v. Barton et al., nor Taylor, Cleveland & Co. v. Pine Bluff. For the court, while disclaiming the jurisdiction to enjoin criminal prosecutions, did restrain the sheriff from distraining and selling property for the non-payment of a license tax imposed by a city ordinance. Section 5 of the act of 21st of March, 1885, conferring the authority upon cities of the first class, gives a civil remedy for the violation of the ordinances to be passed under the act, in addition to the criminal proceeding.
And a court of equity has jurisdiction, under the constitution, to enjoin the collection of an illegal tax where such injunction will prevent a multiplication of suits.
Has the legislature the authority, underthe constitution, to delegate to cities of the first class the power to tax occupations?
The act says: “Persons engaged in any trade, business, profession or vocation, shall take out a license therefor. * * * ”
It is sometimes difficult to determine whether a license is intended as a regulation or as a tax, but in this case there can be none.
The conferring of power upon cities of the first class to require a license from persons engaged in the useful trades, callings and professions, the amount of the license fees, and the uses to which the fund shall be applied, clearly indicate that the raising of revenue was the object. The license fees are, in effect, taxes, and the authority to impose them was a grant of the taxing power of the state.
In the matter of taxation, the legislature has plenary power, except as restricted by the state or federal constitutions, over property and persous within the limits of the state, and this taxing power the legislature “ may delegate with the necessary restrictions to the state’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well-being, but no further.” Art. S, sec. S3, Const. 187A This power extends to every known object of taxation.
Judge Cooley says: “It reaches to every trade and occupation, to every object of industry, use or enjoyment, to every species of possession.”
In Nathan v. Louisiana, 8 How., 80, it is stated that, “The right of a state to tax its own citizens for the prosecution of any particular business or profession within the state has not been doubted.- And we find that in every state money or exchange brokers, vendors of merchandise of our own or foreign manufacture, retailers of ardent spirits, tavern keepers, auctioneers, those who practice the learned professions, and every description of property, not exempted by law, are taxed.”
It is said in People v. Coleman, 4 Cal., 49, that, “The power of the legislature to tax trades, professions and occupations is a matter completely within its control, and, unless inhibited by the constitution, eminently belonging to and resting in the sound discretion of the legislature. This principle has been repeatedly maintained by the courts of almost every state in the union, and reiterated by the decisions of the Supreme Court of the United States.”
That callings and pursuits are the subjects of taxation, see License Cases, 5 How., 593; Brown v. State Maryland, 12 Wheat., 444; Jones v. Page & Stallworth, 44 Ala., 658; San Jose v. S. J. & S. C. R. R. Co., 53 Cal., 476; Burch v. Mayor, 42 Ga., 600; Simmons v. State, 12 Mo., 268; St. Louis v. Sternberg, 69 ib., 303; Stewart v. Potts, 49 Miss., 749; Newton v. Atchison, 31 Kans., 151; Carson v. State, 57 Md., 266; Ex parte Robinson, 12 Nev., 267.
Attention has been called to certain sections of our constitution which, it is insisted, limit and restrict the taxing-powers of the legislature.
* * * “All property subject to taxation shall be taxed according to its value, * * * making the same equal and uniform throughout the state.” Sec. 5, art. 16, Const. 1874-
This section imposes no restriction upon the legislature iu the taxing of property, and sections eight (8) and nine (9) of the same article refer to limitations of taxation by the state and county upon property as such, and have uo reference to license taxes.
“No municipal corporation shall be authorized * * * to levy any tax on real or personal property to a greater extent in one year than five mills on the dollar of the assessed value of the same.” See. 4, art. 12, Const. This section has reference to property only. A tax on occupations is, in no sense, a tax on property.
These provisions of the constitution do not, in terms, limit the power of the legislature to delegate to municipal corporations the right to tax occupations.
“ The usual provisions in the constitutions of the difft'erent states concerning taxation do not prohibit the legislature from imposing or authorizing municipal authori ties to impose taxes upon trades, special professions and occupations.” 8 Dillon Municipal Corporations, sec. 793.
Section 5, of article 16, above quoted, is subject to this proviso: “The general assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges in such manner as may be deemed proper/’ From this it is argued that there is an implied restriction upon the taxing power of the legislature over occupations, except those mentioned, according to the maxim of interpretation, “ that the expression of one thing is the exclusion of another.” ‘ .
Admitting that this is true, as to the power of the legislature to tax any other callings (for state revenue), it does not follow that the legislature may not delegate to municipal corporations the power to tax all occupations. This question, at various times and under different constitutions, has been passed upon by this court.
In Washington v. State, 13 Ark., 752, it was said: * * * “The constitutional provisions concerning revenue were intended to apply to state revenue, and are not, and were not, applicable to taxes levied for county purposes.
“All such local-taxes for county or municipal purposes might well be authorized, if self-imposed, according to the discretion of the people of such county or town through their magistrates or officers, elected and directly responsible to them. * * * But the imposition of taxes granting licenses by counties or towns may be authorized or regulated by legislation, and that legislation is not necessarily controlled or limited by the provisions of the constitution in regard to state revenues.”
In Baker v. State, 44 Ark., 134, the previous decisions of the court, relating to this question, were reviewed. Chief Justice CocKRiLii, in reaffirming Washington v. State, said: “The framers of the present organic law, knowing the •construction that had been put upon the provisions of the •constitution of 1836, bearing on this subject, adopted them without modification that can affect the question now presented here, and we must presume they intended to adopt with them the meaning the court had engrafted on them. This was recognized in Barton v. City, sup., and we regard the question as closed against any other view we might be disposed to take of it.”
Conceding that the legislature had the right to confer •power upon cities of the first class to tax occupations, the ■remaining question is: Does the ordinance conform to the •law ?
For the “better government of cities of the first class,” rand for their maintenance and well-being, the legislature ■conferred the “ enlarged and additional powers ” set forth in the enabling act.'
The power, mentioned in the fifth subdivision of section ‘three, was cautiously granted. To pass an ordinance taxing occupations it required the concurrence of two-thirds ■of' all the members elected to the city council — the tax was to be graded, as near as practicable, according to the income, business or property invested, and was limited in amount; laborers, artisans, mechanics and persons working for wages by the day, week or month, were exempted from taxation, and the fund arising from the license tax was “to be used only in the improvement of the streets, alleys and public grounds, or to improve the sanitary condition of such cities.”
The objection made to Ordinance No. 7, do not require an examination of it, section by section, throughout the numerous sub-divisions defining the various classes and •specifying the amount of the license tax.
The methods for carrying into effect this grant of power ■were necessarily committed to the discretion of the city ■council; and any abuse of that discretion, which was not apparent on the face of the ordinance, ’ should be established by proof.
The answer denies the allegations of the bill, to the effect that the ordinance failed to conform to the act, and no testimony was taken in support of such allegations, consequently in determining the validity or invalidity of the ordinance we have nothing to look to except the ordinance itself.
Now, an inspection of that document does not disclose the fact that the classifications adopted by the council were in any degree arbitrary, or that the license tax demanded of each class was not graded as near as was “ practicable according to incomes, or amount of business or property therein invested,” or that the amounts fixed were oppressive or unjust to any class, or to any individual of that class, or that any difference in the manner of grading licenses in the different classes had been made without good and sufficient reason.
It is also objected that there is a discrimination agaiiist ■corporations in violation of the fourteenth amendment of the constitution of the United States. No corporations complain in the bill that the act, or the ordinance, denies to them “the equal protection of the law”; it is not alleged that corporations are discriminated against. It is argued, however, that such is the case. We think the supposed discrimination is not real. The rule of equality only requires that the law shall be applied impartially upon .“all persons in similar circumstances.” '
By the law and the ordinance, two or more persons associating themselves as a partnership, and carrying on business as such, might be taxed not exceeding $100 ; a dozen persons associating themselves in business as a cor poration, could be taxed no more; there is no discrimination in this against the persons composing the corporation.
All tax laws are more or less unequal in their practical workings, and in the assessment of taxes on occupations, hardships in particular cases, are likely to occur.
If there should be injustice or oppression in any class, and it should be made to appear in a proceeding for that purpose, the ordinance might be held void to that extent. But if this should be so, it would afford no sufficient reason to set aside the whole ordinance.
The license tax complained of was “self-imposed”; the city of Little Rock, through its officials, passed the ordinance requiring licenses to be taken out, and the ordinance on its face does not disclose a want of conformity to the act.
The decree of the Pulaski chancery court is reversed, the injunction dissolved, and the bill dismissed.
Hon. B. B. Battle did not sit in this case. | [
119,
-21,
-44,
-4,
90,
72,
18,
-78,
83,
-87,
-92,
-1,
79,
-120,
21,
97,
-29,
-3,
85,
71,
-28,
-122,
85,
106,
-94,
-37,
-21,
-57,
-72,
77,
-28,
61,
78,
48,
-54,
-99,
4,
65,
-55,
-36,
58,
33,
11,
-56,
-3,
65,
52,
107,
51,
3,
-43,
15,
-79,
44,
10,
81,
-81,
108,
89,
47,
113,
-14,
-102,
-35,
-3,
21,
1,
120,
-103,
7,
-64,
76,
-104,
17,
-35,
-56,
115,
-90,
-122,
-34,
13,
-55,
45,
34,
102,
34,
-95,
-17,
-80,
-114,
4,
-38,
-115,
-124,
-106,
121,
34,
-118,
-98,
-106,
90,
-110,
7,
-34,
-93,
-44,
25,
108,
-123,
-113,
-44,
-93,
-123,
43,
24,
3,
-53,
71,
48,
119,
-60,
-42,
95,
79,
19,
90,
-122,
-39
] |
Hon. W. C. Ratclifee, Sp. J.
Richard B. Ford commenced his action for the recovery of possession of certain specific personal property, in the Lafayette circuit court on the 29th day of July, 1869. An affidavit was filed, and an order of delivery issued. The property in controversy consisted of a remnant of a stock of merchandise in a store in Mar’s Hill, in said county of Lafayette. The complaint contained a list of the articles claimed, as did also the affidavit and order of delivery. The value of each article was not set out in the affidavit. The aggregate value of the goods was placed at $2,000.
Colby A. Hodges and William E. Hamilton were made defendants. Each filed his separate answer, setting up by way of defense that the goods were not the property of appellee, but the property of appellants, Hamilton & Co., a firm composed of said William E. Hamilton, William B. Hamilton and Elias F. Carnall. Afterwards Hamilton & Co. made themselves parties defendants, and were substituted as such. Hamilton '& Co. also filed’ their answer, setting up property in themselves, and also alleging certain facts in connection with said ownership, which were after-wards struck out by the court on its own motion — a demurrer to the.answer having been overruled. No further action was had in the case for a period of fifteen years, except the filing of some unimportant motions, and of a substituted complaint on the 4th day of October, 1880, which was substantially the same as the original — the original complaint being afterwards found and placed upon the record.
On the 11th day of August, 1884, a motion was made by appellants to quash the affidavit and order of delivery, which was sustained, and judgment against appellee for all costs in that behalf expended. Appellee did not except to the ruling of the court. Appellee then filed his motion to quash certain depositions of appellants, which was overruled by the court, exceptions noted, but the depositions are not brought upon the record. The death of Elias F. Carnall was suggested, admitted, and the cause revived'and directed to proceed against William E. Hamilton and William B. Hamilton as surviving partners. Hnder this state of the pleadings the case stood as the ordinary action of detinue, with issue as above stated. Harkey v. Tillman, 40 Ark., 555.
It was tried as such and judgment for appellee. There was a motion for a new trial, which was overruled, exceptions noted, bill of exceptions filed, and appeal prayed and granted.
The judgment is substantially correct in form. It was not necessary that appellants should have been in possession at the time suit was brought; nor was a demand necessary, and any matters connected with these questions will not be further considered.
The proof is as follows: Appellee, on the 21st day of January, A. D. 1868, was the owner of a stock of goods at Mar’s Hill, Lafayette county; the appellants were merchants, doing business at Shreveport, La. Appellee was indebted to appellants on a note for $5,249.54, dated November .9, 1867, and due at date. -William E. Hamilton, representing the appellants, entered into negotiations with appellee for a settlement thereof, and it was finally agreed that the stock of goods and certain notes and accounts-should be turned over in payment of the said note — the goods first to be inventoried at their cost at Shreveport, with transportation added. An inventory was made by William E. Hamilton and Colby A. Hodges. The appellee was to be present, but owing to sickness in his family was prevented, and he told the other two to proceed with the inventory, as he had confidence in them. The goods were inventoried at $2,000. After the inventory was made appellee came to the store, when Hamilton told him that the same was correctly taken; that the original cost invoice and the inventory he had taken were in the store, and he should examine for himself. He did not go in to examine them, saying he relied on what Mr. Hamilton told him in reference to them. The settlement was then completed* the note turned over to appellee, and the goods and certain notes and accounts turned over to appellants, and appelleeexecuted to them his note for $193.63 in settlement of a balance and for an additional $100 advanced for him after-wards at his request.
The title to the goods vested in appellants. If any fraud entered into the transaction the sale was voidable only, but not void. Benjamin on Sales, sec. 633; Bishop on Contracts, sec. 198.
The appellee seeks to divest title on the ground that the inventory was fraudulently made, and thereby he was deceived into making the settlement. Without noticing further the testimony, reference is had to instruction No. 1, given for appellee, excepted to by appellants, and made a ground for the motion for a new trial. It is as follows:
“If you believe from the evidence that the plaintiff was the owner of the goods in question on or about the 21st day of January, 1868, and that he agreed to sell the same at that time to the defendants, or to Hamilton & Co., with the understanding that W. E. Hamilton was to make a fair inventory or invoice of said goods at the prices which the same cost at Shreveport, with the cost of transportation-added, and said W. E. Hamilton made an inventory of said goods in the absence of the plaintiff, and did not make-said invoice in the manner agreed on, but put the values of the goods at a less sum than said original cost and cost of transportation, and induced the plaintiff to settle with him at the representation of said Hamilton & Co., and the plaintiff did so settle, under the impression that said goods had been fairly invoiced as agreed on, when they had not,, and delivered said goods into the possession of said Hamilton & Co. under that impression, you are instructed that Hamilton & Co. did not thereby acquire any property in said goods, or the right to possession of the same, and you may find for plaintiff, unless you further find, upon the ■evidence, that the plaintiff thereafter sold said goods to the defendants.”
This instruction seems to be based on the fact that appellee had been induced to part merely with the possession, which is inconsistent with the evidence. The contract was executed and the goods delivered to the appellants with the intent on part of appellee that the title should pass. It is claimed that appellee had the right to rescind, on the iground that it was procured by fraudulent representations on the part of appellants. If so, the representations must not only have been false and fraudulent, and with intent to mislead, but must have been such as could not have been discovered by ordinary care and diligence. Also that appellee “not only did in fact rely upon- the fraudulent statement, but had a right to rely upon it in the full belief of its truth.” Parsons on Contracts, vol. 2, sec. 773; Hanger v. Evins & Shinn, 38 Ark., 334. None of these elements ■enter fully and distinctly into said instruction, and were material to the issue. The instruction should not have been given without modifications conforming to these principles.
The giving of the third instruction asked by appellee is also made a ground for the motion for a new trial. It is ■as follows:
“If you believe from the evidence that the plaintiff and "W. E. Hamilton, on or about the 12th day of April, 1868, agreed that the goods in question should be reinventoried or reinvoiced, and that said goods should remain boxed up and unused by Hamilton & Co. until the same were rein-voiced, and should be the property of the plaintiff, and that Hamilton & Co. thereafter and before the commencement of this suit, without having said goods reinvoiced, and without the consent of the plaintiff took possession ■of said goods, then you will find for plaintiff.”
This instruction is based, also, on the theory that the sale to appellants was never consummated and no title vested in t'hem. It also involves the idea that possession was redelivered to appellee. Neither of these propositions is sustained by the evidence, and the instruction is misleading.
"Without commenting further on the law and testimony, it may be proper to remark that, in the opinion of the ■court, the verdict of the jury is wholly irreconcilable with the evidence and the instructions, taken as a whole.
Reversed and remanded, with directions to grant appellants a new trial.
Hon. B. B. Battle did not sit in this case. | [
-14,
101,
-4,
12,
58,
96,
2,
-70,
67,
97,
37,
83,
-19,
-57,
0,
97,
-29,
-7,
85,
107,
-123,
-77,
55,
39,
-46,
-110,
-5,
-59,
-79,
-53,
-19,
95,
76,
40,
-22,
-100,
-30,
-128,
-55,
-34,
-122,
-96,
57,
108,
-11,
85,
60,
-85,
116,
79,
117,
62,
-9,
46,
19,
-53,
105,
40,
109,
9,
-16,
-7,
-85,
5,
-1,
18,
-111,
70,
-101,
27,
-24,
8,
-104,
53,
0,
-7,
123,
-76,
-58,
84,
13,
-115,
8,
102,
-29,
17,
1,
-51,
-80,
-100,
46,
-54,
5,
39,
-13,
105,
115,
1,
-66,
-99,
117,
0,
39,
-2,
124,
-35,
21,
108,
7,
-113,
-106,
-93,
-81,
120,
-106,
18,
-21,
-85,
48,
113,
-51,
126,
92,
7,
25,
-101,
-106,
-57
] |
Battle, J.
The defendant, St. Louis, Iron Mountain & Southern Railway Company, transported a car-load of horses and mules for plaintiff', Julius Lesser, under a special contract, over its railway, from St. Louis to Marianna, Ark. One of the horses was badly injured in the course of transportation. Plaintiff sued the defendant in the Lee circuit court for the damages suffered by reason of the injury.
So much of the contract as affects the matters in controversy is in the words and figures following:
“Live Stock Contract executed at St. Louis station, September 13, 1884.
“ This agreement, made between the Missouri Pacific Railway Company, of the first part, and Julius Lesser, of the second part, witnesseth, that whereas the Missouri Pacific Railway Company transports live stock as per above rules and regulations, all of which are hereby made a part of this contract by mutual agreement between the parties hereto; now, therefore, for the considerations and the mutual covenants and conditions herein contained, the said first party will transport for the said second party live stock, and the persons in charge thereof, as hereinafter provided, from St. Louis station to Marianna, Ark., station, at the rate of tariff' per car, the same being a special rate lower than the regular rates, or a rate mutually agreed upon between the parties hereto, for and in consideration of which the said second party hereunto covenants and agrees as follows :
“ First — That he hereby releases the party of the first part from the liability of a common carrier in the transportation of said stock, and agrees that such liability shall be only that of a mere forwarder or private carrier for hire ; and also hereby agrees to waive and release, and does hereby release said first party from any and all liability for or on account of any delay in shipping said stock after the delivery thereof to its agent, and from any delay in receiving the same after being tendered to its agent.
“ Second — The said second party hereby agrees to accept, and does accept, for the transportation of his said stock, the cars tendered him by the said first party, and agrees that he will see that they are in good and safe condition, and that they are securely fastened so as to prevent the escape of said stock therefrom; and that he will not hold said first party responsible for any loss or damage which may result from neglect or failure on his part, or of his agents or employes to do so; and also agrees to assume, and does hereby assume, all risks of injury or loss to his stock because of any defect in said cars, of their being wild, unruly, weak, or maiming each other or themselves, or of heat, suffocation or other results of being crowded in the cars, or of being injured or destroyed by fire on any account whatever, and especially because of burning hay, straw or other materials used for bedding the ears or feeding the stock, or for any other purpose.
u Seventh — The said second party further agrees, for the ■considerations aforesaid, that in case of total loss of any of his said stock from any cause for which the said first party will be liable to fay for the same, the actual cash value at the time and place of shipment, but in no case to exceed ‡100 per head, shall be taken and deemed as a full compensation therefor; and in case of injury or partial loss, the amount or damages claimed shall not exceed the same proportion.” * *
There was no evidence introduced in the trial of this action to show how the horse was injured, except that plaintiff testified that the agent of the defendant told him that when the mules and horses were first put into a car at St. Louis, they were put into a car which was too small and was full of nails. The wound received by the horse was made, as shown by evidence, after he was received by defendant for shipment, and before his arrival at Marianna. The horse was worth, before he was wounded, $150, and after $70.
First — The defendant asked the court, among other things, to instruct the jury as follows:
1st. “If the jury find from the plaintiff entered into a special co and that one of the conditions of saf that the plaintiff should himself see the horse in question was, was in good and safe condition, he cannot recover for any injury accruing from a bad or unsafe car, provided plaintiff had an opportunity to inspect said car.” The court refused to give the instruction and defendant excepted. evidence that the ih defendant, ontract was, car in which the eviden ee thatthe t
Carriers of live stock are liable as common carriers, and as insurers to the same extent as when engaged in the transportation of general merchandise, except as to injuries caused by the animals themselves, and to each other; losses that are caused by their inherent vices and propensities.
In Railroad Company v. Lockwood, 17 Wall., 357, Mr. Justice Bradley, in a very able opinion, after discussing at length the right and extent to which common carriers can limit their liabilities, by special contract, announced the conclusions, to which, among others, the court came to, as follows:
“ First — That a common carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law,
“ Second — That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.”
In Railroad Company v. Pratt, 22 Wall., 124, the court held, that “ if a common carrier by rail is negligent in furnishing cars, and so furnish cars unsuitable for the case, even though they be cars for cattle, which cars the owner-himself sees, and which cattle the owner himself attends, the carrier is not relieved from responsibility, even though there has be^^^ft^eement that he shall not be liable.”
In Welsh v. The Pittsburg, Fort Wayne and Chicago Railroad Company, 10 Ohio St., 65, the plaintiff entered into a contract with the defendant for the transportation by the defendant of certain car loads of live cattle, in the words and figures following:
“The undersigned hereby contracts, agrees and binds himself, for himself and the owner of the cattle shipped in Nos. 233, 231, 1,000, 207, 14, on the Pittsbm’g, Fort Wayne & Chicago Railroad, at $39 per car, on the 27th day of September, 1856, to be transported to Allegheny, Pa.,'by the Pittsburg, Fort Wayne & Chicago Railroad Company, in consideration of the said company agreeing to transport the said cars at $39 per ear, at a rate by the car load, less than the maximum rate charged on pound freight for the full capacity of the car (18,000 pounds), to load, unload, feed, water and attend to the stock himself, and having examined the cars, to assume all the risks of transportation, both as to the live stock, and as to the individuals who may travel with such stock, to attend to it; being all risk arising from any defect in the body of the'Aar, imperfect doors and fastenings, overloading, or from vicious and restive animals, delays, or from any other cause or thing not resulting from defective tracks, wheels or axles.
“ Signed at Bucyrus this 27th day of September, 1856.
(Signed), “W. S. Welsh.”
Before signing the contract plaintiff examined the cars. He found the doors to the same imperfect and the cars insecure. Notwithstanding this he loaded the cattle and fastened the doors as well as he was able with the means furnished him by defendant for that purpose. In running twelve miles, w7ith ordinary and proper care, six of me cattle escaped or were lost, because of the defective doors dropping out. Another door, thus defective, dropped out soon afterward and six more cattle were lost. These defects,” says the court, “ in the doors and their fastenings, were well known to both the parties when the cattle were loaded, and the plaintiff' expressly agreed to assume the risk arising therefrom,” The court held, that “ a common carrier of live stock cannot, by special contract, procure exemption from responsibility for losses arising from its own neglect of the duties incident to such employment;” that in furnishing defective and unsafe cars, the defendant was guilty of negligence, and was liable for the damage resulting from such cars, notwithstanding his express contract to the contrary ; and that plaintiff was entitled to judgment against defendant for such damages.
In Rhodes v. Louisville & Nashville Railroad Co., 9 Bush, 688, the defendant undertook the transportation of cattle under a special agreement, by which the plaintiff, the owner of the cattle, assumed all injury, loss or damages which might be occasioned in certain contingencies, including the escaping of the cattle and possible injury to them by fright or their own viciousness, as well as any other injury which might happen to them incidental to railroad transportation, not caused by the fraud or gross negligence of the railroad company. The court held that, “while this special contract devolved on the owner the personal care of the cattle, with the duties and risks connected with it, including the risk of their escaping or being injured in consequence of their own restiveness or viciousness, it did not exonerate the company from responsibility for damages resulting from a failure to provide a suitable and safe car for the carriage of the cattle.”
The instruction was properly refused.
Second — The defendant asked the court to instruct the . iury as follows: . ** °
“5th. If the jury find from the evidence that the plaintiff entered into a contract with the defendant that even in case of loss or damage occurring through the defendant’s ‘gross negligence,’ plaintiff bound himself to, place no higher value upon any single animal shipped than $100; then for a partial loss the measure of damages is, what proportion of $100 said horse was lessened in value by reason of the injury.”
But the court, against the objection of the defendant, gave the jury the instruction with the addition of the following words: “Provided the jury find the valuation was agreed on in consideration of special rates.”
There was no evidence to disprove the statements made in the contract that the rates agreed to be paid for the transportation of the stock were less than the regular rates. “It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and especially in the absence of any evidence to the contrary, that as the rate of freight expressed is stated to be on the condition that the defendant assumes liability to the extent of the agreed valuation named, the rate of freight is graduated by the valuation.” Hart v. Pennsylvania Railroad Co., 112 U. S., 337.
The defendant was entitled to the instruction as asked, and it was error to refuse it. Hart v. Penn. R. Co., supra.
Third — Whenever a common carrier seeks to avoid a liability for losses on account of a contract limiting his liability, the burden of proof, as a general rule, is upon him not only to show that a limited contract has ■ been made, but also that the loss in question arose from a cause excepted in the contract. And this fact must be established with reasonable certainty and not rest upon conjecture or possibility. But it is unnecessary to apply that rule in this case. We think the evidence was sufficient to authorize the jury to find that the injury in question was caused by the negligence of defendant’s employes.
The jury returned a verdict in favor of plaintiff for $80 damages. They evidently took the difference between the value of the horse before and after he was injured as the measure of damages. According to this standard, the verdict should have been for $58.33, the proportion of $100 the horse was lessened in value by the injury.
If appellee shall enter a remittitur here of $26,.67, the difference between $80 and $53.33, within the next fifteen days, according to the rules of this court, the judgment of the court below will be affirmed ; otherwise it will be reversed, and this cause will be remanded with instructions to the court below to grant defendant a new trial. | [
117,
-22,
-104,
79,
10,
100,
42,
-102,
99,
-61,
100,
-41,
-51,
-55,
17,
49,
-25,
-3,
81,
107,
116,
-61,
23,
50,
-46,
-45,
-77,
-59,
59,
73,
104,
71,
77,
2,
10,
93,
-58,
66,
-55,
28,
-114,
40,
-21,
-24,
-37,
64,
56,
110,
18,
106,
33,
-114,
-5,
44,
28,
83,
109,
62,
-3,
33,
-63,
121,
-14,
79,
126,
6,
2,
100,
-100,
35,
-56,
60,
-112,
53,
85,
-87,
115,
-74,
-126,
-44,
33,
-119,
-120,
98,
103,
97,
5,
-113,
-106,
-88,
39,
-13,
-113,
-122,
-32,
88,
35,
74,
-66,
-98,
82,
82,
-122,
126,
-19,
5,
29,
36,
7,
-17,
-106,
-94,
47,
36,
-98,
7,
-21,
-99,
52,
112,
76,
-110,
93,
7,
52,
-109,
-121,
-65
] |
Cockrill, O. J.
The appellants were the judgment creditors of the appellee, and caused a writ of garnishment to be served on one of her debtors for the purpose of subjecting the debt due her to the payment of their judgment. On the return day of the writ the appellee appeared, and upon leave granted filed an answer in the garnishment proceeding, claiming the debt as exempt from, seizure, and filed with her answer a schedule of her property. The appellants demurred to the answer, and the demurrer being overruled, they declined to take further action in the matter; the justice sustained the claim to exemption, and the appellants prosecuted their appeal to the circuit court. There the judgment of the justice was, in affect, affirmed, and this appeal is prosecuted to reverse the judgment of the circuit court.
The debtor’s right, in general, to the exemption of a chose in action is not questioned by the appellants, but it is argued that the privilege of any exemption of personal property was waived or lost in this case by a failure to' comply strictly with the following provision of the statute :
“ Whenever any resident of this state shall, upon the issue against him for the collection of any debt by contract, of any execution or other process, * * * against his property, desires to claim any of the exemptions provided for in article 9 of the constitution of this state, he shall prepare a schedule of all his property, including moneys, rights, credits and choses in action held by himself or others for him, and specifying the particular pi’operty which he claims as exempt rrnder the provisions of said article; and after giving five days’ notice, in writing,, to the opposite party, his agent or attorney, shall file the same with the justice or clerk issuing such execution or other process, or attachment, and the said justice or clerk shall thereupon issue a supersedeas staying any sale or further proceeding under said execution, or process, or attachment against the property in such schedule described and claimed as exempted, and by returning the property to the defendant, etc, * * * ” Mansf. Rig-, sec. 3006.
The law favors exemptions, and the statutes regulating the manner of asserting the claim, are not to be construed strictly for the purpose of defeating the end the state has in view in making provision for its citizens.
It is apparent from this statute that the allotment of the personal property to be withheld by the debtor from the grasp of his execution creditor, may be made at any time after the issue of process, if prior to the sale. State v. Read, 94 Ind., 103; Shepherd v. Merrill, 90 N. C., 208.
It is not necessary that the debtor should demand an appraisement. It is his duty to set forth all of his property in the schedule with its value, and provision is made,, in the interest of the creditor, when there is not enough to satisfy his debt, after deducting property to the amount in value allowed as the exemption of personalty, for the appointment of appraisers to determine whether the property claimed as exempt exceeds in amount the limit fixed by the constitution. In order that the creditor may be prepared to show that his debtor is not of the protected class, or if entitled to exemption, that he (the creditor), may not be surprised by omissions of property from the schedule, and perhaps to save him from unnecessary costs in following a debtor who owns less than the law exempts,, provision is also made for giving him notice of the inten tion to assert the claim five days before hand. The time given is solely for the benefit of the creditor. He may waive it if he sees fit, and when he does so he cannot be heard to complain that he has been injured.
It is true, in this ease, no written notice was served upon the creditors that the debtor intended to claim her exemptions, but she filed an answer asserting the right and accompanying it was a schedule which is admitted to be in substantial compliance with the statute. The appellants took issue upon the right of exemption by filing their demurrer to her answer, and when defeated upon that ground, elected to make no other contest.
This was as clear a waiver of the written notice as the appearance of a defendant without summons in an ordinary action. Moreover, it the appellants had not appeared in the justice court to contest the right of exemption, the prosecution of the appeal to the circuit court, where the matter was to be tried de novo (Cason v. Bone, 43 Ark., 17), was itself a waiver of the notice, and gave the circuit court the same power to proceed that the justice would have had upon full notice in writing to the creditors.
It is a general rule that the voluntary appearance of a party entitled to notice, amounts to a waiver of such notice. Wade, Notice, secs. 1203, 1220.
It was not necessary for the debtor to intervene in the garnishment proceeding in order to make good her claim to the debt due her. It was proper for her to file her schedule and claim'as in an ordinary levy upon execution. Winter v. Simpson, 42 Ark., 410. But the schedule was, in fact, filed with the justice who issued the process, and her claim was in compliance with the statute. The appellants could have suffered no injury from the form of proceeding, and the practice pursued met with the approval of this court in the case of Probst & Hilb v. Scott, 31 Ark., 652.
Let the judgment be affirmed. | [
-112,
-20,
-72,
-84,
74,
-32,
32,
-102,
-63,
-63,
55,
83,
-31,
-62,
0,
105,
-11,
105,
117,
122,
-35,
-77,
39,
96,
-6,
-5,
-47,
85,
-76,
78,
-28,
87,
12,
49,
-62,
85,
70,
11,
-31,
80,
-50,
-113,
-119,
-19,
-7,
-126,
48,
-7,
50,
11,
97,
-113,
-29,
46,
25,
74,
105,
41,
121,
53,
-60,
-80,
-65,
5,
127,
21,
49,
39,
-100,
71,
-24,
46,
-108,
25,
1,
-24,
115,
-74,
2,
84,
75,
-101,
-119,
102,
102,
-96,
45,
-27,
-68,
-83,
46,
-1,
-99,
-89,
-109,
120,
11,
73,
-73,
-99,
124,
84,
-91,
-2,
-18,
-123,
93,
108,
7,
-17,
-44,
-77,
-113,
116,
-102,
-125,
-25,
-77,
48,
97,
-51,
-96,
92,
71,
59,
-69,
-114,
-15
] |
Cockrill, C. J.
This is an appeal from a judgment by default in a suit upon an account. The court heard no testimony on the rendition of judgment, but the judgment entry recites that the account was duly verified.
In suits upon accounts the statute makes the affidavit of r. , the plaintiff that his account is “just and correct prima fade evidence of the fact. No further burden is cast upon him until the correctness of the account is denied. Mansf. Dig., sec. 8915. Upon failure to answer the material allegations of the complaint they stand confessed; the affidavit proves the value of the goods sold or services rendered, and there is no necessity for proof of any other fact to enable the court to pronounce judgment. Ib., 5175.
It is not necessary that the affidavit to the account should be in the language of the statute or that it should be attached to the account itself. The spirit of the statute is complied with when, as in this case, the complaint, after a proper reference to the account, which is attached to it, for the several item.3 and their separate value, alleges that the services performed are worth the amounts charged and that the defendant is justly indebted to the plaintiff in the amount claimed, and the complaint is itself properly verified. This is, in substance, a verification of the account.
The court did not abuse its discretion in refusing to open the judgment. In the original motion for relief . . against the default no effort was made to show a mentónous defense to the action. Several amendments to the motion were subsequently filed in which it was alleged, that some of the items of the account were in excess of the contract for services agreed upon by the parties, and that in others a /charge was made in excess of the value of the services rendered; but these amendments were replete with irrelevant and scandalous matter and the court properly caused them to be stricken from the files.
As to diligence in making his defense none was shown. The defendant alleged, in his first motion, that he supposed he had counsel who would attend to his interest but his subsequent allegations and the exhibits which he filed in support of them show that he was not sincere in his first statement; for his excuse in the end for this negligence was that no resident attorney would undertake to make his defense for him, and that the non-resident attorneys applied to would appear in his behalf only upon condition that the case could be transferred to their home court. The circuit judge, doubtless, understood that the inability to procure legal assistance had been brought upon the defendant by his own conduct, and his paltering with the court in the matter in hand could not commend the reasonableness of the excuse for suffering the default.
Affirm. | [
-70,
-20,
108,
-68,
-120,
96,
40,
-54,
-47,
1,
103,
19,
-17,
-62,
0,
111,
-10,
125,
117,
98,
95,
-77,
7,
64,
-14,
50,
-30,
69,
52,
111,
-26,
28,
76,
48,
-30,
-107,
102,
10,
-61,
80,
-50,
7,
25,
-51,
-7,
68,
112,
81,
1,
15,
97,
-34,
99,
46,
18,
-61,
-21,
44,
107,
-71,
-32,
-112,
-113,
13,
127,
21,
-77,
38,
-34,
74,
88,
8,
-128,
25,
1,
-56,
122,
-74,
-126,
-12,
107,
-71,
1,
106,
98,
-127,
9,
-31,
-68,
-120,
15,
126,
15,
-90,
51,
81,
-53,
45,
-106,
-103,
125,
8,
39,
-4,
-6,
-99,
29,
108,
3,
-49,
-106,
-69,
-115,
102,
-72,
11,
-25,
-110,
20,
97,
-116,
-64,
92,
79,
56,
-101,
-114,
-13
] |
George K. Cracraft, Judge.
In January 1979 Cleo Melkovitz and Martha, his wife, and Herbert C. Rule and Elizabeth, his wife, purchased a 439 acre tract of land in Lonoke County. In August 1979 Arkansas Power and Light Company brought this action to condemn 12.77 acres of that land for an easement for a power transmission line and, making the required deposit, entered the land on August 29, 1979. On December 27, 1982 the jury found the sum of $75,000 to be just compensation for the taking and judgment was entered. The appellant brings this appeal contending that the trial court erred in refusing to strike the testimony of appellees’ expert, that the jury verdict was grossly excessive, that the trial court erred in permitting the jury to hear evidence concerning the deposit made at the time of entry, in excluding appellant’s expert witnesses from the courtroom during the trial, and in refusing to instruct the jury as to appellees’ duty to mitigate their damages. We find no error.
Walter C. Estes, appellees’ expert, testified that he had been engaged in extensive farming all his life and had been a real estate broker in Arkansas since 1970 and in Louisiana since 1977. He now maintains real estate offices in both states. In 1978 he had a listing to sell appellees’ farm then owned by Mr. Coleman for $1250 per acre, which in his opinion after an inspection represented the fair market value. He was unable to sell the farm for Coleman and his listing expired. He took no further interest in the property until this controversy arose. He testified that he arrived at the market value at the time of taking by adjusting the $1250 per acre value he had placed on it in 1978 to current value by utilizing a percentage factor published by the government for lands in Arkansas which he had found to be accurate. He determined the value of 80 acres immediately surrounding the transmission lines after the taking at $807.50 per acre, a reduction of 50% of fair market value. He also reduced the remainder of the property by 5%, arriving at a before value of $1615.00 per acre and an after value of $1534.25 per acre. Appellant contends that although the witness gave his opinion as to these values there was no reasonable basis for it. We do not agree.
It is settled that the testimony of an expert witness should be stricken if cross-examination demonstrates that he has no reasonable basis for his opinion. Ark. State Hwy. Comm’n v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966). Appellant argues that a basis was lacking here because the expert had arrived at his value before the taking by projecting the “1978 list price of $1250 per acre and adjusted it forward to August 21, 1979 using a percentage factor published in government reports for all lands in Arkansas.” He argues that the basic figure of $ 1250 was the asking price of Mr. Coleman and not one determined by the witness. We cannot agree because although the witness did testify with regard to the listing and the price contained in it, he testified that he had inspected the property himself and had determined that Coleman’s asking price of $1250 per acre represented the fair market value. The witness testified at length as to the criteria he had used in determining fair market value such as location, soil type, adaptability of the soil, and improvements. Additionally the witness testified to several comparable sales he had utilized in arriving at his fair market value on the date of the property before the taking. No objection was made to his use of the percentage factors published by the government in adjusting that value forward to the date of taking.
Estes testified that the value of the 80 acres immediately surrounding the transmission lines was decreased by 50% and he devalued the remaining acreage by 5%. He had taken into consideration the location, size and construction of the power line and its interruption of farming activity in the 80 acre tract. He stated that any potential purchaser of the property would take those things into consideration in determining what he would be willing to pay for the property. On cross-examination he admitted that he was not familiar with any sale of real estate in that area in which the presence of a transmission line had actually depreciated market value but was giving his “educated opinion.” The appellant, relying on Ark. State Hwy Comm’n v. Jensen, 253 Ark. 795, 489 S.W.2d 5 (1973), contends that this testimony was fatally defective and should be stricken. In Jensen the expert gave opinion evidence on the value of property and improvements but admitted on cross-examination that he had not inspected the improvements and was not familiar with the farm prior to the taking except by casually viewing it from the highway. The court held that the expert’s familiarity with the property was not sufficiently established to support his specific testimony.
The court declared that on cross-examination an expert witness should be able to demonstrate that his valuation has a foundation in fact rather than mere surmise. It did not hold, as appellant suggests, that “experience and knowledge of real estate” cannot be utilized or relied on by an expert in making appraisals. It merely holds that one cannot base an opinion on those factors alone but must demonstrate some familiarity with the property.
Estes, unlike the expert in Jensen, testified that he had personally inspected the property both before and after the construction of the power line and was familiar with the property in both conditions. After the power line was erected he found the efficiency of the operation would be reduced and the cost of the operation increased by its existence. Based on his experience as a farmer and former owner of a farm crossed by a power line, he testified that obstruction on the land created hazards to the operation of machinery and aircraft and would decrease the effectiveness and increase the cost of aerial application of seed, fertilizer and herbicides, and reduce crop yield.
These opinions were shared by appellee Melkovitz, an experienced farmer and industrial pilot, and by other crop dusters called to testify. Estes also testified that the location of the towers and power lines precluded the use of a pivot sprinkler system, which is now being used in lieu of irrigation in the area because of the falling of the water table. His opinion was corroborated by other expert testimony. He testified that the reduction of 5% in value to the remaining acreage was also due to the presence of the power line and reduction in productivity to the 80 acre tract which affected the desirability of buying the whole farm. He testified that these and other problems occasioned by the erecting of the power line would definitely have an effect on the willing purchaser. In his opinion a willing purchaser when offered identical tracts, one with a power line and one without, would pay more for the one without. According to Estes these problems would recur from year to year and have an effect upon the value of the property.
Appellant also relies on Ark.-Mo. Power Co. v. Sain, 262 Ark. 326, 556 S.W.2d 441 (1977) in which seven acres through a farm were condemned for an easement for a transmission line. The expert witness testified as to the difference in the market value of the farm before and after the condemnation. On cross-examination he admitted that he could not think of a single instance where a transmission line had any effect on the market value of the property. The court held that his opinion on the damages did not have a sound and reasonable basis. Here, however, the witness did testify to the effects the erection of the transmission line would have on the sale of the property and gave his reasons for his opinion. Testimony as to fair market value of real property is not limited to sales of comparable property, but may be determined from the opinions of witnesses having knowledge of the subject and whose business or experience entitles their opinion to weight. Ark. State Hwy. Comm’n v. Ormond, 247 Ark. 867, 448 S.W.2d 354 (1969). Based upon his knowledge and experience both as a realtor and a farmer this witness was entitled to give an opinion as to what effect the erection of the transmission line would have on the salability of this property. Any supposed weakness in his testimony goes to the weight of the evidence or credibility of the witness and not to the admissibility of the testimony. Fulmer v. Southwestern Bell Tel. Co., 9 Ark. App. 92, 654 S.W.2d 603 (1983); Ark. State Hwy. Comm’n v. First Pyramid Life Ins. Co., 265 Ark. 417, 579 S.W.2d 587 (1979). We cannot conclude that the opinions expressed by this witness were without reasonable basis or that the trial court erred in not striking his testimony.
The appellant next contends that the jury’s award was grossly excessive and was obviously motivated by passion or prejudice. In determining whether evidence is sufficient to support the verdict, this court will view the testimony in the light most favorable to appellees and will indulge all reasonable inferences in favor of the judgment. Ark. State Hwy. Comm’n v. Dupree, 228 Ark. 1032, 311 S.W.2d 791 (1958). A jury verdict will not be set aside as excessive unless it is so excessive as to indicate passion, prejudice or an incorrect application of the law applicable to the case, even though the award may appear liberal. Ark. State Hwy. Comm’n v. Sargent, 241 Ark. 783, 410 S.W.2d 381 (1967). Appellant contends that since the opinions of Estes and the two appellees as to value of the property had no reasonable basis the verdict should not be permitted to stand. It is settled in this state that a landowner is competent to express an opinion as to the value of his land and it is not necessary to show that he was acquainted with market value of property or was an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates as to the value of what he owns and the weight of his testimony is affected by knowledge of the value. Ark. State Hwy. Comm’n v. Fowler, 240 Ark. 595, 401 S.W.2d 1 (1966). Ark. State Hwy. Comm’n v. Mullens, 255 Ark. 796, 502 S.W.2d 626 (1973).
Appellant argues that the testimony of the two appel-lees was defective because they paid only $1100 per acre in January 1979 but they testified that at the time of the taking eight months later the value had risen to $1500 per acre. Both, however, testified that at the time the purchase contract was negotiated the asking price was far below what they considered to be fair market value and that it “was a bargain.” There was some evidence that their grantor had knowledge of the impending condemnation and that he had reduced the price for that reason to effect a quick sale. At the time of purchase it had not been farmed efficiently and was used mainly as pasture. They both testified that they had already made extensive improvements on the property before the taking. They had improved the irrigation system with a relift by laying 3,300 feet of pipe to the 80 acre tract where the transmission lines were located. This land had not theretofore been used for rice which is its most profitable use. They had eliminated a number of roads and put them in cultivation, combined smaller fields into larger ones, and leveled other areas and made them suitable for cultivation. They both testified that by the time the condemnation proceedings had commenced they had made it a “fully mature, desirable farm” where it had been a less desirable one.
The testimony of appellee Melkovitz, who qualified as an expert farmer and crop duster, was that the taking had reduced the value of the farm by $250 per acre. He testified that the existence of the towers and wires had increased the difficulty and cost of the whole farming operation. This property was particularly well suited for growing rice, which requires aerial application of seed, fertilizer and herbicides. He stated that it was a “nightmare for an AG pilot to fly in fields where there are power lines, and as a result they will accept jobs from other farmers in preference to them.” He stated in his experience this often delayed the application of chemicals beyond the critical date, resulting in ineffective application. He testified, and this was corroborated by another agricultural pilot, that the application of chemicals should be made 20 to 40 feet above the ground and in a straight line. The presence of the power lines made this impossible because it was too dangerous to fly under the lines and the pilot would be too high to make even application. He stated that uneven aerial applications reduced yields and increased weed problems. He demonstrated this by showing photographic slides of fields where the chemicals had not been uniformly applied. Where these chemicals are not uniformly applied they must be reapplied at double expense. He stated that the problems could not be solved by flying parallel to the power lines because the towers were not in a straight line. He futher testified that the risks of liability and danger to crops of neighbors and his own was increased because when the AG planes went too high the chemicals were more likely to drift great distances and could not be controlled. Due to the location of the towers it was impossible to make any aerial application to some parts of the farm. As a result the productivity of the farm and the cost factors were greatly increased and would continue to be incurred as long as the power line remained in place. He testified to a number of other effects of the erection of the power line and of the likelihood of damage to machinery as a result and stated that all of these factors would be considered by a prospective purchaser of the property.
Appellee also testified that the water table in that area was falling and that conventional irrigation was becoming less and less feasible. Although the acquisition of pivot sprinkler systems was expensive they use one-half as much as flood irrigation and therefore were more economical. He stated that as the water table fell the area would become more and more dependent upon the sprinkler system. As a result of the erection of the power line the use of pivot systems on the field comprised of 130 acres would be prohibited and this fact would be one a purchaser would consider. Witness Estes corroborated this when he testified that:
My experience is that buyers of rural land are usually farmers, and when they buy they try to pick out all of those things that are a hindrance to their farming operation. I cannot think that anybody who is being a careful buyer would want to buy a farm with a transmission line on it when you could buy one exactly the same without it.
We cannot conclude from this testimony that opinion evidence of the landowners was without reasonable basis. The weight to be given to it was a matter for the jury to determine. As these opinions were founded on a reasonable and logical basis and would sustain the amount of the jury’s verdict we cannot say that the verdict was grossly excessive.
The appellant next contends that the trial court erred in permi tting the j ury to hear evidence concerning the amount of the deposit made by appellant. The appellant at the initiation of the proceedings had deposited only $13,000. The appellant’s expert testified that in his opinion the difference in fair market value of the property before and after the taking was $14,000. On cross-examination the witness was asked if he had not been working on an appraisal of the properties when the lawsuit was filed to determine j ust compensation. The witness answered that he had. The appellant objected and in an in chambers conference the court ruled that counsel could not inquire as to any privileged communications but that he might inquire for purposes of impeachment as to any variance in his prior appraisal or statement. The witness was then asked if he had done the appraisal work on the appellees’ farm prior to the condemnation, and the witness admitted that he had and he assumed that the company had determined the amount of deposit from his report.
Q. Alright, then can you explain to me why the tender in the court on the day the complaint was filed was $13,791.60?
A. No response.
Q. And today you’re telling the jury that in your opinion the just compensation is $16,000?
A. I don’t make the decisions for the deposit so I can’t answer for somebody else.
Ordinarily evidence of the amount deposited by a condemnor as estimated just compensation for land taken in eminent domain proceedings is not admissible in evidence. It is not admissible to contradict lower valuations by other witnesses and should be totally disregarded in fixing the award. Ark. State Hwy. Comm’n v. Taylor, 269 Ark. 458, 602 S.W.2d 657 (1980). This question was not asked for the purpose of contradicting valuations by other witnesses or establishing the valuation of the property but for purposes of impeachment. In Ark. State Hwy. Comm’n v. Blakeley, 251 Ark. 273, 329 S.W.2d 158 (1959) the court permitted such cross-examination to show a prior inconsistent statement. Here the appellee first answered that he assumed that the company determined the amount of deposit from his report. On that assumption Blakely would permit the continued questioning on this point for purposes of impeachment regarding an appraisal already admitted into evidence. However, here it was subsequently explained that this witness was not the only appraiser and that his appraisal might have differed from the other, which he understood was lower than his. No further questions were asked on that subject. As this evidence was allowed for the limited purpose of impeachment the trial court should have given a cautionary instruction but the burden was on appellant to ask for one. As it was not requested the failure to give it can not be complained of for the first time on appeal. Matkin, Adm’r v. Jones, 260 Ark. 731, 543 S.W.2d 764 (1976).
The appellant next contends that the trial court erred in excluding appellant’s expert witnesses from the courtroom during the trial. Before the trial began there was a request made that all witnesses be excluded from the courtroom pursuant to Unif. R. Evid. 615. The court overruled appellant’s motion that its expert appraiser and agricultural consultant be permitted to remain in the courtroom. The proceedings on this motion were not transcribed and the only reference to it appears at page 264 of the transcript as follows:
THE COURT: We need to put something else on the record that we forgot to do this morning that we were going to go back and put on the record at the first break. What was it?
MR. HENRY: Yes sir. We objected to the court granting Mr. Hodges’ motion to remove C. V.Barnes and Bill Dortch because we felt that their testimony was going to be based on the testimony of the other witnesses in the trial and it was necessary and essential to our case.
THE COURT: The court ruled at that time that they were not essential to your case. And according to your files [sic] the exemption under 615 did not apply.
The appellant contends that the ruling of the trial court illustrates a conflict which exists between Unif. R. Evid. 615 and Unif. R. Evid. 703. Those rules are as follows:
RULE 615: Exclusion of Witnesses. — At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of. . . (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
RULE 703: Basis of Opinion Testimony By Experts. — The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing.
The appellant argues that if an opposing expert witness is excluded from hearing testimony he cannot base his opinion on “the facts or data presented by those witnesses.” He argues that these witnesses would have been able to learn facts and data from hearing the testimony of appellees and their witnesses to use as a basis for their opinion. Certainly if a witness is to testify, not to the facts in the case but solely in his capacity as an expert, and must use the testimony presented at the trial as the basis for his opinion, this argument would have merit. However, both of these witnesses testified from their own independent investigations of the property before and after the taking, and stated their opinions based on those investigations.
In Chambers v. State, 264 Ark. 279, 571 S.W.2d 79 (1978) this court declared that the word “shall” as used in Rule 615 is mandatory. In Morvant v. Const. Aggregates Corp., 570 F.2d 626 (6th Cir. 1978) the court said that where an exception to the exclusionary rule is sought under Unif. R. Evid. 615(5), it could only be based on Rule 703 which at least implies that experts will be present in court to hear the evidence. The court held, however, that the mere fact that an expert witness may be assisted by being present to hear the testimony upon which he is expected to base his expert opinion does not necessarily furnish an automatic basis for exempting him from sequestration under Rule 615(3).
Where a party seeks to exempt an expert witness from the exclusionary rule on that basis the decision is within the discretion of the trial judge, which should not normally be disturbed on appeal. Morvant v. Const. Aggregates Corp., supra; Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981). In the absence of a record of the proceedings had on the motion we are unwilling to conclude that the trial judge abused his discretion in not exempting the experts under Rule 703. We are unable to find any indication that these witnesses intended to base their opinion on the testimony of other witnesses heard in the courtroom and would be unable or hindered in some way to give opinion tstimony if excluded. On the contrary the record indicates that the opinions of both witnesses were based on independent observations and differed from appellees’ witnesses only as to conclusion.
Nor do we find error in the court’s ruling that the presence of these witnesses was not “essential to the presentation of the case” as provided in Rule 615(3). In Chambers v. State, supra, our court adopted the generally accepted interpretation of that section which is that it applies “to such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation.” International Harvester Corp. v. Hardin, 264 Ark. 717, 574 S.W.2d 260 (1978). (See 28 USCA Federal Rules of Evidence, Rule 615, Notes of Advisory Committee (1975)). In Oliver B. Cannon & Son v. Fidelity and Cas. Co., 519 F.Supp. 668 (D. Del. 1981) the court stated that what must be shown is.that a witness has such specialized expertise or intimate knowledge of the facts of the case that a party’s attorney could not effectively function without the presence and aid of the witness or that the witness would be unable to present essential testimony without hearing the testimony of all other witnesses. This record does not contain such a showing.
In his testimony appellee Melkovitz stated that after the easement was taken the appellant placed three towers along an existing ditch which had been used as a border for his fields and drainage for his farm and neighboring farms. He testified that as a result of the easement he was forced to move the ditch at considerable expense and gave testimony of that expense as an element of damage. The appellant countered that testimony with another expert who testified that it was not necessary to move the ditch as a result of the border but that Melkovitz was merely proceeding with his plans to improve the farm and that it was not necessary to alleviate damages caused by A.P. & L. Relying on Ark. State Hwy. Comm’n v. Dean, 244 Ark. 405, 425 S.W.2d 306 (1968) appellant contends that it was not necessary to move it and that it was the duty of the appellee to mitigate his own damage and that the court erred in refusing to give the jury a proffered instruction on the duty of the landowner to mitigate his damages. We do not find that case controlling here. There, after property had been condemned for highway purposes and the road constructed, the landowner at considerable expense ran a conduit under the constructed highway for a sewer line across the right-of-way from the appellee’s property on both sides of the road. There was evidence that the landowner could have mitigated his damages by constructing the conduit before the road was constructed. In this case the question is not whether the ditch should have been moved in a different way or at a different time but whether the power line necessitated moving the ditch at all. There was no showing that it would have cost more or less to have moved the ditch before the power lines were constructed. The question of whether the erection of these lines necessitated the moving of the ditch was a question for the jury to determine. We find no error.
Affirmed.
Mayfield and Cooper, JJ., agree. | [
-16,
-22,
-15,
-68,
8,
96,
58,
-104,
75,
-86,
-14,
83,
125,
75,
16,
105,
-29,
61,
116,
104,
-42,
-78,
17,
99,
83,
-13,
-5,
-59,
57,
76,
-28,
-41,
76,
112,
-54,
85,
98,
-32,
-51,
88,
-50,
-128,
-101,
93,
121,
80,
56,
47,
80,
75,
53,
-98,
-5,
-88,
61,
-53,
77,
46,
43,
61,
64,
120,
-86,
15,
-17,
7,
48,
100,
-102,
1,
-8,
110,
-112,
61,
0,
-24,
123,
38,
-122,
116,
9,
-101,
12,
36,
98,
17,
108,
-49,
-8,
-120,
7,
-2,
-115,
-92,
-46,
24,
67,
64,
-74,
-106,
108,
80,
7,
-2,
-28,
-115,
28,
108,
7,
-114,
-106,
-77,
45,
-88,
-98,
2,
-49,
-81,
16,
97,
-49,
-26,
93,
71,
115,
-101,
-114,
-75
] |
Cockuill, O. J.
The appellants are merchants in the city of St. Louis. Their salesmen visit merchants in this state and elsewhere, and solicit orders for' merchandise, and when successful forward the orders to their principals in St. Louis to be filled. The appellees who are merchants in the town of Fayetteville, in this state, purchased a bill of goods. of the appellants through W. T. Barry, one of their traveling salesmen, the order being taken in the usual way, and the goods shipped by the St. Louis merchants to 'the appellees with an itemized account showing the indebtedness to them. A few days after the goods were received by the appellees, Barry called upon them for payment, and upon the receipt of the amount of the account, less a small discount, receipted the account in full in the name of his principals. The money thus received by Barry never, in fact, reached the appellants, and they sued the appellees upon the account. The latter relied and succeeded upon the plea of payment.
No declarations of law were made or refused by the court, and the question presented is : Does the record disclose authority in Barry to receive payment for the goods and discharge the debt ? It is not contended that he had express authority to do so, but it is contended that the authority to sell goods imports the authority to receive the proceeds of sales. The rule is frequently stated thus broadly by the authorities, but an examination of the eases will show that it is properly limited to a state of case where there are circumstances or appearances which give color to the belief in the purchaser that the authority exists; and when this is true, it is immaterial as to third persons whether the authority has been actually conferred or not, for as to them, apparent authority is real authority. Jacobson v. Poindexter, 42 Ark., 97.
The most usual instance of the principal being bound, in this class of cases, by the act of his agent, beyond the authority conferred, is where the agent contracting for the sale, has possession of the property and delivers it to the purchaser, collecting the purchase money contrary to instructions. In that case, the possession and delivery of the property clothe the agent with the indicia of authority to receive the purchase price, and if the purchaser is not apprised of the limit placed upon the agent’s authority, payment to the agent is payment to the principal. This incidental authority does not exist, however, if .the agent is merely employed to negotiate a contract without possession of the property. The distinction is that long established between the authority of a factor and a broker. Hill v. Crosby, 39 Ohio St., 100; Higgins v. Moore, 34 N. Y., 4l7; Berning v. Corrie, 2 B. & Ald., 138; Graham v. Duckwall, 8 Bush., 12.
The Supreme Courts of Illinois, Missouri, Wisconsin and Michigan, have held that salesmen employed by commercial firms to travel and solicit orders, or sell goods by sample, have no implied authority, where nothing more appears, to collect the purchase money due their principals. Clark v. Smith, 88 Ill., 298; Divessey v. Kellogg, 44 ib., 114; Butler v. Donnan, 68 Mo., 298; McKindley v. Dunham, 55 Wis., 515; Koseman v. Donham, 24 Mich., 36; see, too, Johnson v. Craig, 21 Ark., 533, 537; Seiple v. Irwin, 30 Penn. St., 513; Law v. Stokes, 32 N. J, (Law), 249; Dunn v. Wright, 51 Barb., 244; Puttock v. Warr, 3 Hurl. & N., 979.
The case of Hoskins v. Johnson, 5 Sneed (Tenn.), 409, which is perhaps the earliest reported case upon the authority of a “ drummer ” to collect the purchase price of goods sold upon orders solicited by him, is not reconcilable with the doctrine of the foregoing cases. According to it, the authority to collect the purchase money is an incident to the power to negotiate the sale. It has been followed in Collins v. Newton, 7 Baxter (Tenn), 269, and the case of Putnam v. French, 53 Vt., 402, appears to be in accord with it; but it seems clear, upon principle, that where goods are received by a purchaser from the vendors with a bill thereof payable to themselves, the bare fact that the order for the goods had been procured by an agent of the vendors, whose general duty it was to solicit such orders, would not raise the presumption that the agent was authorized to collect the purchase price. In such a case payment to the agent is no defense to an action by the vendors for-the purchase money. But full validity may be given to the act of the agent in receiving payment, if there be a known usage of trade or course of business to justify the purchaser in making it. Story Agency, secs. 98, 413, 429; Lawson Usages and Customs, sec. 20, p. 49; sec. 142, p. 284.
Da. that case the presumption is that the agency was created with reference to the custom or course of business, and the ordinary reach of the agent’s authority is thereby enlarged so as to cover the usual incidents of such an agency.
The proof in this case developed the fact that it was a general custom for commercial agents, traveling like Barry, to solicit orders, to collect the purchase money for the goods sold by them, for their principals, and the proof was specifically directed to the custom of St. Louis agents. Isolated exceptions to the rule were proved, but in such instances the firm making the limitation indicated the fact in their bill or letter heads that payment must be made to them directly. Proof was had of the fact of two other of appellant’s salesmen traveling at the same time as Barry, both of whom were in the habit of making collections as Barry did, in this instance, and remitting to the appellants. Barry, himself, it appears, made collections from other customers of this house, and remitted the money to his principals from time to time, and no complaint was made by them of this exercise of authority, until his failure to remit the money paid him by the appellees. They did not before that time inform him or any one else that he had no authority*to collect. Proof of the custom referred to was admissible, not for the purpose of enlarging the scope of Barry’s agency, but in order to interpret his power under it, and the specific acts of payment by other merchants to Barry and the appellants’ other agents, tended to show their usual course of dealing with this class of agents, and to establish an actual knowledge on their part of the .usage in this respect.
The jury, or rather the court acting in that capacity, was justified also in finding that the discount allowed the appellees was in accordance with the terms of sale made by the parties ; that is, that the purchaser had the option to retain the agreed price until the expiration of the term of credit without interest, or to deduct the customary discount if paid before. Heisch v. Carrington, 5 C. & P., 471; S. C. 24, E. C. L., 660.
Affirm. | [
-80,
-26,
-24,
-84,
26,
112,
18,
-70,
81,
-31,
117,
83,
105,
-45,
-111,
99,
-73,
-83,
-16,
106,
-44,
-77,
71,
72,
82,
-45,
-37,
-57,
-76,
108,
-26,
94,
76,
32,
-62,
-99,
-25,
-64,
-51,
-104,
-122,
32,
26,
-52,
-47,
-60,
48,
40,
22,
74,
101,
7,
-13,
44,
29,
75,
-19,
44,
105,
117,
-48,
-16,
-102,
15,
127,
22,
17,
116,
-104,
5,
-56,
78,
-104,
57,
3,
-23,
123,
-90,
-122,
84,
11,
29,
-120,
34,
99,
-78,
-127,
-19,
-72,
-68,
46,
91,
-97,
-122,
16,
88,
2,
97,
-74,
-98,
92,
1,
55,
116,
-14,
-35,
-101,
104,
15,
-113,
-106,
-89,
47,
118,
30,
3,
-50,
-57,
48,
113,
-50,
82,
93,
87,
54,
-109,
-114,
-31
] |
Smith, J.
The plaintiffs in error were charged by affidavit, before a justice of the peace, with an assault upon one Davidson, with a deadly weapon, and also with an assault and battery committed' upon him. The warrant of arrest specified the first named offense. They made an application for a change of venue, grounded upon the prejudice of the justice who issued the warrant, but not supported by the affidavit of any third person, as sec. 2379' Mansfield’s Digest requires. Their petition was, however, granted and the cause sent to a justice in another township.
Upon separate trials, Thomas Martin was convicted of an aggravated assault, and John of an assault and battery. Both appealed and entered into a joint bond, with one Rutherford as their surety, in the sum of $200, conditioned for the payment of the fine and costs.
In the circuit court a demurrer was filed to the affidavit upon which the warrant issued and to the jurisdiction of the court. The demurrer was properly disregarded. The-justice and the circuit court on appeal, certainly had jurisdiction to inquire into the truth of the charge; and it is too late on appeal to raise the question of jurisdiction over the person of the defendants. The order for a. change of venue needed not to set forth the ground of removal. This appears from the affidavit therefor, which is part of the record. Dixon v. State, 29 Ark., 166.
Nor was it necessary to the jurisdiction of the magistrate, to whom the cause was transferred, that a supporting affidavit should have been filed before the order of removal was made. This was an objection which was waived by not being taken advantage of in the court of the justice who tried the case. Brown v. State, 13 Ark., 96.
The affidavit and warrant were not subject to demurrer- They had served their purpose in bringing the defendants before an officer and were of no future moment. No written information or pleadings are required in a justice’s court. Mansfield’s Digest, sec. 2367. When the case is carried by appeal to the circuit court, it is there for trial on its merits, and technical objections to the forms of procedure in the lower court are futile.
The defendants were put upon trial jointly. This was in the discretion of the circuit court. Mansfield’s Digest, sec. 2216.
The jury returned a general verdict of guilty, and assessed the fine of the defendants at $1 each. Thereupon judgment was rendered against them for said fine and costs, and also against their surety, the same as to him not to exceed the penalty of his bond. It is urged that the verdict should not have been received and recorded on account of its uncertainty; that there were several offenses or degrees of the same offense, of which the defendants might have been convicted, and it is impossible to say of which one the jury intended to find them guilty; therefore no valid judgment could be entered thereon.
In the absence of a bill of exceptions, showing what took place at the trial, it will be presumed, from the fine imposed and in favor of the verdict and judgment, that the jury meant to convict of the lowest grade of the offense.
It is no ground of reversal that the judgment for costs is against both defendants jointly. The verdict and judgment against them are several; that is, they fix the fine to be paid by each. Straughan v. State, 16 Ark., 44.
The statute authorizes a judgment against the surety in the appeal bond, on conviction of the principal, without further notice. Mansfield’s Digest, sec. 2435.
Affirmed. | [
-80,
-30,
-31,
62,
75,
-32,
32,
-68,
-61,
-109,
102,
115,
-19,
-62,
4,
47,
-29,
121,
117,
121,
-44,
-73,
38,
65,
-14,
-77,
-47,
87,
-73,
-49,
-18,
-108,
76,
112,
98,
-35,
70,
14,
-113,
-40,
-114,
-87,
-88,
-31,
80,
-64,
32,
57,
2,
11,
49,
-65,
-6,
42,
17,
-61,
-55,
44,
-53,
-71,
65,
113,
-103,
13,
-33,
6,
-79,
-9,
-102,
3,
88,
42,
-128,
49,
1,
120,
51,
-106,
-126,
116,
109,
25,
40,
106,
98,
1,
-75,
-49,
-72,
40,
62,
38,
-103,
-89,
-111,
73,
75,
12,
-74,
-103,
109,
20,
-121,
-4,
-31,
13,
25,
108,
7,
-49,
-110,
-77,
-81,
96,
-98,
3,
-29,
50,
4,
112,
-60,
-30,
92,
85,
120,
-101,
-50,
-6
] |
Tom Glaze, Judge.
This is an appeal from a judgment in favor of appellee, Merchants and Farmers Bank, on an assignment to it of the right to receive payment for work done on a plumbing subcontract. We affirm.
Appellant, Wayne Newton, is a general contractor. He had a contract to construct an addition to the Delta Lodge Motel, owned by Aubrey Mitcherson, in Dumas. Newton subcontracted plumbing work to be done in. the addition to Kenneth Rogers, d/b/a Ken Rogers Plumbing. Rogers agreed to do the work for $22,100, to be paid in three installments, to begin after the job was “roughed in.” After receiving the subcontract, Rogers borrowed $15,500 from the Merchants and Farmers Bank to have cash ready to meet expenses due before the first installment was paid. To obtain the loan, Rogers signed a consumer note and security agreement with the bank. To secure the loan further, the bank required Rogers to assign his subcontract on the Delta Lodge job to the bank.
On February 11, 1981, Merchants and Farmers Bank sent Newton a letter giving him notice of the assignment by Rogers. In the letter, the bank, in order to protect its interest under the loan to Rogers, requested Newton to make all checks payable to it and Ken Rogers Plumbing. Five days earlier, on February 6, Newton had sent the bank a letter informing it of his knowledge of the assignment. With regard to naming the bank as co-payee, the letter stated, “This letter is to inform you that we will issue payments jointly to Mr. Rogers and Merchants and Farmers Bank as per his request.” Prior to this correspondence between the parties, Rogers and Newton discussed naming the bank as co-payee on the installment checks. Newton told Rogers that he would make out the checks for payment of the plumbing work to him and the bank.
On March 2, 1981, Newton wrote a check to Rogers for $7,085 — $6,700 for work done on Delta Lodge and the balance for related expenses. Newton did not name the bank as co-payee on the check. The trial testimony is unclear as to exactly why Newton left the bank off the check, but, apparently, Newton and Rogers agreed, “It would be alright” to make the check out to Rogers alone. Rogers paid his general operating expenses for the Delta Lodge job, but did not pay his matrialman, Southern Pipe and Supply Company, which had supplied him with the plumbing fixtures. Rogers completed the job in May, 1981, but Newton never paid the balance due under the subcontract. Newton admitted Rogers had completed the job and had done good work.
Rogers went into default.on the bank loan on June 11, 1981. In July, 1981, Southern Pipe obtained a materialman’s lien on Mr. Mitcherson’s property, Delta Lodge Motel. The bank filed suit against Newton and Rogers to collect on the note and won a judgment against them for the principal amount, $15,000, and interest.
On appeal, appellant raises several points. The only argument we need address is appellant’s contention that Rogers delegated to the bank his duty to pay Southern Pipe for the plumbing fixtures as well as his right to receive payments under the subcontract. Appellant bases his contention on the language contained in the consumer note and security agreement and the February 11 letter signed by Rogers to secure his loan from the bank. First, the consumer note and security agreement provided:
I [Ken Rogers] own the property described below. To protect the Bank I give what is known as a security interest (like a mortgage) in my: Assignment of Contract on Delta Lodge — From Wayne Newton Const. Co.
Next, Rogers also signed the letter of February 11, in which he said:
I, Kenneth Rogers, D/B/A Ken Rogers Plumbing Co., hereby assigns [sic], set over and deliver to Merchants and Farmers Bank of Dumas, Arkansas, a certain subcontract between Wayne Newton Construction Company of Magnolia, Arkansas and Delta Lodge Motel, in the amount of $22,100, dated February 11, 1981.
In support of his contention, appellant cites Pemberton v. Arkansas State Highway Commission, 268 Ark. 929, 597 S.W.2d 605 (Ark. App. 1980), a case interpreting Ark. Stat. Ann. § 85-2-210(4) (Add. 1961). However, Ark. Stat. Ann. § 85-2-102 (Add. 1961) limits the application of § 85-2-210 to contracts involving the sale of goods. Here, the underlying contract between Newton and Rogers does not involve the sale of goods, thus § 85-2-210(4) is simply not applicable. Nevertheless, the general contract law of assignments on this issue is on point and is substantially the same as § 85-2-210(4). The Restatement of Contracts section 328, subsection 1, states:
Unless the language or the circumstances indicate the contrary, as in an assignment for security, an assignment of “the contract” or of “all my rights under the contract” or an assignment in similar general terms is an assignment of the assignor’s rights and a delegation of his unperformed duties under the contract.
Restatement (Second) of Contracts § 328(1) (1979).
In applying the foregoing rule to the facts at bar, we observe that the language of the consumer note and security agreement Rogers signed to get the loan from the bank describes the assignment as a “security interest” to secure the $15,500 loan. In addition, the bank’s letter of February 11 to Newton formally notified Newton that the assignment of Rogers’ subcontract was to secure the loan. Furthermore, the record is replete with testimony indicating Newton was well aware that Rogers assigned his right to payments for the plumbing work to the bank to obtain the capital necessary to start the job. On the other hand, there is no evidence showing the bank intended to perform Rogers’ duties under the contract. In fact, the most convincing evidence of Rogers’ nondelegation of his duty to pay Southern Pipe is Newton’s omission of the bank as payee on the initial check to Rogers for $7,085. In brief, if Newton had believed then, as he asserts now, that the bank was responsible for paying Southern Pipe, he surely would have included the bank as payee on the check.
From the forgoing, we conclude that Rogers assigned his right to payments on his subcontract with Newton, and such assignment did not delegate to the bank his duty to pay Southern Pipe. We make no finding regarding which party owed Southern Pipe except that the bank does not. Clearly, Newton’s initial partial payment to Rogers is in no way a defense to the bank’s claim. See Wimberly Grocery Co. v. Border City Broom Co., 166 Ark. 570, 266 S.W. 2d 679 (1924) (wherein the Supreme Court held payment to the assignor, or discharge or release by him after notice to the debtor of the. assignment, is no defense to the claim of the assignee). Because Newton admitted the justness of his debt to Rogers and because the validity of the assignment of the debt to the bank is not questioned, we agree with the circuit judge that Newton and Rogers are indebted to the bank. See generally Ark. Stat. Ann. § 68-805 (Repl. 1979).
Affirmed.
Mayfield, C.J., and Cloninger, J., agree. | [
80,
120,
-8,
-52,
-118,
-32,
40,
-102,
28,
-96,
55,
83,
-81,
86,
20,
105,
-15,
95,
85,
97,
-41,
-77,
7,
98,
-61,
-13,
-7,
69,
-71,
93,
-12,
-41,
72,
48,
-62,
-99,
-26,
-126,
-57,
-36,
14,
0,
11,
101,
-7,
64,
48,
-86,
6,
79,
33,
4,
-77,
48,
21,
75,
44,
46,
127,
61,
80,
-13,
-118,
-115,
95,
5,
-95,
6,
-40,
13,
-8,
12,
-104,
49,
40,
-23,
114,
-90,
-126,
116,
75,
-101,
45,
96,
98,
34,
17,
-51,
-36,
-100,
22,
-34,
-115,
-89,
-14,
57,
27,
43,
-65,
-97,
122,
22,
4,
-10,
122,
-123,
27,
108,
3,
-114,
-44,
-61,
-115,
117,
-107,
-118,
-18,
3,
18,
117,
-49,
-30,
125,
79,
115,
31,
6,
-7
] |
Cooicrill, C. J.
There is but one question that is material for us to consider in this case, and that is, whether an affidavit for an appeal from a judgment of a justice of the peace, made by the party appealing before his attorney of record as a notary public, is a compliance with the statute which makes an affidavit for an appeal a prerequisite to its prosecution. It is argued that an oath administered by an attorney to his client is of no validity whatever, although the attorney is an officer authorized generally to administer oaths; and, to sustain the position, a number of English cases are cited, in which the courts of law and equity in that country refused to receive affidavits made by a client before his attorney. The courts appear, however, to have acted under rules of practice adopted by them for the guidance of litigants, rather than in strict pursuance of a rule of law. The rule has been amended, and its scope enlarged by the several courts from time to time, and some of the cases cited are based upon rules of recent origin. 1 Fish. Dig., p. 137; 1 Chit. Gen. Pr., p. 545. As these were no part of the practice of the courts prior to the fourth year of James I, they can have no binding force with us. The origin of the practice cannot be readily determined. The researches of Mr. Chitty and Mr. Daniel have produced no case earlier than the time of Lord Hardwieke, in re Hogan, 3 Atk., 813, A. D. 1754. In that case it is said : “ At common law the practice is always objected to and discountenanced, and generally, in equity, from the inconvenience that would arise if such a practice was suffered; ” and the reporter adds, “the petition was dismissed, with the costs to come out of the pocket of the solicitor who thus very improperly took the affidavits.” But whatever the date of the origin of the rule may be, there were always cases in which the affidavit might be made before the attorney in the cause, and in none of the cases does it appear that it was more than an irregularity to do so. In the case of Taylor v. Hatch, 12 Johnson R., the Supreme Court of New York say the rule .adopted by the King’s Bench “is a fit and proper rule, which we shall therefore adopt here,” and after that time it was followed in that state, being denominated, however, a mere technical rule (People v. Spalding, 2 Paige Chy., 326), evidently intended only to discourage attorneys from engaging in a practice so likely to lead to abuse; and accordingly an affidavit made by a client before his attorney is not regarded as a nullity there, but only as an irregularity; and, in this respect, the courts of that state profess to follow the English practice. Gilmore v. Hempstead, 4 How. Pr., 152; see Ross v. Sherman, 2 Cooper, temp. Cottenham, 172, W.
The rule of practice was enforced by this court in Hammond v. Freeman, 9 Ark., 62, where Taylor v. Hatch was cited without comment or explanation; but whether it has any binding force without formal adoption by this or the inferior tribunals of the state or not, it is clear that an affidavit for an appeal (about which there is no discretion or semi-judicial duty to be performed), when attested by the attorney for his client, is only an irregularity in practice, if the attorney is an officer authorized to administer the oath. It follows that if no objection had been made to the affidavit in the circuit court, no advantage could be taken of it here, even if the facts appeared of record.
When the objection was made in the circuit court, the party prosecuting the appeal from the justice of the peace offered and was allowed to swear to the statements of the affidavits before another officer. There is no doubt of the power of the circuit court to permit an amendment of an informal affidavit for appeal. Young v. King, 33 Ark., 745. ~We have held that the omission from the jurat of the signature of the officer was a curable defect (Guy, McClelland & Co. v. Walker, 35 Ark., 212), and we think the court, in permitting the amendment now complained of, acted within the principle of that case, and in furtherance of the plain purpose of the liberal provisions of the statute as to amendments.
In Bradey v. Andrews, 51 Mich , 100, an amendment was permitted in exactly this state of case, although the statute of that state prohibits an attorney from swearing his client.
There were several members of the firm which prosecuted the appeal, and the first and second oaths were not made by the same individual. That was immaterial. Any one of several parties jointly interested may make an affidavit for all for the purpose of appeal.
Affirm. | [
48,
-28,
-36,
61,
-54,
96,
-88,
24,
-47,
-125,
-25,
113,
-67,
-46,
4,
127,
-13,
109,
53,
114,
-41,
-73,
54,
73,
-78,
-14,
-63,
-44,
49,
109,
-25,
125,
76,
48,
-62,
-43,
71,
-118,
-63,
-48,
-58,
11,
25,
-51,
-37,
-28,
48,
49,
16,
15,
117,
-34,
-29,
46,
60,
-58,
-88,
108,
75,
-116,
-48,
-128,
-99,
-115,
79,
23,
-77,
39,
-8,
71,
122,
46,
14,
61,
3,
-24,
50,
-76,
22,
-44,
47,
57,
9,
98,
42,
17,
97,
-21,
-72,
-119,
47,
78,
29,
-89,
-112,
80,
73,
45,
-122,
-37,
109,
16,
39,
-4,
-32,
77,
31,
36,
11,
-113,
-42,
-71,
-117,
126,
-68,
3,
-17,
34,
16,
65,
-60,
106,
92,
67,
-15,
-37,
-114,
-14
] |
Smith, J.
The defendants were indicted for removing wood and timber of the value of $5.00, which had been. cut down and was lying upon the lands of another. The indictment was quashed upon demurrer.
The offense is described in the words of section 1658, of Mansfield’s Digest, and the question is whether so much of that section, being a part of the revised statutes of 1838, as makes it a misdemeanor to carry away any kind of wood or timber that may be lying upon the ground of the owner, is impliedly repealed by the act of March 17, 1883 (Mansfield’s Digest, secs. 1659-63.)
There is no inconsistency between the two statutes, for the earlier statute punishes the trespass without regard to the intent of the trespasser; whereas the later requires the act to be done with intent to convert the property to the use of the taker or that of his employer or principal. Ib., sec., 1660.
• Again: The later act cannot be regarded as a revision of the whole law of trespass upon real estate and as intended to be a complete substitute for all previous legislation on that subject. Its title is, “An act to protect state lands, and for the regulation and protection of the timber and timber interests of this state.”
Reversed and remanded, with directions to overrule the demurrer and require the defendants to plead. | [
-11,
115,
-40,
-68,
11,
-32,
42,
-72,
67,
-13,
-89,
87,
-21,
-126,
-128,
33,
-77,
-3,
117,
106,
-60,
-26,
55,
35,
-74,
-109,
81,
-41,
61,
79,
-17,
69,
68,
52,
-62,
-11,
5,
-118,
-27,
92,
-114,
37,
8,
95,
-13,
96,
52,
-85,
4,
11,
113,
-82,
-5,
10,
21,
-57,
1,
44,
-49,
-71,
-15,
-67,
-78,
29,
91,
6,
-95,
118,
-120,
-125,
-56,
72,
-112,
49,
17,
-24,
115,
-78,
6,
94,
5,
-119,
8,
98,
98,
17,
101,
-25,
-120,
-104,
42,
-6,
-23,
-89,
-48,
88,
3,
96,
-82,
-43,
116,
16,
38,
126,
-26,
-52,
29,
104,
7,
-57,
-44,
-77,
-113,
-80,
-104,
99,
-53,
-73,
48,
117,
-49,
34,
92,
101,
80,
-101,
14,
-51
] |
James R. Cooper, Judge.
In this divorce case the appellant alleges that the trial court erred in declaring the appellant’s retirement fund to be marital property, in awarding a $1,200.00 attorney’s fee, and in the manner the personal property was divided. We find no merit to any of the appellant’s arguments, and therefore, we affirm.
Generally, the facts are not in dispute. Mr. Deaton has a retirement account with his employer, which the trial court found to be vested. There is scant evidence in the record concerning the retirement account, apparently because the appellant refused to furnish any information concerning the account. We cannot say that the trial court erred in finding the retirement account to be vested and that, therefore, it was marital property. The appellant argues that such benefits which are vested but not currently due and payable are not marital property, and cites as authority for that proposition Knopf v. Knopf, 264 Ark. 946, 576 S.W.2d 193 (1979), and Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). However, on January 30, 1984, the Arkansas Supreme Court decided Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). In Day, the Court apparently overruled Knopf and Sweeney, and a number of other cases which were in accord with them. See Day, supra, (dissenting opinion). Therefore, we affirm the chancellor’s finding that the plan constituted marital property, and that Mrs. Deaton was entitled to one half of it. The decree, however, should be modified so as to provide that the value of her interest is fixed as of the date of the decree, and that any contributions made by Mr. Deaton after the date of the decree will increase his portion of the retirement account and will accrue only to his benefit. The appellant should also be required to maintain Mrs. Deaton as beneficiary on her half of the account. Because the case at bar was decided before the decision in Day, supra, and because of the pending litigation concerning the pension plan, this case must be remanded to the trial court so that the dollar amount of the appellees’ interest can be fixed as of the date of the divorce decree.
The second point raised by the appellant is that the chancellor erred in awarding additional attorney’s fees. He bases this argument on the fact that the appellee did not provide any documentation as to the time spent on the case by her attorney. Attorney’s fees are a matter for the discretion of the trial court, and, absent an abuse of discretion, we will not reverse his decision in that regard. In the case at bar, the chancellor had the opportunity to observe the parties and, as the chancellor noted, the appellant was extremely uncooperative in adhering to any of the court’s orders. We find no abuse of discretion on the part of the chancellor. Further, this issue was not raised before the trial court nor was any documentation requested.
Finally, the appellant claims that the trial court erred in basing his division of the personal property on the stated value rather than on fair market value. Since this point was not presented to the trial court, we will not consider it on appeal.
For the reasons stated earlier, the case is affirmed as modified, and remanded to the trial court for a determination as to the dollar amount of Mrs. Deaton’s interest in the pension plan, in light of the standards set forth in Day, supra. The trial court shall retain jurisdiction of this matter so that amount can be fixed, and, in the event there is tax liability on the proceeds of the plan, those liabilities can be appropriately apportioned.
Affirmed as modified, and remanded.
Mayfield, C.J., and Cracraft, J., agree. | [
50,
110,
-43,
126,
8,
-96,
58,
-118,
114,
-124,
39,
81,
-5,
-49,
64,
109,
82,
75,
80,
98,
-41,
-77,
87,
96,
82,
-77,
-39,
-59,
-87,
77,
-89,
87,
76,
48,
-54,
-43,
102,
-18,
-63,
84,
-50,
-124,
-117,
-27,
-39,
68,
48,
103,
80,
13,
33,
-124,
-77,
41,
61,
107,
76,
14,
77,
-80,
80,
-72,
-114,
13,
79,
3,
-79,
36,
-110,
-25,
88,
46,
-108,
56,
0,
-23,
114,
-90,
-106,
116,
107,
-71,
41,
98,
99,
2,
97,
-33,
-112,
-120,
14,
-77,
-115,
-91,
-78,
17,
75,
9,
-66,
-98,
111,
28,
-17,
126,
113,
-99,
31,
108,
3,
-113,
-42,
-79,
-83,
124,
-100,
9,
-25,
-25,
16,
113,
-53,
-94,
93,
71,
27,
-69,
-105,
-11
] |
Cockrill, C. J.
Tillar, Stanley & Co. sued the appellees before a justice of the peace upon a promissory note-executed by them to Jerry Hopkins, as administrator of the estate of Jesse Harrell, deceased, alleging that it had been assigned to them. On the day set for trial, the plaintiffs, through their attorneys, asked and were granted leave to permit Hopkins, as administrator, to prosecute the action upon the note. A formal complaint was thereupon filed, by Hopkins, as administrator, against the appellees. The appellees appeared to this action, represented to the court that Tillar, Stanley & Co. were interested in the note, and procured an order directing them to be made parties. Tillar, Stanley & Co. then joined the administrator as plaintiffs, the case was continued for trial until a day in the next month, when the appellees answered, a trial was had and judgment rendered for the plaintiffs. The appellees carried the case, by appeal, to the circuit court, and there moved to dismiss the action, because Tillar, Stanley & Co. had no interest in it. The administrator insisted upon prosecuting the action irrespective of the presence of Tillar, Stanley & Co., but the court would not permit it, and dismissed the action. This was error. The filing of the complaint before the justice, by the administrator was the institution of a new suit, and not a continuation of the action begun by Tillar, Stanley & Co. State v. Rottaken, 34 Ark., 144. The appellees voluntarily appeared, and when the case was carried by appeal to the circuit court, it was there for trial de novo, upon the merits, rather than for the correction of errors conimitted by the justice of the peace. The presence of Tillar, Stanley & Co. did not affect the jurisdiction of the court. They are neither-necessary nor proper parties to an action by the administrator ; -they came into the suit at the defendants’ instance, and when the defendants subsequently manifested disapproval of their presence, they offered to retire from the action. We think they should have been allowed to do so, without embarrassment to the administrator.
The judgment must be reversed, and the case remanded, with instructions to reinstate it, and let it proceed as an action by Hopkins, as administrator, against the appellees. | [
-80,
-4,
-28,
45,
11,
96,
48,
-86,
75,
-93,
103,
83,
-17,
-53,
1,
33,
-13,
45,
85,
107,
-26,
-77,
47,
66,
-62,
-13,
-7,
21,
36,
-49,
-26,
87,
76,
80,
-54,
85,
-62,
-92,
-127,
28,
-50,
45,
8,
-20,
-39,
-128,
48,
117,
83,
79,
117,
-113,
-13,
47,
21,
67,
108,
46,
-19,
29,
-8,
-15,
-118,
4,
127,
22,
49,
-89,
-104,
67,
92,
43,
-128,
-75,
2,
-24,
114,
-90,
-126,
-28,
67,
56,
-119,
98,
98,
41,
-111,
-25,
-120,
-120,
15,
40,
31,
-89,
-112,
24,
-85,
45,
-66,
-99,
16,
21,
-57,
126,
-2,
-123,
29,
44,
7,
-50,
-106,
-105,
-65,
68,
-100,
3,
-21,
-125,
52,
112,
-97,
-14,
93,
71,
56,
-101,
-49,
-80
] |
George K. Cracraft, Judge.
McLarty Leasing System, Inc. appeals from a judgment dismissing its complaint against Lehman D. Blackshear and E. Sidney Groves as guarantors with prejudice. Blackshear and Groves cross-appeal from that part of the order which dismissed their third-party complaint against Ronnie Sleeth as a co-guarantor.
On December 12, 1979 the appellant McLarty Leasing System, Inc. entered into two identical leasing agreements with Big Three Transportation, Inc. in which McLarty leased seventy over-the-road tractors and trailers to Big Three for thirty-seven months at a stipulated monthly rental for each unit. Simultaneously, Lehman Blackshear, E. Sidney Groves and Ronnie Sleeth executed an addendum to each lease in which they guaranteed payment of all rentals and any amounts owed by Big Three to McLarty following surrender and sale of the leased equipment. Before the end of the term of these leases Big Three encountered financial difficulties, voluntarily surrendered possession of the leased equipment to McLarty, and instituted bankruptcy proceedings. The interest of the bankrupt in the leases was released by the bankruptcy court and the equipment was disposed of by McLarty under the lease agreement.
McLarty then brought this action against Blackshear and Groves on their guaranty for the amount of its loss allegedly resulting from the early termination of the lease agreements. Blackshear and Groves answered raising several defenses and filed a third-party complaint against Sleeth for contribution as a co-guarantor. Sleeth answered alleging that he had been released by McLarty from all obligation under the guaranty agreement.
The court sitting without a jury found no merit to any of the defenses raised by appellees against appellant but, on finding the plaintiff had failed in its burden of proving damages and that the enforcement of certain provisions of the contract would be unconscionable, dismissed appellant’s complaint with prejudice. As the trial court found no liability of Blackshear and Groves under the guaranty agreement it also dismissed their cross-complaint against Sleeth and made no finding as to Sleeth’s obligation under the guaranty agreement.
We agree that the trial court erred in dismissing both the complaint and the cross-complaint and remand the case for a new trial on the issues raised in both the appeal and cross-appeal.
The lease agreement contained three separate provisions governing the rights and liabilities of the parties on termination of the contract. Paragraphs 3 and 4 governed the rights and obligations of the parties in the event all of the monthly payments were timely made and the equipment was returned to the lessor at the end of the term. Paragraph 4 provided that at termination of the lease the vehicles would be returned to the lessor who shall sell each vehicle at the highest available “net wholesale figure” which was defined as the sale proceeds less direct cost of such sale, including but not limited to reconditioning, transportation charges and all other costs arising directly from the holding for sale and the sale of each vehicle. It further provided that in order to obtain the highest available “net wholesale figure” the lessor shall require three closed, bona fide bids from three prospective buyers and that the vehicle be sold to the highest bidder.
Paragraph 5 governed the parties’ rights and liabilities in the event of early termination by mutual agreement. Paragraph 5 provided as follows:
5. EARLY TERMINATION. From time to time as mutually agreed upon by the Lessor and Lessee, any Vehicle may be terminated before the full intended lease term as indicated by Schedule “A”. The remaining liability of Lessee under such early termination shall be calculated by the following formula:
The Original Lease Value, as specified on Schedule “A”, shall be reduced by all Monthly Rental Payments made on such Vehicle. The resulting amount will be further reduced by a refund for interest not incurred by Lessor due to early termination, and further adjusted by the balance, if any, remaining in the Escrow Account for such Vehicle, and the resulting figure shall be the Depreciated Residual Value for said Vehicle. In the event the Net Wholesale Figure as defined in Paragraph 4, is greater than the Depreciated Residual Value, it will be paid to the Lessee. In the event the Net Wholesale Figure is less than the Depreciated Residual Value, the difference between the two amounts shall be paid by Lessee to Lessor. [Emphasis supplied]
Paragraph 15, found to be unconscionable, governed in the event of default by breach of any of the terms, conditions or provisions of the agreement, or institution of proceedings in bankruptcy. The rights, duties and obligations of the parties were substantially different in each of the three situations. It was admitted in argument by both parties that the return of the vehicles in this instance was an “early termination” and Paragraph 5 governed.
The reasonableness of Paragraphs 4 and 5 was not questioned by the parties. Nor were they found to be unconscionable by the trial court. John Vaughn testified that all but seventeen of the leased vehicles were each sold for the highest of three sealed bids. The “original lease value’ ’ of each vehicle sold was specified in the lease agreement and was easily ascertainable. Vaughn testified that in arriving at the “depreciated residual value” he had followed the provisions of Paragraph 5 by first reducing the “original lease value” by all monthly rental payments paid on each vehicle, further reducing it by a refund for interest not accrued by reason of early termination, and then adjusting for the balance, if any, remaining in the escrow account for each vehicle. He testified that in arriving at “net wholesale figure” he had reduced the actual sale price by the direct cost incurred in locating, transporting and reconditioning each vehicle. He testified to the specific amount for which each vehicle was sold and listed separately the actual cost incurred in the sale of each. The accuracy of the difference between “net wholesale value” and “depreciated residual value” as computed by him was not questioned at any time. There was no other direct testimony on any of those issues and none was adduced to infer that his calculations were inaccurate or his testimony not trustworthy. When the appellant concluded its case in chief the appellees rested their case and put on no proof.
Vaughn further testified that the sealed bids received on seventeen of the vehicles were rejected as being grossly inadequate. Rather than sell those vehicles they had negotiated new leases at monthly rentals which substantially mitigated the loss which would have resulted from a sale. He testified to the specific amount of loss to McLarty resulting from early termination applicable to each vehicle leased to other persons. This testimony was not disputed. The court made no finding on the question of whether the re-leasing of some of the vehicles rather than sale of them was a reasonable exercise of McLarty’s duty to mitigate the damage.
If the sales were conducted and the loss on each vehicle was computed in the manner Vaughn stated, the appellant at least proved damage in some amount. The court could only have found the burden of proving damage had not been met by totally disregarding the uncontradicted testimony of Vaughn. Since Vaughn was not a party to the action it cannot be said that his testimony was disputed as a matter of law, but he was an employee of a party and his testimony would be subject to much closer scrutiny than that of a wholly disinterested witness. Under our established rules of law the trier of fact is not bound to accept the testimony of any witness even if uncontradicted and is the judge of the weight of the testimony and credibility of the witnesses. It does not, however, have the right to arbitrarily disregard the testimony of any witness and where the uncontradicted testimony of even an interested witness is unaffected by any conflicting inferences to be drawn from it, and is not improbable, extraordinary or surprising in its nature or there is no other ground for hesitating to accept it as truth, there is no reason for denying the finding of verity dictated by such evidence. Knighton v. International Paper Co., 246 Ark. 523, 438 S.W.2d 721 (1969); St. Louis-San Francisco Rwy. Co. v. Harmon, 179 Ark. 248, 15 S.W.2d 310 (1929).
We conclude that it was arbitrary for the trial judge to totally disregard Vaughn’s testimony. It was consistent in its entirety and no fact or circumstance was offered into evidence which contradicts or conflicts with it. We further conclude that the appellant proved damage in some amount resulting from the early termination of the lease which the trial court must determine at a new trial.
We do not find merit in the contention that the contract was one of adhesion and should not be enforced. Neither party has pointed out to us any evidence tending to show that the bargaining power of the parties was wholly unequal or other circumstances which would give rise to a conclusion that the contract was unenforcible for that reason. That argument is based upon the following conclusion of law by the trial court:
1. That the provision of the lease agreements purporting to make notice of the time, place and manner of sale of the equipment by the plaintiff unnecessary is an unconscionable provision in a contract of adhesion; is in conflict with the letter and spirit of the Uniform Commercial Code; and is void.
The only provision in the lease agreement which provided for sale of the leased equipment without notice to the lessee was contained in Paragraph 15 which provided for the rights and obligations of the parties in the event of default or failure to comply with other conditions of the lease. The parties concede that the provisions of Paragraph 5 govern these rights and obligations in the case under review and Paragraph 15 has no application.
By cross-appeal the appellees contended that the court erred in not ruling that Sleeth had not been released from his obligation under the guaranty agreement. Under the court’s ruling it was not necessary to reach that issue. On retrial the question of whether Sleeth was released will be an issue of fact for the trial court to determine.
Reversed and remanded.
Cooper and Corbin, JJ., agree. | [
48,
-24,
-7,
-51,
8,
64,
56,
-6,
89,
49,
119,
87,
-51,
-19,
13,
121,
115,
95,
101,
120,
-75,
-14,
7,
98,
-45,
-77,
-7,
-59,
-112,
-49,
-92,
22,
-56,
28,
-62,
31,
-122,
-118,
-60,
92,
14,
3,
45,
108,
-3,
0,
52,
62,
80,
77,
83,
-98,
-29,
44,
17,
75,
72,
40,
-19,
41,
-47,
-79,
-69,
4,
127,
82,
32,
68,
-102,
1,
-16,
28,
-112,
-76,
33,
-32,
50,
54,
-44,
-11,
107,
-103,
13,
38,
98,
1,
33,
-51,
-52,
-72,
30,
120,
-97,
-122,
-126,
72,
2,
65,
-73,
29,
112,
82,
53,
-2,
110,
-108,
29,
108,
39,
-113,
-44,
-109,
45,
-32,
-98,
26,
-18,
-61,
48,
112,
-115,
-78,
93,
71,
123,
-105,
22,
-78
] |
George K. Cracraft, Judge.
On March 22, 1982, Clinton Cavin entered a plea of guilty to two counts of theft by deception. The court suspended the imposition of sentence for a period of eight years on the condition that appellant make restitution to his victims in the amount of $66,240 of which $20,000 was to be paid on March 22, 1983, and the balance in annual installments of $5,000. The suspension was further conditioned upon payment of court costs, a fine of $10,000 and good behavior. On July 28, 1983, the suspension was revoked on a finding of the court that appellant had inexcusably failed to make any payments of restitution or court costs and committed him to the Arkansas Department of Correction for a term of eight years.
Appellant first contends that the trial court erred in revoking his suspension because his failure to make the required payments was excusable due to his inability to pay and that the trial court erred in not so finding. We do not agree.
The provisions for revocation of suspended sentences are set out in Ark. Stat. Ann. § 41-1208 (Repl. 1977). Subsection (4) of that statute provides that in order to revoke a sentence the court must find by a preponderance of the evidence that the defendant has inexcusably failed to comply with the conditions of his suspension. It is well settled that on a hearing to revoke the burden is upon the State to prove the violation of a condition by a preponderance of the evidence and on appellate review this court will not overturn the findings of the trial court unless it is clearly against a preponderance of the evidence. Brown v. State, 10 Ark. App. 387, 664 S.W.2d 507 (1984); Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981). As a determination of a preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony we defer to the trial judge’s superior position in that regard. Here the trial court expressly found from the evidence that the appellant inexcusably failed to make the payments. We cannot conclude that this finding is clearly erroneous.
In Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984) we held that a probationer ought not be imprisoned merely because he has not paid a fine or made restitution where it can be shown that the failure was not willful but was due solely to inability. In Brown v. State, supra, we held that where the record reveals the State has proved by a preponderance of the evidence that the failure to pay was inexcusable, commitment is justified. Here the appellant testified that he had not made the payments because he had not been able to. He testified that he had had no earnings during either the two and a half year period since the offenses or the year subsequent to his suspended sentence. He said that he had worked but he had not been paid for it. In one instance he had worked for Eagle Enterprises in Oklahoma obtaining leases and doing other work in connection with the development of a natural gas field. Rather than his receiving remuneration for it, a 20% interest in the leases on 900 acres with eleven producing wells had been given to his adult children. He estimated the value of it to be in excess of $20,000. He tacitly admitted that the transfer was made to place that asset outside the reach of his judgment creditors.
He also indicated that he had an expectation of a substantial sum of money in the form of a commission for sale of a drill ship and offered to assign the leases and the commission to his victims. One of the victims testified that appellant’s attorney had mentioned the assignment of the gas leases but that he considered them worthless and that he would prefer that the appellant dispose of them and pay him the proceeds. There was little to substantiate the expected commission on the drill ship and there was no evidence that an assignment of it had been offered to anyone. Appellant stated that he had not seriously sought employment for several years because regular employment would have interfered with his “other projects.”
The trial court found that the offer to make restitution in the amount specified was suggested by the appellant himself and was not imposed by the court, that the court fully explained the consequences of failure to comply and that the appellant understood and agreed to those terms. It was stipulated that since that time appellant had paid nothing. The court further found “that appellant is not working and hasn’t worked in several years, and for all practical purposes the prospects of doing so don’t appear very good. Nobody is making a great deal of effort to go to work.”
Appellant next argues that the trial court erred in revoking the suspended sentence because the defendant was never given a written statement specifically setting forth the conditions of his probation as provided in Ark. Stat. Ann. § 41-1203(4) (Repl. 1977).. He argues that in Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980) and Neely v. State, 7 Ark. App. 238, 647 S.W.2d 473 (1983) it was declared that the failure to furnish such a list of conditions mandates reversal. The record reflects that the appellant at no time raised this issue by pointing out to the trial court that he had not been furnished a written statement of his suspension or objected to the revocation hearing on that ground. This court will not consider issues raised for the first time on appeal. Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982).
The appellant argues that the defect was jurisdictional and therefore could be raised at any time. Certainly this is the rule our court has adopted where the trial court is wholly without jurisdiction to try the issues presented. Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982); State v. Glenn & Hamilton, 267 Ark. 501, 592 S.W.2d 116 (1980). We cannot conclude that the doctrine is applicable here.
Unquestionably the circuit court has jurisdiction to try cases involving the crime of theft by deception and to appropriately sentence those found guilty of that offense. Nor can it be questioned that the circuit court in such cases has jurisdictional power to suspend imposition of sentence and to subsequently revoke the suspension. The circuit court clearly had jurisdiction of the subject matter of the revocation hearing and no one questioned that it had jurisdiction of the person of this appellant. The statutory requirement that the court furnish the appellant with a list of the conditions of his suspension is only a procedural matter, which if not complied with constitutes reversible error, but in no wise ousts the jurisdiction of the court. Like all other procedural errors for which reversal on appeal might be based it may be waived by failure to assert it. Hawkins v. State, 270 Ark. 1016, 607 S.W.2d 400 (Ark. App. 1980). Our court has consistently held that failure to object at the proper time waives rights otherwise afforded to a criminal defendant. Hawkins v. State, supra.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
48,
-21,
-48,
62,
10,
65,
26,
-72,
83,
-81,
49,
80,
-31,
70,
4,
121,
-13,
95,
116,
113,
-46,
-73,
39,
89,
-30,
-13,
-39,
85,
-13,
111,
-28,
-43,
76,
48,
-62,
-47,
102,
66,
-47,
-38,
-114,
2,
-102,
-28,
88,
-124,
112,
45,
18,
15,
97,
-98,
-93,
46,
16,
-49,
73,
12,
91,
45,
72,
-111,
-70,
7,
107,
21,
-93,
36,
-102,
7,
120,
46,
-100,
49,
1,
-8,
115,
-110,
-122,
84,
79,
-101,
12,
96,
34,
-127,
5,
-49,
-76,
-120,
62,
-2,
-115,
-90,
-104,
65,
75,
13,
-74,
-44,
74,
22,
44,
-2,
119,
-123,
117,
108,
38,
-50,
-44,
-77,
12,
61,
-66,
-110,
-21,
37,
48,
100,
-51,
-30,
92,
23,
89,
-101,
-42,
-9
] |
Battle, J.
Petitioner, H. A. Parker, states that Hon. M. T. Sanders, judge of the first judicial circuit and of the Monroe circuit court, refuses to and will not hold the circuit ■court of Monroe county on the fourth Monday after the third Monday in February, 1886, unless required to do so by this court, and asks that he be so required by mandamus. Sanders responds to the petition and admits the truth of this allegation.
On the 13th day of February, 1885, the general assembly ■of this state fixed the time for holding the circuit court of Monroe county on the fourth Mondays after the third days in February and August of each year. On the 3d day of April, 1885, it passed an act dividing the county of Prairie into two districts, naming them respectively the northern district and the southern district, and fixing the times of holding the circuit court in the southern district on the third Mondays of March and September of each year, and of the circuit court for the northern district on the second Mondays after the third Mondays in February and August of each year. According to these two acts, the spring terms of the circuit courts of Monroe county and of the southern district of Prairie county are required to be begun and held on the same day.
Monroe and Prairie counties are component parts of the first judicial circuit of this state. Under the constitution and laws of this state it is the duty of the same judge to-hold the circuit courts of both counties. It is evident, therefore, that so much of the act of the 13th of February, 1885, as fixes the time of holding one term of the Monroe circuit court on the fourth Mondays after the third Mondays in February of each year, has been repealed, unless so much of the act of April 3, 1885, as requires a circuit court to be held in and for each district of Prairie county, and prescribes the times when the terms thereof shall be held, is unconstitutional.
Petitioner contends that every county in this state is entitled, under the constitution, to at least two terms of the circuit court in each year; and that the act of April 3d is unconstitutional to the extent it would deprive Monroe county, if enforced, of one term in each year, and leave her only one annual term.
In the constitution of 1874, it is ordained: “ The circuit, courts shall hold their terms in each county at such times and places as are, or may be, prescribed by law.” It does not expressly guaranty to any county more than one annual term of the circuit court. The power of fixing the times when the circuit court shall be held in such county is vested by the constitution in the general assembly. Is therfe any limitation, expressed or implied, on the exercise of this power ?
Judge Cooley says: “ Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives. * * *• Nor can a court declare a statute unconstitutional and void, solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the constitution. * * * The moment a court ventures to substitute its own judgment for that of the legislature, in any case where the constitution has vested the legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference. * * * *■ Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words. When the fundamental law has not limited, either in terms or by necessary implication, the geueral powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the constitution which is is not even mentioned in the instrument.” Cooley Con. Lim., p.p. 157, 200, 203, 208.
It is contended that the act fixing the times of holding circuit courts in Prairie county is unconstitutional, because it deprives the accused in criminal prosecutions in Monroe county of a speedy trial, and violates section 10 of article 2 of the constitution, which says: “ In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” The same right was guaranteed to the accused in prosecutions by presentment or indictment by the constitution of 1836. In Stewart v. State, 13 Ark., 729, a speedy trial, as used in the constitution of 1836, is defined to be “a trial conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays, manufactured by the ministers of justice.” Having been so defined in the constitution of 1836, it is to be presumed they were used in that sense in the constitution of 1874.
Again, it is said, that so much of the act in question as fixes the time of holding the circuit courts of Prairie county is unconstitutional, because it violates section 13 of article 2 of the constitution, which says : “ Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely and without denial, promptly and without delay, conformably to the laws.” But does the act in question take from the people of Monroe county any remedy in the laws for injuries or wrongs to person, property or character? It does not. The latter clause of this section of the constitution means nothing more than every one ought to obtain justice freely and without purchase, according “ to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays, manufactured by the ministers of justice,” or, as expressed in the constitution “conformably to the laws”
No one has a vested right to any particular remedy; “ This is the general rule; and the exceptions are of those peculiar cases in which the remedy is part of the right itself. As a general rule “ the state has complete control over the remedies” of suitors in its courts. “ It may give a new and additional remedy for a right or equity already in existence. And it may abolish old remedies and substitute new; or even without substituting any, if a reasonable remedy remains.” Whatever belongs to the remedy, may be altered according to its will, provided the alteration does not impair the obligation, of contacts; and it does not impair it, provided it leaves the parties a substantial remedy, according to the course of justice as it existed at the time the contract was made. It has, accordingly, been held that laws changing remedies for the enforcement of legal contracts will be valid, even though the new remedy be less convenient than the old, or less prompt and speedy.” Cooley Con. Lini., p. p. 850, 351,1¡,1}8.
“A state,” says Mr. Chief Justice Taney, in Bronson v. Kinzie, 1 How., 315, “may regulate at pleasure the modes of proceeding in the courts in relation to past contracts as well as future. * * * And, although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract.”
The general assembly is vested with the power to change, control, modify and abolish remedies in the manner and to the extent the state can do so, subject to the limitations on that power, if any, contained in the constitution of the state. It is true, every person is entitled to a certain remedy for all injuries or wrongs to his person, property or character; but to the legislature belongs the power to determine and provide the remedy. He ought to obtain justice freely and without purchase; promptly and without delay; but it is the duty of the legislature to provide the mode and proceedings in which it shall be administered. In the absence of constitutional limitations, the courts have no right to interfere with the exercise of this power.
Section. 13 of article 2 of the constitution is an abstract declaration of right, and is not a limitation on the power of the legislature. It is too uncertain and indefinite to form rules for judicial-decisions, and serves rather as an admonition addressed to the judgment and the conscience of all persons in authority than a limitation. Cooley on Constitutional Limitations, 213:
We have failed to find any limitation in the constitution prohibiting the legislature from reducing the annual terms of the circuit court of any county to one. The prayer of the petition is denied. | [
-76,
-23,
-12,
-34,
42,
33,
48,
-110,
82,
-77,
-27,
83,
-19,
-45,
81,
57,
58,
111,
125,
104,
70,
-73,
18,
97,
-78,
-77,
-53,
-41,
-2,
75,
-12,
-1,
8,
56,
-118,
-43,
69,
-32,
-59,
-34,
-50,
1,
-87,
104,
80,
0,
56,
33,
82,
11,
117,
110,
-13,
40,
24,
-25,
-56,
45,
-33,
-85,
-112,
-80,
-98,
-33,
108,
6,
-79,
6,
-102,
-126,
-120,
14,
-104,
29,
-58,
-8,
83,
-90,
-122,
87,
13,
-71,
8,
98,
102,
33,
60,
-18,
-96,
-87,
46,
26,
-99,
-90,
-45,
88,
-93,
12,
-74,
-97,
100,
-48,
79,
-2,
103,
-59,
16,
100,
6,
-50,
-48,
-109,
-121,
-68,
-128,
67,
-29,
-22,
-76,
81,
-51,
-73,
94,
71,
51,
-37,
-50,
-76
] |
Per Curiam.
The appellee has filed a motion to dismiss this appeal because of appellant’s failure to file her brief when due. Appellant’s response states that she did not receive a briefing schedule from the clerk’s office and she requests that a new briefing schedule be established and she be allowed to file her brief in accordance with that schedule.
We deny the appellee’s motion to dismiss the appeal and grant appellant twenty (20) days in which to file her brief. We note, however, a recent tendency on the part of appellants to overlook Supreme Court and Court of Appeals Rule 7 which provides that in all civil cases the appellant’s abstract and brief shall be filed within forty (40) days of lodging the record on appeal.
We also note an increasing tendency to overlook the provision of Rule 7 that requires the appellee’s brief to be filed within thirty (30) days after the appellant’s brief has been filed even if the appellant’s brief is filed early.
These time periods are fixed by the rule and do not depend upon notification by the clerk of the court. Therefore, it is important that the bar keep these provisions in mind. | [
116,
-16,
116,
-35,
-88,
33,
48,
-100,
64,
-21,
119,
83,
-81,
-62,
92,
125,
-53,
43,
101,
-5,
-36,
-93,
118,
65,
118,
-77,
-46,
84,
-75,
-18,
-11,
-2,
76,
48,
-54,
-43,
70,
-54,
-119,
92,
-114,
-121,
25,
-28,
97,
-30,
48,
107,
106,
15,
53,
-34,
-29,
-84,
24,
71,
-120,
104,
-56,
53,
-64,
-96,
-101,
13,
63,
52,
-79,
-108,
126,
-58,
88,
44,
12,
-80,
34,
-19,
48,
-74,
-106,
52,
107,
59,
0,
103,
98,
34,
76,
-25,
-56,
-116,
14,
90,
-116,
38,
-77,
41,
73,
-88,
-74,
-67,
60,
20,
39,
126,
110,
84,
91,
44,
-118,
-50,
-46,
-77,
-97,
104,
-92,
-118,
-17,
-109,
16,
116,
-50,
-4,
90,
87,
51,
-101,
-34,
-116
] |
OPINION.
Battle, J.
Sue M. Grider and her husband, W. H. Grider, filed a complaint in equity in the Mississippi circuit court on the 14th day of April, 1882, alleging in substance as follows:
That she, Sue M. Grider, was born in June, 1857; that her father died in 1862, leaving her a large estate, consisting of personalty and real estate; that among the lands inherited by her was the northwest quarter of section 18, in township 12 north, and in range 11 east. That this tract, being very fertile and protected by a levee from overflow, was worth, on the 17th day of March, 1874, $100 per acre. That in 1869 the defendant, James D. Driver, bought the plantation in rear of the tract described; that when he purchased it, he thought the plantation included the land in controversy, and when he discovered it did not, he was much dissatisfied with his purchase, and resolved to obtain the described tract. That, at the time, W. A. Erwin, the step-father of Sue M., pretended to be her guardian. That Erwin was an exceedingly dissipated man with no business qualifications. That with a view to getting title to this tract, Driver induced Erwin to present a petition to the circuit judge, in the vacation of court, reciting therein that Sue M.’s father had died leaving considerable wild lands; that the taxes were burdensome; that the tract described was wild, of little value, and remote from the river; that Driver would give more for it than any one else, and that its sale was necessary to raise money for the education of Sue M.; and that all these statements Driver and Erwin knew to be false. That they presented the petition to the circuit judge, and procured from him, in the vacation of court, an order for the sale of the land at private sale, and that eighty acres of the land were accordingly sold, at private sale, to Driver for $800 in cash, and his note for $800 more due on the 1st day of January, 1875. That thereupon Driver took possession of the land sold, and caused the lines thereof to be so run as to include all the cleared land on the tract.
That, afterwards, on the 5th day of September, 1874, Driver induced Erwin to present to the circuit judge, in vacation, another petition for the sale of the remaining eighty acres of said traer.; that the second petition contained the same false allegations as the first. That an order was made by the judge, in vacation, directing a private sale; and that the reraainingeighty acres was accordingly sold to Driver for $1,000, when it was worth $8,000, at private sale, without advertisement or appraisement. That Driver derived and received rents from this tract of land of the value of $8,400. And plaintiffs asked that the conveyances to Driver be set aside, for an account of rents and profits, and for other relief.
The defendant, Driver, answered, denying that the land, when bought by him, was worth $100 an acre, and stated that $20 an acre was its full value; denied that he thought it was included in the purchase of his plantation; that he induced Erwin to present a petition for the sale of the land, or that he had any collusion with him; and that Erwin was an habitual drunkard, but says he was a shrewd business man. He states that when he purchased the land from Erwin only thirteen or fourteen acres of it were cleared, and the remainder was covered with a dense forest and cane, and that it cost $30 an acre to clear it, which he paid. That this tract was and has not been worth as much rent as stated by plaintiffs. He stated that he took possession immediately after his purchase and has heldit at all times since; that he has paid out for purchase money, taxes and improvements, including interest, $8,360.19, which he asked to be refunded to him in the event the sales are set aside; that plaintiffs, knowing of his claim to the lands and standing by while he improved the lauds, without objection, are estopped from setting up any claim thereto; and pleaded the statute of limitations.
On the 19th day of May, 1883, the court below, after hearing the evidence introduced by both parties, rendered a final decree herein, setting aside and deelairing void the sales by Erwin to Driver, and referred the cause to a master to state an account, instructing him to charge plaintiffs with the present value of the improvements placed upon the land by defendant, with the taxes paid by him on the land as unimproved, with interest, and with the purchase money paid by him; and to charge the defendant with the rent of so much of the land as was improved when he took possession, with interest. And the master stated the account substantially as follows:
Due from Driver—
Rent on 15 acres for ten years.........................$ 900 00
Interest thereon............................................ 295 00
Rent on 75 acres for two years........................ 900 00
Interest thereon............................................. 108 00
Total....................................................$2,203 00
Due to Driver—
Purchase money...........................................$2,600 00
Interest thereon............................................ 1,533 65
Clearing 130 acres......................................... 3,250 00
Taxes........................................................._ 293 17
Other improvements.......................,............. 475 00
Total....................................................$8,151 82
Less amount due plaintiffs.............................. 2,203 00
Balance due Driver................................$5,942 82
The plaintiffs excepted to the report of the. master and the account stated by him, because there were sixty acres cleared land when Driver took possession, and not fifteen as reported; because, they are allowed rent on only seventy-five acres from the commencement of the suit, when one hundred and thirty were cleared; because the account charges them with the purchase money paid by Driver, when it is not shown that Sue M. Grider or the estate of her father derived any benefit therefrom; because plaintiffs are charged with improvements in excess of the rents; and because the account fails to charge defendant with the rents on the land as improved.
Defendant excepted to the allowance to plaintiffs of rent for the seventy-five acres, and to the insufficiency of the allowance to defendant for the improvements.
On the 22d day of July, 1884, the court below heard the exceptions to the master’s report and the account stated by him, and adjudged that plaintiffs were entitled to rent on eighteen acres, instead of fifteen, as reported by the master, at the rate of $6 an acre for ten years, and interest thereon; that they should not be charged with taxes on defendant’s improvements, and that $100 should be deducted from the amount of taxes allowed defendant as a credit on account of taxes paid on such improvements for the years 1882 and 1888; and that the charge for rent on seventy-five acres and interest thereon made in the account stated be stricken out, because this seventy-five acres was cleared by Driver after his purchase; and that there was due Driver $6,617.22; and ordered the master to reform and restate the account according to these rulings of the court, which he did; and the account being amended was confirmed. And the court decreed that defendant b*e allowed to remain in possession of the land until the amount so adjudged to be due him was paid; and that plaintiffs have and recover of the defendant the costs. Plaintiffs appealed.
The defendant having failed to appeal we can only notice such proceedings and so much of the decree of the court below as appellants insist were erroneous and injurious to them.
First — Should appellants be charged with the value of the improvements in excess of the rents? Appellants say that they did not know Driver was in possession of and improving the land in controversy until a short time before the institution of this suit, and therefore should not be charged with such excess.
It was proven that Mrs. Grider arrived at the age of eighteen years on the 23d day of May, 1875. The improvements were made after this and some time before the institution of this suit, without objection from or by either of the appellants. A portion of the land was cleared and susceptible of cultivation at the time of Driver’s pretended purchase. They knew, or ought to have known, that they wei’e in possession thereof. This alone ought to have led them to an inquiry into the facts and assertion of their rights. For eight years, however, they did nothing, and Driver remained in possession of and improved the land. They were guilty of the grossest laches. Under these circumstances equity would not allow them “to appropriate to themselves, without satisfaction or indemnification, the improvements of defendant, which-, by their silence, they permitted to be made,” and have enhanced the value of their property. Summers v. Howard, 33 Ark., 490; Davidson v. Barclay, 63 Penn. St., 406; Morris v. Terrill, 2 Ran., 6.
Second — Appellants insist that they should not be charged with the purchase money paid by Driver to Erwin, without any proof that Mrs. Grider ever received any benefit therefrom.
The sales made by Erwin to Driver were unquestionably void. The order of the judge, under which the sales were made, was a nullity. Mrs. Grider was not bound or aflected by any act of Erwin in making these sales. He was not vested with authority to represent her in any capacity in selling the land to Driver in the manner he did. In making the sales and placing Driver in possession of the land he violated the trust vested in him as guardian, and Driver knowing the facts, and presumed to know the law, is knowingly a party to the breach of the trust.
Judge Story, in his work on Equity Jurisprudencei says: “ The rule in all these cases, that the -purchaser or mortgagee is not bound to look to the application of the purchase money, is subject to an obvious exception, that, if the purchaser or mortgagee is knowingly a party to any breach of trust by the sale, or mortgage, it shall afford him no protection. One obvious example of this is, where a devisee himself has a right to sell, but he sells to pay his own debt, which is a manifest breach of trust, and the party who concurs in the sale, is aware, or has notice of the fact, that such is its object; for in such a case they are coadjutors in the fraud.” Story’s Equity Jurisprudence, $ sec. 1131 a.
In the American notes to Elliott v. Merryman, in White & Tudor’s Leading Cases in Equity, vol. 1, p. 109, it is said: *‘ It may be considered as the prevailing doctrine in the American courts, that a purchaser from a trustee is not bound to see to the application of the purchase money, except where the sale is a breach of trust on the part of the trustee, and the purchaser has, either from the face of the transaction, or otherwise, notice or knowledge of the trustee’s violation of duty; but if he has such knowledge or notice as makes him a party or privy to the trustee’s misconduct, the property will be affected in his hands with the trusts which previously attached to it.”
Driver was, therefore, bound to see to the application of the purchase money he paid Erwin for the l^nd in controversy. Only a part of this money was shown to have been applied to the use of Mrs. Grider. Having failed to perform the duty imposed on him by law, appellants are not bound to return to him the remainder of the purchase money. He is only entitled to credit for so much thereof as was applied to the use of Mrs. Grider, and interest thereon from the time of the payment thereof.
Third — When Driver made his pretended purchase, there were only eighteen acres of cleared land upon the tract in controversy. The remainder was wild, unimproved and covered with a dense forest. He has cleared, inclosed and put into cultivation one hundred and thirty acres of this remainder, since his purchase, and for many years has been in possession, enjoying the rents and profits. Shall he be required to pay rent for the land cleared and inclosed by himself? This is an important question and difficult to decide.
In Summers v. Howard, supra, the defendant purchased, at a sale made under a void order of a court, three vacant lots in the city of Helena, and erected thereon a dwelling house and other improvements. It was held by this court that he was entitled to compensation for his improvements, and should not be charged with the rents and profits of the lots as enhanced, by the improvements. Mr. Justice Harrison, in delivering the opinion of the court, said: “ A party who is, under the circumstances of the case, entitled to compensation for improvements is only chargeable with such rents and profits as the property would have yielded without the improvements, for if charged with such as arise exclusively from the improvements which he has made, he would pay for the use of that which was his own.”
In Jones, McDowell & Co. v. Fletcher, 42 Ark., 442, the land in controversy was mortgaged by the rightful owners. Rozelle took possession under the mortgagee, and expended a considerable sum of money in making lasting and valuable improvements on the laud. He cleared and put into cultivation ninety-eight acres. He built houses and made many other improvements, and thereby enhanced the value of the property. This court held that it was error “to charge Rozelle, or those who claimed under him as a mortgagee in possession, for rents of land put into cultivation by himself at his own cost.”
But a state of facts different from those presented in the cases cited is presented here. The lands in controversy were very fertile, and had a rental value in their wild state. Such lands in Mississippi county, as shown by the evi dence, could have been leased and rented in a wild state, for the purpose of being cleared and cultivated, for five-years, for the clearing and putting the' same into a good state of cultivation, and for the inclosing of them,, and the building and putting the houses • and other-improvements thereon usually put on small farms in that county, the use and occupation for the term of five-years being a reasonable compensation for: such improvements. If cleared, put into a good state of cultivation and improved, as before stated, it would have been worth, according to the evidence, $6 an acre perannum. It is evident, therefore, that the rental value of so much of the lands as was actually cleared and put into-cultivation by Driver, in its wild state, for the first five years it was used and cultivated, was the clearing and putting the same into a good state of cultivation and the-other improvements mentioned, and thereafter $6 an acre per annum. It must follow, then, he is not entitled to-compensation for his improvements in addition to the use and occupation of the land for five years, and that he should be required to pay $6 an acre per annum for the lands cleared by him, after the end of the first five years, for the time he has used and occupied the same exceeding five years. It is true he was entitled to compensation for his improvements, but he received that in the-use and occupation of the land for five years. To allow him additional compensation for his improvements, or to hold the land cleared by him, free of rent, after he has been fully compensated for his improvements, by five years’' use and occupation thereof, would be unjust and inequitable.
The decree of the court below is therefore reversed in so far as it is inconsistent with this opinion, and in other respects is affirmed; and this cause is remanded, with direc lions to the bourt to refer this cause to a master to state an account between appellant, Sue M. Grider, and appellee ; •and to instruct the master to charge Mrs. Grider, in such account, with so much of the purchase money as was applied to her use, with 6 per cent, interest thereon from the date of the payment thereof, and with the taxes paid by Driver, and 6 per cent, interest thereon from the time they were paid; and to credit her with the rent of eighteen acres ■of land at the rate of $6 an acre per annum for the year 1874, and every year thereafter, down to the time of stating ■the account, and with 6 per cent, interest on the rent of ■each year from the end of the year for which it is credited, and with rent for each portion of the land cleared by Driver in each year,Jbr every year after the fifth year in which he cleared or cultivated the same, at the rate of $6 an acre per annum, and with 6 per cent, interest on the ■rent of each year from the end of the year for which it is •credited; and for other proceedings necessary to the settlement and adjustment of the matters in controversy and the enforcement of the rights of the parties to this action. | [
17,
78,
-36,
-82,
-88,
32,
104,
-102,
66,
67,
-28,
-41,
-23,
66,
24,
45,
-30,
109,
81,
106,
-26,
-93,
19,
-89,
50,
-77,
-85,
-33,
57,
-52,
-28,
-41,
76,
104,
-54,
-43,
66,
98,
-83,
26,
-50,
-117,
-85,
-20,
89,
-32,
60,
43,
16,
77,
117,
-114,
-13,
44,
117,
107,
96,
46,
-51,
41,
-15,
48,
-66,
31,
91,
30,
-112,
102,
-72,
-127,
-56,
10,
-112,
52,
0,
-24,
123,
54,
-122,
84,
5,
-103,
9,
34,
-26,
81,
-83,
-17,
-56,
-120,
15,
58,
-115,
38,
-32,
105,
67,
72,
-66,
-107,
117,
80,
-61,
-10,
108,
69,
84,
108,
103,
-114,
-106,
-95,
13,
-96,
-108,
2,
-29,
113,
118,
113,
-51,
-53,
85,
4,
52,
-101,
-113,
-123
] |
Cockrill, C. J.
While the work of constructing the Springfield & Memphis Railroad was in progress, the appellee furnished meat to the laborers under a contract with Patrick & Reid, the chief contractors. He was to be paid 7 and 8 cents a pound according to quality, payments to be made monthly by Patrick & Reid upon orders drawn upon them by the sub-contractors for the meat furnished to them. It was a part of the original agreement that these orders should be discharged by Patrick & Reid at the end of each month by the payment of 10 per cent, less than their face; and this course of settlement was uniformly pursued. Patrick & Reid, however, subsequently surrendered their construction contract to the railroad company, and assigned all of their sub-contracts to it. One Luyster assumed control of the work of construction on behalf of the company, and conducted affairs just as Patrick & Reid had been doing. He and Allen had a conference about the contract to furnish meat, but it turned out when a settlement was to be had, that they disagreed about the terms of the contract, Luyster contending that the terms of Allen’s contract with him were the same as the terms of the contract with Patrick & Reid, and that the company upon the payment of the meat account wTas entitled to a diseouut of 10 per cent. Allen contended that the latter condition was not in the new contract. Luyster declined to pay anything on the account unless the discount was made, and Allen refused to sign a receipt in full upon the payment of less than the face value of his claims. He was in debt, however, and anxious to secure a speedy payment, so he returned in the afternoon of the same day to Luyster’s office, submitted to Luyster’s demand for the discount, accepted an amount less than he claimed, and signed a receipt for the full amount, protesting that it was less than was due and threatening to sue the company for the discount. This was in October, and suit was instituted by him in the following March, and he obtained judgment.
Luyster and one of the firm of Patrick & Reid, who were the only witnesses sworn besides Allen, gave a much more favorable version of the whole matter for the company than that above detailed, both stating that it was expressly agreed between Allen and Luyster that the discount should be made; that the company would pay no more than Patrick & Reid had done, and that Allen’s only objection in the end was that he was not making money on his contract. Reid testified that he was present when a settlement was made between Luyster and Allen in September before the final settlement, and that Allen acceded, as he had formerly done, to the discount; and Luyster says that at the final settlement, when the money was paid and the discount in controversy retained, Allen made no protest but appeared satisfied and signed the receipt- without demur, his claim for the allowance of the benefit of the discount having been asked and refused before that time. It was the province of the jury, however, to weigh the testimony, and if, in any view of it, the appellee is entitled to recover, the verdict and judgment will not be disturbed.
It is certainly true that a receipt is only prima facie evidence of what it imports, and may be explained or contradicted by the party signing it, and if that were all of this case, it would be apparent that Allen’s action was not barred by the receipt he signed. But here was a claim or several claims,' the justice of which was denied, and the amounts due upon them were in dispute. The debtor, in effect, said to the creditor: “I will pay you a certain sum on your disputed claims provided you will take it in satisfaction of the whole.” While the offer stood in this form, there was but one of two courses open to the creditor — either to decline the proffer or accept it with the condition attached. It was competent for him to receive the amount in discharge of his debt, and the receipt that he executed is presumptive evidence that he did so. A settlement and receipt in full of an unliquidated demand, when made with complete knowledge of all the circumstances, is a bar to a subsequent action upon the demand. Bristow v. Eastman, 1 Esp., 172; Alner v. George, 1 Camp.,--; Fuller v. Chitten, 9 Conn., 401; Thompson v. Lemoyne, 5 Ark., 312. The bar does not rest upon the written receipt, but upon the acceptance of the sum paid and received, the writing being only one of the modes of showing the intention of the parties.
After the voluntary adjustment of a matter in dispute, the contest is ended and the disputed question cannot again be raised by the parties. Compromises avoid litigation and are encouraged by the law, and, when legally made, they are binding and are not disturbed by the courts.
The settlement, in this case, was made without intimida- . tion, fraud or concealment, and Allens protest could not have the effect to qualify the absolute surrender of his claims, and to abrogate the acceptance of the condition upon which the money was paid. It required the assent, express or implied, of Luyster to effect this. McGlynn v. Billings, 16 Vt., 329; Miller v. Holden, 18 Ib., 337. But it does not appear that Luyster ever occupied any attitude but that of offering Allen the sum paid in full satisfaction of his demand. The receipt made a prima facie case against Allen, and the burden of proof was upon him to overturn it. McGlynn v. Billings, sup., is in point.
In U. S. v. Adams, 7 Wall., 463, a party who received from the government a less amount than was actually due him on a disputed claim, and gave a receipt in full for the amount, under protest, was held to be barred by the act, notwithstanding his protest. In Savage v. U. S., 92 U. S., 382, where legal-tender notes were'accepted by the holder in lieu of gold in payment of treasury certificates, payable in gold alone, a protest and threat of asserting claim in the courts for the difference in value of the two mediums of payment accompanying the act, the court say the protest was a mere ex parte act, without legal efficacy to qualify the voluntary surrender of the treasury notes and acceptance of the legal tender. The same may be said of the surrender of his claims by Allen, and the acceptance of money offered him in satisfaction.
That his pressing necessities did not amount to duress, is clearly stated in the language of Judge Miller, under circumstances similar in that respect to this: “Authorities are cited to show that where, under peculiar circumstances, property is withheld from the owner and he is forced to pay some unjust demand to obtain possession of it, he can afterwards maintain a suit for the money so paid. But no case can be found, we apprehend, where a party who, without force or intimidation, and with a full knowledge of all the facts of the case, accepts on account of an unliquidated and controverted demand, a sum less than what he claims and believes to be due him, and agrees to accept that sum in full satisfaction, has been permitted to avoid the act upon the ground that it was duress. If the principle here contended for be sound, no party can safely pay, by way of compromise, any sum less than is claimed of him, for the compromise will be void for duress. The common and praiseworthy procedure by which business men every day sacrifice part of claims, which they believe to be just, to secure payment of the remainder, would always be duress, and the compromise void.” U. S. v. Child, 12 Wall., 232.
Viewing the testimony in the light of the principles announced, the verdict has nothing to rest upon, and the judgment' must be reversed and the case remanded for a new trial. | [
32,
105,
-68,
-51,
-54,
8,
58,
-102,
116,
-86,
-91,
83,
-49,
-44,
17,
33,
-25,
125,
-47,
43,
-60,
-73,
33,
98,
-45,
-109,
-75,
-61,
48,
75,
-124,
87,
76,
62,
-54,
93,
-25,
-22,
-39,
24,
-116,
13,
-24,
-21,
-35,
-48,
49,
-1,
84,
79,
49,
-4,
-13,
42,
28,
-29,
105,
46,
125,
9,
80,
-16,
-78,
-49,
119,
6,
-126,
102,
-100,
7,
-56,
62,
-104,
53,
4,
-7,
123,
-74,
-122,
86,
5,
-35,
9,
34,
35,
32,
-91,
-115,
90,
-36,
44,
-70,
-119,
-124,
-77,
73,
2,
107,
-65,
-99,
-32,
86,
-106,
126,
-26,
13,
29,
44,
-125,
-113,
-80,
-126,
63,
44,
-98,
19,
-1,
-103,
52,
116,
-51,
-77,
93,
111,
121,
-101,
-114,
-85
] |
Tom Glaze, Judge.
This case involves certain bills of assurance that appellants contend preclude appellees from constructing multifamily dwellings upon lots located in the Oakwood Subdivision to Jacksonville, Arkansas. The chancellor, adopting the Special Master’s findings, rejected appellants’ claim and dismissed their complaint that sought to enjoin appellees from building apartment structures on lots five through thirteen of the subdivision. Appellants raise seven points in this appeal, but upon careful study of each, we conclude none compels reversal of the trial court’s decision.
While our decision turns upon a long-established rule of property, we first must review the events that led to this legal dispute.
Appellees, J. Albert Johnson and Sue Johnson, his wife, and Morris Justice and Lucille Justice, his wife, purchased the subject property in 1971 as tenants in common. In August, 1974, appellees Morris Justice and J. Albert Johnson filed a bill of assurance and plat, identifying the property as the Oakwood Subdivision and restricting it to single family dwellings. This bill of assurance represented Phase I of the subdivision and covered only twenty of a total of twenty-nine lots, viz., one through four and fourteen through twenty-nine. In January, 1975, the appellees successfully obtained a rezoning of the remaining nine lots, thus permitting them to construct multifamily structures on lots five through thirteen. However, on July 24, 1975, appellee Morris Justice filed a second bill of assurance (executed by him only), which purportedly restricted lots five through thirteen to single family dwellings. Before the second bill of assurance [hereinafter the Justice bill of assurance] was filed, only the appellees and the appellants, Ralph and Bertha Vasquez, owned lots in the subdivision. The other appellants purchased residential lots after the Justice bill of assurance was filed although only appellant John Evans testified that when he purchased his lot (number 29), he was advised that all of the lots would be developed with single family dwellings. Nevertheless, all of the appellees executed (on October 28, 1977) and filed (on November 4, 1977) an amendment to the Justice bill of assurance, removing all restrictions on lots five through thirteen so those lots could be used for multifamily purposes. Appellees did not obtain building permits and commence construction of apartments until 1983 at which time appellants brought this action.
Appellees, of course, principally rely on the Justice bill of assurance and the single family restriction contained therein. That bill also includes a provision relating to the duration of the covenants and the method of amending or cancelling those covenants. The provision, in pertinent part, is as follows:
All of the lots described herein and any interest therein shall be held and owned subject to and in conformity with the following restricting [sic] and covenants which, subject to being amended, or can-celled as provided hereinafter, shall be and remain in full force and effect for twenty-five years, to-wit:
1. No lot shall be used except for single family dwelling.
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of 25 years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of the then owners of the lots has been recorded agreeing to change said covenants in whole or in part.
Appellants’ primary contention on appeal is that the Justice bill of assurance by its terms was not subject to amendment for twenty-five years. Appellants contend the Arkansas Supreme Court interpreted an identical provision in White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972), and determined the covenants were binding for twenty-five years. Consequently, appellants argue the appellees’ amendment to the Justice bill, which excluded lots five through thirteen from the single family dwelling restriction, was futile.
We find it unnecessary to determine the validity of the amendment to the Justice bill of assurance because we find the Justice bill of assurance itself was invalid; accordingly, the restrictions contained therein are also unenforceable. As previously noted, Morris Justice was undisputedly the sole appellee who executed and filed the July, 1975, bill of assurance. No evidence was presented to indicate that Morris Justice was authorized under any theory to act for the other three owners. Nor is there any evidence that in any way indicates the Johnsons (or Lucille Justice) had knowledge that Morris Justice had unilaterally filed this second bill of assurance. The law is clear that one tenant in common cannot bind his cotenant by any unauthorized agreement or act in respect to the common property. Friar v. Baldridge, 91 Ark. 133, 120 S.W. 989(1909) (citing Am. & Eng. Ency. Law (2d ed.) 672, 23 Cyc. 494). Thus, under the facts presented here, the Justice bill of assurance is invalid and as a consequence, the first bill of assurance filed with the original plat in August, 1974, governs these parties. That bill of assurance completely excluded the property that comprises lots five through thirteen which are the subject of this dispute. Those lots have never been restricted to single family dwellings by any valid bill of assurance. Therefore, we find the chancellor’s decision that lots five through thirteen are not restricted to single family dwellings is not clearly erroneous or clearly against a preponderance of the evidence. Ark. R. Civ. Pro. 52(a). We affirm.
Affirmed.
Cloninger and Corbin, JJ., agree.
Although Sue Johnson and Lucille Justice did not sign the original bill of assurance, they signed a “Ratification and Confirmation of Bill of Assurance” to “ratify, confirm and affirm the provisions and conditions of the bill of assurance and plat. . . executed by our husbands as if we had executed the same at the same time.” The ratification was signed August 23, 1983, and filed August 29, 1983. Its validity is not an issue on appeal. | [
113,
107,
-44,
108,
24,
-32,
56,
-72,
115,
-86,
-25,
83,
111,
90,
20,
113,
-90,
109,
64,
-23,
-79,
-78,
15,
-62,
-48,
-5,
-45,
-43,
-7,
109,
116,
87,
76,
32,
-54,
-43,
70,
-62,
-17,
92,
46,
7,
-102,
69,
-39,
82,
54,
43,
16,
15,
5,
-114,
-13,
44,
17,
-61,
108,
44,
89,
60,
64,
-72,
31,
4,
-17,
5,
-79,
100,
-104,
-57,
122,
74,
-112,
49,
0,
-24,
115,
54,
-106,
116,
95,
91,
8,
32,
98,
8,
41,
-1,
-8,
24,
14,
-42,
13,
-90,
-46,
24,
66,
32,
-76,
-108,
120,
0,
37,
126,
-26,
-107,
95,
109,
15,
-117,
-42,
-79,
-123,
-8,
-112,
3,
-1,
3,
-80,
112,
-49,
-94,
93,
71,
55,
-101,
-97,
-40
] |
Cockrill, C. J.
The issue in this case was whether certain mortgages of merchandise given by Walter Bates to the appellants were made to hinder, delay and defraud creditors. There were two mortgages, one to each of the two appealing firms; they were identical in form and contained no provision upon which the court would seize for the purpose of declaring fraud solely as a conclusion of law. The chancellor, however, found from the evidence that they were fraudulent in fact, and gave preference to the claim of a subsequent attaching creditor in a suit by the mortgagees against the attaching creditors and the common debtor to foreclose the mortgages.
The evidence which was mostly oral, and is preserved by bill of exceptions, presents this state of facts: Bates was conducting a general merchandise business in a small town in Washington county, and became indebted'for merchandise to several non-resident firms, the appellants among the number. The appellants were pressing him for payment through their traveling agents and an attorney. They all met at the county-seat, some miles from Bates’ place of business, £o effect a settlenaent. After a parley with the agent of Gauss Sons, it was agreed that Bates should have ninety days to pay their claim, and that he should secure it by a mortgage upon his stock of goods. The attorney who held the claims of both firms was directed to draw the mortgages. They covered. Bates’ entire stock in trade. Nothing was said in the conference, or elsewhere, about the continuance or discontinuance of his business. ' The mortgages were written upon a blank form, the printed part of which contained a clause to the effect that the mortgagor should not sell or remove any part of the mortgaged property without the written consent of the mortgagees. Bates testified that in executing the mortgages he overlqoked this provision, or else did not understand the effect of it; that it was not his intention to discontinue his business or bind himself not to make sales of the mortgaged goods. Tie continued the business as though no mortgage had been executed, sold goods as customers offered, used some of the groceries out of the stock for his family support, and purchased other goods with a part of the proceeds of sales. "When matters had progressed in this way for about two months, Boyle & Co. caused an attachment to be levied on the stock of goods. Bates protested against the right of the officer to make a levy under the attachment on account of the mortgages, and upon being taxed with making sales of the mortgaged property, replied that he had the consent of the mortgagees to do so. He testified, however, that no express consent had been given, and in this he was corroborated by the appellants’ agents who had conducted the mortgage settlements.
Neither Bates’ inadvertence or mistake as to the meaning of the written contract he entered into, nor his subse- .. . quent conduct or admissions, in reference to the property, were in themselves evidence against the appellants, further than they tended to show the understanding of one of the contracting parties at the time of the execution of the. mortgages. If it was the agreement or understanding of the parties at the time the mortgages were executed that the mortgagor should remain in possession of the stock of goods and sell them as his own, it would render the instruments as ineffectual against other creditors, as though the objectionable agreement were set out in the face of them. It is the intent to defraud that vitiates the security in such cases, and the effect is the same whether that is shown by the written terms of the agreement, or is brought to light by other evidence; and to arrive at the true meaning, the concurrent acts, surrounding circumstances and subsequent conduct of all the parties that reflect light upon the original intention, are taken together as proper matters for the consideration of the court or jury trying the issue. Fink v. Ehrman, 44 Ark., 310; Martin v. Ogden, 41 ib., 186; Lund v. Fletcher, 39 ib., 325; Sparks v. Mack et al., 31 ib , 666; Freeman v. Rawson, 5 Ohio St, 1; Weber v. Armstrong, 70 Mo., 217; Brackett v. Harvey, 91 N. Y., 214, 223; Southard v. Benner, 72 ib., 424; Sleeper v. Chapman, 121 Mass., 404.
Bates thought he had the consent of the appellants from ■the outset for the course of dealing he pursued. There can be but one opinion about that. If the appellants were without fault, his misapprehension could not invalidate their security. But the circumstances tend strongly to sustain the conclusion of the chancellor, that Bates did not mis•construe the original meaning, however innocent the appellants’ agents may have been of the intent of actual fraud upon other creditors. They knew that Bates was selling ■oil' his stock when'they granted him an extension of time on his debts. There was nothing in the negotiation with him that indicated an intention to close his store in any way. There was no probability that he could liquidate the mortgage debts unless by a continuance of his business, and they must have known that at the time. It was fully contemplated and expressly agreed that he should be left in possession until default in payment or a violation of other ■terms of the mortgage. Nobody seems to have attached ■any importance to the printed clause prohibiting sales without written consent, and no consent was expressly given or refused. The attorney’s duties were ended when the mortgages were drawn; and the drummers, whose duty it was to see to the interest of their houses in this territory, ..gave themselves no concern at any time about the property. As they had given no express consent to sell, they seem to have regarded it as immaterial whether Bates did sell or not. It appears that they had no actual knowledge of any sales, but it is not reasonable to suppose that they believed no sales would be made, and the appellants must be held responsible for the consequences, and we refuse to disturb the chancellor’s finding.
An attempt was made to show that the mortgagor sold ° •only for cash and set the proceeds of sale aside to be credited on the mortgage debts, but it is apparent that he was acting for himself and not as the agent of the mortgagees in doing this, and it is against public policy that he should be allowed to remain in possession and sell except as the accredited agent of the mortgagee. Fink v. Ehrman, supra.
Affirm. | [
48,
-24,
88,
-82,
90,
32,
42,
-86,
-118,
96,
-93,
83,
105,
-63,
4,
69,
-9,
77,
116,
106,
-123,
-77,
39,
-22,
-46,
-13,
-37,
-51,
-76,
77,
-92,
87,
12,
39,
-62,
85,
-26,
34,
-63,
24,
-58,
5,
12,
-55,
-35,
20,
48,
-1,
113,
15,
101,
-98,
-77,
46,
29,
-49,
9,
40,
107,
61,
-16,
-8,
-102,
13,
127,
23,
-77,
39,
-116,
71,
-40,
44,
-102,
19,
8,
-23,
115,
-66,
-106,
84,
71,
-104,
8,
98,
99,
35,
1,
-19,
-8,
8,
42,
-9,
47,
-82,
-78,
88,
3,
41,
-65,
-97,
120,
0,
-121,
-4,
-18,
-99,
93,
108,
7,
-113,
-42,
-45,
-113,
116,
-98,
-102,
-10,
-81,
60,
113,
-49,
-22,
93,
71,
18,
59,
-114,
-3
] |
George K. Cracraft, Judge.
On July 15, 1982 the Bruno-Pyatt School Board voted not to renew the contract of Stephen C. Davenport, a non-probadonary teacher, for the year 1982-83. The basis for that determination was that he had violated a known policy promulgated and adopted by that board. On appeal to the circuit court the board’s decision was affirmed on finding that the determination not to renew appellant’s contract was for legitimate reasons and was not arbitrary, capricious or discriminatory. The court also affirmed the finding of the board that he had been discharged for failure to comply with the school district’s written policies and directives regarding deadlines for return of renewal contracts.
On appeal the appellant does not contend that the school policy was unreasonable but admits that it was adopted for compelling reasons. He contends only that the board was equitably estopped to rely on that policy and acted arbitrarily and capriciously in failing to renew his contract. We find no merit to these contentions.
Ark. Stat. Ann. § 80-1264.9(b) (Repl. 1980) provided that any certified teacher who had been employed continuously by a school district for three or more years may be terminated or the board may refuse to renew the contract for any cause “which is not arbitrary, capricious or discriminatory.” The courts have previously held that an action is arbitrary or capricious only if it is not supported on any reasonable basis. Lamar School Dist. No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982). On May 18, 1982 the superintendent tendered renewal contracts to all teachers in the Bruno-Pyatt Public Schools to which were attached a memorandum stating that pursuant to school board policy all contracts must be signed and returned by June 3, 1982 or the positions would be considered unfilled.
Shortly before June 3rd the superintendent learned that all of the teachers’ contracts except that of appellant had been returned signed. On June 1st appellant was reminded that his contract would be due no later than June 3rd. Appellant obtained permission to appear before the board to request an increase in salary, stating that he would turn in his contract at that time. He testified that the superintendent stated that there would be no objection to holding the contract until that date. The superintendent denied having made this statement. On June 7th Mr. Davenport attended the board meeting but did not return his contract because it was in his wife’s car and he stated he would not be able to turn it in until the 9th. The superintendent reminded him at the meeting that his contract was already past due.
On June 15th the superintendent notified the appellant that he was recommending that his contract not be renewed for the coming year because he had not returned his contract within the specified time. After receiving that notice the appellant did execute and return his contract on June 21st and requested a hearing before the board on the recommendation not to renew. On July 15th a hearing was held at which the board accepted the superintendent’s recommendation that appellant’s contract not be renewed for the reasons given in the notice. At that hearing the appellant testified that he had obtained permission from the superintendent to hold his contract until the board meeting.
Appellant testified that after presenting his request for an increase in salary to the board it indicated that it would not make a decision on his request at that time but would communicate with him later. He testified that he then stated that if the board did not mind he would hold his contract until after the decision was reached. He stated that none of the board members responded but that one nodded affirmatively when his request was made. He testified that he had interpreted this affirmation and the silence of the other members to mean that his request was favorably received. Both the superintendent and principal who were present at that meeting testified that no member of the board gave an indication of approval by nodding or otherwise. Both of them interpreted the silence of the board to mean that appellant’s failure to return the contract was presenting a problem for the board. One board member testified that her silence was intended to indicate disapproval of his request and that no member of the board gave indications of approval in any manner.
Appellant argues that because the school board had indicated that it would contact him later with regard to his raise he had every right to expect that the rule of the superintendent was to be waived until such time as the board had considered and reviewed his salary for the coming year. The record discloses, however, that before the June 7th meeting began he was reminded at least once that his contract was already past due. Rational minds could conclude that he was withholding this contract for other reasons. He also argues that the silence of the board in his request to hold his contract until after the decision of the board was made lulled him into a sense of security to his detriment. He argues that equitable estoppel would arise yhere there was an opportunity and duty on the part of the /board to speak when they knew that he would rely upon ' their silence to his injury. Rational minds could conclude that the inference to be drawn from the board’s silence was not its approval of appellant’s conduct but rather its disapproval, as the superintendent, principal, and a board member testified. Based on these facts we can find no error in the trial court’s finding that the action of the board was not arbitrary or capricious.
Appellant next argues that he substantially complied with the board’s rule and his delay in returning his contract had not substantially prejudiced any right of the school board and that therefore their action was arbitrary and capricious. He contends as he had not indicated that he would not sign the contract or that he intended to resign if his raise was not granted, and the superintendent testified that at the time of the hearing he had not contacted or employed a teacher to take his place, no prejudice could have resulted from his delay. The appellant himself admits that staffing for the coming year in an orderly and efficient manner is an important if not compelling reason for such a rule. The superintendent testified at the renewal hearing that the reason for the rule was that the school administrator could not obtain a staff for the next year without knowing what existing staff members plan to return and that a reasonable time is needed to search for the best person to fill existing vacancies. The appellant, after having been notified that his contract was due by June 3rd at the latest, did not turn his in until June 21st. We can find no error in the trial court’s finding that appellant failed to comply with the deadline and therefore the nonrenewal was not arbitrary or capricious but was based on legitimate reasons.
We find no error and affirm.
Cooper and Cloninger, JJ., dissent. | [
28,
-22,
-44,
93,
-118,
0,
59,
-110,
121,
-85,
39,
-45,
-19,
-105,
20,
107,
-45,
111,
80,
120,
-41,
51,
114,
72,
96,
-13,
-37,
-63,
-69,
127,
-12,
85,
72,
49,
-62,
-43,
38,
67,
-51,
-56,
-62,
6,
47,
-49,
90,
-59,
50,
53,
56,
95,
33,
-66,
-77,
-86,
25,
-49,
-115,
62,
89,
41,
-64,
115,
-70,
-121,
111,
23,
-111,
37,
-102,
3,
-8,
108,
-104,
49,
28,
-8,
115,
-90,
-62,
68,
45,
-103,
8,
96,
98,
3,
-88,
-57,
-108,
-120,
14,
-6,
45,
-90,
-105,
25,
42,
5,
-66,
-98,
84,
22,
29,
126,
102,
-124,
-105,
44,
14,
-114,
-48,
-79,
14,
108,
-98,
11,
-1,
6,
49,
113,
-117,
-92,
92,
67,
51,
26,
-90,
-72
] |
Lawson Cloninger, Judge.
This is an appeal from an order of the trial judge denying appellant’s motion to set aside a default judgment and ciismissing appellant’s counterclaim. Appellee, Silas Holmes, filed a complaint against appellant, Jones Construction Company, alleging that it owed him $6,000 which he earned while working for appellant. His complaint was filed on November 18, 1982. On November 50, 1982, appellee filed an amended complaint making Integon Indemnity Company a co-defendant. On December 14, 1982, a default judgment was entered against appellant for the amount asked for. The following day appellant filed a motion to set aside the default judgment and answered, denying that appellee was due a bonus and counterclaimed for $1,700 for property wrongfully withheld. The court denied the motion and dismissed the counterclaim.
Appellant’s first point for reversal is that the court erred in entering default judgment against it. Specifically it argues that by filing an amended complaint, appellee extended the time in which to file an answer because appellant was not served with the amended complaint. The amended complaint merely added an additional party and did not change any issues with regard to appellant. There is no question but that appellant was put on notice of the complaint filed against it, although the amended complaint was not properly served to it. Since appellant was served notice with the original complaint, it cannot now argue that the time was extended merely because an additional party was added in an amended complaint. See Pulpwood Suppliers v. Owens, 268 Ark. 324, 597 S.W.2d 65 (1980); Claibourne v. Smith Rice Mill Co., 181 Ark. 279, 25 S.W.2d 1050 (1930). Under Rule 15 of the Arkansas Rules of Civil Procedure, a party must respond to an amended pleading within the time remaining for a response to the original pleading or within ten days after service of the amended pleading, whichever period may be longer. Although the amended pleading was never served on appellant, it had notice of the original pleading and the amended pleading did not change any issue. In our opinion, default judgment was properly entered against appellant on this issue.
Appellant further argues that it was error to enter default judgment when the time for the other defendant to answer had not expired. Appellant premises this argument on the common defense doctrine stated in the case of Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980). However, nowhere was this argument presented to the trial court either by a motion or in its argument to the court at the hearing. Appellant is not permitted to advance a new theory on appeal. See Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983).
Appellant finally argues that the counterclaim should stand as a claim of set-off against any judgment in favor of appellee. Since we hold the trial court was not in error in finding appellant in default, this point is moot.
Accordingly, the decision of the trial judge is affirmed.
Mayfield and Cracraft, JJ., agree. | [
-16,
-20,
-8,
-52,
8,
96,
50,
-104,
81,
81,
103,
83,
-17,
-58,
20,
63,
-6,
73,
117,
122,
85,
-94,
7,
99,
-46,
-77,
-47,
85,
101,
93,
-12,
-34,
76,
56,
-62,
-123,
71,
0,
-59,
92,
70,
3,
24,
-20,
-7,
64,
48,
41,
28,
15,
49,
-68,
-15,
47,
25,
79,
106,
44,
127,
57,
-48,
112,
-110,
5,
127,
20,
33,
21,
-104,
67,
88,
-36,
-124,
53,
17,
-32,
115,
-74,
-126,
116,
106,
-103,
8,
98,
98,
0,
1,
-17,
-68,
-120,
54,
-2,
-119,
-89,
-16,
57,
11,
5,
-74,
-107,
124,
-124,
-59,
126,
-18,
-115,
28,
44,
7,
-54,
-14,
-78,
29,
116,
-100,
-117,
-26,
-125,
20,
97,
-49,
-22,
92,
71,
19,
-101,
-121,
-47
] |
Judith Rogers, Judge.
In a jury trial, the appellant, Frank Giacona, was convicted of manslaughter, a violation of Ark. Code Ann. § 5-10-104(a)(3) (1987),and was sentenced toatermoffive years in prison. On appeal, appellant contends that the trial court erred in denying his motion for a new trial in which he alleged ineffective assistance of counsel. Because we find that appellant’s notice of appeal was untimely, we dismiss the appeal.
The trial court entered its judgment and commitment order on July 13, 1989. A motion for a new trial on grounds of ineffective assistance of counsel was filed on August 10, 1989. However, the trial court struck the motion from the record by order of August 29, 1989, for the reason that the attorney who had presented the motion had not been properly substituted as appellant’s counsel. Appellant then sought a writ of mandamus before the supreme court. On September 15, 1989, the supreme court issued its mandate denying the writ without prejudice, giving appellant leave to petition the trial court to reconsider his motion for a new trial. On September 22, 1989, the trial court allowed the substitution of counsel, and on September 28,1989, the trial court entered an order reinstating appellant’s motion for a new trial. The trial court entertained appellant’s motion at a hearing held on October 23, 1989. The court entered an order denying appellant’s motion on April 10, 1991; appellant’s notice of appeal was filed on April 26, 1991.
Rule 4(c) of the Arkansas Rules of Appellate Procedure provides that when post-trial motions are filed, the time for appeal runs from the entry of the order granting or denying the order provided, “that if the trial court neither grants nor denies the motion within thirty days of its filing, the motion will be deemed denied as of the 30th day.” The rule also provides that a notice of appeal must be filed in thirty days from the entry of the order disposing of the motion or, in the event that the motion is deemed denied after thirty days, a notice of appeal must be filed in thirty days from that denial. Ark. R. App. P. 4(d).
In recent weeks, the State submitted motions to dismiss the criminal appeals of Clay v. State, CACR92-547, and Stuart v. State, CACR92-533. These motions were based on the contention that the notices of appeals had not been timely filed from the denial of the appellants’ post-trial motions for a new trial. Rule 4 of the Rules of Appellate Procedure was cited by the State as authority for dismissal. We certified these motions pursuant to Rule 29(1 )(c) of the Rules of the Supreme Court and Court of Appeals, noting an apparent conflict between Rule 4 and Rules 36.9 and 36.22 of the Rules of Criminal Procedure. On September 21, 1992, the supreme court granted the State’s motions to dismiss in both cases.
844 S.W.2d 381
John Wesley Hall, Jr., for appellant.
Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
In this case, pursuant to Rule 4(c), appellant’s motion for a new trial was deemed denied on October 30,1989 , thirty days after the reinstatement of appellant’s motion for a new trial. Under Rule 4(d), appellant had thirty days from that date in which to file a notice of appeal. As it happens, appellant’s notice of appeal was not filed until April 26, 1991, some eighteen months later. Consequently, the notice of appeal was untimely. The timely filing of a notice of appeal is, and always has been, jurisdictional. Larue v. Larue, 268 Ark. 86, 593 S.W.2d 185 (1980). Additionally, whether the question is raised by the parties or not, it is not only the power, but the duty, of a court to determine whether it has jurisdiction of the subject matter. Hawkins v. State Farm Fire & Casualty Co., 302 Ark. 582, 792 S.W.2d 307 (1990). We dismiss the appeal without prejudice for appellant to petition the supreme court for permission to file a belated appeal.
Dismissed.
Cooper, and Jennings, JJ., agree.
The thirty-day period expired on Saturday, September 28, 1989. According to Rule 9 of the Rules of Appellate Procedure, the period was extended to Monday, October 30. | [
112,
-29,
-4,
76,
-117,
64,
48,
-68,
-63,
99,
39,
83,
-83,
-41,
84,
121,
99,
45,
84,
-7,
-52,
-73,
54,
73,
98,
-101,
17,
-41,
127,
-17,
-27,
-70,
74,
48,
-54,
-43,
70,
-56,
-63,
88,
-114,
1,
-117,
108,
-47,
11,
48,
-93,
90,
15,
53,
-68,
-29,
47,
28,
-54,
-56,
104,
91,
39,
88,
-71,
-102,
13,
-1,
20,
-95,
-91,
-102,
6,
112,
62,
4,
49,
9,
-24,
50,
-74,
-122,
84,
79,
25,
8,
96,
98,
1,
29,
-17,
-72,
-88,
6,
22,
-103,
-90,
-39,
121,
73,
37,
-105,
-75,
123,
20,
7,
126,
108,
-35,
113,
44,
-128,
-50,
-44,
-79,
47,
45,
20,
11,
-29,
-123,
16,
116,
-52,
-26,
94,
71,
59,
-5,
-114,
-108
] |
James R. Cooper, Judge.
The appellee, Dixie Adamson, is a self-employed insurance agent. James Barnett, a client, sued Adamson for the refund of insurance premiums paid on a cancelled policy. Adamson brought a third-party action against the appellants, Special Insurance Services, Inc. and Arkansas General Agency, Inc., on the theory that Special Insurance Services, Inc. owed the refund to Adamson, and that Arkansas General Agency, Inc. was also liable for the refund because Special Insurance Services, Inc. had acted as Arkansas General Agency, Inc.’s agent. The trial court, sitting as the fact-finder, found that Special and General were liable to Adamson for the amount of the refund paid to Barnett, and that Special was not entitled to a set-off against Adamson. From that decision, comes this appeal.
The evidence shows that Adamson procured an insurance policy for Barnett. To do so Adamson contacted Special, which normally acted as a multi-line broker. Special in turn contacted General, a general agent for various carriers, which placed the insurance. Special subsequently informed Adamson that Barnett’s policy had been cancelled for nonpayment of premiums. Adamson requested reinstatement of Barnett’s policy and Special instructed her to send Special the balance due on the premiums, and she did so. Special later informed Adamson that Barnett’s policy could not be reinstated. When Adamson requested a refund from Special she was told that she would have to obtain it from General. General informed her that they had applied the refund to her account. Barnett sued Adamson for the refund of the premiums he had paid her, and she, in turn, filed her third-party action against Special and General. Prior to trial, Adamson refunded the return premium to Barnett out of her own funds, and Barnett withdrew from the action.
For reversal, the appellants contend that the evidence does not support the trial court’s finding that General is indebted to Adamson for the amount of the refund paid to Barnett, arguing that the evidence is insufficient to show that Special acted as General’s agent, or that General committed any independent acts of negligence. We do not agree. The findings of fact of a trial judge sitting as the finder of fact will not be disturbed on appeal unless, considering the evidence in the light most favorable to the appellee, the findings are clearly erroneous or clearly against the preponderance of the evidence, giving due regard to the opportunity of the trial court to assess the credibility of the witnesses. Hampton v. Arkansas Louisiana Gas Co., 282 Ark. 580, 669 S.W.2d 476 (1984); Coleman v. MFA Mutual Insurance Co., 3 Ark. App. 7, 621 S.W.2d 872 (1981); Ark. R. Civ. P. 52(a). Agency is ordinarily a question of fact, Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985), as is the question of whether an agent is acting within the scope of his actual or apparent authority. Crail v. Northwestern National Insurance Co., 282 Ark. 175, 666 S.W.2d 706 (1984).
In the case at bar, there was evidence that Special and General shared the same office space, that Special and General communicated with one another through interoffice memos, and that General aided Special in the collection of past due accounts. Moreover, there is testimony that Adamson was unable to obtain the premium refund from Special, with which she had originally dealt, but instead was required to apply directly to General for a refund. There she was told that the refund would be applied to “her account”, even though she was unaware that she had an account with General and had in fact understood that she could not deal directly with General, but instead was required to go through Special. This latter circumstance is consistent with the theory that Special had not acted as an independent contractor in the Barnett transaction, but instead in the capacity of an agent for General which lacked the authority to refund the return premium to Adamson. A person may be an independent contractor in some respects, and a mere agent in other respects with regard to other work for the same party. Arkansas Independent Oil Marketers Ass’n v. Monsanto Chemical Co., 225 Ark. 620, 284 S.W.2d 127 (1955). While a different result might obtain if it was necessary to find that Special was General’s agent in all respects and for all purposes, with regard to the specific transactions presented in this case we cannot say that the trial court’s finding is clearly against the preponderance of the evidence.
The second point for reversal urged by the appellants is that the trial court erred in dismissing Special’s cross-complaint against Adamson. The cross-complaint arose out of a different transaction between Adamson and Special in which Adamson, through Special and General, obtained a liability and physical damage policy on behalf of Handyman, Inc. Handyman subsequently requested Adamson to procure an endorsement to the policy providing for unlimited radius coverage on Handyman’s trucks. Adamson’s request for the unlimited radius coverage proceeded, as before, through Special and General to the insurer. Whereas Adamson, as agent for the insured, normally received payment for a policy from the insured, withheld her commission, and forwarded a check to Special, Adamson testified that on this latter occasion Special’s president, Larry Burchfield, informed her that the amount of the premium could not be determined at that time, and instructed her to wait until the endorsement came in before collecting any premiums.
The endorsement to Handyman’s policy was in effect for the period of July 30,1984 to November 17,1984. There is evidence that the endorsement was prepared on August 29,1984. Nevertheless, Adamson did not receive an invoice from Special for the endorsement until October 3, 1984, at which time Handyman refused to pay the outstanding premium. At no time between Adamson’s initial dealing with Special concerning the Handyman policy and Adamson’s receipt of the invoice on October 3, over two months later, did Special contact Adamson concerning the uncollected premium. Moreover, there was evidence that it would not have been possible to cancel Handyman’s endorsement before the expiration of the policy period due to the need to comply with notice requirements set out by various regulatory agencies.
The appellants argue that the trial court erroneously dismissed Special’s cross-complaint against Adamson, asserting that there was no evidence that Special’s delay in sending the invoice to Adamson caused her loss. We do not reach this issue because the appellants have failed to cite any authority in support of their argument. An assignment of error not supported by convincing argument or authority will not be considered on appeal. Harrison v. Benton State Bank, 6 Ark. App. 355, 642 S.W.2d 331 (1982). Under these facts and in the absence of cited authority, we do not find the appellants’ argument to be so convincing as to merit consideration on appeal.
Affirmed.
Corbin, C.J., and Coulson, J., agree. | [
48,
120,
-28,
-84,
8,
32,
122,
50,
87,
104,
39,
83,
-85,
-58,
28,
125,
-31,
57,
-12,
99,
-42,
-77,
19,
98,
-10,
-77,
-15,
-57,
-79,
77,
-27,
-108,
8,
32,
-54,
85,
102,
65,
-63,
-104,
-62,
2,
-102,
104,
-7,
65,
32,
-83,
2,
67,
97,
-122,
-21,
46,
21,
74,
109,
44,
123,
-79,
-48,
-111,
-118,
5,
111,
4,
49,
36,
-102,
39,
-40,
10,
-112,
56,
0,
-23,
114,
-90,
-122,
21,
106,
-69,
8,
98,
117,
48,
21,
-27,
-67,
12,
39,
-4,
31,
-122,
-38,
56,
27,
15,
-73,
-99,
90,
28,
-105,
-36,
-8,
-35,
31,
108,
3,
-114,
-110,
-93,
-19,
54,
-100,
-101,
-18,
-105,
54,
112,
-49,
-30,
93,
71,
51,
-69,
31,
-90
] |
Donald L. Corbin, Chief Judge.
Appellant appeals the circuit court’s order dismissing with prejudice his claim against appellee for rent due. We reverse the trial court’s dismissal and find appellee is liable for payment of additional rent in the amount of $1,596.78.
By oral agreement, appellant rented to appellee some commercial property on a month-to-month basis for $1,643.25 per month. By letter dated December 16, 1983, and delivered to appellee, appellant attempted to increase appellee’s rent to $2,250.00 per month, effective January 1, 1984. Appellee paid the January, 1984, rent in the amount of $1,643.25 but paid rent of $2,250.00 for the following months of February, March and April. By letter dated March 1,1984, appellee notified appellant of his intention to vacate the premises by March 31,1984, stating, however, that in the event he remained on the property after March 31, 1984, he would notify appellant and adjust the rent accordingly. Thereafter, appellee remained on appellant’s property until May 9, 1984, at which time he vacated the premises without further notice to appellant and sent appellant a check for $653.22, which was a pro rata portion of the May rent for the time he occupied the premises. Appellant made demand upon appellee for the balance of the May rent and then filed suit against appellee for that amount and also for the difference in the amount of the January rent actually paid and the amount appellant had attempted to increase it. At the conclusion of the trial, the trial court found that appellant was not entitled to the increase in the January, 1984, rent because thirty days’ notice was required in order for appellant to increase rent on a month-to-month tenancy. The court further found that appellee gave appellant timely notice of his intention to vacate and that rent was paid in full for the time he actually occupied the property; therefore, appellee did not owe appellant any additional rent.
For reversal, appellant relies on two points: that the court erred in finding that appellant was required to give appellee thirty days’ notice in order to raise the monthly rent and that the notice given by appellee to appellant was sufficient to prevent appellant from collecting rent beyond the date that appellee vacated the premises.
We agree with the trial court that the notice of increased rent mailed December 16, 1983, was insufficient to increase rent effective January 1, 1984, on a month-to-month tenancy. Moll v. Main Motor Co., 213 Ark. 28, 210 S.W.2d 321 (1948) dealt with a landlord’s attempt to increase rent. In Moll, supra, the appellant wrote the appellee on January 22, 1946, notifying the appellee that the rent on the premises the appellee was occupying would be increased from $65.00 to $200.00, effective February 1, 1946. On January 31, 1946, the appellee sent the appellant a $65.00 check for the February rent, which the appellant refused and returned, and on February 12, 1946, the appellant filed suit against the appellee to evict the appellee from the premises. The trial court found that no contract, either express or implied, existed between the appellant and the appellee to increase rent; however, the appellant was entitled to reasonable compensation for the appellee’s use of the premises, which was $65.00 per month. In affirming the trial court’s judgment, the Arkansas Supreme Court stated:
In 52 C.J.S., Landlord & Tenant, 506, the applicable rule is stated as follows: “A notice by a landlord to a tenant that, if he continues to occupy the premises beyond the present term, he must pay an increased rent, naming the sum, will not bind the tenant, although he holds over, unless the tenant expressly or impliedly consents to such increase of rent. If, however, the tenant remains in possession and holds over after receiving notice from the landlord that a greater rent will be required than that stipulated in the lease or required by the terms of the prior tenancy, his assent to the changed terms will be implied, and the rent will be increased, even though the tenant objects to the new condition, provided the holding over is voluntary and not unavoidable. If the tenant protests against the increase and explicitly refuses to pay it, he may not be held liable therefor merely by the act of holding over, since no new agreement may be implied, but he is liable for reasonable use and occupation. Also, the tenant is not liable for the increased rent where a tenancy exists governing the amount of rent and such tenancy is not terminated in the statutory manner.”
Id. at 35.
After giving approximately sixteen days’ notice of an increase in rent, appellant accepted appellee’s monthly rental check in the amount of the old rental rate. It is undisputed between the parties that the lease was on a month-to-month basis; an increase in the monthly rental amount required thirty days’ notice. We therefore find that the trial court did not err in refusing to award appellant the increase in rent for the month of January.
We cannot agree, however, with the trial court’s finding that appellant was not due the unpaid portion of rent for May 9 through May 30. Appellee notified appellant by letter on March 1, 1984, of his intention to vacate the premises, and he further advised appellant that, if he were delayed in vacating the premises, he would notify appellant and adjust the rent accordingly. Appellee, however, gave appellant no further notice of his intention to vacate until he actually vacated the premises on May 9,1984, at which time, he only paid appellant a pro rata portion of the May rent in the amount of $653.22. The trial court found that appellee’s March 1,1984, letter to appellant was timely notice of his intent to vacate, that appellant received payment for the days that appellee actually occupied the property, and therefore, appellee was not liable for the balance of the May rent in the sum of $1,596.78.
In Wyatt v. Erny, 193 Ark. 479, 101 S.W.2d 181 (1937), the Arkansas Supreme Court held that, in order to terminate a tenancy from month-to-month, the right to notice is mutual between the landlord and tenant; if the tenant desires to terminate the tenancy, he must, in order to avoid liability for the rent falling due in the succeeding month, give his landlord thirty days’ notice, and his notice must be given on or before the beginning of the succeeding rental month. The Arkansas Supreme Court again stated, in Hastings v. Nash, 215 Ark. 38, 219 S.W.2d 225 (1949):
We have no statute regulating the length of notice required to terminate a tenancy from month to month and are, therefore, governed by the common law rule, which is stated as follows in Dillon v. Miller, 207 Ark. 401, 180 S.W.2d 832: “In the absence of an agreement between them providing otherwise, either the landlord or the tenant may terminate a monthly tenancy by, and only by, giving the other party thirty days written notice of his election to so terminate it, ‘the notice ending with a monthly period.’ [citations omitted.]” The exact holding in the Dillon case, supra, is stated in Headnote 2, as follows: “Where the landlord undertakes to set forth in the notice the exact day on which possession of the premises should be delivered up, the day so designated may properly correspond with either the first or the last day of the rental period.”
Id. at 39.
In the case at bar, there was no agreement between the parties that appellee would owe rent only for the days he actually occupied the premises. In fact, appellant’s agent testified that, in April of 1984, appellee tendered a check for only half a month’s rent and that he called appellee and advised him that a full month’s rent was due. In the absence of an agreement between the parties, the common law rule required appellee to give appellant thirty days’ written notice of his intent to vacate, with the termination becoming effective at the end of a monthly period. Rent does not accrue from day to day as does interest but is considered to accrue in its entirety on the day payment is due. Wilson v. Campbell, 244 Ark. 451, 425 S.W.2d 518 (1968). We find that appellee is liable for the balance of the May rent in the amount of $1,596.78.
In his brief, appellant argues that he is also entitled to rent for the following month of June of 1984. However, as evidenced by appellant’s amended complaint filed after the trial and the court’s order striking the amended complaint, the issue of the June rent was not raised at trial or in the pleadings. The trial court has broad discretion to permit amendments to pleadings, and the appellate court sustains the exercise of that discretion unless it is manifestly abused. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). Issues raised for the first time on appeal will not be considered by the appellate court. Arkansas Iron and Metal Co. v. First National Bank of Rogers, 16 Ark. App. 245, 701 S.W.2d 380 (1985).
Accordingly, we reverse and remand for entry of judgment for appellant consistent with this opinion.
Reversed and remanded.
Coulson and Jennings, JJ., agree. | [
-112,
-22,
-104,
-17,
-118,
96,
42,
-108,
102,
-31,
55,
83,
-21,
82,
20,
41,
-14,
109,
117,
104,
69,
-77,
70,
96,
-16,
-13,
83,
-43,
-67,
76,
-27,
-42,
72,
33,
-64,
-105,
-58,
-128,
-27,
80,
14,
-121,
-119,
-28,
-13,
66,
48,
56,
0,
75,
1,
-122,
-5,
108,
49,
75,
72,
40,
59,
9,
88,
-15,
-110,
13,
-17,
83,
-79,
21,
-100,
70,
120,
12,
-104,
53,
0,
-7,
115,
-74,
-122,
116,
102,
-101,
44,
98,
98,
1,
77,
-18,
-16,
-116,
46,
-40,
-97,
-90,
-45,
88,
10,
76,
-74,
-98,
116,
-108,
13,
124,
100,
-99,
29,
44,
2,
-50,
-44,
-29,
-115,
104,
-98,
-118,
-17,
3,
-71,
112,
-49,
-118,
92,
71,
59,
-101,
-74,
-40
] |
Donald L. Corbin, Chief Judge.
Appellant, Maurice Anderson Hubbard, was convicted of second degree battery in violation of Ark. Stat. Ann. § 41-1602(1)(d)(iii) (Supp. 1985). He was sentenced to six years in the Arkansas Department of Correction. On appeal, he argues that the State’s evidence was insufficient to prove his knowledge of the victim’s age. We affirm as modified.
Appellant had a long history of psychiatric disorders and was frequently committed to institutions for treatment. On April 24,1985, he was admitted to the Arkansas State Hospital and Dr. H. L. Lambert, a staff psychiatrist, was assigned as appellant’s treating physician. On May 31, 1985, Dr. Lambert met with appellant in a small conference room and a discussion was held about appellant’s medication. As Dr. Lambert turned to write in appellant’s chart, appellant came up from behind and began hitting Dr. Lambert on the head. Dr. Lambert testified he was struck by appellant four, five or six times and that he sustained injuries as a result of the attack. One nurse witnessed the incident in its entirety and another nurse walked in and saw appellant strike Dr. Lambert twice.
Battery in the second degree is committed by a person if he intentionally or knowingly without legal justification causes physical injury to one he knows to be of sixty years of age or older. Ark. Stat. Ann. § 41-1602(1 )(d)(iii). A person acts “knowingly” with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist; a person acts “knowingly” with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985); Ark. Stat. Ann. § 41-203(2) (Repl. 1977).
The essence of appellant’s argument is the State failed to prove appellant had actual knowledge that his victim was sixty years of age or older. He contends that the State is erroneous in its belief that any evidence, whether direct or circumstantial, was presented to the jury from which it could find beyond a reasonable doubt, or infer from circumstantial evidence, that appellant knew the victim’s age. We have to agree with appellant that Dr. Lambert’s long-standing and severe emphysema and chronic health problems could just as easily have accounted for his physical appearance and demeanor at the trial as could have advanced aging. No evidence was produced at trial that appellant knew Dr. Lambert was anything other than an unhealthy man. Dr. Lambert testified at trial that he was sixty-one years of age at the time of the incident. There was no evidence that this fact was within the knowledge of appellant.
The plain wording of § 41 -1602(1) (d) (iii) imparts that knowledge on the part of the defendant must be personal to him. The statute does not provide a substitute or explanatory equivalent. We believe the test is whether from the circumstances in the case at bar, appellant, not some other person or persons, knew that his victim was sixty years of age or older. A different result by this court could have been reached had the General Assembly defined “knows to be” in the above statute to include one who has information that would lead an ordinary, prudent person faced with similar information to believe that the information is fact.
The State clearly failed in its burden of proof in establishing the necessary element of appellant’s knowledge of the victim’s age; accordingly, appellant’s conviction for second degree battery cannot be sustained. Battery in the third degree, a lesser included offense of second degree battery, is committed by a person, if with the purpose of causing injury to another person, causes physical injury to any person. Ark. Stat. Ann. § 41-1603(l)(a) (Repl. 1977). In view of our holding that the State failed to meet its burden of proof, we therefore reduce the punishment to the maximum for the lesser offense of third degree battery, a class A misdemeanor. The judgment is modified to impose a maximum term of imprisonment of one year in the county jail, and the time spent by appellant in custody, if any, being credited against the sentence as modified. See Hughes v. State, 3 Ark. App. 275, 625 S.W.2d 547 (1981).
Affirmed as modified.
Cracraft and Jennings, JJ., agree. | [
48,
-17,
-4,
-68,
9,
96,
26,
26,
115,
-29,
48,
115,
-19,
-30,
93,
109,
-93,
127,
84,
97,
21,
-73,
23,
97,
-16,
-45,
27,
71,
-79,
-49,
-28,
-100,
72,
120,
-62,
85,
-30,
74,
-27,
-40,
-126,
-128,
-119,
108,
82,
-46,
40,
46,
76,
15,
49,
30,
-29,
42,
55,
75,
105,
40,
74,
-68,
-38,
-71,
-54,
21,
105,
54,
-93,
-90,
24,
45,
112,
60,
-40,
49,
1,
-8,
51,
-78,
-126,
116,
111,
-103,
12,
96,
98,
-95,
29,
-59,
-80,
-120,
15,
54,
-51,
-121,
-102,
105,
65,
12,
-65,
-105,
114,
84,
24,
-8,
113,
-36,
114,
108,
0,
-49,
-108,
-79,
-52,
108,
-44,
-14,
-21,
-19,
116,
17,
-50,
-30,
84,
85,
115,
-101,
26,
-105
] |
James R. Cooper, Judge.
The appellant in this Workers’ Compensation case was injured in her workplace on November 9, 1984, when a container she had pulled off a high shelf fell and struck her in the head. She was treated by Dr. Goza, who released her to return to work on February 18, 1985. Although she had been informed by her employer that any additional medical treatment would not be covered, the appellant began a course of treatment with Dr. Perkins, a chiropractor, on March 29,1985. However, the appellee-employer has conceded that the appellant was not provided with a notice explaining her rights and responsibilities concerning a change of physicians before she sought treatment from Dr. Perkins. A hearing was held on January 7, 1986, concerning the appellant’s petition alleging that she was entitled to additional temporary total disability benefits to cover the period of March 29,1985 to June 24,1985;thatDr. Perkins’s medical bills should be paid by the appellee; and that she should be re-evaluated by a neurosurgeon. The administrative law judge denied the appellant’s petition, finding that her healing period had ended on February 18, 1985, and that her subsequent medical treatment from March 29, 1985 to June 24, 1985, was not reasonable or necessary. Following a de novo review of the record, the Workers’ Compensation Commission adopted the opinion of the administrative law judge. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in denying her petition for change of physicians, and in finding that the medical treatment provided by Dr. Perkins was not reasonable or necessary. We find no error, and we affirm.
We first address the appellant’s argument concerning the Commission’s finding that Dr. Perkins’s medical treatments were not reasonable or necessary. Arkansas Statutes Annotated § 81-1311 (Supp. 1985) requires an employer to provide such medical service as is reasonably necessary for the treatment of the injury received by the employee. Whether the medical treatment actually provided is reasonable and necessary is a question of fact for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings, and we must affirm if there is any substantial evidence to support them. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). We may reverse the Commission’s decision only when we are convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 (1985).
The finding that Dr. Perkins’s treatment was not reasonable or necessary was based on a finding that her medical problems were chronic and long-standing in nature. The evidence shows that Dr. Goza released the appellant to return to work on February 19,1985. In his letter of April 22,1985, Dr. Goza stated that there was a lack of objective findings to indicate that the appellant had any significant injury. He further stated that his evaluation of cervical spine films and an electonystagnogram indicated that her complaints stemmed from a chronic problem and that they were not due to her work-related injury. The record also contains evidence that the appellant had suffered previous injuries which required treatment for head and neck pain. We hold that there was substantial evidence from which the Commission could find that the appellant’s complaints resulted not from her 1984 injury, but rather from a reoccurrence of her prior chronic medical problem, and that medical treatments provided subsequent to February 19,1985, when Dr. Goza released her to return to work, were thus not reasonable and necessary for the treatment of her employment-related injury.
Next, the appellant contends that the Commission erred in denying her petition for a change of physicians in light of her employer’s failure to provide her with a notice explaining her rights and responsibilities concerning a change of physicians as required by Ark. Stat. Ann. § 81-1311 (Supp. 1985). Although that statute provides that the change of physician requirements outlined therein are inapplicable if the employer fails to deliver the claimant a copy of the statutory notice, we do not conclude that failure to furnish the notice automatically renders the employer liable for all treatment or services provided as the result of the subsequent change of physician. Although the failure to provide the employee the statutory notice does relieve the employee from the procedural requirements necessary to subject the employer to financial responsibility for subsequent medical bills, it does not answer the question of whether the treatment was reasonable and necessary. Thus, even an employer who fails to provide the proper notice is only liable for medical treatments and services which are reasonably necessary for the treatment of the employee’s injury. Ark. Stat. Ann. § 81-1311 (Supp. 1985). In light of substantial evidence that the medical treatments administered subsequent to March 29, 1985, were not reasonable or necessary, we hold that the Commission did not err in denying the appellant’s petition for change of physicians.
Affirmed.
Coulson and Mayfield, JJ., agree. | [
16,
-21,
-35,
-83,
8,
-31,
50,
22,
81,
-86,
37,
83,
-25,
-76,
-99,
41,
65,
63,
85,
97,
-41,
-77,
82,
104,
-62,
-41,
123,
71,
-80,
110,
-28,
-106,
77,
57,
2,
-59,
-26,
66,
-49,
16,
-62,
7,
-117,
-20,
121,
-128,
56,
42,
-40,
15,
49,
-100,
99,
40,
21,
-49,
45,
36,
91,
60,
80,
-96,
-38,
13,
111,
1,
-96,
4,
-98,
-89,
-40,
28,
-102,
48,
57,
-24,
16,
-74,
-126,
52,
99,
-71,
4,
96,
98,
35,
13,
-19,
88,
-72,
23,
-66,
29,
-92,
-101,
24,
-37,
1,
-74,
-67,
98,
28,
12,
60,
-4,
29,
95,
44,
-117,
-98,
-106,
-79,
-57,
113,
-34,
-85,
-17,
-49,
48,
53,
-50,
-78,
125,
71,
115,
-101,
-78,
-98
] |
James R. Cooper, Judge.
The appellant in this criminal case was charged with possession of a controlled substance (amphetamine) with intent to deliver, a violation of Ark. Stat. Ann. § 82-2617 (Supp. 1985). After a jury trial he was convicted of the lesser included offense of possession of a controlled substance, fined in the amount of $10,000.00, and sentenced to ten years in the Arkansas Department of Correction. From that conviction, comes this appeal. For reversal, the appellant argues that the trial court erred in admitting into evidence transcripts of certain telephone conversations; in failing to suppress evidence obtained from a search of the appellant’s vehicle and person; and in denying the appellant’s motion for mistrial based on improper questioning by the prosecution. We find no error and we affirm.
The appellant’s first assignment of error involves three telephone calls to the appellant’s residence made by Walter Radford, a police informant. The first two conversations were between the informant and the appellant’s brother, Mike Mock. The third conversation was between the informant and the appellant. All three conversations were recorded by Sergeant Dale Best of the Arkansas State Police, and transcripts of the recordings were introduced at trial over the appellant’s objection.
The appellant initially argues that the trial court improperly admitted the transcripts of the telephone conversations into evidence because the interception of those conversations was unlawful under 18 U.S.C. § 2511 (1982). However, § 2511 (2) (c) provides that:
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
18 U.S.C. § 2511(2)(c) (1982). The appellant contends that neither the appellant nor the informant consented to the tape recording of the conversations. We do not agree. With respect to the issue of the informant’s consent, the evidence was in direct conflict. At the suppression hearing, Sergeant Best testified that the informant consented to the taping of each conversation. At trial, however, the informant stated that his consent was not voluntarily given. Because the question of consent in this case turns upon the credibility of the witnesses, we defer to the superior position of the trial judge and hold that the transcripts were properly admitted into evidence. Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980), cert. denied, 449 U.S. 1124 (1981).
The appellant also argues that the transcripts were inadmissible because they were hearsay. At no time did the parties to any of the conversations specifically mention drugs or quantities. The essence of the first conversation, between the informant and the appellant’s brother Mike, was that Mike could not “get anything” for the informant that night because the situation was, for the moment, “dry,” and that Mike would be in touch with the informant the next day. In the second conversation, which took place the following day, Mike stated that he had intended to give the informant “a ring a little bit later on,” and that he would be in touch with him in “a couple of hours.” The informant’s third call was placed to the same number approximately two and one-half hours later, and a person named Curly answered the call. The informant asked to speak to Mike, but the appellant came on the line instead. The appellant told the informant that he was just getting ready to “come see” the informant, and that he would be leaving in “about fifteen minutes.”
“Hearsay” is defined as
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Arkansas Statutes Annotated § 28-1001 (Repl. 1979), A.R.E. Rule 801(c). The statements made by the appellant during the third recorded conversation were properly admitted into evidence as admissions of a party opponent under A.R.E. Rule 801(d)(2). The statements of Mike and the informant were not offered to prove the truth of the matters asserted, e.g. that the situation was “dry” or that Mike would contact the informant at a later time, but rather were offered to put into context and explain the appellant’s statement that he was leaving to “come see” the informant, and thus were not hearsay as defined in A.R.E. Rule 801(c). See Russell v. State, 18 Ark. App. 45, 709 S.W.2d 825 (1986). We find no error in the admission into evidence of the transcripts of the recorded telephone conversations. We do not reach the appellant’s contention that he was deprived of his right to confront and cross-examine witnesses against him due to the informant’s refusal to answer any questions at the suppression hearing. An argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). To be considered appropriate, an objection must state the specific ground of objection if the ground is not apparent from the context. Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). The possibility of a violation of the confrontation clause was never raised as a ground for the appellant’s objection to the introduction of the transcripts; thus, the issue has not been preserved for appellate review.
Next, the appellant contends that the trial court erred in refusing to suppress evidence obtained from a search of his person and vehicle. The crux of this argument is the assertion that the police lacked probable cause for either a search or seizure of the appellant or his vehicle. We do not agree. The record contains evidence that the informant was reliable in that he had previously provided the police with information leading to a drug-related arrest. Moreover, there was testimony to the effect that the informant and the appellant had conducted drug transactions in the past, and that they had adopted a procedure to govern their telephone conversations concerning the transactions. The essence of the procedure was the avoidance of any direct reference to drugs, prices or quantities while on the telephone, and they had an established meeting point where the transactions took place. Finally, there was evidence that the informant told the police that the purpose of the recorded conversations with the appellant and his brother was to set up a drug transaction, that the appellant would have one to two ounces of amphetamines and would probably be armed, and that the appellant would be driving a red and white Ford Bronco to the prearranged meeting point near the intersection of Highway 7 and the National Forest Service road.
After learning that the drug transaction set up by the informant was to take place in approximately fifteen minutes, Arkansas State Trooper Jerry Roberts set up a roadblock close to the meeting place described by the informant. Upon reaching the roadblock, the appellant attempted to back his vehicle up and, disobeying the trooper’s orders to keep his hands on the steering wheel, leaned forward in the driver’s seat and placed his hand into his vest. The officers then subdued the appellant and placed him under arrest. In the course of a search contemporaneous to the arrest, they found an empty shoulder holster worn beneath the appellant’s vest; an automatic pistol, loaded and with a round chambered, under the driver’s seat; approximately two ounces of amphetamine powder in the appellant’s vest pocket; and a quantity of marijuana in the same pocket in which the amphetamine was found. The appellant’s vehicle was then searched, resulting in the discovery of additional contraband.
Probable cause sufficient to justify a warrantless arrest exists where the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution to believe that an offense has been or is being committed by the person arrested. Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986). A determination of probable cause does not require the same quantum of proof as is necessary to support a conviction, and the propriety of arrests are to be appraised from the standpoint of a cautious and prudent police officer at the time the arrest is made. Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). In the case at bar, the information available to the arresting officers at the time of the arrest was derived both from the informant and from independent observations by the police officers after their receipt of the informant’s information. The test for probable cause sufficient to issue a search warrant based upon information supplied by an informant is based upon the “totality of the circumstances”: The issuing magistrate is to make a practical, common-sense decision based on all of the circumstances set out in the affidavit. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). While the case at bar involves the existence of probable cause to support a warrant-less arrest as opposed to the issuance of a search warrant, we think that the “totality of the circumstances’’ test provides a useful framework for analysis. That test was first set out in Illinois v. Gates, 462 U.S. 213 (1983), in which the Supreme Court stated that:
[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types of persons. . . . ‘Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability.’
462 U.S. at 232. The veracity, reliability, and basis of knowledge of the informant are relevant considerations in the “totality of the circumstances” analysis, although a deficiency in one may be compensated by a strong showing as to another, or by some other indicia of reliability. Id. at 233.
Here there was evidence that the informant had in the past supplied information to the police which led to drug related arrests. Moreover, the informant in the case at bar was not an anonymous tipster: his identity was known by the police and some of his statements were self-incriminating. The incriminating nature of a statement is itself a sufficient basis for finding it to be reliable. Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980), cert. denied, 449 U.S. 1124 (1981). There was also evidence that the informant’s knowledge that the appellant would have drugs in his possession at the time of the arrest was based upon a pre-established procedure governing the transactions: drugs would not specifically be mentioned on the telephone, but the calls would set a time at which drugs would be brought to an established meeting place. The existence of this pre-established procedure was corroborated in part by the appellant’s presence at that meeting point soon after the final telephone conversation. Given these circumstances, we hold that the information available to the arresting officers was sufficiently trustworthy to support a warrantless arrest. See Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986); A.R.Cr.P. Rule 4.1. We further hold that the quantum of information available to the arresting officers was sufficient to warrant them in the belief that the appellant had committed or was committing an offense at the time of the arrest. See Gass, supra. While the telephone conversations were seemingly innocuous in and of themselves, they must be evaluated in the light of the informant’s information: the purpose of the calls was to set up a drug transaction to be conducted according to an established procedure and, in keeping with that procedure, the appellant would arrive at the meeting place driving a red and white Bronco, with one to two ounces of amphetamine in his possession. Moreover, the evidence reflects that, when confronted by the police roadblock at the meeting point, the appellant attempted to back away. Flight to avoid arrest is admissible in corroboration of evidence tending to establish guilt. Mason v. State, 285 Ark. 479, 688 S.W.2d 299 (1985). We think that flight is likewise a circumstance to be considered in a determination of probable cause to support a warrantless arrest, and we hold that there was probable cause sufficient to justify the appellant’s arrest in the case at bar. In light of this holding, the search of the appellant’s person and vehicle was lawful as incident to the valid custodial arrest. Baxter v. State, 274 Ark. 539, 626 S.W.2d 935, cert. denied, 457 U.S. 1118 (1982); Gass v. State, supra.
The appellant’s third contention is that the trial court erred in refusing to grant a mistrial based upon the prejudicial impact of questions posed to a witness by the prosecution. These questions allegedly had the effect of informing the jury that the appellant had prior drug transactions with the informant. We find no merit in this point for reversal because, prior to the appellant’s motion for mistrial, the informant was allowed to testify without objection that he had previously engaged in amphetamine transactions with the appellant similar to the one with which the appellant was charged. The appellant has thus failed to demonstrate that any prejudice arose due to the subsequent questioning by the prosecution, because evidence of prior drug transactions was already before the jury at the time of his motion for mistrial. We will not reverse in the absence of demonstrated prejudicial error. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). Although the questions propounded by the prosecution may have been improper, we do not think that the trial judge abused his considerable discretion in refusing to grant a mistrial in light of the informant’s prior testimony.
Affirmed.
Corbin, C.J., and Coulson, J., agree. | [
16,
-18,
-19,
-100,
40,
-31,
62,
-94,
82,
-29,
102,
83,
45,
84,
12,
123,
42,
127,
92,
97,
-58,
-73,
70,
-31,
-54,
-13,
90,
-41,
-77,
77,
-28,
-108,
9,
48,
-62,
17,
102,
72,
-81,
88,
-122,
3,
-127,
112,
83,
-61,
32,
46,
24,
15,
33,
-98,
-30,
44,
25,
-54,
109,
44,
75,
-72,
88,
113,
-39,
13,
-21,
38,
-93,
36,
-101,
45,
-8,
60,
-100,
17,
1,
-8,
115,
-74,
-126,
100,
107,
-101,
36,
96,
98,
0,
-115,
-51,
-68,
-120,
62,
-82,
-99,
-89,
-40,
73,
73,
77,
-73,
-99,
98,
20,
-114,
-2,
89,
-115,
85,
108,
11,
-49,
-112,
-109,
111,
40,
-106,
51,
-21,
-89,
16,
117,
-51,
-30,
85,
86,
83,
-101,
-106,
-42
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.