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Jim Johnson, Associate Justice.
This suit resulted from a rather involved series of hanking transactions frequently called check kiting. Sometime late in December, 1961, the cashier of appellee Bank of Star City advised one of its customers, the late J. Thurman McCool, that he had a number of bank drafts being returned unpaid and that he would either have to deposit sufficient funds to cover these drafts or the bank would accept future drafts for collection only. McCool had several accounts at this bank including one styled “Business Machines Company” and another “Jefferson Printing Company.” McCool had sold appellant, Noah S. Peek, Jr., quite a number of installment contracts and notes for business machines McCool had sold to others. On January 1, 1962, McCool obtained a check on a “customer’s draft” form from appellant, apparently intended as an advance on several contracts appellant planned to buy from McCool. Appellant testified that when he signed the customer’s draft form, it was dated January 1, 1962, the figures “500.00” were typed in, as was “Citizen’s Bank, England, Arkansas.” Appellant signed the check and wrote “Peek Farm Service” above his name. On January 2nd when McCool presented the check to appellee bank, the check was payable to “Peek Finance Company,” the “sum of $22,500.00” was imprinted on it with a checkwriter, two 2’s and a comma were typed in front of the 500.00, and the words “to establish account” was also typed on the face of the check. On the back was a rubber-stamp endorsement, “For deposit only, Peek Finance Company.” Appellee’s cashier opened an account styled “Peek Finance Company” for which McCool signed the signature card as the only authorized signer for this account, and received $2,450.00 in cash. During the nest two days appellee received over $14,000.00 worth of drafts returned which had been credited to McCool’s Business Machines Company account, which appellee deducted from McCool’s Peek Finance Company account. On January 5, 1962, the Citizens Bank of England, being unable to contact appellant, returned the check because there were not sufficient funds in the Peek Farm Service account to pay it, and so advised appellee bank by telephone. Appellee bank put the check through for payment a second time and it was returned with the following notation on the back: “Protested—check was altered —-forged and counterfeit signature and further the body of check was altered and raised. Noah S. Peek, Jr.” During this time MeCool disappeared and was later found dead. After making demand for payment of the cheek, appellee filed suit in Jefferson Circuit Court on March 23, 1962, against appellant alleging that it had received the check for value and without notice of any infirmity thereon and prayed judgment for $22,500.00. The matter Avas tried on August 6, 1963, and the jury returned a verdict for appellee in the sum of $8,500.00. From judgment on the verdict, appellant has prosecuted this appeal urging that the verdict of the jury Avas per-A^erse and in conflict Avith the instructions of the court and the eAddence.
The cashier and other AAdtnesses of appellee testified about drafts Avhick had been credited to McCool’s Business Machines Company account being returned unpaid to appellee, Avho in turn charged the drafts, together AAdth the $2,450.00 cash given MeCool, against McCool’s Peek Finance Company account for a total of $16,818.75. Appellant contends that under no conceivable posture of the evidence in this case applied under the law given in the instructions could the jury have validly found that appellant'Avas indebted to appellee in the sum of $8,-500.00, the amount of the verdict, and that such amount AAras purely speculative, apparently a jury attempt to compromise the losses between the parties, and therefore perverse. The testimony in the case at bar AAras sharply conflicting, indicating such negligence on the part of appellant as to support a verdict for the full $16,818.75, and on the other hand indicating such negligence on the part of appellee as to support a verdict for axopellant. The rule here applicable Avas simply stated in Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49: “It is true that the verdict is not consistent, but this is not grounds for us to reverse the judgment, as it is supported by very substantial and sufficient testimony.”
Appellant next contends that his motion for a directed verdict should have been sustained. At the close of appellee’s testimony, appellant moved that a verdict be directed in his favor on the ground that giA^en its highest probative value the evidence elicited in favor of appellee was insufficient to constitute grounds for any recovery by appellee against appellant, which was denied. This motion was renewed at the close of appellant’s case by means of an offered binding instruction, which was refused by the court. In Neal v. St. L.I.M.& S. Ry. Co., 71 Ark. 445, 78 S. W. 220, this court said:
‘ ‘ The pratcice of directing a verdict for the defendant when it is clear that the evidence is not sufficient to make out a case for plaintiff is a wise one, for it saves time and costs, and expedites the business of the court; but a case should not be withdrawn from the jury in that way unless it can be said as a matter of law that no recovery can be had upon any reasonable view of the facts which the evidence tends to establish. Catlett v. Railway Company, 57 Ark. 527; Texas S P. Ry. Co. v. Cox, 145 U. S. 593; 6 Enc. Plead. & Prac. 679-680.”
Under the long standing practice in this state, even where ”... we think there is not much evidence to sustain the assertion of the plaintiff, he had, we think, the right to submit the question to the jury. . . .” Hutchinson v. Gorman, 71 Ark. 305, 73 S. W. 793. And where, as here, the evidence was substantial and certainly conflicting, the trial court did not err in refusing to direct a verdict for appellant.
Appellant finally urges that two of the instructions offered by appellee and given by the court were prejudicially erroneous. We have reviewed all of the instructions, whether offered by appellee, appellant or the court. Taken as a whole, including the two complained of instructions, we find that the instructions fairly correlate the testimony to the applicable law, including the Uniform Commercial Code. Finding no error, we therefore affirm. | [
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Cakleton Harris, Chief Justice.
This case relates to an employment practice that has become widespread in recent times, and which is sometimes referred to as “moon-lighting.” Appellant, Elmer E. Ross, a resident of Little River County, has been employed regularly by Day & Zimmermann, Inc., Loan Star Ordnance Division, Texarkana, Texas, as an equipment mechanic, since November 15, 1951. In his employment, Ross worked eight hours per day. During the last eight years, his work day started at 7:00 o’clock A.M., and concluded at 3:30 o’clock P.M. About six years ago, he became a part-time night policeman for the City of Ashdown. Ross acted as a relief or substitute policeman for the regular employee, Chester Pruitt. For four of the last six years, he has served in such capacity for the City of Ashdown two nights each week.
On August 4, 1962, Ross, Avhile working as a night policeman for the city, stopped an automobile, in which five youths from Fort Smith were riding. The automobile was stopped because the driver had run a stop sign. During the investigation, appellant Avas shot by one of the occupants of the car, requiring medical and hospital expenditures, for which appellant seeks to recover from the appellee company. The City of AshdoAvn carried no Workmen’s Compensation coverage.
At the time Ross was injured, there were in full force and effect, group accident, health, hospital, and life insurance policies issued by the appellee, the Equitable Life Assurance Society of the United States, in favor of Day and Zimmennann, Inc., Loan Star Ordnance Division, affording non-occupational accidental bodily injury, or non-occupational sickness insurance benefits to the employees of Day and Zimmermann. The insurance company refused to make any payment to Ross, contending that his injuries arose out of his employment with the City of Ashdown; that, therefore, he had suffered an occupational accident, which precluded Ross from receiving any benefits under said policies. Appellant instituted suit against the company, seeking judgment in the amount of $791.39, together Avith statutory penalty and reasonable attorney’s fees. On hearing, the court, sitting as a jury, found that Ross’ injury arose out of and in the course of his employment Avith the City of Ashdown, and was not a non-occupational accident. From the judgment entered, denying recovery, appellant brings this appeal. Only one point is relied upon for reversal, vis,
“The trial court erred in ruling that the accidental bodily injury of appellant Avas ‘ occupational, ’ precluding recovery under the involved policies of insurance.”
The section relative to hospital expense, inter alia, provides:
“No payment shall Tbe made under the provision hereof entitled ‘Hospital Confinement Benefits.’ * * *
“(b) due to accidental bodily injuries arising out of and in the course of an employee’s employment.”
The accident and health sections also provide that no benefits are payable “for disability due to accidental bodily injuries arising out of and in the course of the employee’s employment. ’ ’
Appellant contends that the “employment” referred to concerns solely the employee’s employment with Day and Zimmermann, Inc., and the accident and health insurance coverage is due to be paid when the epxployee is injured at any time, except when injured on his job with Day and Zimmermann. Appellant states:
“Insurance benefits are afforded the employees of Day and Zimmermann, Inc., for non-occupational bodily injuries preventing the employee from performing any and all duties pertaining to his employment, precluding benefits due to disability arising out of and in the course of the employee’s employment. The employment, to which the policy refers, can only mean the employment of the named employee with the named employer, Day and Zimmermann, Inc.”
On the other hand, appellee asserts that the policies were intended to cover accidents or sickness arising from non-occupational sources, and that Ross, though not injured because of his employment with Day and Zimmermann, was injured by virtue of his employment with the City of Ashdown, and consequently, since such injury occurred during a time when he was carrying out the duties of employment, the policies do not afford coverage. That, then, is the question—what is meant by the phrase, ‘ ‘ due to accidental bodily injuries arising out of and in the course of an employee’s employment?” Does this refer to any employment engaged in by an insured, or does it only refer to the employee’s duties with the company which made the group insurance plan available for the benefit of its employees, vis, Day and Zimmermann ?
We are of the opinion that the phrase has reference to the employment with Day and Zimmermann, for the ■wording of the policies strongly supports that interpretation. Day and Zimmermann, Inc., are mentioned as ‘ ‘ the employer, ’ ’ and this company is given the right to terminate the policies on any premium due date, or, subject to appellee’s approval, to modify, amend or change the provisions, terms and conditions of the accident, health, or hospital insurance. The life insurance coverage gives the employee the privilege of changing the beneficiary from time to time by filing a written request with the employer (Day and Zimmermann), but the change of beneficiary is ineffective until Day and Zimmermann enter the change upon the insurance records.
An “Information Manual,” explaining the insurance plan, was prepared by Day and Zimmermann for distribution to the employees. This manual commences, “To our employees: as evidence of our interest in the welfare of you and your family, we have made available for your benefit a Contributory Group Insurance Plan, which consists of the following: * *
The various benefits to employees of the company are then explained in detail. At Page 14 of the manual, it is pointed out that “accidents” are not covered if intentionally self-inflicted, sustained while performing military service in time of war or riot, sustained while performing police duty as a member of any military or naval organization, or sustained outside of the United States or Canada. Certainly in setting out these exceptions to coverage under the policy, it would have been quite easy to have likewise provided that coverage was not afforded if bodily injuries were sustained while working at any employment, for any employer.
No helpful cases have been cited on the particular point involved, and we have found none dealing with the exact situation. Perhaps the case which comes closest to the instant litigation is Federal Life Insurance Company v. Hall, 11 P. 2d 215, which was decided by the Supreme Court of Colorado in 1932. There, Hall’s occupation was not mentioned in the policy, and no language used therein related to any given occupation. As here, the insurance did not cover death or loss while performing occupational duties. Hall was a rancher, had a herd of milch cows, sold cream, and butchered and sold his calves for veal. He raised chickens, and marketed from 350 to 500 turkeys per year. When not so occupied, he took such work as he could get. This included employment on the public highways, and acting as a salesman. For about fourteen months before his accident occurred, he had occasionally done rough carpenter work, actually acting as what might be termed a “carpenter’s helper.” He was killed while assisting in the erection of a shed for a neighbor, when the shed was hit by a tornado. In answer to the question contained in the proof of death, the occupation of the deceased, at the time of the injury, was listed as “carpenter and ranchman.” As here, the company refused to pay because it contended that Hall was performing occupational duties at the time of his death. The Supreme Court disagreed, stating,
“If the words, ‘occupational duties’ were to be applied to every casual and temporary employment in which Hall engaged, this policy would be thus construed into a mere instrument for the furthering of a confidence game. The phrase was doubtless intended to apply to the insured’s ordinary and usual occupation. There is nothing in this record to justify the conclusion that the carpenter trade was such. Hall’s work in that line was apparently nothing more than the roughest and most ordinary sawing and nailing of boards. It might have been performed, and is every day performed, by unskilled farm boys. It has been repeatedly held that the term ‘occupation,’ as used in accident policies and applications therefor, refers to the insured’s ordinary and usual business, neither to recreational activities nor to incidental nor temporary employment. * * *
“Hence ‘occupational duties’ refers to duties incident to insured’s ordinary and usual occupation, not to duties incident to an unusual and temporary employment.”
It is true that Hall had engaged in carpentry work for only fourteen months, while Ross had been holding the night policeman job (though only two nights per week) for several years, but that fact is hardly sufficient to distinguish the cases. Another difference is that Hall purchased the insurance himself, while Ross is contending for benefits under policies purchased by his regular employer—but this circumstance would seem to. make Ross’ position even stronger, since the policies definitely define his employer. The main similarity in the cases, and, we think, the most significant fact, is that neither Hall nor Ross was engaged in his “usual occupation” at the time of being injured. Hall’s usual occupation was rancher, and Ross’ usual occupation was equipment mechanic. For the reasons herein cited we are definitely of the view that the employment referred to by the policies can only have reference to the employment of Ross with Day and Zimmermann, Inc.
Even if it can be said that the policies are susceptible to the interpretation contended for by appellee, it must also be stated that they are certainly susceptible to the construction we have given. In such event, appellee still cannot prevail. As we stated in National Life and Accident Insurance Co. v. Horace, 206 Ark. 430, 175 S. W. 2d 984:
“ ‘If it be admitted that the policy is susceptible to this construction, it must also be admitted that this is not the only construction to which it is reasonably susceptible. The policy is ambiguous, to say the least of it, and the rule of construction followed by this court in many cases is to resolve ambiguous and doubtful language in favor of the insured, and against the insurer.’ ”
Likewise, in Firemen’s Insurance Company of Newark, N. J. v. Motley, 222 Ark. 968, 264 S. W. 2d 418:
“ ‘Under well-settled principles, where the provisions of a policy are susceptible of two equally reasonable constructions, one favorable to the insurer and the other to the insured, the latter will be adopted. This is because the language is chosen by the insurer with the aid of experts employed for the purpose of writing the policy, and the insured has no voice in the matter. Therefore, where either of the two constructions may be adopted, it is fair that that which will sustain the claim and cover the loss will be chosen.’ ”
The judgment is reversed, and the cause is remanded with directions to render judgment in favor of appellant, together with costs, statutory penalty, and a reasonable attorney’s fee.
It was stipulated at the trial that if Ross was entitled to anything at all under the policies, he was entitled to the amount sought in his complaint. | [
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Sam Robinson, Associate Justice.
The City of Jonesboro filed this suit asking for a declaratory judgment to the effect that the east boundary line of the private property in Block 52 of Knight’s Second Addition to the City of Jonesboro is 46 feet west of the 'quarter section line between the northeast quarter and the northwest quarter of Section 19, Township 14 North, Range 4 East; and that the 46 feet between such alleged property line and the quarter section line has been dedicated as a public street. The Chancellor held that the evidence failed to show that the 46 feet in question had been dedicated as a street. We agree.
The original plat of Knight’s First and Second Addition to Jonesboro was filed for record in 1891. It shows the private property line on the east side of Block 52 as being 16 feet west of the quarter section line, which is the east boundary line of the addition. Apparently the 16 foot strip was left as an alley. Main Street, which Block 52 adjoins on the west, has a width of 60 feet as shown by the plat, and all the other streets in the addition have a width of 60 feet, except a 30 foot strip was left for streets at the north and south boundaries of the addition, and a 16 foot strip was left as a right of way at the west boundary the same as a 16 foot sti’ip was left at the east boundary.
Appellant bases its claim that there are 46 feet between the quarter section line, which is the east boundary line of the addition involved, and the private property line in Block 52, on a plat filed in 1902 of Culberhouse’s Subdivision of various lots in Knight’s Second Addition, including Block 52. Unless the plat of Culberhouse’s Subdivision is sufficient to show a dedication of land on the east side of Block 52, designated as Church Street in the plat, in addition to the 16 feet shown by the 1891 plat, appellant cannot prevail. The Culberhouse plat is not sufficient to show a dedication of more land on the east side of Block 52 for use as a street than is shown in the 1891 plat of Knight’s First and Second Addition.
Apparently there are several errors in the Culberhouse plat. It contains no scale, and yet it appears to be drawn to the scale of one inch to 200 feet. It designates Church Street as adjoining Block 52 on the east, but does not give the width of the street. The plat shows Block 52 as being divided into- six lots measuring 200 feet east and west, but if the scale of one inch to 200 feet is used, the lots would measure 220 feet.
According to the original plat of Knight’s Additions, Block 52 is 220 feet east and west leaving 16 feet between the end of the block and the section line. This shows a distance of 236 feet from the quarter section line on the east of the addition to the east line of Main Street. Although the Culberhouse plat shows the lots as measuring only 200 feet east and west, there is no showing whether the 20 feet apparently taken from the lots in Blocks 52 was added to Church Street or to Main Street. In fact, from the lines on the Culberhouse plat, the 20 feet appears to have been added to Main Street. There is no way of determining the location of the property shown on the Culberhouse plat except by reference to the original plat, and there is no testimony in the record ticing the Culberhouse plat in with the original plat of Knight’s Addition in such manner that it can be said that a preponderance of the evidence shows that any land has been dedicated to what is now called Church Street other than the dedication- shown in the original plat of Knight’s First and Second Addition.
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Carlbton Harris, Chief Justice.
This litigation involves an interpretation of Ark. Stat. Ann. § 28-348, Sub-section (d) ',(Repl. 1962). The section, overall, deals with the taking of discovery depositions. The sub-section refers to the use of the depositions during the trial of a case, and reads as follows :
“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose.”
Appellant, Wayne Mabry, a minor, was involved in an automobile collision with Dwight Nickell on January 16, 1962, on U. S. Highway 71, approximately one mile south of Lowell, Arkansas. Mabry was traveling north, and Nickell, traveling south, was immediately behind a south-bound truck, owned by appellee, Standard Rendering Company, hereinafter called Standard, and driven by appellee, G. W. Ross, Jr. As the two south-bound vehicles approached a hill, Ross (according to appellants’ contention) signaled to Nickell that all was clear, as far as approaching traffic was concerned, and Nickell went around and collided with the approaching Mabry vehicle on the southern portion of the crest of the hill. Thereafter, Wayne Mabry, and Major Mabry, his father, both in his own right, and as Father and Next Friend of Wayne, instituted suit against Standard, G. W. Boss, Jr., and Dwight Nickell. The complaint alleged, inter alia, that Ross was a servant and employee of Standard, acting within the scope of his employment on the occasion mentioned. Negligence charged against appellees was based on the allegation that immediately before the collision, Boss signaled Nickell that it was proper and safe for Nickell to go around his (Ross’) truck; and that Ross, with the exercise of ordinary care under the circumstances, should have known that it was unsafe for Nickell to pass. The complaint charged Nickell with negligence in failing to keep a proper lookout; failing to yield the right of way to Mabry’s automobile; failing to maintain proper control of his automobile; and in relying upon the directions of Ross, by passing at a point where Nickell’s view was inadequate to assure safe passage. Judgment was sought against the defendants, jointly and severally for the total sum of $6,876.85. Standard and Ross filed their answer, denying each and every material allegation, and further alleged that if appellants had been damaged, such damages were the result of the negligence of appellant, Wayne Mabry. A counter-claim was filed against Major Mabry, wherein it was alleged that the latter was guilty of negligence sufficient to bar his recovery by reason of knowingly entrusting his vehicle to a dangerous and incompetent driver, Wayne Mabry, and that Wayne Mabry, at the time of the collision, was acting as agent, servant, and employee of Major Mabry. In the alternative, appellees pleaded Wayne Mabiy was a bailee of the automobile owned by Major Mabry, then the damages to said automobile were the proximate result of the negligence of Wayne Mabry, and that the defendants, Gr. W. Ross, Jr., and Standard Rendering Co., are entitled to contribution from Wayne Mabry for any judgment rendered against them in favor of the plaintiff, Major Mabry.”
A cross-complaint was filed against Nickell, wherein appellees asserted that any injuries and damages sustained by appellants were the proximate result of the negligence of Nickell, and that Ross and Standard should have contribution over and against Nickell for any judgment which might be returned against appellees. Nickell then filed an answer and cross-complaint against appellees wherein he stated that he was following immediately behind the truck operated by Ross in behalf of Standard, and that Ross signaled to him that he could safely pass the truck which Ross was operating; that in so doing, the Nickell automobile collided with the Mabry automobile. By counter-claim against appellants, he also alleged negligence on the part of Mabry, asserting that the latter was traveling at an excessive and reckless rate of speed. The pleading set forth injuries and damages allegedly sustained by Nickell, and he sought judgment against Mabry and his father, and Ross and Standard, jointly and severally, in the sum of $4,743.78. Appellants filed a reply to the counter-claim, denying all material allegations. Thereafter, by stipulation of the parties, the depositions of G. W. Ross, Jr., and Dwight Nickell were taken with all attorneys being present. "When the case proceeded to trial, appellants attempted to introduce the depositions of Ross and Nickell as evidence in chief for the purpose of making a prima facie case against appellees, but the trial court, in separate rulings, excluded both depositions on the ground that Ross and Nickell were present in the court room, and therefore available to testify. Objections and exceptions were duly noted to this ruling. Because of the adverse ruling, appellants then called Ross and Nickell as witnesses. The testimony of Ross was substantially the same as that given in his deposition, and appellants make no contention of reversible error because of the exclusion of his deposition. However, the testimony of Nickell is asserted to be materially different from his deposition, and the oral testimony of this defendant did not make out a prima facie case of negligence on the part of Ross and Standard. There was no other witness presented to testify with regard to the alleged signal given by Ross to Nickell (to pass his truck), and Ross denied giving a signal. Thereupon, appellants rested, and the court sustained a motion for directed verdict for the appellees. The case proceeded on the remaining issues, and at the conclusion of the testimony, the court granted motions for directed verdicts in favor of appellees on the cross-complaint filed by Nickell, and in favor of appellants on the counter-claim filed by Nickell. The final issue was submitted to the jury, and it found for appellants against Nickell, awarding a judgment in the sum of $3,200.00. This judgment was entered on May 3, 1963. On May 15, Nickel filed a motion to quash the judgment, and prayed that all proceedings in the cause be dismissed against him for the reason “ * * >:s * that the said defendant is and was at the time of the bringing of this cause under and incapacitated by virtue of a legal Guardianship; that the fact of the existence of the aforesaid Guardianship did not become known until subsequent to the entry and rendering of the judg ment herein and that a copy, duly certified, of the Letters of Guardianship are attached and made a part hereof as though set out -word for word.”
On June 4, the court found that Nickell had been legally adjudged incompetent by the Probate Court of Washington County in 1957; that his brother had been appointed and qualified as guardian, and was still acting as legal guardian; that on the date of the trial “Dwight Nickell was not competent to the degree required by law to testify or to legally have a judgment returned against him, and the motion to quash the judgment against Dwight Nickell should be sustained.” The court then entered its order quashing and setting aside the judgment in favor of the Mabrys against Nickell, and further ordered that appellant’s cause of action against this defendant be continued, subject to further orders of the court.
Appellents have appealed from the judgment of the Circuit Court rendered on May 3, insofar only as the judgment finds for Ross and Standard. The sole question before this court is whether the trial court erred in excluding the deposition of Dwight Nickell.
Before proceeding to discuss this issue, we might first point out that the reason given by the trial court for excluding the depositions of both Nickell and Ross was erroneous. The ruling of the court was based upon the fact that these persons were present in court and available for testimony. We have held that the presence of the party in court is no reason for exclusion of the deposition . In Superior Forwarding Company v. Sikes, 233 Ark. 932, 349 S. W. 2d 818, this court said:
“Next, appellants contend that the trial court erred in permitting the use of a deposition of Fred Russell, who was a party defendant. He was present in the courtroom and plaintiff had previously taken his discovery deposition. Ark. Stats. § 28-348 provides that the deposition of a party may be used by an adverse party for any purpose. Here Fred Russell was an adverse party to the plaintiff. Hence, it was perfectly proper to use his deposition.”
See also Volume 4, Moore’s Federal Practice (Second Edition) Section 26.29, and Cleary v. Indiana Beach, Inc., 275 F. 2d 543.
Appellees point out that the deposition was not offered as substantive evidence in the controversy between appellants and Nickell, hut rather was offered as evidence in the separate controversy between the Mabiys and appellees. Appellees state:
" Had-Appellants brought two separate suits, as they could have done, against Appellees and Nickell, it is clear that Nickell would have been simply a witness in the separate suit against Appellees, and his deposition would not have been admissible since he was not ‘unavailable.’ Appellees submit that the joinder statutes which are designed for economy of time and expense should not he used to permit a misapplication of the rules concerning use of deposition.”
It is strongly argued that in the controversy between the Mabrys on the one hand, and Ross and Standard on the other, Nickell is not an adverse party to appellants. Appellees rely mainly upon the case of Napier v. Bossard, 102 F. 2d 467 (Second Cir. 1939), a case decided under New York law, hut this case is not persuasive for the reason that the New York statute, at that time, did not contain the pertinent provisions of our statute, viz, “* * any par£ Qr ap 0£ a ¿^position * * ® may be used against any party who was present or represented at the taking of the deposition” and * * may be used by an adverse party for any purpose.”
Appellees also contend that the purpose of the deposition was limited to discovery, and that no effort was made to frame questions in admissible form as a matter of preserving testimony. The stipulation for the. taking of Nickell’s deposition does not so state, and the concluding sentence provides, “The right to except to all evidence adduced for incompetency, irrelevency and immateriality, is hereby expressly reserved. ’ ’ Of course, there was no agreement in advance that the deposition would be used as evidence, as this would have bound all parties to testimony that they had not heard, but it certainly appears that the reservation of the right to except to introduction as contained in the quoted sentence would have been a meaningless gesture unless it had been contemplated that the deposition, or portions thereof, might be introduced.
Be that as it may, it is clear that our statute provides that the deposition may be used “against any party” and “for any purpose.” To hold with appellees, it would be necessary to completely disregard the literal meaning of the quoted phrases. As pointed out by appellants, we would have to write into Sub-section (d) “The additional requirement that the deposition of a party may be used only ‘against that party’ contrary to its express language that it may be used ‘against any party.’ ”
Accordingly, we reach the real question, i.e., “Were appellants and Nickell adverse parties?” In Mahoney v. Founders’ Insurance Company, 12 Cal. Rptr. 114, the District Court of Appeals for the Second District of California, declared that “. . . adverse parties are those who, by the pleadings, are arrayed on opposite sides.”
In the citation from Moore’s Federal Practice, previously mentioned, the author states, “ ‘Adverse party’ as used in this rule is a term of art, and means a party whose interest in the case is adverse to that of another party, . . .” We are persuaded that appellants and Nickell come within the definition of “Adverse parties.” The Mabrys instituted suit against Nickell, and Nickell filed a counter-claim against the Mabrys. Appellants obtained a judgment against Nickell. In fact, all parties appear to have been adverse to each other. The Mabrys sued appellees and Nickell. Appellees counter-claimed against appellant, Major Mabry, and cross-complained against Nickell; Nickell counter-claimed against appellants, and cross-complained against appellees. Having reached the conclusion that the Mabrys and Nickell were adverse parties, it follows that the court erred in not admitting the Nickell deposition. Of course, appellees will have the opportunity to refute and rebut the evidence contained in the Nickell deposition, and may even subpeona Nickell for this purpose, if it develops that he is competent to testify when, and if, the case is re-tried.
This last brings us to the final argument advanced by appellees. They contend that the ruling of the trial court should be upheld because Nickell was not competent, to the degree required by law, to testify. The court entered its finding that Nickell was not competent to testify on the date of the trial; however, no finding was made as to Nickell’s competency on the date of the taking of the deposition. The mere fact Nickell had been adjudged incompetent in 1957, and had never, by court order, been restored to competency, does not, within itself, establish that Nickell was incapable of testifying at the time of the taking of the deposition. Ark. Stat. Ann. 'S 28-601 (Repl. 1962) provides that certain persons shall be incompetent to testify. Among those declared incompetent to give testimony are the following:
“Persons who are of unsound mind at the time of being produced as witnesses, provided, however, that no person shall be denied the right to testify who is in possession of his or her mental faculties during a lucid interval, and provided further that it shall be within the sound discretion of the Trial Court to permit any person to testify who understands the obligation of an oath and who has sufficient understanding, and the fact that such person has been adjudged of unsound mind shall only affect his or her credibility as a witness, and the court shall so instruct the jury.”
See also Parker v. Walrath, 232 Ark. 585, 339 S. W. 2d 121. "Whether Nickell was competent to give the deposition is a matter that will have to be determined in future proceedings.
Because of the error, heretofore set out, the judgment is reversed, and the cause remanded to the Benton County Circuit Court with directions to proceed in a manner not inconsistent with this opinion.
Appellants contend that Ross gave this signal by blinking rapidly his left hand turn signal at the rear of the truck.
This fact was subsequently admitted by the company in answering “Request for Admission of Pacts.”
Emphasis supplied. | [
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Jim Johnson, Associate Justice.
This is an appeal from eminent domain proceedings brought by appellant Arkansas State Highway Commission against appellees, Jackson County Gin Company and others, to acquire .08 acres of appellees’ land for highway purposes. On May 26, 1961, appellant filed its complaint and declaration of taking in Jackson Circuit Court and deposited $450.00 in the registry of the court as estimated just compensation. Trial was held on May 14, 1963. After deliberation the jury returned a verdict for appellees in the sum of $6,000.00. Prom judgment on the verdict, appellant has prosecuted this appeal urging four points for reversal.
The first point relied upon by appellant is that the court committed reversible error in permitting one of the former owners, Mr. R. S. Rainwater, and the manager for the present owner, Mr. Bob Gardner; to testify over the objection of appellant to an offer made by Mr. Rainwater to sell three gins to Mr. Buck Hurley and to testify that Mr. Rainwater had reduced the sales price $10,000.00 because of the condemnation.
Mr. Rainwater, one of the appellees who had owned 90% of the stock in the gin company, testified that he was negotiating with Mr. Buck Hurley to sell him three gins, including the Jackson County Gin, for .“about two hundred forty thousand dollars.” His testimony reveals that further negotiations were postponed, apparently, until after cotton season, during which period Mr. Hurley died; that negotiations were later resumed with other officers of the Hurley corporation and a sale of the gins was consummated. In the interim, however, appellant had filed this condemnation action. After appellant’s objection, Mr. Rainwater’s testimony continued as follows :
‘ ‘ Q. How much less than the full price did you get on the subsequent sale?
“A. Well, they felt, and I think it was their feeling and our feeling and the feeling of their counsel, that since this property had been condemned that we were the losers and they were buying it as is, don’t you see; I mean that was their contention that the Highway Department was not condemning the property that belonged to them, it had already condemned the propexdy that'belonged to us. Therefore, if any damages, and what damages were sustained that belonged to us and they would have to buy it as it was, and we admitted to them and we told them they would have to move their scales which they understood and they wanted us to arrive at a price so that it would enable them to do that and I took off $10,000.00 of what we had practically agreed on because we have got to move those scales and we have got to do a lot of other things there. And then they said this, that they would buy it as it was and we would let this suit continue as it was and the suit then would be between the Highway Department and against ns. Now that was the agreement that we had in the sale of the property.”
Mr. Bob Gardner, the managing head of the Hnrley Enterprises, testified over appellant’s objection that the tentative purchase price was reduced, and that the amount of the reduction was $10,000.00.
Appellant urges that the principle of Arkansas State Highway Commission v. Elliott, 234 Ark. 619, 353 S. W. 2d 526, should be controlling here. In that eminent domain case the landowner’s lay witness was allowed to testify what he had offered to buy the property for from the landowner and also allowed to read into evidence a letter containing this offer. After discussion of the testimony and review of a number of authorities, this court unequivocally stated, “we hold that the evidence of an offer to purchase is not admissible to establish the fair market value of particular property.” It is true as argued by appellees that the case at bar is distinguishable from the Elliott case on its facts, however the salutary rule laid down in Elliott must not be “distinguished” away, and we therefore reaffirm our holding that the evidence of an offer to purchase is not admissible to establish the fair market value of particular property.
For its second point appellant contends that the trial court committed reversible error in permitting evidence of moving costs to be introduced over appellant’s objection. Under the rule of Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535, moving costs could be considered a factor in arriving at the before and after value. The rule was stated thusly in Carpenter:
“We have said that there is no set formula or pattern that must be followed at arriving at before and after value. (Cases cited.) Consideration may be given to every element which a purchaser, willing but not obligated to buy, would consider. ’ ’
Appellant next asserts that the trial court committed reversible error in not striking the testimony of Joe Stafford, one of appellees’ value witnesses. While much of Mr. Stafford’s testimony was clearly inadmissible, we are bound by the rule that a motion to exclude all of the testimony of a witness is properly overruled if a part of the testimony is competent. Arkansas State Highway Commission v. Bowman, 237 Ark. 51, 371 S. W. 2d 138; Arkansas State Highway Commission v. Carpenter, supra.
Appellant’s last point questions the sufficiency of the evidence to support the judgment. Inasmuch as the case must be reversed and remanded for the error indicated, we do not reach this point in this appeal.
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Paul Ward, Associate Justice.
This litigation grows out of a collision between a 1954 Ford passenger car and a large trailer truck. Of the five people in the car, two were killed and the other three were injured. Of the three injured, one seeks no damages and is not a party herein. The basic facts are not complicated hut the pleadings are somewhat involved and will be fully set out to clarify the several issues.
Facts. The accident occurred at about 3:30 a.m. on May 12, 1962 on U. S. Highway No. 64, a few miles west of Clarksville—near a motel called the “64 Hub’’. The car was owned and driven by Billy Joe Woolsey, aged 35. In the car were: Ronnie Tipton, aged 15, who was killed; Johnnie Lee Roughley, aged 18, who was killed; James C. Campbell, aged 18, and Tommy Crowder, aged 16, who is not a party litigant. The trailer truck which was hit from the rear was owned by appellant, J. Paul Smith Company [hereafter called Company], and it was being driven by appellant, Pete George. For brevity, we may hereafter refer to the occupants of the car as the driver and the boys.
The driver and the boys got together about 9 or 10 p.m. the day before preparatory to going on a frog hunt that night. After the hunt was over and as they were returning home at about 3:15 a.m., traveling east, the car hit the rear end of the trailer truck as it was entering upon or was already on the highway. The truck had been parked at the motel on the previous afternoon on the south side of the -highway—headed north. It was dark, and when the truck was pulling out onto the highway (according to appellees) or after it had proceeded some 100 to 200 feet east along the highway (according to appellants) the collision occurred. Whether another car (traveling west) contributed to the cause of the collision is a disputed question. Appellants, however, do not challenge the sufficiency of the evidence to support a finding of negligence on their part.
Pleadings. The parents of Tipton and Roughley, and the mother of Campbell sued the Company and Pete George (hereafter referred to as appellants) for negligently driving the truck upon the highway. They also sued Woolsey, charging him with wanton and wilful negligence in driving the car. Woolsey entered a general denial and also cross complained against appellants. Appellants denied all allegations of negligence in the complaint and the cross complaint, and, in addition, pleaded (a) that the boys were on a joint venture with Woolsey and consequently his negligence was imputed to them; and, (b) that the boys were guilty of contributory negligence. Appellees denied the allegations in appellants’ cross complaint. Woolsey, who was an original defendant, received no award from the jury, and he has not appealed.
Trial. At the close of all the testimony interrogatories were submitted to the jury with the results indicated :
No. 1. Appellant, Pete George, was guilty of negligence as charged which was the proximate cause of the injuries—Ms negligence was 80%.
No. 2. Woolsey was negligent in operating his car which was the proximate cause of the injuries—negligence was 20%.
No. 4. The boys were not on a joint enterprise with Woolsey.
Nos. 6, 7, and 8. Campbell, Tipton, and Roughley assumed the risk of riding with Woolsey.
No. 9. Judgments:
Campbell .$20,000
Tipton .... . 12,500
Roughley . 12,500
No. 10. No judgment for Woolsey.
For a reversal, appellants ably and earnestly rely on the eight separate points hereafter discussed.
One. Appellants here make the novel and interesting contention that the boys should not be allowed to recover because they “assumed the risk of the harm that might come to them through the negligent acts of Billy Joe Woolsey in the operation of the vehicle in which they were riding”. This contention is based partly on the fact (as found by the jury) that Woolsey was 20% negligent and that his negligence was a proximate canse of the injuries. It is also contended that under the well established “assumption of the risk” rule they could recover nothing, and that this rule was not affected in any way by our comparative negligence statute—Ark. Stat. Ann. § 27-1730.1 (Repl. 1962). This argument, appellants say, is supported by the case of Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379. We are not convinced by appellants’ argument. We think the Webb case relied on by appellants is not in point for the reasons hereafter pointed out. In that case [at page 34 of the Arkansas Reports] we said:
“The rule which we think is most applicable in the case under consideration is set forth in 15 A.L.R., Second, Page 1180, Section 9, under the heading ‘Assumption of Risk’. It is there stated that the necessary elements of assumption of risk by guests are clearly defined as follows: ‘First, there must be a hazard or danger inconsistent with the safety of the guest; second, the guest must have knowledge and appreciation of the hazards; and third, there must be acquiescence or willingness on the part of the guest to proceed in the face of danger.’ ”
We then pointed out (1) that drag racing was hazardous; (2) that Webb was aware of the hazard; and, (3) that he had an opportunity to protest but failed to do so. The above mentioned set of facts is just the opposite of the facts in the case under consideration—(1) driving on the highway is not drag racing; (2) the boys did not know the truck would be negligently driven onto the highway; and, (3) they had no reasonable opportunity (14 seconds) to protest. In the Webb case the Court made it plain, we think, that the result would have been different if any of the enumerated facts had been lacking.
To adopt the rule which appellants appear to espouse would lead to an illogical and unjust result. It would allow Woolsey (the negligent driver) to recover, but it would deny recovery to the boys who had no control over the car.
We are unable to understand how our comparative negligence statute in any way operates to modify or repeal the doctrine of assumption of the risk as it applies to the case under consideration and as it has been uniformly construed by the courts in this and other jurisdictions—that is, a person does not assume the risk of the negligence of a third party and does not assume a risk of which he is not aware. The rule, as applied to cases of this nature is very well stated in 61 C.J.S. Motor Vehicles § 486, where appears this statement:
“A guest’s assumption of risk, in case of a motor vehicle collision, applies only as between the guest and his host, and does not bar recovery from a third person for injuries to which the third person’s negligence pros imately contributed, unless the acts of the host, in which the guest acquiesces, operate as the cause of the collision. ’ ’
There are many authorities and decisions in substantial agreement with the above statement. See: 4 Blashfield, Cyclopedia of Automobile Law and Practice, § 2511; Keowen v. Amite Sand & Gravel Co., (La. 1941 4 So. 2d 79; and Guile v. Greenberg, 192 Minn. 548, 257 N. W. 649.
Two. On August 29, 1962, the complaint herein to recover for the death of Ronnie Tipton and Johnnie Lee Roughley was filed by Ronnie’s parents (as next of kin) and by Johnnie’s mother (as next of kin). The trial began on Feb. 14, 1963, and later that same day it was learned that Harlan Tipton had just been appointed administrator of the estate of his son (Ronnie) and that the mother of Johnnie had been appointed administratrix of his estate. When the above information was revealed to appellants they promptly moved the court to dismiss the complaint insofar as it applied to the deceased boys. The motion was founded on Ark. Stat. Ann. § 27-907 (Repl. 1962), enacted in 1957. It suffices here to point out that it requires these two mentioned actions to be “brought by and in the name of the personal representatives” of the deceased boys. We think the trial court was correct in refusing appellants’ motion to dismiss. As soon as the erroneous procedure was called to appellees’ attention they, with permission of the court, amended the complaint by proper interlineations.
We are unable to see how appellants were in any way prejudiced, and they did not ask for a continuance on that ground. Under the liberal method of procedure provided for in Ark. Stat. Ann. § 27-1160 (Repl. 1962) we think the trial court not only had the power to permit the amendment but that he would have been derelict in his duty had he not done so. This section, among other things, provides:
“The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” (Emphasis added.)
It cannot be contended here that the substitution of parties plaintiff changed “substantially the claim or defense” of either party. This Court apparently has recognized a difference between bringing an action and maintaining an action in court. In St. Louis M. & S. E. Rd. Co. v. Garner, 76 Ark. 555, 89 S. W. 550, it was said: “The plaintiff (appellee) had no right to bring or maintain this action, there being a personal representative of the deceased”. (Emphasis added.) In the case before us the next of kin did not try to maintain the action after the appointment of the personal represenatives was called to the attention of the court.
Three. We find no reversible error in the court’s instruction telling the jury it had the right to “take into consideration . . . any loss of earnings sustained or which may be sustained in the future as a result of said injury”. This particular instruction was given with reference to appellee James C. Campbell, who was 18 years old at the time of the collision. Appellants also objected to similar instructions, though worded differently, with reference to the two deceased boys. There, the court told the jury they could take into consideration the value of the services the boys would have rendered their parents until they should reach the age of majority, and the amounts the}’' would have contributed after reaching the age of majority. Appellants cite Missouri and Arkansas Railway Co., v. Treece, 210 Ark. 63, 194 S. W. 2d 203, as holding that, in this situation, the verdict of the jury must be based upon reasonable inferences from established facts and not on conjecture or speculation. Just how much the jury allowed in each case cannot be known because of the form of the verdicts, which was not objected to by appellants. It has been held that a person can recover for impairment of earning capacity even though he was not employed at the time. See: Germ v. City and County of San Francisco, 222 P. 2d 122 (Cal. 1950). It has been held that a housewife who stays at home can recover. See: LeMay v. Minn. St. Ry. Co., 71 N. W. 2d 826 (Minn. 1955), and to the same effect is the case of Fort Smith Gas Co. v. Lewis, 202 Ark. 427, 150 S. W. 2d 622. Examination of many of our own cases reveals that we have been liberal as to the amounts of evidence required to justify an instruction for loss of earning's. See: Wis. & Ark. Lbr. Co. v. Standridge, 132 Ark. 535, 201 S. W. 295.
In the case of Campbell, 18 years old when injured, it was shown he had been attending a 'school for mechanics to prepare for work in the future and it also appears that he was going to “work in peaches” during the season. In his case there can be no doubt his earning capacity has been diminished as a result of his extensive injuries. As to the deceased boys: The record shpws that Konnie, aged 15, did work around the house, waxed floors, mowed the lawn, and helped with flowers. The record shows that Johnnie, aged 18, was a good boy, worked around the house, ran errands and helped to look after the younger child. Prom these facts we think the jury could very reasonably infer that to supply all of these services would have cost money. Just how much value should have been placed on these services, or was placed on them by the jury, is of course speculation. For that reason alone, no reversible error has been shown.
Four. After careful study of the record we find no substantial evidence to justify submitting to the jury the question of contributory negligence on the part of any one of the boys. There was testimony that each boy drank a can of beer sometime during the trip, and there was also testimony they didn’t drink any beer. At any rate there is no evidence as to when beer was drunk or that it contributed to the accident. Also, Crowder said he heard one of the boys tell Woolsey to “step on it” —“or something like that”, but there is no evidence to show which boy made that statement. Moreover, if the identity of the boy were known, his negligence (if any) could not be imputed to the other boys since (as found by the jury) they were not on a joint enterprise and therefore no boy had any control over any other boy. It might be urged, however, that each boy was negligent in not protesting Woolsey’s accelerated speed when he was told to “step on it”. The answer is that (according to Crowley’s testimony) one boy did promptly tell Woolsey to “watch out”. But again, that one boy is not identified. Prom all this we are led to conclude that any finding of negligence on the part of any one of the boys would have to be based entirely on speculation.
Five. Over appellants’ objections the court gave the following instructions:
“You are instructed that vehicles being operated on a through highway have the right of way over other vehicles attempting to enter or cross such through highway. You are further instructed that such right of way extends to the entire passage across the through highway, and that the driver of a vehicle attempting to enter or cross such through highway does not discharge his duty by merely stopping before entering the through highway. ’ ’
“You are instructed that the driver of a vehicle upon a through highway has the right of way and is not required to slow down at a private driveway or bring his vehicle under such control as to be able to stop, but is entitled to assume that other drivers attempting to enter or cross such through highway will obey the law and yield the right of way to him. ’ ’
Appellants apparently admit these instructions accurately state the law as set out in our statutes, but object that the instructions do not impose on both drivers (the driver of the truck and the driver of the car) the same duty to exercise due care. We find no merit in this objection for the reason that other instructions (not challenged here) cover the matter of due care. The purpose of the instructions was to aid the jury in determining which of the two drivers was at fault, or most at fault, for the collision.
Six. The trial court refused to give appellants’ instruction No. 60 which reads:
“You are instructed that if you find from a preponderance of the evidence in this case that the plaintiff’s decedents and plaintiff, James C. Campbell, had been drinking intoxicants, or were drinking intoxicants with the driver of the vehicle in which they were riding, then you are instructed that the plaintiff’s decedents and the plaintiff, James Campbell, tvere on a joint venture with the driver of the vehicle in which they were riding* and the negligence, if any, on the part of the driver of the vehicle in which they were riding is imputed to them.” (Emphasis supplied.)
Appellants, recalling the testimony relative to the five cans of beer previously referred to, rely on our opinions in Mo. Pac. Tpn. Co. v. Howard, 201 Ark. 6, 143 S. W. 2d 538, and Wilson v. Holloway, 212 Ark. 878, 208 S. W. 2d 178, to justify the instruction. We cannot agree with appellants that the above decisions justify giving the instruction under the facts in this case. In the Howard case there was testimony that the people in the car were “driving around on pleasure bent”; that they had been drinking both beer and whiskey; and that the owner of the car and another member of the party attempted to dance, “but were too inebriated to do so”. In the Wilson case the issue of whether the parties were on a joint enterprise was left to the jury. The vice in the proffered instruction is that it binds the jury to reach a definite result regardless of when, where, or how much intoxicants were drunk. In those respects, nothing was left to the discretion of the jurors.
Seven. Trooper Bob Pritchard, Arkansas State Police, was placed on the stand by appellees to testify relative to the location of the debris (resulting from the collision) and relative to how long it would take to drive a car between two points at a specified rate of speed. Appellants say the court erred in allowing the witness to virtually “reconstruct” the collision which we said in two recent decisions constituted reversible error. The decisions referred to are Henshaw v. Henderson, Special Adm’r, 235 Ark. 130, 359 S. W. 2d 436, and Waters v. Coleman, 235 Ark. 559, 361 S. W. 2d 268. We are unable to agree with appellants that Pritchard’s testimony in this case amounted to or even approached recreating the collision. The testimony objected to is set out hereafter.
‘ ‘ Q. At my request, did you run a test of a vehicle driving sixty miles an hour, the time it took a vehicle at sixty miles an hour to come from that point to the place on the highway where you found the debris and where the skid marks terminated?
“A. Yes sir.
££Q. Now, from the sign midway up the hill west of Little Spadra Creek to the place on Highway 64 at the Hub where you located the debris and where' the skid marks terminated, driving at sixty miles an hour, what was the elapsed time it takes a vehicle to travel from that sign to that place?
“A. Sixteen seconds.
£ £ Q. Sixteen seconds ? ’ ’
From the above it, is obvious that the witness was not called on to reconstruct anything, to express any mysterious conclusions, to comment on the evidence, nor did the accuracy of his answers depend on the weather, the make or condition of the car, or the condition of, the road—-some of the controlling factors in the cases cited above.
Eight. Finally it is argued that the verdicts are excessive. At first it was thought by'appellants that one verdict exceeded the amount sued for, but this is satisfactorily explained as a typographical error. We find nothing in the record that indicates any of the verdicts is excessive, considering all the elements the jury had a right to consider. As to Campbell: He sued for $47,-930.10 and recovered $20,000. He received serious and permanent injuries; suffered great pain and will continue to do so; he incurred hospital bills of more than $1,200; his leg will be permanently disabled to some extent, and Ms earning capacity has been and likely hereafter -will be impaired. All this, we think, justified the jury in returning a verdict of $20,000. As to the deceased boys, there has not been and never will be devised a definite and satisfactory rule by which to determine the amount of money required to compensate parents for mental anguish. Ronnie Tipton and Johnnie Lee Roughley were normal boys with normal parent-child relationships. There can be no doubt from the testimony that their parents’ grief was deep and genuine. The depth of grief of the mother of Johnnie was so great that she was unable to sleep at night and she often arose from the bed and walked some four miles to the cemetery where he was buried. Ronnie Tipton was an only child. We are unwilling to say the judgment of $12,500 in each case ivas excessive.
Finding no error we hereby affirm on direct appeal the judgment of the trial court.
Gross Appeal. As previously set out the jury returned a verdict in favor of Campbell in the amount of $20,000, and verdicts in the amount of $12,500 in each of the other cases involving the two deceased boys. Thereupon the trial court reduced the amount of each verdict by 20% and entered judgment accordingly. Undoubtedly the trial court was guided by the fact that the jury found (as previously set out) that Woolsey was 20% negligent (in causing the accident) and by the fact that the boys assumed the risk of riding with Woolsey (as found by the jury).
Appellees acknowledge that this Court has never before considered the exact point here raised, but they contend that the principles we announced in the case of Lockhart v. Ross, 191 Ark. 743, 87 S. W. 2d 73, logically lead to a reversal of the court’s action in reducing the judgments. The Lockhart decision does to some extent confirm appellees’ contention herein. It is a definite announcement, under the facts of that case, that a passenger in a car (as Campbell) is not liable in damages to third parties (as appellants) because of the negligence of the driver of the car (as Woolsey) where the passen ger was not on a joint enterprise with the driver (as Avas the relationship in this case). It would seem to follow from the above, therefore, that the boys in this case should not be penalized (by a reduction of the judgments against appellants) because of the negligence of Woolsey.
However, since Ave are not bound by any decision under the facts of this case, we feel at liberty to consider certain other features which lead us to a different conclusion than that urged by appellees. In the first place, in the Lockhart case, the question of assumption of the risk Avas not involved. If it had been, Ave can not be sure Avhat effect it would have had on the court’s decision. From the standpoint of logic and justice much can be said to sustain the action of the trial court in reducing the- judgments here involved. To simplify the point at issue Ave will consider only the case of Campbell. The verdict of the jury has - established the fact that appellants’ negligence was only 80% the cause of his injuries and that Woolsey’s negligence was 20% the cause. It is further established by the jury that Woolsey’s negligence was assumed by Campbell. Under these established facts we cannot escape the conclusion that the more logical and equitable rule calls for each party to be responsible in proportion to his own degree of negligence. Under the court’s holding appellants will pay their proportional part, while the part for Avhich Woolsey Avas responsible was voluntarily waived by Campbell. So, as between Campbell and appellants, it seems more reasonable that he should bear the loss of 20% of the judgment. What we have said relative to Campbell is applicable, of course, to the other occupants of the car.
It is therefore our conclusion that the judgment of the trial court on cross appeal should be, and it is hereby, affirmed.
Affirmed.
McFaddin, J., concurs. | [
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George Rose Smith, J.
This is a workmen’s compensation case in which the appellee seeks an award for a broken leg. The referee and the full commission denied the claim on the ground that Brooks was a casual employee who was not injured in the course of his employer’s business. Ark. Stat. Ann. § 81-1302 (b) (Repl. 1960). This appeal is from a judgment of the circuit court reversing the commission’s decision.
Donald Meek, the employer, owns, and operates the Clarksville Meat Company, an unincorporated meatpacking plant. In connection with the plant Meek maintains one or more horses which he uses to catch wild cattle that he has bought for slaughter. The horses are sometimes used for purposes not related to the meatpacking business, but the commission did not attach any importance to this fact.
Brooks is a part-time blacksmith. He does not have a smithy. Instead, he takes his tools and equipment to his patrons’ premises and performs his work there. For some five years before his injury Brooks had shod Meek’s horses three or four times a year. On September 29, 1961, while he was engaged in shoeing a horse at the packing plant, he was kicked by the animal and sustained the injury giving rise to his claim.
The commission specifically found that Brooks was an employee rather than an independent contractor, but the appellants insist that this finding is unsupported by any substantial evidence. The question is by no means free from difficulty, but we are unwilling to declare as a matter of law that Brooks was an independent contractor.
The governing test is whether Meek had the right to control Brooks with respect to his physical conduct in shoeing the horse. Hobbs-Western Co. v. Carmical, 192 Ark. 59, 91 S. W. 2d 605; Restatement, Second, Agency, § 2. At the time of the accident Meek was holding the horse, an unruly animal, while Brooks did his work. Brooks testified that he was under Meek’s direction and control, that Meek told him what to do. Meek testified that he selected the kind of shoe to be used and instructed Brooks to use an extra nail owing to a defect in the horse’s hoof. Meek also stated that Brooks was under his control, that he could have stopped Brooks if the latter had not followed his instructions. Moreover, Meek testified that through the years he had entered the payments to Brooks upon his books in some instances as labor and in some instances as miscellaneous expense. In the former case the entry became a part of the plant’s total payroll and was taken into account in the computation of his insurance premiums (presumably for workmen’s compensation coverage). In view of all this proof we are unable to say that there is no substantial evidence to support the commission’s finding that Brooks was an employee.
The statute excludes from coverage an employee “whose employment is casual and not in the course of the trade, business, profession or occupation of his employer.” § 81-1302 (b), supra. In construing this section we have held that an employee is not without the protection of the act unless both exceptions are found to exist. Buxton v. Dean, 218 Ark. 645, 238 S. W. 2d 487. Here that finding was made by the commission. It reasoned that Meek’s business was not that of a blacksmith and hence that the shoeing of horses was merely incidental to his meat-packing business.
This narrow interpretation of the statute is a decidedly minority view that we are unwilling to embrace. The horse that kicked Brooks was unquestionably used in the business. There is no doubt that the animal had to be shod in order to maintain it in service. Professor Larson has pointed ont that under statutes similar to ours the overwhelming weight of authority holds that “maintenance, repair, painting, cleaning, and the like are ‘in the course’ of business because the business could not be carried on without them.” Larson, Workmen’s Compensation Law, % 51.23. Many of the cases were reviewed in Sears, Roebuck & Co. v. Pixler, 140 Fla. 677, 192 So. 617, where it was held that a plasterer who was hurt while replacing plaster in a retail store at night was acting in the course of the employer’s business.
Our decision in Aerial Crop Care v. Landry, 235 Ark. 406, 360 S. W. 2d 185, is really to the same effect. There the employer was engaged in agricultural crop-dusting. The claimant was injured while working as a carpenter in the construction of a hangar. Thus the employer was no more engaged in the business of a carpenter than Meek was engaged in the business of a blacksmith. We held, however, that the section of the statute now in issue did not exclude the injured employee from the protection of the law. We adhere to that view.
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Paul Ward, Associate Justice.
We are herein concerned with priority of liens on a house and lot owned by Kelly Welch. The four appellants furnished materials and appellee furnished the money to construct the house, and both parties claim a first lien. The trial court ruled in favor of appellee bank, and appellants now seek a reversal on appeal.
The facts are not in dispute, and only one issue of law is relied on by appellants.
It is appellants’ contention that the mortgage executed by Welch to appellee is not a “construction mortgage” as is required by Ark. Stat. Ann. § 51-605 (1947) as it has been interpreted by this Court. We agree with that contention.
Facts. On May 9, 1962 Welch and wife executed a note to appellee (Union Bank of Benton) for the amount of $2,500, and at the same time they also executed a mortgage on “Lot 40, Block 4 in Beautiful Lakeview sub-division, Saline County, Arkansas” to secure said note. Following the above description in the mortgage appear these typewritten words:
“This loan shall be used for the purpose of construction of a dwelling house on the above described property and shall cover and secure additional advances to be made by mortgagee to mortgagors in the total amount not to exceed $14,500.”
The mortgage, except for the above quoted language, was in regular form, and it was filed on May 11, 1962. The $2,500 was paid to "Welch on the day the note was executed. Following that date, and on May 25, 1962, one of appellants furnished certain materials—placed on the lot—and construction began. Following the last mentioned date, and on June 1, 1962, Welch executed another note for $2,500 to appellee bank and received the money. Thereafter Welch executed four other notes to appellee, each time receiving the money—to a total of $14,500. After the first material was furnished at the time previously mentioned all the appellants furnished other materials and labor. The unpaid balance amounts to approximately $2,600.
In the decree of foreclosure the bank was given a first or prior lien to secure the amount due from Welch, and the land and improvements were ordered sold by a commissioner. At the sale the property was bought by appellee. Later the sale to appellee was confirmed, and the court ordered the purchase price credited on the judgment which appellee had received against Welch.
Only Issue. It is conceded by appellants that appellee’s mortgage is a first lien to the extent of $2,500. This is a concession by appellants that the previously quoted language in the mortgage constitutes a compliance with the statute and our decisions so as to make it a “construction loan”—the mortgage having been filed before any materials were furnished. However, appellants contend, and we agree, that appellee’s mortgage did not constitute a prior or first lien as to subsequent advances because the bank was not obligated to make them. This obligation was a prerequisite to appellee’s lien, as was clearly announced in Planters Lumber Co. v. Jack Collier East Co., 234 Ark. 1091, 1096, 356 S. W. 2d 631. There, in construing § 51-605, we said: “The mortgagee must be bound to advance the money for the construction . . . ”, citing Ashdown Hardware v. Hughes, 223 Ark. 541, 267 S. W. 2d 294.
We find no language in the mortgage here which unequivocally binds the bank to make the additional loans to Welch. Rather, the contrary is indicated by certain language in the mortgage. This language appears :
“The sale [mortgage] is on condition that whereas we are justly indebted unto said mortgagee in the sum of . . . $2,500 evidenced by one promissory note of even date. ...” (Emphasis added.)
We think the language in this mortgage falls far 'short of the standard (to bind the mortgagee) set in the case of American Bank & Trust Company v. First National Bank of Paris, 184 Ark. 689, 43 S. W. 2d 248, where, among other things, the Court said:
‘ ‘ One may execute a valid mortgage to secure a debt to be contracted in the future . . . but in order to do so, there must be an unequivocal agreement in the instrument itself that it is given for debts to be incurred in the future.” (Emphasis added.)
The word “unequivocal”, according to Webster, means “clear,” “not doubtful”, “not ambiguous”. We are not willing to say the language in this mortgage unequivocally obligated appellee to make the subsequent loans.
It is conceded by appellants that appellee must have had notice of appellants’ lien previous to making subsequent advances (Superior Lumber Co. v. National Bank of Commerce, 176 Ark. 300, 2 S. W. 2d 1093), but it was stipulated here that appellee knew materials were furnished to Welch before the second advance was made. As we interpreted § 51-607 and § 51-613 [Ark. Stab Ann. (1947)] in the Planters Lumber Co. case, appellants’ liens dated back to the time when the first material was furnished and all of appellants ’ liens were on an equality.
Somewhat incidentally it seems, appellants, claiming they had no notice, ask that, on reversal, the sale be set aside. We see no merit in this request. Regardless of whether appellants had a first or second lien, a sale was necessary. Appellee says one of appellants was at the sale and even made a bid. In all events, appellants certainly knew of the trial court’s decree and its contents, and it provided for a sale of the land. Also, the record fails to show any objection by appellants when the sale to appellee was confirmed.
Accordingly, the decree of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Harris, C.J., and Robinson, J., dissent. | [
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Paul Ward, Associate Justice.
A brief statement of the background facts will be useful in understanding the one issue presented on this appeal.
First Suit.
The parties hereto were married in 1944. In August, 1960 Mr. Bowling filed suit for divorce in Van Burén County, and Mrs. Bowling filed a cross-complaint in which she also asked for a divorce. After a hearing the court refused to give either party a divorce. However, at the request of both parties, the court ordered two parcels of land (owned by the entirety) sold and the proceeds divided equally between them. Nothing was said by the parties or the court about other property, real or personal, belonging to Mr. Bowling. So,, the case is res judicata only as to the two parcels of land mentioned in the decree—being the property held by the-, entirety. No appeal was taken by either party.
Second Suit.
Following the Yan Burén County divorce action appellant herein (Mrs. Bowling) moved her residence to Conway County where, on January 25, 1963, she filed suit for a divorce. In the complaint it was alleged that the parties have a home on sis acres of land in Yan Burén County worth about $9,000. The prayer was that she be granted a divorce; that she be given the use of the homestead during her natural life, or that it be sold and the proceeds be divided equally between her and appellee; and, that she be given all other legal and equitable relief to which she is entitled whether prayed for or not. To this complaint appellee entered a general denial. At the conclusion of the trial the court entered a decree granting a divorce to appellant, but refused to make any order respecting her property rights. To reverse the above decree appellant now prosecutes this appeal.
In our opinion the trial court committed error. Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides, among other things :
“. . . the wife so granted a divorce . . . shall be entitled to one-third (%) of the husband’s personal property absolutely, and one-third (%) of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by. her in legal form ...”
It is undisputed that appellee owned the six acre homestead, and it was not positively shown in either suit that-he does not own other property. Since appellee does not claim appellant has released her interest in any of his property, it was imperative that appellant be given one-third (absolutely) of all personal property and one-third (for life) of all real'property still owned by appellee. We make it clear, however, that appellant gets no part of appellee’s interest in the property sold in the first suit or in the proceeds thereof. In Myers v. Myers, 226 Ark. 632, 639, 294 S. W. 2d 67, 72 (on rehearing) we said:
“When a divorce is awarded to the wife the statute affirmatively requires that she be granted a third of the husband’s personal property absolutely and a third of .his real property for life.” Citing Ark. Stat. § 34-1214. (Emphasis added.)
In the cited case we also said, referring to Hegwood v. Hegwood, 133 Ark. 160, 202 S. W. 35:
“The decree for divorce draws to the court the power to ascertain the description of the property owned by the husband for the purpose of awarding to the divorced wife her share thereof.”
On remand the trial court will have power, if appellant still so desires, to give her the right to occupy the homestead during her natural life. If appellant does not so desire, then the trial court must give her a third interest for life in the said six acres of land.
The decree of the trial court is reversed, and it is accordingly remanded for further proceedings in conformity with this opinion.
Reversed, and remanded with directions. | [
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Jim Johnson, Associate Justice.
This suit involves ownership of a 20-foot strip of land 1,020 feet in length along the south edge of a quarter-quarter section, part of which is used as a road. Appellants J. N. Massee and his wife, Jenness Massee,' own a parcel of land in Polk County described as the SE-b4 of the SE-b4 of Section 36, which is immediately south of the property of appellees, Bruno Schiller and his wife Berta, who own most of the NE-bi of the SE-b4 of Section 36. Between them is the strip of land here in dispute, the south 20 feet of the NE-bi of the SE-bi. The west 498 feet of that strip is now being used as a road into appellants’ property. During 1960 appellees built a fence on the south side of the eastern part of the strip (the eastern 822 feet), placing it approximately on the line dividing the XE-14 -from the SE-bi. This action apparently precipitated appellants’ suit in Polk Chancery Court. Appellants filed suit on January 15, 1963, praying that the court quiet and confirm title to the south 20 feet of the NE-bi of the SE-bi of Section 36 in appellants; that appellees be ordered to remove the fence to the north side of the strip, and that appellees be restrained from relocating fencing on this property. Appellees answered, admitting that the strip had once been used in its entirety as a “passageway” or lane, but that the eastern 790 feet of the lane had been abandoned for more than seven years as a roadway and is under fence which separates the lands owned by the parties, and further that 520 feet of the lane is still being used by appellants for ingress and egress to their property, but that such use is with the permission and acquiescence of appellees, is only a roadway easement and is not adverse to appellees’ fee simple title to the land over which the roadway easement crosses. On oral motion, the court gave either party the right to have a survey made of the disputed area. Appellees 'then amended their answer, praying that the court quiet title to the 20-foot lane in them, subject only to the roadway easement which appellants are using across the west 498 feet of the lane; and further prayed that the court order boundary line fences to be located on the true boundary line at the expense of both parties equally. Trial of the cause was had before the chancellor on March 13, 1963. After testimony of the parties, former owners, surveyors and other witnesses, the court: (1) established the boundary line between the two quarter-quarter sections as the line indicated by the court-ordered . survey which was on an old fenceline which divides these two forty-acre tracts of land, (2) found that appellants’ claim of ownership of the east 822 feet of the lane “is without merit, as this old lane has long been abandoned and lies wholly upon the lands owned by” appellees, (3) found that appellants do have an easement for roadway purposes over the west 498 feet of the lane, which roadway was found to exist by prescription, and (4) found that appellees have no claim of ownership to anything south of the old established fence and survey line. The court then quieted title in the north tract in appellees, “subject to a roadway easement across the south side of the west 498 feet of that tract as the same is now located” and dismissed appellants’ complaint. Trom the decree appellants have pursued this appeal.
Appellants claim ownership of the lane by adverse possession, and testimony relative to dominion and fences goes back before 1918 to a common owner, M. H. Howard. However, review of the testimony and pleadings reveals that at a later date a Dr. Douglas also owned both parcels of land at the same time. He acquired the north parcel in 1930, which he conveyed to appellees in 1933. This purchase of the north parcel by Dr. Douglas, who at the time owned the south parcel, annihilated any inferior interest or title such as adverse possession or easement the doctor might have acquired against the former owners of the north parcel. See 31 C. J.S., Estates, §§ 123-131; 19 Am. Jur., Estates, § 135. When Dr. Douglas later conveyed the north parcel to appellees, he conveyed it absolutely, not reserving or excepting any part of the lane, and in so doing conveyed the property free of any prior adverse possession. The effect of the chancellor’s findings was that adverse possession had not been established since the time of the doctor’s conveyance to appellees. Nor does the evidence clearly show whether an easement for roadway purposes was established on the east 822 feet of the lane subsequent to Dr. Douglas ’ conveyance to appellees, but if there was such an easement, the evidence is virtually conclusive that it has long since (well over seven years) been abandoned and its use therefore properly reverted to the owners of the servient estate, the appellees. Fulcher v. Dierks, 164 Ark. 261, 261 S. W. 645; Clinton Chamber of Commerce v. Jacobs, 212 Ark. 776, 207 S. W. 2d 616. The evidence also clearly establishes, as admitted by appellees’ answer, that appellants have an easement for road purposes across the west 498 feet of the lane for ingress and egress. On the whole case on trial de novo, we cannot say that the chancellor’s findings are against the preponderance of the evidence. The decree is therefore affirmed. | [
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Paul Ward, Associate Justice.
In August, 1960 the El Dorado Waterworks and Sewer Commission let a contract to the Ford Construction Company to construct a sanitary sewerage plant at a total cost of $204,468. Pursuant to Ark. Stat. Ann. § 14-604 (Repl. 1956) the construction company furnished a bond with United States Fidelity and Guaranty Company. Hereafter the latter will be referred to as U. S. F. & G. The construction company will be referred to as Ford, and the Commission will be referred to as El Dorado.
El Dorado employed Mas Mehlburger and Associates, engineers of Little Rock to prepare plans and specifications for the proposed sewerage plant. Said plans and specifications were completed prior to June 12,1960. On that date the Armco Steel Corporation (hereafter called Armco), domiciled in Ohio, purchased two sets of said plans and specifications preparatory to selling Ford certain piping and equipment to be used in constructing said sewerage plant. Later Ford and Armco entered into a contract (or purchase order) wherein the latter agreed to furnish certain definitely described articles for the price of $37,195.33. Included in these articles Avas a sizeable quantity of 21 inch metal piping. The 21 inch pipe Avas to be laid or buried in a levee betAveen tAvo lagoons. This litigation stems from disagreements in some Avay connected Avith a portion of this 21 inch piping.
Summarily stated, here is Iioav the disagreements arose. Work began on the project in the early part of 1961, and by mid-September 1961 some of the 21 inch pipe had been laid in the levee. In early October 1961 tests made by Ford revealed leaks had developed in about 25 joints. Later, inspections Avere made by different parties but no Avay Avas found to stop the leaks, and on December 30, 1961 Mehlburger and El Dorado ordered Ford to remove the pipe and replace it with other piping.
In an attempt to adjust matters between Ford and Armco, the latter offered to take back the rejected pipe and cancel the balance of $5,955.78 OAved by Ford. Upon Ford’s refusal to accept this offer of settlement, renewed efforts to reach a settlement AAdthout resorting to court action were made over a period of several months. Again, no settlement was reached and this litigation followed. Armco sued Ford (and U. S. F. & G) for the balance due on merchandise ordered and delivered, and Ford counter-claimed for alleged damages.
For clarity and convenience we, at this point, divide our discussion into two separate parts, based upon the above pleadings. One: Armco recovered a judgment against Ford and U. S. F. & Cl. for the balance due on merchandise. The trial court refused to allow Armco statutory penalty and attorney’s fee, and this is urged to be reversible error. Tioo: Ford recovered a judgment against Armco (on the cross complaint) for damages allegedly resulting from Armco’s breach of warranty.
One. Penalty ancl Attorney’s Fee. Armco alleged Ford owed a balance of $5,955.78 on account, Ford admitted signing the purchase order but denied the materials were delivered and accepted. Ford also claimed a credit of $1,778.19 for pipe returned and $230 for another item. Armco filed a reply, conceding the above named credits, leaving a balance of $3,947.59. Thereupon, when appellees offered to confess judgment for the above amount the court instructed the jury to return a verdict for Armco against Ford and IT. S. F. & G. for $3,947.59. Armco then moved the court to assess the statutory 12% penalty and attorney’s fee against U. S. F. & G. under the provisions of Ark. Stat. Ann. § 66-3238 (Supp. 1961). The motion was denied by the trial court. This action, by the trial court is here assigned as error. ■' : ..."
We do not agree with appellant. As pointed out above, as soon as Armco reduced its claim to. the correct amount Ford and U. S. F. & G. promptly confessed judgment for that amount. In the Great So. F. Ins. Co. v. Burns & Billington, 118 Ark. 22, 31, 175 S. W. 1161, the plaintiff amended its complaint to reduce its claim but the insurance company did not then confess judgment but went to trial. The judgment was for the amended amount, and we held the penalty attached. This Court,however, made the following announcement which is decisive against Armco:. <
‘ ‘ If the insurance company had desired to avoid the penalty and attorneys’ fee provided for by the statute, it should have offered to confess judgment for the amount sued for in the amended complaint. ’ ’
Although the above quote may be classified as dictum, yet it is a clear statement of the rule consistently followed by the court.- See: National Fire Insurance Company v. Kight, 185 Ark. 386, 47 S. W. 2d 576; Broadway v. The Home Insurance Co., 203 Ark. 126, 155 S. W. 2d 889. The first case construed C. & M. Digest § 6155 and the latter case construed Pope’s Digest § 7670, both sections being the same as Ark.- -Stat. Ann. § 66-3238 (Supp. 1961) the section relied on here by appellant.
We conclude, therefore, that the trial court correctly refused to assess the statutory 12% penalty and attorney’s fee.
. Two. Da/inages. In connection with appellee’s answer to Armco’s complaint, Ford alleged a counter-claim against Armco in the amount of $38,176.03. Ford’s claim was based on four counts: (1) breach of contract, (2) breach of warranty, (3) negligence, and (4) fraud. Generally speaking, all counts were based on the contention by Ford that the materials furnished by Armco failed to meet required specifications. After denying :>all four counts, Armco affirmatively pleaded the following provision in the purchase contract:
“There are no understandings, terms or conditions not fully expressed herein. There is no implied warranty or condition except an implied warranty of title to and freedom from encumbrance of the products sold hereunder and in respect of products bought by description that they are of merchantable quality. Seller’s liability hereunder shall be limited to the obligation to replace material proven to have been defective in quality of workmanship at the time of delivery, or allow credit therefor at its option. In no event shall Seller be liable for consequential damages or for claims for labor.”
On appeal, appellant urges three separate grounds for a reversal. A. The trial court erred in refusing, to direct a verdict. B. Error in giving a certain instruction on measure of damages. G. Error in refusing a certain instruction. After a lengthy trial, the jury returned a verdict in favor of Ford in the amount of $26,176.03 on the first three counts, the last count (on fraud) was abandoned by Ford.
A. Appellant’s contention that the trial court erred in refusing to direct a verdict in its favor at the close of all the testimony is based principally on a question of law which is ably and exhaustively argued in its brief. In this argument no stress is placed on the sufficiency or insufficiency of the evidence. In our discussion hereafter, and without expressing any opinion as to the merits of the other two counts, we consider only the second count which is based on an implied warranty. Referring back to section “6” of the purchase order copied above, it appears clear to us that it contains an implied warranty on the part of Armco. The pertinent language-is:
‘ ‘ There is no implied warranty . .. except an implied warranty ... of products bought by description that they are of merchantable quality.”
There is, and could be, no contention that the subject merchandise here was not “bought by description.” We see no reasonable ground for a dispute over the meaning of the words “merchantable quality.” In the context here used they could only mean pipe fit to be placed underground for years of service in a sewer system. During the trial several disputed questions of fact arose, such as: were the pipes properly inspected? was Ford diligent in reporting defects to Armco? was an inspector present when the pipes were installed? etc. We deem it unnecessary to consider these questions of fact for the reason that the jury has passed upon them under instructions not objected to by appellant, and they are also not questioned by appellant in arguing the point now under discussion.
First, appellant argues that Ford cannot recover because the proof shows he did not comply with para graph “5” of the contract or purchase order signed by both parties. It reads:
‘ ‘ Claims by the buyer must be made promptly upon receipt of shipments and seller given an opportunity to investigate.”
To the same effect Armco relies on a clause in paragraph “6” which reads:
“Seller’s liability hereunder shall be limited to the obligation to replace material proven to have been defective in quality of workmanship at time of delivery ... ” We are unable to agree with this position taken by appellant. The records show that when the pipe was delivered to Ford at El Dorado it was heavily coated with tar or asphalt so that Ford had no way of detecting whether the pipe was welded or riveted or whether it would be watertight. The only way Ford (or Mehlburger) could have discovered defects such as leaks in the pipes was to put them in place (with the joints coupled together) and subject them to water pressure. When this was done it became clearly evident that the pipes were not watertight and were not therefore of “merchantable quality.”
However, the principal ground relied on by appellant is based on the last sentence in paragraph “ 6 ” which reads:
“In no event shall Seller be liable for consequential damages ...”
Appellant presents an able argument and an exhaustive array of authorities from other jurisdictions to the effect that Armco had a legal right to contract against liabilities for “consequential damages.” However, we find it unnecessary to pass upon the effect of the cited authorities or whether they should be followed by this Court. The reason is that, before appellant would be entitled to an instructed verdict, it must also show that all damages resulting from defective materials furnished, were “consequential damages”—that is, damages not recoverable under the implied warranty of fitness for the purpose intended. After careful consideration we have concluded there is evidence in the record to show Ford did suffer some amount of damages resulting from Armco’s breach of warranty regardless of whether such damages are termed consequential damages, direct damages, or foreseeable damages. It is not denied that the pipe leaked or that Ford suffered a financial loss in trying to correct the defective pipe and in removing the same. It was up to the jury to say whether Ford acted reasonably in failing to detect the defects in the pipe before it was installed. It seems therefore that the real question for decision is whether “consequential damages” necessarily includes all damages including direct and foreseeable damages. We hold the quoted words are not so inclusive, as many authorities indicate. Black’s Law Dictionary (áth ed.) defines “consequential damages” as
“Such damage, loss, or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act. ’ ’
In the case of Despatch Oven Co. v. Rauenhorst, 40 N. W., 2d 73, 79 (Minn. 1949) they had this to say:
“The ‘consequential damages’ referred to in the clause in question are such damages as do not arise directly according to the usual course of things from the breach of the contract itself, but are rather those which are the consequence of special circumstances known to or reasonably supposed to have been contemplated by the parties when the contract was made. ’ ’ (Citing cases.) In the case of General Talking Pictures v. Shea, 187 Ark. 568, 61 S. W. 2d 430, we said that if a disclaimer is effective at all, it will not extend by implication to liabilities which it does not by its express terms cover. There is, of course, no contention of Armco here that its disclaimer covered any particular items of damages. In 17 C.J.S. Contracts § 262 it is stated:
“Contracts of this nature are not favored by the law; they are strictly construed against the party rely ing oil them, and clear and explicit language in the contract is required to absolve a person from such liability. ’ ’ 5 Corbin, Contracts § 1011, in discussing Causation and Foreseeability, states:
“Another form in which the present rule is often stated is that damages are recoverable only for injuries that are the natural result of the breach. This seems to have no meaning other than that there was reason to foresee such injury.”
We cannot escape the conclusion in this case that Armco, skilled in the business of producing and furnishing sewer pipes, could have reasonably foreseen that a leaky pipe would cause damage. It is bound to have known a leaky pipe would not be usable, that it would have to be removed, and that this would be expensive to Ford. In this connection, the statement found in Main v. Dearing, 73 Ark. 470, 84 S. W. 640 is applicable, where the Court, in speaking of merchandise furnished for sale, quoted: ‘ ‘ The purchaser cannot be supposed to buy goods to lay them on a dunghill.” It would be unreasonable to hold in a situation like the one here presented that Armco could warrant its product to be usable in one breath and then in the next breath disclaim all liability if it is unusable. It is our conclusion that appellant was subject to liability in some amount for a breach of its implied warranty and, therefore, was not entitled to a directed verdict in its favor on Ford’s counter-claim.
(b) Meastire of Damages. The jury returned a verdict in favor of Ford in the amount of $26,176.03. It is the contention of appellant that an instruction (requested by Ford) given by the court constituted reversible error in that it contained the wrong measure of damages. The instruction in question reads:
“If you find for Ford on its counter-claim for breach of warranty and if you further find from a preponderance of the evidence that the material in question was of a substantially different description or kind than the material ordered by Ford, and that the difference was not readily discernible upon delivery, or that the material was inherently incapable of being made watertight by reasonable and practical means after delivery, or that Ford tendered the material in question to Armco after it was unable to stop the leakage, and Armco refused to accept it or to replace it with suitable material, then and in either of those events your verdict for Ford will be for such sum as you find from a preponderance of the evidence Ford would have received from the City of El Dorado for furnishing and installing the material in question had it been allowed to remain in the levee, and also for such expense reasonably incurred by Ford in attempting to make the material watertight, and the cost and expense reasonably incurred by Ford in removing the material from the levee and in redressing and shaping the levee after removal.”
An analysis of the above instruction reveals that it permitted the jury to find four separate elements of damage, viz: 1—amount due from El Dorado for installing the pipe; 2—the expense of trying to make the pipe watertight; 3—the cost of removing the pipe; and, 4—cost of leveling the ground. The only element of damhges in the instruction which appellant objects to is number 1 above. Appellant points out that this item amounts to $17,925—2,390 (feet of rejected pipe) multiplied by $7.50 (the price per foot El Dorado contracted to pay).
This, argues appellant, is allowing Ford to receive a gross profit where he was entitled to receive only a net profit. To sustain this contention appellant cites the case of Border City Ice & Coal Co. v. Adams, 69 Ark. 219, 62 S. W. 591. Conceding, for the purpose of this opinion, appellant to be right on the question of law, we think there is no reversible error in this case because it is not shown that Ford is actually receiving more than his net profit under the contract. Included in the amount of $17,925 is the cost of the pipe and the expense of installing it. That being-true, no reversible error has been shown.
(c) Finally, appellant says it was reversible error for the court to refuse to give its instruction to the effect that Ford was bound by ad the terms of the con tract it signed whether Ford read the entire contract or not. This requested instruction refers to certain testimony indicating Ford did not read §§ 5 and 6 in the contract between appellant and Ford. Even though appellant technically may have been entitled to the above instruction it was harmless error for the court to refuse to give the same, and appellant has not been prejudiced. None of the questioned provisions of the contract were excluded from the record or from the consideration of the jury.
Finding no error, the judgment appealed from is in all parts affirmed. .
Affirmed.
Robinson, J. concurs. | [
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Sam Robinson, Associate Justice.
Lawrence Victor Hale was getting out timber for appellee, Mansfield Lumber Company. He died from a heart attack while working on the job. The Workmen’s Compensation Commission denied compensation on the ground that he was an independent contractor. Hale’s dependents have appealed.
There was no written contract between Hale and Mansfield, but according to the evidence, the oral contract was that Hale was to receive $7.50 per 1,000 board feet, plus payment of the insurance premium, for skidding the logs out of the woods and loading them on trucks. Hale owned the mules and a loader used in the operation, and he hired other men to help him. There is no indication that any kind of insurance premium was in the minds of the parties except the premium for workmen’s compensation insurance; no other kind of insurance was involved.
Mansfield was removing timber from government land under a contract with the government. Even if it can be said that Hale was an independent contractor, he was an independent subcontractor, and Mansfield would be liable to his employees under the workmen’s compensation law. Huffstettler v. Lion Oil Company, 208 F. 2d 549; Hobbs Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116; Brothers v. Dierks, 217 Ark. 632, 232 S. W. 2d 646.
Hale was one of the workmen getting out the timber; he worked in the woods the same as the other men. Mansfield paid a premium for workmen’s compensation insurance of $11.36 on every $100.00 of remuneration paid to Hale. It can be fairly inferred that the insurance was to cover Hale as well as the other workers. The Commission held inadmissible evidence of payment of workmen’s compensation to other workers in a similar position as Hale; but we think the evidence was admissible to show it was the intention of the parties that Mansfield arrange for the workmen’s compensation insurance. Furthermore, Mansfield did procure such a policy.
It is provided in the workmen’s compensation policy of insurance procured that it specifically covers logging; that is exactly the thing Hale was doing. In fact, $11.36 was paid as a premium on every $100.00 paid to Hale. It is reasonably inferrable that if Mansfield had not agreed to pay the premium on the workmen’s compensation insurance policy, the premium money would have been paid to Hale as additional compensation for getting out the timber. From a practical standpoint, Hale was paying the premium himself.
The case of Stillman v. Jim Walter Corporation, 236 Ark. 808, 368 S. W. 2d 270, is analogous. There, the contract between the parties was that the employer would deduct 3% of the remuneration paid for the work done, and provide the workmen’s compensation insurance. It was held that the employer was bound by the contract.
In the Stillman case we did not reach the question of whether the mere payment of premiums for a work men’s compensation insurance policy estopped the employer and insurance carrier from contending that the worker was not an employee. The Stillman case turned on the point that under the arrangement between the parties, Jim Walters was obligated to furnish workmen’s compensation insurance.
It is mentioned, however, in the Stillman ease that the weight of authority is to the effect that the principle of estoppel is applicable in a situation of that kind. We still do not reach that exact point in the case at bar because of the contract that Mansfield was to pay the insurance premium. It was further pointed out in the Stillman case that estoppel might apply where workmen’s compensation insurance had been procured on the worker, regardless of whether he was an independent contractor, because the procurement of such insurance puts the employer in a strong position to contend that the workmen’s compensation law was applicable where the employer had been sued for a common law tort. In other words, if there was a good case against the employer on a common law tort arising out of a serious injury to the worker, the employer would be in a good position to say: I am not liable for the common law tort; the workmen’s compensation law applies here. I procured a policy of workmen’s compensation insurance protecting the injured workman. The employer might not prevail in his contention, but the injured party’s action in tort would be weakened.
Under the contract between Hale and Mansfield, Mansfield was to pay the premium on the policy for workmen’s compensation insurance. The premium was paid—$11.36 for every $100.00 that was paid to Hale as remuneration for getting out the timber. In these circumstances it cannot be said that the workmen’s compensation law does not apply in this case .
The Workmen’s Compensation Commission did not reach the point of whether Hale was injured in the course of his employment. Reversed and remanded for the determination of that question. | [
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John E. Jennings, Chief Judge.
James Roy Rogers sustained an admittedly compensable injury on October 1, 1987, while attempting to move a boat. He had sustained a previous back injury while working for another employer in 1981, which resulted in a laminectomy.
An administrative law judge held a hearing in August 1991. The primary issue at that hearing centered on a dispute between the employer’s insurance carrier and the Second Injury Fund as to which incident was the cause of the claimant’s current condition. In an opinion dated October 14, 1991, the law judge made the following specific findings:
4. Claimant’s present lumbar dysfunction is attributable to the aggravation or new injury sustained on or about October 1, 1987.
5. Claimant is entitled to an award of benefits for medical care provided and to be provided by Dr. Schoedinger for his back condition.
In an opinion dated March 6, 1992, the Commission affirmed and adopted the opinion of the ALJ. On June 11, 1992, the law judge entered an “Interim Order and Opinion.” That order stated:
I have Mr. Bassett’s June 9, 1992 letter with which he enclosed a copy of Mr. Spencer’s June 5, 1992 letter and Mr. Bassett’s June 9, 1992 letter to Dr. Schoedinger.
I have reviewed my October 14, 1991 order and opinion as well as my May 1, 1991 letter, the April 22, 1991 order setting this case for a hearing, and the August 31, 1990 letter referred to in Mr. Bassett’s June 9 correspondence..
It appears that for reasons I do not now recall I did, in Finding 5, award benefits for past and future medical care by Dr. Schoedinger. This was a mistake on my part for, as indicated by Mr. Bassett in his June 9 letter, I indicated at pages 17-18 of the transcript an intent to defer making decisions on mileage and pre-authorization treatment by Dr. Schoedinger. Apparently, my oversight was not pointed out to the Commission on appeal, and the Commission failed to discover it on its own.
Therefore, while I’m puzzled about why I awarded medical benefits for past, as well as future, medical care by Dr. Schoedinger — I can only assume that this was an oversight —the October 14, 1991 order does appear to do this. Of course, I cannot speak for the Commission, which might place a different interpretation on Finding No. 5, as affirmed in its March 6,1991 order, and find that it did not intend to rule on an issue not drawn in issue at the hearing.
IT IS SO ORDERED.
This order was appealed by both the claimant and the employer’s insurance carrier. After noting that the record in the case indicated that the administrative law judge had expressly deferred consideration of the question of whether some of Dr. Schoedinger’s treatment was unauthorized, the full Commission stated:
In summary, we find that the respondents’ request for clarification of our March 6, 1992, decision should be granted in light of the dispute that has arisen. In that decision, we found that the claimant was entitled to an award of benefits for authorized medical care provided and to be provided by Dr. Schoedinger for his back condition. We did not find that the claimant was entitled to an award of benefits for all medical care provided by Dr. Schoedinger in the past. Any consideration of the claimant’s entitlement to medical care provided by Dr. Schoedinger which the respondents contend was unauthorized was expressly deferred at the first hearing, and that issue remains unresolved. Consequently, we remand this claim to the Administrative Law Judge so that any unresolved matters may be settled.
On appeal to this court, appellant raises one point for reversal: “The Commission erred and was without jurisdiction when it modified a clear and unambiguous finding which had become final and res judicata after the issue was previously affirmed by the full Commission and was not appealed to this court.”
We conclude that the Commission’s order is not final and appealable. In American Mut. Ins. Co. v. Argonaut Ins. Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991), we said:
As a general mle, orders of remand are not final and appeal-able; ordinarily, an order is reviewable only at the point where it awards or denies compensation. For an order to be appealable, it must be a final one. To be final, the order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter of the controversy.
It also has been stated that appealable orders of the Commission are not limited to those that make a final disposition of an entire case. However, we have held that the test for determining whether an order of the Workers’ Compensation Commission is appealable is whether it puts the Commission’s directive into execution, ending the litigation or a separable part of it. An order that establishes a party’s right to recover but remands for a determination of the amount of that recovery ordinarily is not an appealable one. [Citations omitted.]
The issue is one that we are obliged to raise on our motion because it goes to our own jurisdiction. See Hampton & Crain v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991). In the case at bar the order appealed from is an order of remand which neither awards nor denies compensation. We conclude that it is a decision on an incidental matter that is not reviewable because of its lack of finality. See Stafford v. Diamond Constr. Co., 31 Ark. App. 215, 793 S.W.2d 109 (1990).
Appeal dismissed.
Mayfield and Cooper, JJ., dissent. | [
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John E. Jennings, Chief Judge.
Susan Jackson worked for Poulan/Weed Eater for twelve years. In early 1990, she began having numbness in her foot. She was diagnosed with heel spurs (plantar fasciitis) and underwent surgery in February 1992. Her workers’ compensation claim was filed in January 1992. The administrative law judge denied her claim, and the Workers’ Compensation Commission affirmed and adopted his opinion. Ms. Jackson now appeals, contending that the Commission erred in finding that she failed to prove by a preponderance of the evidence that the plantar fasciitis was caused or aggravated by her employment. We affirm the Commission’s decision.
In reviewing a decision of the Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if those findings are supported by substantial evidence. Beeson v. Landcoast, 43 Ark. App. 132, 862 S.W.2d 846 (1993). Where the Commission denies relief based upon a claimant’s failure to meet her burden of proof, the substantial evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). The question is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Garrett v. Sears, Roebuck & Co., 43 Ark. App. 37, 858 S.W.2d 146 (1993).
Appellant testified that for about the last six years at Poulan she had operated a machine which bent tubes. She said that she always stood on one spot at the machine, standing on a little thin mat on a concrete floor. In October 1990, her right foot started hurting. She had no idea at that time that there was any connection between her problem and her work. Neither cortisone injections nor shoe inserts helped, and she was unable to comply with her doctor’s instructions to lose weight. She underwent surgery in 1992.
Other evidence introduced at the hearing included medical reports and letters of Dr. Robert Olive and testimony of Harold Broyles, appellant’s production supervisor. In a letter written January 8, 1992, Dr. Olive addressed obesity as a factor in appellant’s fasciitis. The letter he wrote to claimant’s attorney on April 9, 1992, discussed the causal relationship between appellant’s foot problems and her job:
[You ask about] the causal relationship between Mrs. Jackson’s condition and having to stand long periods of time at work. There definitely is a correlation between people who stand for long periods of time and those who develop plantar fascitis. There is also a correlation between people who are overweight and those who develop plantar fasci-tis as well because they put excessive strain on their feet. Unfortunately, we’ll never know which had the greatest bearing on her condition, but her job situation did exacerbate the situation in terms of being required to stand for long periods of time ....
In finding that appellant failed to meet her burden of proof, the Commission found that Dr. Olive’s opinion was entitled to little weight. The Commission’s opinion stated “there was no indication that appellant’s condition was caused or aggravated by her employment. .. until surgery was contemplated and claimant actually filed a compensation claim.” The Commission also pointed to Mr. Broyles’ testimony that appellant operated her machine only three or four months a year due to the seasonal nature of her work.
Giving the testimony its strongest probative force in favor of the findings of the Commission, we hold that there was substantial evidence to support the Commission’s denial of the claim.
Affirmed.
Robbins and Mayfield, JJ., dissent. | [
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John E. Jennings, Chief Judge.
Appellant, Friends of Children, Inc., is a nonprofit corporation doing business in the State of Arkansas. The appellees, Randall and Diane Marcus, are residents of Potomac, Maryland. In the fall of 1990 appellees contacted American Friends of Children, Inc., also a nonprofit corporation, seeking to adopt a child. The child that was ultimately delivered to the Marcuses was born May 23, 1991, in New York City, was moved to Washington, D.C., and was placed in foster care by American Friends of Children. The child was later transferred by American Friends of Children to Friends of Children and transported to the State of Arkansas.
On July 5, 1991, the Marcuses met with John Rushing, assistant executive director of Friends. They signed a Placement Agreement, the child was delivered to the Marcuses, and the parties immediately obtained an interlocutory decree of adoption in the Pulaski County Probate Court. Almost immediately, Mrs. Marcus noticed what she believed were signs that the child was not “normal” and “healthy.” Friends was notified and the child was examined by a series of physicians both in Arkansas and in Washington, D.C. While, as the trial court pointed out, the evidence was in conflict, there was evidence that the child had a neurological impairment and might have cerebral palsy.
On August 15, 1991, an agreed order was entered in probate court dissolving the interlocutory decree of adoption. The order provided, in part:
Friends of Children is revested with the right to place said child for adoption. The claims either the petitioners or Friends of Children may have against each other are not settled with this order.
In December 1991, the Marcuses filed suit against Friends seeking “rescission” and restitution of the $25,000.00 fee they had paid to adopt the child. The complaint alleged that the appellant had committed fraud by concealing certain medical information about the child.
In July of 1992, the child was placed for adoption once again and Friends collected a placement fee of $28,000.00 from the new adopting couple.
There was evidence at trial that the literature provided by the appellant stated that it placed for adoption “healthy white infants,” and that the appellees were told that if the adoption did not go through their money would be refunded. The trial court found that the appellees had told the appellant that they preferred that the child’s birth mother have no history of alcohol or drug abuse. While the chancellor found that appellant was aware that the birth mother had used alcohol and marijuana occasionally during the early months of her pregnancy and that this information was not provided to the appellees, no fraud was proven because the appellees’ concern was with drug abuse, not mere use.
The chancellor did find, however, that the appellant had been unjustly enriched “by being in possession of placement fees from two adopting couples for the same child.” The court awarded the appellees judgment for $22,300.00 plus attorneys’ fees.
On appeal, Friends contends that the chancellor erred in finding that it had been unjustly enriched and erred in allowing attorneys’ fees. We affirm on the first point, but must reverse on the second.
Initially appellant argues that since the court did not specifically order the contract rescinded, restitution is inappropriate. But many transactions may be judicially avoided without mention of rescission by the simple decision to award some form of restitution. Dan B. Dobbs, Handbook on the Law of Remedies § 4.3 at 254 (1973). In the case at bar the contract between the parties, the Placement Agreement, was fully executed. By the agreed order entered in probate court the Marcuses returned to Friends that which they had received under the contract, the child. This is at least analogous to rescission at law. See Maumelle Co. v. Eskola, 315 Ark. 25, 865 S.W.2d 272 (1993); Savers Fed. Sav. & Loan Ass’n v. First Fed. Sav. & Loan Ass’n, 298 Ark. 472, 768 S.W.2d 536 (1989).
Appellant also contends that “the doctrine of unjust enrichment does not apply when there is a valid, legal, and binding contract,” citing, inter alia, Lowell Perkins Agency v. Jacobs, 250 Ark. 952, 469 S.W.2d 89 (1971). In Jacobs, the plaintiff bought a low-mileage used car from an automobile dealer, signing a contract and a promissory note to finance it. The next day the plaintiff learned she would have to pay sales tax of $86.00 on the car. She returned the car and declined to make the payments on the note because she felt that the salesman should have told her she had to pay the sales tax.
In reversing the trial judge’s award of restitution the supreme court stated, “There can be no ‘unjust enrichment’ in contract cases.” It is clear, however, that the court recognized its statement merely as a general rule: “It is generally held that where there is an express contract the law will not imply a quasi or constructive contract.” Jacobs, 250 Ark. at 959 (quoting 17 C.J.S. Contracts § 6 at 574). The mere fact that there is a contract between the parties does not prevent the grant of restitution in an appropriate case. Appropriate cases include those in which there has been a rescission at law, see e.g., Maumelle Co. v. Eskola, 315 Ark. 25, 865 S.W.2d 272 (1993); where a contract has been discharged by impossibility or frustration of purpose, 1 George E. Palmer, The Law of Restitution § 1.7 at 42 (1978); or where the parties to a contract find they have made some fundamental mistake about something important in their contract. Dobbs, supra, § 4.3 at 256.
In Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979), the court said that in unjust enrichment cases “the simple, but comprehensive, question is whether the circumstances are such that equitably defendant should restore to plaintiff what he has received[,]” (quoting 77 C.J.S. Restitution 322). The Restatement of Restitution § 1 states simply, “A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” An action based on unjust enrichment is maintainable in all cases where one person has received money under such circumstances that, in equity and good conscience, he ought not to retain it. Frigillana, supra at 307. The remedy is neither given nor withheld automatically, but is awarded as a matter of judgment. See Dobbs, supra, § 4.3 at 256; Frigillana, 266 Ark. at 306.
In the Jacobs case the contract was executory and the plaintiff had no reasonable basis to rescind. Any “enrichment” of the automobile dealer was therefore not unjust. In the case at bar the parties effectively rescinded the transaction by agreement, and the appellees had fair reason for their dissatisfaction. Under the facts of the case at bar the award of restitution in equity was at least discretionary. We find no abuse of discretion.
Friends also contends that an award of restitution is barred by exculpatory clauses in its Placement Agreement:
(8) We hereby release and discharge Friends of Children, Inc., its officers, its agents, and employees from any and all liability and claims we have or may have based on events, conduct or misconduct or failure to act from the beginning of time to present.
(9) We hereby release and discharge American Friends of Children, a Washington, D.C. nonprofit corporation, its officers, agents and employees from any and all liabilities and claims we have or may have based on any events, conduct or misconduct or failure to act from the beginning of time to present.
We agree with the chancellor that the exculpatory clauses will not prevent an award of restitution. The clauses, by their own terms, relate to liability based on events occurring at or before the time the Placement Agreement was signed. Restitution in this case is based on events occurring after the contract was executed, such as the discovery of the child’s neurological deficit, the agreement between the parties to dissolve the interlocutory decree of adoption, the agreement of the Marcuses to return the child, and the subsequent placement of the child by Friends. Furthermore, fault is not a prerequisite to an award of restitution. See Dobbs, supra, §§ 4.3 and 4.4.
Finally, we must agree with appellant’s argument that the chancellor’s award of attorneys’ fees to the appellees was error. The rule in Arkansas is that attorneys’ fees are not awarded unless expressly provided for by statute or rule. Security Pacific Housing Services, Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993). The only possible basis for an award of attorneys’ fees here is Ark. Code Ann. § 16-22-308 (1989 & Repl. 1994):
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
The case at bar was an action in equity seeking restitution. The appellees argue that since unjust enrichment is based on the concept of “quasi-contract,” the cause of action will fit as a suit on a contract under the statute. But the implied-in-law contract, or quasi-contract, is indeed no contract at all; it is simply a rule of law that requires restitution to the plaintiff of something that came into defendant’s hands but belongs to the plaintiff in some sense. Dobbs, supra, § 4.2 at 235. We conclude that there was no authority for an award of attorneys’ fees in this case. Our decision in this regard renders moot the appellees’ argument on cross-appeal that the attorneys’ fees awarded were inadequate.
For the reasons stated the chancellor’s award of restitution is affirmed, but his award of attorneys’ fees is reversed.
Affirmed in part; Reversed in part.
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant failed to prove by a preponderance of the evidence that the surgery which was performed on her knee was causally related to her compensable injury or that she was entitled to additional temporary total disability benefits through September 19, 1991. On appeal, appellant contends that there is no substantial evidence to support the Commission’s decision. We disagree and affirm.
Appellant was employed by appellee as an auditor. She suffered a compensable injury to her knee on April 11, 1990, when she attempted to jump over a puddle at appellee’s hotel. Appellee accepted the claim as compensable and paid temporary total disability benefits through July 20, 1990. Appellant filed a claim contending she was entitled to additional benefits for temporary total disability. The administrative law judge agreed and awarded additional benefits for temporary total disability benefits through a date yet to be determined. The Commission reversed, finding that appellant was not entitled to temporary total disability benefits through a date yet to be determined. The Commission remanded the case back to the ALJ for a determination of when appellant’s healing period had ended.
Before the ALJ heard the case on remand, appellant received additional medical treatment and underwent surgery on her knee. On remand, the ALJ found that appellant was entitled to temporary total disability benefits from the date of her injury through September 19, 1991. The ALJ also found that appellee was responsible for medical treatment provided to appellant, including the surgery on her knee. The Commission reversed, finding that appellant was only entitled to temporary total disability benefits through August 30, 1990. The Commission also found that the surgery performed on appellant’s knee was not causally related to her compensable injury.
Where the Commission’s denial of relief is based on the claimant’s failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993).
Appellant argues that she remained in her healing period after August 30, 1990, because she had not reached her maximum healing and had been released to work with restrictions established for her by her treating physicians; therefore she contends that she is entitled to temporary total disability benefits until September of 1991.
Temporary disability is that period within the healing period in which an employee suffers a total or partial incapacity to earn wages. The healing period is defined as that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. The determination of when the healing period ends is a factual determination to be made by the Commission. Thurman v. Clarke Indus., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). The Commission also has the duty of weighing the medical evidence as it does any other evidence, and resolving any conflict is a question of fact for the Commission. Chamberlain Group v. Rios, 45 Ark. App. 144, 871 S.W.2d 595 (1994).
The record reflects that on August 29, 1990, Dr. Banks Blackwell found that appellant’s knee had no effusion, and had full range of motion. He released appellant to return to work on August 30, 1990, with the use of one crutch. On October 10, 1990, Dr. Blackwell expressed the belief that appellant’s primary problem was depression. The dissent points out that in that report Dr. Blackwell also opined that appellant had not reached her maximum healing because she will improve with “some type of gainful employment, weight reduction and counseling.” According to Dr. James S. Mulhollan, Dr. Blackwell felt that the healing of áppellant’s knee had occurred, but he thought her subjective feelings and subjective symptoms would improve if she were able to work, lose weight and receive counseling. Dr. Blackwell also noted that appellant had an anterior cruciate ligament deficiency from an old injury and that weight loss was absolutely necessary. Dr. Blackwell’s notes indicate that appellant was approximately fifty pounds overweight. Dr. Blackwell did not have any other recommendations for appellant’s compensable injury other than pain abatement. The record also indicates that in October 1990 Dr. Blackwell could find no justification for assigning a rating for a permanent physical impairment for appellant as a result of her compensable injury.
In Dr. Mulhollan’s letter dated July 17, 1990, he indicated that Dr. Blackwell had reported that appellant had a contusion on her knee. Dr. Mulhollan believed that appellant could return to work and that her injury on the job did not do any structural damage to her knee. In fact, Dr. Mulhollan opined that the com-pensable injury had simply caused her to undergo an “inhibition of muscle function”. He noted that appellant may have to use crutches, and if that were the case, she would probably need a back pack to carry items around the work place. According to Dr. Mulhollan, the use of the crutches would help appellant utilize a normal gait. He also believed that the use of the crutch prescribed by Dr. Blackwell could have been for the patient’s peace of mind because it would make her less likely to fall. As of July 17, 1990, Dr. Mulhollan found that appellant did not have any impairment as a result of her compensable injury.
Appellant testified that Dr. Blackwell allowed her to use crutches for her peace of mind. She also stated that she had been performing odd jobs, such as babysitting, since she had been released by Dr, Blackwell on August 30, 1990. The dissent notes that appellant was not allowed to go back to work under the conditions mandated by Dr. Blackwell and that this was admitted. We note that the record does not contain any admission by appellee that appellant was not allowed to return to work. Appellant testified that she was not allowed to return to work and this was not controverted by any other evidence in the record. However, it is well settled that a party’s testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985).
The Commission concluded that appellant had failed to meet her burden of proving that she remained within her healing period subsequent to August 30, 1990, because nothing further in the way of treatment would improve her condition. The Commission is the finder of fact and it did not accept the subjective feelings of pain by appellant and her doctor’s acquiescence to these complaints as evidence that appellant’s healing period had not ended on August 30, 1990. The Commission found that Dr. Blackwell released appellant to return to work on August 30, 1990, and that Dr. Blackwell found that appellant suffered no permanent disability as a result of her compensable injury. The Commission also relied on Dr. Mulhollan’s opinion that appellant had no permanent disability as a result of her compensable injury. We cannot say that there is no substantial basis for the Commission’s finding.
Appellant also challenges the Commission’s finding that there was insufficient credible evidence of record proving that the treatment subsequent to August 30, 1990, including surgery, was causally related to appellant’s original compensable injury.
The record reflects that appellant’s treatment and surgery subsequent to August 30, 1990, was for instability in her knee. Dr. Blackwell and Dr. Mulhollan’s records indicate that appellant’s knee showed very little instability after her compensable injury. More specifically, Dr. Mulhollan reported that appellant had a mild level of instability. He believed the instability was due to the ligament injury that appellant had sustained in 1980. Dr. Mulhollan said that appellant’s knee had been unstable for eleven years and the appellant’s, work-related accident did not have any effect on that pre-existing instability. The record further indicates that surgery performed by Dr. Kenneth Martin was to correct appellant’s pre-injury knee problem back in 1980-81.
The Commission found that there was insufficient credible evidence proving that the appellant’s knee instability and subsequent surgery was causally related to appellant’s compensable injury. The Commission stated that the medical records from Dr. Mulhollan and Dr. Blackwell immediately after the appellant’s compensable injury showed that there was very little instability in the appellant’s knee. According to the Commission, it was not until much later that appellant suffered from a significant amount of instability that surgery was performed by Dr. Martin. Therefore, the Commission concluded that appellee was not liable for the medical treatment provided after August 30, 1990. After reviewing the record, we cannot say that there is no substantial basis for the Commission’s denial of medical benefits.
Affirmed.
Robbins, Cooper and Mayfield, JJ., dissent. | [
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John B. Robbins, Judge.
Appellant Dino Palazzolo filed a workers’ compensation claim, alleging that he suffered an injury while working for Nelms Chevrolet on September 23, 1991. He sought temporary total disability benefits, medical expenses, and attorneys fees. The Administrative Law Judge found that Mr. Palazzolo sustained a compensable injury, but denied temporary total disability benefits because the law judge found that he refused employment suitable to his capacity to work. The Administrative Law Judge (ALJ) did, however, award temporary partial disability benefits. Both parties appealed and the Workers’ Compensation Commission found that Mr. Palazzolo sustained a com-pensable injury, but that he failed to prove that he was entitled to temporary total disability benefits. The Commission vacated the ALJ’s award of temporary partial disability benefits because Mr. Palazzolo had not sought temporary partial disability benefits. Mr. Palazzolo now appeals, arguing that substantial evidence does not support the Commission’s finding that he failed to prove that he is entitled to temporary total disability benefits. Alternatively, Mr. Palazzolo contends that the Commission erred as a matter of law in reversing the ALJ’s award of temporary partial disability benefits. He also asserts that the Commission erred in allowing into evidence the deposition of Dr. James McKenzie.
The evidence shows that Mr. Palazzolo sustained a work-related back injury when he slipped and fell on September 23, 1991. He immediately reported the accident to his employer and sought medical treatment. He was x-rayed and prescribed a cervical collar and physical therapy. In December of 1991, Mr. Palaz-zolo was released by Dr. James McKenzie to return to light duty work. He returned to work for Nelms Chevrolet on a part-time basis performing duties such as sweeping floors. Mr. Palazzolo testified that three weeks after returning to work, his supervisor told him not to come back until he was capable of performing his regular full-time duties.
Mr. Palazzolo now argues that the Commission erred in determining that he failed to prove by a preponderance of the evidence that he is temporarily totally disabled. In order to be entitled to temporary total disability compensation, the claimant must prove that he remained within his healing period and that he suffered a total incapacity to earn wages. Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). On appeal, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s finding and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
We find that substantial evidence supports the Commission’s determination that Mr. Palazzolo failed to prove that he suffered a total incapacity to earn wages and therefore was ineligible for temporary total disability benefits. Prior to releasing Mr. Palazzolo back to work, Dr. McKenzie relied on surveillance video tapes of appellant washing cars. These videos show movements inconsistent with Mr. Palazzolo’s testimony regarding his limitations. He is shown rotating his neck and back, squatting, extending his arms in continuous movements, and engaging in other physical activities. Moreover, the evidence indicates that after being released to work, Mr. Palazzolo was able to sweep and perform other light duty. In addition, he admitted that he worked without pay at his step-father’s church and was able to sweep, mop, and take out the trash. There is also evidence that Mr. Palaz-zolo was able to do yard work. Evidence of these activities supports the Commission’s finding that Mr. Palazzolo was not totally incapacitated for employment purposes.
Mr. Palazzolo further contends that the Commission erred in vacating the ALJ’s award of temporary partial disability benefits. Citing Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983), the Commission vacated the award. It ruled that, although Mr. Palazzolo submitted the issue of temporary total disability, the ALJ erred in considering temporary partial disability because this issue was not presented by either party. In Grooms, we held that it was error for the ALJ and Commission to consider an issue which was not presented by either party, and we stated:
It is also clear from the statements of counsel in the record and the contentions of the parties as recited by the Administrative Law Judge that the case was submitted on an agreement that it would be determined on a finding as to whether the Statute of Limitations was tolled by the payment of Dr. Carter’s medical expenses within the two years preceding the date of filing the claim. Whether the statute was tolled because of the latent nature of the injury and appellee’s lack of awareness of the extent and nature of it was not an issue and was not developed at the hearing. With the clear statement of counsel that the issue to be presented was whether the Statute of Limitations had been tolled by the payment of compensation within the statutory period, the decision by the Administrative Law Judge based upon a finding of fact on an issue not submitted or developed by either party effectively denied the employer the right to be heard on that issue ....
10 Ark. App. at 100, 661 S.W.2d at 438.
It is true that Mr. Palazzolo did not raise temporary partial disability as an issue. However, unlike in Grooms, this issue was developed by the evidence in the case. The issues presented by the claim for temporary total disability included whether Mr. Palazzolo had reached his maximum healing period and whether he suffered wage loss disability as a result of his injury. These are the same issues that the Commission would need decide in addressing temporary partial disability. The appellee employer was not denied the right to be heard on temporary partial disability because it was aware that temporary total disability was being claimed and its defense to total disability benefits would be substantially the same as its defense to partial disability benefits. Furthermore, when a claimant alleges that he is temporarily totally disabled, an employer should expect that the claimant may be eligible in the alternative to temporary partial disability benefits.
In Grooms, we stated that “[h]ad the issue of latent injury been fully developed by the parties despite the stipulations narrowing the issues a different question would be presented.” This indicates that, even if the parties have not presented an issue to the Commission, the Commission may consider the issue if it is fully developed during the proceedings. In this case, we have an issue which was not presented but was fully developed, and we think the ALJ was correct in considering that issue. Therefore, we reverse and remand to the Commission to determine whether Mr. Palazzolo is entitled to an award of temporary partial disability benefits.
Mr. Palazzolo’s remaining argument is that the Commission erroneously allowed into evidence the deposition of Dr. James McKenzie. He contends that Dr. McKenzie had seen the videos prior to being deposed by the appellee, that he did not know the doctor had seen the videos, and he was thus denied a fair cross-examination of the witness. This argument is without merit because the ALJ granted a continuance and gave Mr. Palazzolo the opportunity to view the videos and redepose Dr. McKenzie at the appellee’s expense. Mr. Palazzolo refused to redepose Dr. McKenzie. Therefore, he cannot now successfully argue that he was denied an opportunity to cross-examine when it is clear that he was afforded such an opportunity but declined to exercise it.
For the above reasons, we affirm the Commission’s finding that Mr. Palazzolo failed to prove his entitlement to temporary total disability benefits. We reverse and remand only as to the issue of whether Mr. Palazzolo is entitled to temporary partial disability benefits.
Affirmed in part, reversed and remanded in part.
Jennings, C.J., and Cooper, J., agree. | [
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John B. Robbins, Judge.
Appellant John Douglas Martin was convicted of first degree murder and kidnapping for which he was sentenced to consecutive terms of twenty years and ten years, respectively. Martin now appeals, arguing that the evidence is insufficient to support the convictions. Alternatively, Martin contends that the trial court erred in refusing to instruct the jury on the lesser included offense of second degree murder. We find no error and affirm.
The only direct evidence against Martin came through testimony given by his nephew, Adell Henry. Henry testified that he and Martin traveled in Martin’s gold Cadillac from their home in Lawton, Oklahoma to Little Rock, arriving on the evening of October 11, 1991. While Martin slept in his car that night, Henry visited an old girlfriend and stayed until the morning. When Henry returned to the vehicle, Martin got in the driver’s seat and drove to Philander Smith College. He got out of the car and met with his estranged wife, Felicia. Felicia was employed in the cafeteria at Philander Smith. She entered the building where she worked, came back out, and talked to Martin again. Some time thereafter, Martin opened the back passenger door and pushed her into the car, laying on top of her. Martin instructed Henry to drive off. Henry complied. While driving, Henry heard Felicia choking and gasping for air. Martin then told Henry to pull over, and Martin got in the driver’s seat and drove to Fourche. He stopped the car, handed Henry some gloves, and asked Henry to help him remove Felicia from the car. They put her body in some weeds, and proceeded back to Oklahoma. Later that day, Felicia’s body was discovered in the area described by Henry.
Martin’s first argument for reversal is that sufficient evidence does not support the verdicts because the accomplice testimony of Adell Henry is inadequately corroborated. Arkansas Code Annotated § 16-89-111(e)(1) (1987) provides:
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.
The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). In other words, the test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). On appeal, it is this court’s duty to determine whether there is substantial evidence to support the jury’s finding that the corroborating evidence was sufficient. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).
We will not consider the merits of Martin’s argument because this point has not been preserved for appeal. The sufficiency of the evidence is challenged by a motion for directed ver- diet. Arkansas Rules of Criminal Procedure 36.21(b) provides the following:
Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
The above rule has been strictly construed, and the supreme court has consistently stated that the burden of obtaining a ruling is on the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992). In Donald, the appellant renewed his motion for directed verdict at the close of the evidence but did not obtain a ruling. As a result, his sufficiency argument was not considered on appeal. In the instant case, Martin moved for a directed verdict after the state rested on the ground that no substantial evidence connected him with the commission of the offense except for the testimony of the accomplice, Adell Henry. The court denied that motion. After calling one witness, the defense rested. The court then inquired “show the motions renewed?” and counsel for Martin replied “yes.” The above exchange does not amount to a motion for directed verdict, and even if it does the defendant failed to obtain a ruling on the motion. Furthermore, even if counsel’s answer “yes” to the court’s inquiry constituted a motion for directed verdict, it falls far short of meeting the requirement that the moving party apprise the trial court of the specific basis on which the motion is made. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994), and see Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). For these reasons, we do not address the sufficiency argument on appeal.
Martin’s remaining argument is that the trial court erred in not instructing the jury on the lesser included offense of second degree murder. If there is any rational basis upon which the jury could have found the accused guilty of a lesser crime, it is reversible error to refuse to give a correct instruction on that lesser crime. Hill v. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991). In the case at bar, Martin relied on the defense of com- píete denial in asserting that he was not even in the state of Arkansas on the date of Felicia’s death. Where the appellant relies on the defense of complete denial there is no rational basis for giving instructions on lesser included offenses and the trial court is correct to refuse such instructions. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). In Vickers, the appellant was convicted of first degree murder and was not allowed a jury instruction regarding second degree murder because he completely denied any knowledge or involvement with the fatal shooting at issue. Since Martin completely denied any involvement, there was no rational basis for instructing the jury on second degree murder in this case. Thus, it was not error for the trial court to deny Martin’s request for an instruction regarding this lesser included offense.
Affirmed.
Jennings, C.J., agrees.
Mayfield, J., concurs. | [
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Melvin Mayfield, Judge.
Appellant Shirley Wilson filed a complaint in Forrest City Municipal Court against C & M Used Cars seeking damages for breach of contract. After a trial held January 17, 1990, the municipal court awarded appellant damages in the amount of $1,040.00 plus interest, and on March 7, 1990, appellee appeáled to circuit court. On April 8, 1992, the circuit court entered an order in Shirley Wilson Plaintiff v. C & M Used Cars Defendant, CIV 90-71, which stated: “The above cause is hereby dismissed for lack of prosecution.”
A dispute arose between the parties as to the effect of this dismissal, and on September 2, 1992, appellee C & M filed a “Motion to Clarify Order of Dismissal.” In its motion, appellee stated that appellant took the position that the effect of the case being dismissed is that the lower court judgment is affirmed, but the appellee took the position that the “Plaintiff’s cause of action has been dismissed.” Appellee asked the court to enter an amended order dismissing “Plaintiff’s cause of action for lack of prosecution.”
In an order entered July 8, 1993, the trial court held that the dismissal of the cause of action was a “dismissal without prejudice in accordance with Rule 41(b), A.R.C.P.” and that the dismissal terminated the action, and the municipal court judgment “became invalid or set aside” by the order of dismissal.
Appellant argues on appeal that the circuit court erred when it dismissed the case without prejudice in accordance with Rule 41(b), and in holding that the dismissal terminated the action and that the judgment of the municipal court became invalid or set aside by the dismissal. Appellant argues that the court should have relied on Inferior Ct. R. 9 and affirmed the municipal court judgment. That rule provides:
(d) Supersedeas Bond. Whenever an appellant entitled thereto desires a stay on appeal to circuit court in a civil case, he shall present to the inferior court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree, or order of the inferior court. . . .
The appellee argues the case was properly dismissed pursuant to Ark. R. Civ. P. 41(b), which provides that an involuntary dismissal is without prejudice to a future action by the plaintiff. Appellee says appellant’s proper remedy is to refile her lawsuit within one year of dismissal and that Rule 9 applies only to those cases in which there is a supersedeas bond.
In January 1994, we certified this case to the Arkansas Supreme Court, pursuant to Ark. Sup. Ct. R. l-2(a)(3), as a case involving the construction of the rules of civil procedure and the inferior courts. Certification was refused and the case was returned to this court for decision.
We first note that the “Motion to Clarify Order of Dismissal” filed on September 2, 1992, has given us some concern with regard to the trial court’s authority to interpret an order entered more than 90 days earlier. However, we do not think there is a lack of jurisdiction involved, and each party has invoked the court’s assistance to determine the controversy. Moreover, because the September 1992 pleading is in substance a petition for declaratory judgment, we treat it accordingly. Authority for a declaratory judgment as to the rights of parties under a final judgment entered by a court is found in the cases of Minne v. City of Mishawaka, 240 N.E.2d 56 (Ind. 1968); National-Ben Franklin Fire Insurance Co. v. Camden Trust Co., 120 A.2d 754 (N.J. 1956); and Aetna Life Insurance Co. v. Martin, 108 F.2d 824 (8th Cir. 1940).
We agree with appellant’s argument that the trial court erred when it dismissed the case pursuant to Rule 41(b) and held that the municipal court judgment was invalid or set aside by the dismissal. As early as 1885, the Arkansas Supreme Court held that a dismissal in circuit court of an appeal from a justice of the peace court has no effect on the judgment from the inferior court which “stands until it is set aside by the superior court.” Burgess v. Poole, 45 Ark. 373, 375 (1885). And, in Brenard Manufacturing Co. v. Pate, 178 Ark. 163, 165, 10 S.W. 489, 489 (1928), our supreme court held that nonsuits taken in circuit court of cases appealed from justice of the peace courts amounted to dismissals of the appeals, and when that was done, the judgments of the justice of the peace courts were left in force as if no appeal had been taken. See also M.M. Cohn Co. v. Hutt, 136 Ark. 185, 206 S.W. 130 (1918).
Brenard, supra, was followed in Fowlkes v. Central Supply Co., 187 Ark. 201, 58 S.W.2d 922 (1933). In that case, Central Supply filed suit on an account against Fowlkes in a justice of the peace court which rendered judgment in favor of Fowlkes. Central Supply appealed to circuit court which entered a non-suit “without prejudice to the right of bringing another suit.” •Central Supply then filed a new suit on the same cause of action in circuit court where Fowlkes pleaded that the justice of peace judgment was res judicata-, however, the circuit court overruled this plea and entered judgment for the supply company. The issue on appeal to our supreme court was whether a nonsuit without prejudice is tantamount to a dismissal of an appeal so as to leave a judgment of a justice court in force. Our supreme court held it is.
The court stated:
Appellee insists that it had the right to abandon its appeal from the judgment of the justice of the peace and to take a nonsuit without prejudice to a future action under § 1201 [sic], Crawford & Moses’ Digest, which provides that an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. But this section has no application to suits reaching circuit court on appeal from justice courts. It defines the practice in circuit and chancery courts and relates to suits brought in those courts. Here, before the nonsuit was taken, there had been a final submission of the cause to a court having jurisdiction thereof, and that jurisdiction had been exercised and a judgment rendered which determined the rights of the parties thereto. An appeal to the circuit court was the remedy provided by law for the review of the justice judgment, where, upon a trial in the circuit court, the cause would have been heard de novo. There was neither necessity nor authority to bring a new suit to obtain this de novo trial, and the judgment of the circuit court, from which this appeal comes, must be reversed ....
187 Ark. at 203-04, 58 S.W.2d at 923-24. (We point out that the above citation makes reference to § 1201, Crawford & Moses’ Digest. This is an error, which is corrected in the headnote of the case, and should have been § 1261. Section 1201 related to set-off; section 1261 related to dismissal by the court. Section 1261 was codified as Ark. Code Ann. § 27-1405, which was superseded by the enactment of the Arkansas Rules of Civil Procedure. See Compilers Note’s to Ark. Code Ann. § 27-1405 (Repl. 1979), which states “See Rule 41, ARCP.”)
The same rule would apply to a municipal court. In United Loan & Investment Co. v. Chilton, 225 Ark. 1037, 1039, 287 S.W.2d 458, 459 (1956), the court explained the jurisdiction of justice of the peace and municipal courts as follows:
A municipal court, like a justice of the peace court, is a court of limited and restricted jurisdiction. Bynum v. Patty, 207 Ark. 1084, 184 S.W.2d 254. In construing the foregoing sections of the Constitution in State ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813, this court held that while the language of Art. 7, Sec. 43, was not meant to confine the jurisdiction of municipal courts to such juris diction as might always be exercised by justices of the peace, “it was meant as authority for the Legislature to confer such jurisdiction upon municipal courts as might under the Constitution be conferred upon justices of the peace.”
Further, the principles announced in Fowlkes, supra, have been applied to an appeal from a municipal court. In Watson v. White, 217 Ark. 853, 233 S.W.2d 544 (1950), James Watson brought suit against E. White in municipal court for damages arising out of an automobile accident. White filed a cross-complaint seeking damages to his car as a result of the accident. Municipal court entered judgment for Watson in the amount of $100, and White appealed to circuit court which directed a verdict in White’s favor. White was then allowed to dismiss his cross-complaint without prejudice, and on appeal our supreme court, citing Fowlkes, held that the taking of the non-suit in such circumstances was tantamount to a dismissal of the cross-complaint with prejudice. See 217 Ark. at 859, 233 S.W.2d at 547.
We think it is clear that an appeal from a municipal court judgment to circuit court is a continuation of the municipal court action and Arkansas Rule of Civil Procedure 41(b), which applies to original actions in circuit court, does not apply to an appeal from municipal court so as to vest circuit court with the authority to dismiss the cause of action without prejudice. We also believe that Inferior Court Rule 9 supports our .view. Subsection (d) of this rule states that, “if such appeal for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree, or order of the inferior court.” (Emphasis added.) Although subsection (d) concerns supersedeas bonds, it is nonsensical to say that an appellant on appeal from an inferior court has to satisfy a judgment if it has put up a supersedeas bond but not otherwise.
Therefore, we find that the circuit court erred in holding that its dismissal of the case appealed from municipal court terminated the action and caused the municipal court judgment to be invalid or set aside. We hold that the dismissal in circuit court simply did away with the appeal and left the municipal court judgment valid and enforceable.
The order appealed from is reversed and set aside.
Pittman and Robbins, JJ. agree. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case sustained a compensable injury in the course of his employment with the appellee Smith, Doyle & Winters Construction Company on August 7, 1986. The appellant chose Dr. Swain, a chiropractor, as his treating physician. The claim was initially accepted as compensable and payment for chiropractic treatments was made from the time of the injury through July 28, 1989. However, after July 28, 1989, the appellee insurance carrier refused to pay for any additional chiropractic treatments and requested that the appellant be referred to Dr. Hartmann, an orthopedic surgeon. Dr. Hartmann examined the appellant on March 20, 1991; on March 21, 1991, Dr. Hartmann prepared a written report detailing the results of his examination and expressing his opinion that the appellant’s condition was stable and no orthopedic treatment was necessary at that time, although he indicated that further procedures might be considered if the appellant’s symptoms were exacerbated. After a hearing on the appellant’s claim that the appellees should be liable for chiropractic treatment rendered subsequent to July 28, 1989, the Commission found that chiropractic treatment provided subsequent to that date was unreasonable and unnecessary. From that decision, comes this appeal.
For reversal, the appellant contends that the Workers’ Compensation Commission erred in finding that chiropractic treatment rendered subsequent to July 28, 1989, was unreasonable and unnecessary. We affirm as modified and remand.
At the hearing, there was evidence that the appellant injured his back lifting some steps while performing construction work in the course of his employment with the appellee construction company. On the recommendation of a relative, the appellant sought treatment from a chiropractor. He stated that the treatments gave him relief and enabled him to continue doing construction work. Dr. Hartmann testified that he believed that the appellant suffered from a herniated disc which the chiropractic physician had misdiagnosed as a back strain. Dr. Hartmann stated that, had he been treating the appellant, he would have given him physical therapy for only a few weeks, with rest and medication prescribed for subsequent flare-ups.
In reviewing decisions of the Arkansas Workers’ Com pensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we uphold those findings if there is substantial evidence to support them. Where, as here, the Commission has denied a claim because of failure to show entitlement to benefits, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). It has been held that, when the medical evidence is conflicting, the resolution of that conflict is a question for the Commission. See Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987). In the case at bar, Dr. Hartmann stated that he did not believe that chiropractic treatment was necessary for the appellant’s condition for five years after the appellant’s compensable injury. The Commission found that Dr. Hartmann’s opinion was entitled to great weight. Consequently, we affirm the Commission’s finding that further chiropractic treatments were not reasonably necessary with respect to treatments rendered subsequent to Dr. Hartmann’s letter of March 21, 1991, in which he expressed his opinion that the appellant’s condition was stable and that no further treatment was required at that time. However, we modify the Commission’s decision with regard to benefits for chiropractic treatments rendered prior to Dr. Hartmann’s letter of March 21, 1991.
The Arkansas General Assembly, in Act 444 of 1983, specifically permitted an injured employee to choose either a medical or chiropractic physician. This portion of the Act is now codified at Ark. Code Ann. § 11-9-514(2) (1987). We think that the legislative intent was to provide for an alternative form of treatment as an alternative to treatment by a medical doctor. The clear implication of the Commission’s ruling in the case at bar is that a claimant must accurately assess his own condition to determine which of the competing schools of treatment is proper in his case, and will be denied benefits for those treatments if his decision is later determined by medical experts to have been incorrect. We do not think that the legislature so intended in enacting Act 444 of 1983. In the case at bar, after initially treating the claim as compensable and providing benefits for treatments, the appellee insurance company stopped payment of ben efits on July 28, 1989, and requested an independent medical examination which was not performed until almost two years later, on March 20, 1991.
Although the appellant did not appeal from that portion of the order appointing Dr. Hartmann as his treating physician, the very fact that a treating physician was appointed indicates that the appellant required medical treatment up to and after the time of the hearing in this case. Furthermore, no witness, including Dr. Hartmann, testified that the treatments rendered subsequent to July 28, 1989, were unreasonable and unnecessary. Regardless of whether the appellees assumed the burden of proving that the chiropractic treatments were not reasonable and necessary, or whether that burden remained on the appellant, we hold that fair-minded persons could not conclude that the treatments provided between the appellees’ request for an independent examination and the completion of that examination were not reasonable and necessary, and that charges for treatments provided during that interim period are therefore to be borne by the appellees. Consequently, we remand to the Commission for the entry of an order consistent with this opinion.
Affirmed as modified and remanded.
Robbins and Mayfield, JJ., agree.
Rogers, J., concurs.
Jennings, C.J., and Pittman, J„ dissent.
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Jim Johnson, Associate Justice.
This appeal arises from a suit to cancel a deed from a widow to her son. On August 5, 1961, appellee Lillie Patrick Summers executed a warranty deed to one of her sons, appellee Herschel M. Patrick. On June 9,1962, appellant Dorothy Patrick Curtis, a daughter, filed suit in Clay Chancery Court seeking to have the deed set aside as a cloud on her title, alleging that the property had been owned by the late N. T. Patrick individually, not by N. T. Patrick and Lillie Patrick (Summers) as tenants by the entirety, that Lillie Patrick Summers was entitled to her dower and homestead only, and contending that legal title to the property was in the four children of N. T. Patrick. At trial on December 3, 1962, the chancellor found that the lands here involved were sold to the State following nonpayment of 1917 taxes and were not re deemed within two years; that on September 21, 1939, the State conveyed the property to N. T. Patrick and Lillie Patrick by deed recorded January 10, 1940; that in January 1940 N. T. Patrick and Lillie Patrick and their family took possession of the property and remained in possession until the death of N. T. Patrick about November 21, 1941; that on October 17, 1941, the trustee for the Big Glum Drainage District executed a quit-claim deed to the property to N. T. Patrick, title of the trustee being based on foreclosure proceedings for collection of delinquent drainage district taxes; that N. T. Patrick and Lillie Patrick, his wife, acquired the lands by virtue of the State deed of September 21, 1939, with any title acquired by N. T. Patrick from the drainage district inuring to the benefit of both N. T. Patrick and Lillie Patrick; that upon the death of N. T. Patrick in November 1941, Lillie Patrick acquired title to the property in fee simple, free of any claims of N. T. Patrick’s heirs at law; that following the death of N. T. Patrick, Lillie Patrick conveyed the property to Herschel Patrick, retaining a life estate; that title should be quieted in Lillie Patrick Summers and Herschel M. Patrick and that appellant’s complaint should be dismissed. Prom the decree dismissing the complaint, appellant has appealed, contending that the trial court erred in holding that the State deed created an estate of entirety and denying appellant’s allegation that the property was that of N. T. Patrick by virtue of the drainage district quitclaim deed.
The Commissioner of State Lands deeded the property to “N. T. Patrick and Lillie Patrick”, without referring to them as tenants by the entirety or as husband and wife, on September 21, 1939. Appellees’ request for admissions established that the parties were husband and wife on that date. In Parrish v. Parrish, 151 Ark. 161, 235 S. W. 792, this court stated:
“It is also contended by counsel for the defendant that the deed in question did not convey an estate by the entirety to Joseph E. Parrish and Emma Parrish because they are not mentioned, in the deed as husband and wife.
“We do not think that this makes any difference. The complaint alleges that the parties were husband and wife at the time the deed was executed, and it is the conveyance of the property to the husband and wife jointly which creates the estate by the entirety.”
Thus failure to use the magic words “husband and wife” or “tenants by the entirety” will not defeat a tenancy by the entirety where property is conveyed to two parties who are in fact husband and wife. The State deed created an estate by the entirety in the Patricks in September 1939.
On October 17, 1941, the trustee for the drainage district executed a quitclaim deed to N. T. Patrick which recited that “[t]he consideration herein paid, is in full satisfaction of all delinquent Big Gum Drainage District taxes, penalty, interest, attorney fees and costs adjudged against the above described land. ’ ’ Subsequently N. T. Patrick and Lillie Patrick executed a mortgage on the property to the trustees for part of the consideration of the quitclaim deed. Appellant has made no showing that N. T. Patrick and Lillie Patrick were disseised of title prior to execution of the quitclaim deed. Without determining the validity of the drainage district foreclosure decrees, the common law rule applicable here has been implemented by a long series of decisions, the earliest of which is probably Moore v. Woodall, 40 Ark. 42, and reiterated as recently as Vesper v. Woolsey, 231 Ark. 782, 332 S. W. 2d 602, as follows:
. . . “We have repeatedly held that the acquirement of a tax title by a tenant in common operates as a redemption for the benefit of all tenants.”
N. T. Patrick and Lillie Patrick acquired title to this property as tenants by the entirety in 1939, went into possession of the property in 1940, and remained there until after N. T. Patrick’s death. “The rule seems thoroughly settled that a husband or wife cannot obtain a tax title ... in opposition to the other when they are in joint possession.” Herrin v. Henry, 75 Ark. 273, 87 S. W. 430.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This litigation results from a traffic mishap. Farris Coffman was plaintiff below and is appellee here. The defendants below and, appellants here are Carl Russell, Coleman Dairy Company, Virgil Bewley, and Jones Truck Line. Coffman was driving west on Highway No. 64 in his pickup truck. Russell was driving east in the Coleman Dairy truck, and behind the Coleman Dairy truck Bewley was driving east in the Jones Truck Line tractor-trailer. The Jones Truck Line vehicle struck the rear of the Coleman Dairy truck and then jackknifed across the center line of the highway and struck the oncoming pickup truck of Farris Coffman, who was at all times in his proper lane on the highway. Coffman’s truck was demolished and he received serious and painful injuries, for all of which he filed this action. His complaint was vigorously resisted by all four defendants, but jury trial resulted in a verdict and judgment in Coffman’s favor for $25,000.00; and on this appeal the four appellants present these two points:
“I. The trial court committed prejudicial error in permitting the exhibition to the jury of Parris Coffman’s kneecap and the exhibition to the Jury of colored slides of Coffman’s kneecap taken in the operating room.
“II. The verdict for $25,000.00, exactly the amount for which recovery was sought, was excessive.”
I. Admission Of Evidence. The collision occurred on January 10, 1962. Among other injuries Coffman received a severe injury to his left knee; and as the months passed the injury to the knee became more serious. Coffman’s local physician, Dr. "Wells, referred the patient to Dr. Kenneth Jones in Little Rock; and after considerable X-ray work and observation it was determined that Coffman had suffered a chondromalacia of the patella, which is an injury to the kneecap. His pain was constant and terrific; and it was finally found necessary to remove his kneecap. This was done on December 2, 1962, and after extended therapy and hospital treatment Mr. Coffman was again able to walk, but still used a cane.
At the trial Dr. Kenneth Jones, the orthopedic surgeon who performed the operation, testified in great detail about the injury to the kneecap, the necessity of the operation, and the therapy. That Dr. Kenneth Jones is an expert in his field was conceded at the trial. He showed two X-ray negatives to the jury, exhibited the scar on Mr. Coffman’s knee, and then told of the operation. Dr. Jones testified that after the kneecap was removed and examined, the extensive chondromalacia of the surface of the kneecap was easily apparent. He had kept Mr. Coffman’s kneecap in a preservative, and he exhibited this kneecap to the jury to explain the size of the kneecap and the injuries apparent to it. The defendants vigorously7’ objected to the exhibition of this kneecap to the jury, and that is the point that is now urged on appeal.
After the kneecap was exhibited, Dr. Jones also exhibited two pictures that he had taken of the kneecap immediately after it had been removed. The appellants insist that with the exhibition of the X-ray plates, the injured knee of Mr. Coffman, the pictures, and the detailed and lucid testimony of Dr. Jones, there was no need to exhibit the removed kneecap, and that such tended to inflame the jury and increase the verdict. On this point appellants cite such cases as Anderson v. Seropian (Calif.), 81 P. 521; Rost v. Brooklyn Heights RR., 41 N.Y.S. 1069; Evans v. Chicago RR. (Minn.), 158 N.W. 335; and the quite recent case of Harper v. Bolton (S.C.), 124 S.E. 2d 54, in which the South Carolina Court said:
‘ ‘ The exhibition of injuries should not be permitted where such will not tend to throw any light on any issue in the case, nor should an exhibition be permitted where it is apparently designed merely to excite pity and commiseration . . .
“The exhibition of the enucleated eye of the respondent did not tend to throw any light on any issue in this case. We think the trial Judge committed error in permitting the introduction of the removed and preserved eye.”
There is an exhaustive annotation in 66 A.L.R. 1334 entitled, “Propriety of permitting plaintiff in a personal injury action to exhibit his person to the jury”; and in Sections 12 and 13 of that annotation on page 1366 et seq., there are listed cases in which enucleated eyes and amputated limbs and other separated parts of the body had been exhibited to the trial jury. There is no occasion for us to review all of these cases. In deciding the specific issue here before us, it is our conclusion that, under the facts and circumstances here existing, the Trial Court did not abuse its discretion in permitting the severed kneecap of Mr. Coffman to be exhibited to the jury. What is a chondromalacia of the patella and how extensive Avas the chondromalacia in this case? The average layman might knoAV that “patella” means “kneecap”; but chondromalacia is a big word that doctors may understand but laymen do not. How large is a kneecap? Doctors knoAV; but the average layman probably does not realize the size of a kneecap. The X-ray negatives throw little light on the subject. The pictures that Dr. Jones took of the amputated kneecap had in them nothing by Avhich the size of the kneecap could be determined. Dr. Jones in his testimony used a plastic model which, of course, did not show the injury to this particular kneecap. But the most casual glance at this seArered kneecap of Mr. Coffman revealed the injury; and thereby the jurors, in the first instance, and the Judges on appeal, are able to understand the testimony of Dr. Jones. It Avas not a matter of introducing the kneecap to inflame the jury, but rather to make the testimony of Dr. Jones more easily understood. After examining the kneecap and reviewing his testimony, Ave are thoroughly convinced that the Trial Court did not abuse its discretion in allowing this severed kneecap to be exhibited to the jury.
Furthermore, the defendants had filed a general denial; and under that denial, for aught the Court knew when the kneecap Avas introduced, the defendants might have introduced evidence designed to show that the entire operation Avas unnecessary. The fact that the defendants in presenting their case did not see fit to introduce any medical evidence to dispute Dr. Jones’ testimony, does not establish that when the kneecap Avas exhibited in the plaintiff’s case in chief, the defendants had at that time ever admitted the necessity of the opera tion; and the severed kneecap was evidence designed to establish that the operation was necessary.
II. jExcessiveness. Of The Verdict. The jury returned a verdict for Mr. Coffman for $25,000.00, and it is claimed that this amount is so grossly excessive as to shock the conscience of the Court; but we find no merit to this contention. It was shown that Mr. Coffman was 49 years of age and that a man of that age has a life expectancy of 22.12 years. Mr. Coffman was a cattle buyer by trade. A portion of his work was to attend auction sales to buy cattle and hogs for a packing.company; and another portion of his work was to engage in ‘ ‘ country and alley trading. ’ ’ This latter required him to jump onto trucks and look at cattle, to go out into the country and round up cattle, and to walk through pastures and fields. Even after his operation he could attend the livestock sales, because most of that work could be done while he was seated; but his ability to engage in “country and alley trading” was materially reduced on account of the removal of his kneecap. Mr. Coffman testified as to his earnings before his injury and before the trial, and as to his inability to engage in a portion of his work since his injury; and the doctors testified as to the permanency of his injury. Mr. Coffman had expended large amounts for doctor bills and hospital bills, and medicine; and he had experienced pain and suffering. It was furthermore testified that he still had, and probably would always have, chondromalacia of the lower end of the femur, the bone on which the kneecap functions. Obviously this femur bone cannot be removed. Whether arthritis will develop is something as to which the doctors have different views. That there will continue to be pain from the chondromalacia of the lower end of the femur is clearly shown. In addition to all .these other injuries, Mr. Coffman suffered some fractured ribs and a whiplash injury. There is no need to detail all of his injuries.: it is sufficient to say that the verdict for $25,000.00 is not so grossly excessive as to shock the conscience.
Affirmed.
Originally Coffman sued only Bewley and Jones Truck Line. They brought in Bussell and Coleman Dairy as third party defendants; and then Coffman amended claiming relief against all of the four defendants. The jury verdict found Bewley and Jones Truck Line 65% negligent, and Bussell and Coleman Dairy 35% negligent; and Coffman free of all negligence.
There is a dispute between counsel as to which side introduced the pictures of the removed kneecap; but the Trial Court found that it was one of the defendants’ counsel who introduced the pictures. We attach little importance to this dispute for the reasons stated in the opinion.
Maloy’s Medical Dictionary for Lawyers defines chondromalacia as “a morbid or unnatural softness of the cartilages.” Dr. Jones testified: “Chondromalacia means a softness of the articular cartilage of any articular surface: that is, the surface of the bone that goes to make up the gliding surface of a joint . . . It is something like the bearing in a motor wearing out or becoming roughened. The joint no longer works as a smooth, gliding surface.” | [
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Frank Holt, Associate Justice.
The appellants and appellees are adjoining landowners. The appellants brought this action to settle a boundary line dispute between them. In resolving the issues and the conflicting testimony in favor of the appellees, the Court found:
í í * * * The driveway presently used by the defendants is situated upon the boundary line between the parties as established and recognized by the respective owners of the tracts for a long period of years, considerably exceeding seven years prior to the bringing of this present action; that the lands owned by the plaintiffs lie entirely to the South of the present existing fence and the lands of the defendants lie immediately and adjacent to the North; that neither party is entitled to question the boundary as established by the said fence.”
On appeal the appellants contend that they are the record owners of the disputed strip of lands, including the major portion of the driveway, and that the appellees “had the burden to show title to the disputed strip either by adverse possession, agreed boundary, or estoppel, which burden they failed to meet.”
The appellants acquired their title by a metes and bounds description in 1935 but did not occupy it until 1955 when they built a house and moved on their property. They have lived there since that time. The appellees acquired their property in 1947 and have occupied it since then. The common boundary line extends for a distance of 1,593 feet. It begins at an undisputed eastern point and runs west to Wood Street for this distance. The appellants’ property lies to the south and the appellees ’ is on the north of the disputed line. The western portion of appellants’ and appellees’ adjacent properties abuts on Wood Street, and both their homes face on this street. This litigation was precipitated by a dispute over the use of a driveway which leaves Wood Street and enters on the west end of the two adjacent tracts. 'The driveway runs east curving to the north to reach appellees ’ house. Appellees have continuously used this driveway since 1947 as a means of ingress and egress to their property. Along and south of the 1,593 foot survey line, which appellants contend is the true boundary line, there was an existing fence for a distance of 1,295.7 feet at the time this litigation arose. This is the first segment of the disputed strip of land. The appellees claim this existing fence, instead of the survey line, is the true boundary line. Appellants contend this fence encroaches upon their property as much as 14 feet at its western terminus as it gradually deviates to the south along the survey line. From the point where this existing fence ends and westward to the street for a distance of 297.3 feet along the survey line is the second segment in dispute. When this litigation arose appellees extended the existing fence westward approximately 297.3 feet, or the balance of the survey line, to the street where it is 20 to 25 feet south of the survey line. Appellants claim this new fence encroaches upon their lands to this extent. The driveway is entirely included in this alleged encroachment.
As to the first segment, or the 1,295.7 feet, the appellants contend that prior to 1957 another fence existed which was on the survey line and that appellees surreptitiously moved this original fence at night to its presen* location. The -appellees deny this and testified, as did numerous witnesses in their behalf, that the existing fence along this first segment of 1,295.7 feet is situated on the boundary or division line between the parties as established and recognized before and since 1947 when appellees purchased their property. There appears to have been no dispute between appellants and appellees about the boundary line along this 1,295.7 feet until 1957 although the appellants have owned their property since 1935 and appellees since 1947.
After a careful review of the evidence in this case we have determined that the 1,295.7 foot strip of land was occupied adversely by the appellee for more than seven (7) years in the belief that the existing fence represented the true boundary. For adverse possession to be hostile it is not necessary that the possessor have a conscious feeling of ill will or enmity toward his neighbor. Moeller v. Graves, 236 Ark. 583. Further, we think there was sufficient evidence of acquiescence to sustain the Chancellor’s finding that this boundary line was “established and recognized by the respective owners for a long period of years. ’ ’ In Stewart v. Bittle, 236 Ark. 716, we quoted from Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490, as follows:
“* * * We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence.”
It is also.unnecessary that a prior dispute exist about a boundary or division line in order to establish such by long acquiescence. Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18.
With reference to the second segment of the disputed boundary line, or the balance consisting of 297.3 feet as surveyed by’the appellants, the appellees’ evidence was to the effect that when they moved on their property in 1947 the appellant Vaughn voluntarily pointed out to appellee Chandler their common boundary or division line; that appellees relied upon and regarded this as mil agreed boundary and they built the new fence' on this agreed boundary when this litigation arose; that this new fence of approximately 300 feet, which was built in 1962, is merely an extension westward of the old existing fence to the street. Also, in 1955 appellant had a survey made resulting in stakes being placed in and along the disputed driveway. Appellee, Mrs. Chandler, testified that appellant [quoting from appellants’ brief] “told me to tell Hoyt [Chandler] not to worry about those survey stakes being over the line because if he c.ame over on us Mr. Barkley would come over on his line .on the south.” According to appellants’ testimony, when they purchased their property in 1935 this driveway existed and led off the street to a garage that was then situated on what is now appellees’ property. Several witnesses testified that this driveway on the disputed strip of land had existed and served the property now occupied by appellees before and since their purchase. Evidence was also adduced on behalf of appellees that an old fence once existed on the same location where this new fence now stands. It is undisputed that the appellees used this driveway continuously and without any question or dispute with the appellants from 1947 until 1955.
We also agree with the Chancellor in his findings when applied to this second segment of the disputed boundary line. We think there was ample evidence of an agreed division line. The appellees testified there was an agreed boundary, which appellants denied, and the Chancellor chose to believe the appellees. In Stewart v. Bittle, supra, we quoted from Deidrech v. Simmons, 75 Ark. 400, 87 S. W. 649, as follows:
“The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or an agreement may be inferred from long continued acquiescence and occupation according to such line, and they will be bound thereby.”
Also, in Moeller v. Graves, supra, we said:
“We have often held that when the location of the true line is in doubt or in dispute the parties may, by parol agreement, fix a line that will be binding, even though their possession under the agreement does not continue for the full statutory period of seven years. (Citing cases)”
Furthermore, in the case at bar we construe the evidence to be sufficient to indicate that the appellees used this driveway for a period of more than seven (7) years in the belief that they owned it and that it was situated on their property. • As previously stated, it is not necessary that the possessor of the land have a conscious feeling of ill will or enmity toward his neighbor in order to constitute adverse possession. Moeller v. Graves, supra.
The evidence adduced by the appellants and appellees in the case at bar is sharply in conflict and the Chancellor resolved these factual issues in favor of appellees. We do not disturb the findings of the Trial Court unless against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Hill v. Barnard, 216 Ark. 29, 224 S. W. 2d 31; and Stricklin v. Mitchell, 234 Ark. 31, 350 S. W. 2d 319. We cannot say that the findings by the Chancellor in the case at bar are against the clear preponderance of the evidence.
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Jim Johnson, Associate Justice.
This is an appeal from an order sustaining demurrers filed by appellees Safeguard Insurance Co. of New York and McCartney-Lewis-Faucette, Inc., resulting in the dismissal of ap pellant Juanita Coddington’s complaint. The original complaint was filed in Washington Circuit Court on March 22, 1962, by Juanita Coddington and her late husband, M. A. Coddington. For simplicity we shall refer to them as appellants. The complaint alleged substantially as follows:
That appellants were husband and wife and citizens of Washington County and were .owners of a certain dwelling house located in the City of Fayetteville.
That appellee Safeguard Insurance Co. of New York is a capital stock company operating in the State of Arkansas as an insurer of buildings and that appellee McCartney-Lewis-Faucette, Inc., is a corporation authorized to do business in the State of Arkansas and is engaged in the sale of fire and casualty insurance with its principal place of business in Fayetteville.
That on or about the month of July, 1960, and for many years prior thereto, appellants had owned the dwelling house herein mentioned which was covered and had been covered by a fire insurance policy issued by appellee Safeguard Insurance Company in the sum of $3,000.00, the same being sold to them by appellee McCartney-Lewis-Faucette, Inc.
That during the month of July, 1960, the dwelling house was completely destroyed by fire while the said insurance policy No. 335712 was in force and effect; that for many years prior thereto and up until a few months prior to the aforesaid fire, appellants had occupied the house as their resident but had moved therefrom and had within one week thereafter notified appellee McCartney-Lewis-Faucette, Inc. of their vacating the property, and that the policy was thereafter renewed by a renewal notice.
That appellants had been assured by appellee McCartney-Lewis-Faucette, Inc., that their property was fully covered in the sum of $3,000.00 and that they had relied upon said representation aiid paid their premium to appellee therefor, and notwithstanding the Valued Policy Law of'the State of Arkansas, the agent, servant and employee of appellee Safeguard Insurance Company by misrepresentation, fraud and deceit induced appellants to accept tbe sum of $2,000.00 for their complete loss of their building by fire, instead of paying them the sum of $3,000.00 as required by the terms of their policy;
That if their building was not covered by said policy of insurance as was represented to them by appellee" McCartney-Lewis-Faucette, Inc., then said failure to coverage was due to the negligent issuance and handling of their insurance policy through no fault on their part.
Appellants prayed that the release executed by them be cancelled and declared void by the court and that they have judgment against appellees for the sum of $1,000.00, together with the statutory penalty and attorney fees.
An amendment to appellants’ complaint was filed on October 18, 1962, which alleged in addition to those things pleaded and prayed for in the original complaint that appellee McCartney-Lewis-Faucette, Inc., was at the time of the issuance of the policy in question and the renewal thereof, a general agent of appellee Safei guard Insurance Company, having power to issue policies of insurance and transact other business of the company; did, in fact, issue the policy of insurance in question and have power to waive any of the terms of said policy allowed to be waived by law;
That within one week after appellants had vacated the premises here in question, they notified appellee McCartney-Lewis-Faucette, Inc., that they had vacated the property and appellee’s agents made no objection to the vacancy and in fact while said property was vacant and being so notified of the vacancy renewed said policy of insurance, and that the course of action of appellee Safeguard Insurance Company, by its authorized agent, McCartney-Lewis-Faucette, Inc., led appellants honestly to believe that the occupancy clause in said policy had been waived and by reason thereof appellees were estopped from invoking the provision in the policy involving occupancy;
That appellees had by misrepresentation, fraud, deceit and contrary to the Valued Policy Statutes of the State of Arkansas induced appellants to accept the sum of $2,000.00 for the loss of their building by fire and induced them to sign releases and other documents, without knowing the contents thereof, and by reason thereof releases and other documents having to do with the settlement should be cancelled and further prayed that appellees be held to have waived the clause in the policy pertaining to occupancy; be estopped from enforcing the clause in the insurance contract; and that the attempted settlement be cancelled and declared void.
Appellees had filed their separate demurrers to appellants’ complaint in April, 1962.
On June 13, 1963, the trial court concluded as follows :
<<[T]hat the demurrers should be sustained for the reason that the complaint of the plaintiff alleges fraud •but it does not allege facts sufficient to constitute fraud to bring the case under an exception to the general rule which requires that any payment made in accord and satisfaction be returned prior to the institution of suit. The general pleading of fraud is not enough but the facts must be plead to support the fraudulent acts alleged which are an exception to the general rule. Some of the exceptions to the general rule are set out in 178 Ark. 1110, Texas Co. v. Williams, and 114 Ark. 559, Pekin Cooperage Co. v. Gibbs, and consist of the following specific acts:
“1. Mental incapacity to execute release.
1 ‘ 2. Fraudulent representation as to the contents of written instrument.
"3. Trick or subterfuge where papers were substituted at time of signing.
“4. Illiteracy or infirmity.
“5. Minority.
“Tlie only allegation of fact in the complaint sets out that the plaintiff signed the release and proof of loss without reading it and that the release was contrary to the stated value of policy requirement (66-3901).”
Following this order sustaining the demurrer, appellants declined to plead further, and on July 17, 1963, their complaint was dismissed with prejudice. From that order comes this appeal.
For reversal appellants contend that a compromise settlement made contrary to the Valued Policy Statute is not an accord and satisfaction, is contrary to law, against public policy and void from its inception as distinguished from voidable aud is an exception to the general rule which requires that payments made in accord and satisfaction be returned prior to the institution of suit.
As stated by Mr. Justice' Hart speaking for this court in Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923, “The allegations of the bill, which are confessed by the demurrer, control in this case. Contrary to the common-law rule, under our Code every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it is so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever. Ferrell v. Elkins, 159 Ark. 31, 251 S. W. 380.”
Applying the above stated rule to the complaint here in question it appears that appellees have admitted the existence of the fire insurance contract between appellants and Safeguard Insurance Company in the amount of $3,000.00; that appellee McCartney-LewisFaucette, Inc. was the general agent of appellee Safeguard Insurance Company; that the dwelling, covered by the policy in question was completely destroyed by fire; that appellants were induced to accept the sum of $2,000.00 for their loss instead of the face value of the policy; that appellees made no objections to the vacancy of the property and in fact, after being so notified of the vacancy, renewed the policy of insurance in question, which action on the part of appellees led appellants honestly to believe that the occupancy clause had been waived, and admit all other proper allegations contained in the complaint and amendment to complaint.
On appeal appellants, with commendable candor, concede that they failed to make sufficient allegations of fraud in their complaint to withstand a demurrer on that point. However, they insist that the trial court in sustaining the demurrers failed to consider that the alleged compromise settlement and release were contrary to the Valued Policy Statute of Arkansas.
With the admissions by demurrer and the concession by appellants, we are squarely confronted with the question of whether, in the light of our Valued Policy Law, the trial court erred in sustaining appellees’ demurrers. Section 66-515 of Arkansas Statutes, entitled “Total Loss by Fire.—Recovery of Full Amount” is the original Valued Policy Statute passed in 1889. This act was amended by Ark. Stat. Ann. § 66-3901 (Supp. 1961), passed by the 1959 Legislature, which is as follows:
“Valued Policy Law.—A fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered to be a liquidated demand and against the company taking such risk, for the full amount stated in such policy, or the full amount upon which the company charges, collects or receives a premium; provided, the provisions of this section shall not apply to personal property. ’ ’
Our research reveals that this court has never had occasion to pass directly on the validity of a settlement between insurer and insured contrary to the Valued Policy Statute. We have, however, in at least two cases held that a provision in a fire insurance policy in conflict with the valued policy statute was void. See London and Globe Ins. Co. v. Payton, 128 Ark. 528, 194 S. W. 503; Tedford v. Security State Fire Ins. Co., 224 Ark. 1047, 278 S. W. 2d 89.
Both appellants and appellees direct our attention to an excellent discussion on problems arising under valued policy statutes in 12 Arkansas Law Review 184. On page 193 of this article there is cited a Washington case which seems to be on all fours with the case at bar. The case is Grandview Inland Fruit Company v. Hartford Fire Insurance Company, 189 Wash. 590, 66 P. 2d 827. There is also a comprehensive annotation of this case in 109 A.L.R. 1477. In the Washington case as here the insured agreed and did accept in full compromise settlement of his claim under a fire policy one thousand dollars less than the face amount of the policy. There was, as here, a total loss of the building and, as in Arkansas, the State of Washington has a Valued Policy Statute.
The trial court in Washington held that the insured was entitled to recover despite the compromise for less than the face amount of the policy, and in affirming that judgment, the Supreme Court of that state used the following language with which we agree and adopt as our own. “Under the valued policy statute . . . whenever an insured building is totally destroyed, the amount of insurance written in the policy shall be taken conclusively to be the amount of the loss. This statute is a part of the public policy of this state, which was not waived by the appellant in its agreement with the respondent to accept less than the face of the policy.” . . .
“The purpose of statutes of the character of the valued policy statute would be defeated if their effect could be avoided by contract. While generally, parties may waive their contractual or statutory rights by agreement to waive, yet an agreement to waive rights involving a question of public policy would be void. It would be contrary to the public policy of this state declared by the valued policy statute, to enforce the compromise in the case at bar. There was not a valid accord and satisfaction. To deny a recovery to the appellant would, in effect, be a holding that one could bind himself by contract not to avail himself of a right which the law has allowed to him on the grounds of public policy. While one may decline to take advantage of a privilege given to him by snch a statute, he may not bind himself by or be held to a contract which denies to him a right which the law has allowed to him on grounds of public policy. ’ ’
Having thus determined that the compromise settlement in the case at bar was contrary to public policy and therefore void ab initio, we reach the sole remaining question of whether the tidal court erred in sustaining the demurrers in the absence of a return or tender by appellants of the amount paid them in connection with their execution of the settlement or release.
Mr. Justice Prank Smith speaking for this court in Pekin Cooperage Co. v. Gibbs, 114 Ark. 559, 170 S. W. 574, answered that question for us when he cited, with approval 1 Cyc., page 339, as follows:
“As a general rule one who seeks to avoid the effect of accord and satisfaction on the ground of fraud, mistake, or for any other reason (it is apprehended) must restore or offer to restore whatever he has received by virtue of the transaction. The rule, however, is subject to some limitations and exceptions. It does not apply where the agreement is absolutely void, ...”
It follows, from what has been said, that the trial court erred in' sustaining the demurrer to the complaint, and for that error the judgment must be reversed, and the case will be remanded for further proceedings according to law. | [
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Carleton Harris, Chief Justice.
The issue on this appeal is whether appellant, J. B. Warmack, is the owner of, and entitled to be paid for, Ys of the Ys royalty oil or for 1/16 of the Ys royalty oil, run from the southeast quarter of the northwest quarter of Section 25, Township 15 South, Range 16 West, in Ouachita County. The record reflects that from 1935 to 1959, appellee, Henry H. Cross Company, which had purchased the oil runs from this tract, paid Warmack on the basis of the belief that he owned Ys of the % royalty, apparently relying upon a title examination by the company’s attorney. In 1959, another examination of the title was made, and this examination revealed that Warmack owned only 1/128 of the oil. The Cross Company thereupon discontinued paying Warmack, and he instituted suit. The company answered by Bill of Interpleader, making parties of all the record owners of minerals, and royalty in the lands. All answered alleging their record ownership, and asking that their title be quieted against Warmack. On hearing, Warmack’s complaint was dismissed for want of equity, and the court gave the Cross Company judgment for the overpayment ($63.29) made to appellant for the last three years. From the decree so entered comes this appeal.
Appellant’s claim is based on alleged adverse possession, and laches and estoppel. Admittedly, the only record title held by Warmack is a 1/16 of a % royalty acquired from L. L. McDonald on January 18, 1935. The conveyance was a quitclaim deed, wherein McDonald quitclaimed to appellant all of his interest to oil, gas, and minerals in the tract. Warmack testified that McDonald told him that he owned 1/64 of the oil. The deed denotes the fact that a prior conveyance had been made to a Mrs. Carrie Schavey, one of the appellees and whose royalty rights are presently unquestioned on this appeal.
We think, in disposing of appellant’s contention of adverse possession, that the chancellor’s reasoning and findings were sound. After stating that Warmack’s claim of adverse possession was based on the fact that the Cross Company paid appellant for almost 25 years on the premise that Warmack owned 1/64 rather than 1/128, the court stated:
“There are several intervening defendants in this law suit and Warmack testified that he was not claiming adversely against any of the defendants with royalty interest. In fact, he never explained whose royalty he claims to have held in adverse possession and testified that his controversy was with Cross. The other royalty owners have had actual possession of their royalty interest to which they have good record title. They have been paid for their oil runs and have never claimed anything adversely against Warmack. The proof further showed they had no knowledge of what interest Warmack was claiming and nothing Avas eATer done by Warmack to indicate he was claiming adversely against any of them. The Court, after giving this matter much consideration, is of the opinion that plaintiff Warmack could not be in adverse possession of any royalty belonging to Cross, because Cross does not have any royalty, and never has had, in this land; and it is further determined and found by the Court that Warmack has acquired nothing by adverse possession against any of the defendants and that the overpayment by defendant Cross to the plaintiff Avas a mistake by the defendant Cross AArhen making those payments to plaintiff from month to month and that he did not acquire title by adverse possession by reason of such error or mistake.
“The Court has done extensive research and finds no decision in Arkansas covering this matter. The only case I AAras able to find is Saunders v. Hornsby (Texas CA) 173 S. W. (2) 795, which Avas cited by Counsel for the defendant Cross, and the Court is of the opinion the authority of and the reasoning in that case should be accepted here and that Warmack must fail in the instant case for the same reason Saunders failed.”
Evidently, appellant emphasized the adverse possession in the lower court since that court did not comment on Warmack’s other contention, vis, laches and estoppel. Here, this last assertion is rather vigorously argued, but AAre are of the vieAA^ that the contention is AA'ithout merit. Though, during his testimony, Warmack never did state whose royalty he claimed, it finally develops that his asserted interest is in conflict with a group of appellees termed the “Hobson defendants.” Hobson made final disposition of his remaining interest in 1947 to Homer T. Rogers.
It being admitted that these appellees were the holders of the record title, the burden was on appellant to establish his claim. Appellant says that not only was there a delay by appellees of some 25 years in asserting their rights, but that, in addition, two material witnesses have died which has prevented appellant from offering evidence that would support his claim to the royalty. Warmack, in this assertion, is referring to the death of L. L. McDonald, from whom he acquired his interest, and Mrs. Maud Crawford, who handled the title work for Cross in 1935, and upon whose opinion the division order was based. The title opinion to Cross from Mrs. Crawford has been lost, nor could a copy be located in the attorney’s files. Appellant says, “Why did not Hobson, Orgain, and Hutchinson make some demand for payment for their royalty for 25 years? Appellees had a full opportunity to answer, but they chose to remain silent.” As stated, the burden was upon appellant to overcome the record title held by appellees, and there was nothing to prevent the taking of the depositions of Hobson or other “Hobson defendants,” who are still living; nor was there anything to prevent appellant from calling certain of these parties as witnesses for the purpose of ascertaining the cause of their delay in asserting their interest. In fact, one of these defendants, Homer Rogers, was in the courtroom engaging in the trial of the case. There does not appear to be any evidence that these appellees even knew that Warmack had any interest at all; certainly there is no evidence that any of these appellees knew that there was a conflict between the interest of appellant and their own interests, nor that Warmack was actually receiving royalties to which they were entitled. In fact, the court found, “The proof further showed that they [other royalty holders] had no knowledge of what interest 'Warmack was claiming * * V’ Of course, the “Hobson defendants” could not acquiesce in Warmack’s being overpaid, unless they first knew that he was being overpaid. Solely from the standpoint of logic, it would definitely appear that they were without knoweldge of this fact, for it is not human nature that persons, knowing of a right to receive money, will forego that right, and permit a complete stranger to receive it in their stead.
Of course, appellees are not bound because the Cross Company had erroneously made the payments to War-mack. Almost, appellant’s argument would seem to boil down to the fact that because appellant has been overpaid for the last 25 years, he should continue to be overpaid.
We find no error in the decree.
Affirmed.
In Saunders, the court said: “Appellant further contends under these assignments of error that by executing the division order by which the pipe line company was authorized and instructed to pay to him the 7/64 of the % royalty interest, of which appellee was the record owner, and the receipt and collection by him of that interest constituted an appropriation pf a like portion of the oil and gas in place and was sufficient to constitute adverse possession of it. We do not think it can be said that such acts of appellant were, in any sense, an appropriation of that portion of the estate owned by appellee. By executing the division order and collecting the 7/64 of the royalty belonging to appellee, appellant merely converted to his own use the oil and gas that had already been produced by the Gulf Production Company and did not affect that which remained in the ground, which is the subject matter of this case.”
Homer T. Rogers, Will E. Orgain, D. P. Perkins, Margaret Josephine Hutchinson, Margaret Jean Kuenstler, Bank of the Southwest National Association and D. P. Perkins, Trustees U/W of F. M. Hutchinson, Deceased: Mildred McNellie Castle, Viola McNellie Althause, Lucille McNellie Rowan, and William Benton III. | [
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Carretón Harris, Chief Justice.
Only one question is involved on this appeal, vis, are appellant’s purchases of incubators, in 1956, 1957 and 1958, for its commercial hatchery exempt from the Arkansas Compensating (Use) Tax? The Commissioner of Revenues assessed a tax of $1,250.19 against Peterson Produce Company, an Arkansas corporation with principal offices located in Decatur, Benton County, Arkansas, by reason of the purchase of hatchery equipment from outside the state. The company is engaged in a hatchery business at Decatur. The parties stipulated that all legal requirements by the State Revenue Department, concerning the assessment and establishment of the tax, have been met, and all procedures for resisting such action by appellant have been timely and proper. Following the usual administrative steps, the company instituted suit to restrain collection of the tax as an illegal exaction. On trial, the Benton Chancery Court dismissed appellant’s complaint, and from the decree entered, the company brings this appeal.
The tax exemption claimed by the Peterson Produce Company is based on Aide. Stat. Ann. § 84-3106 (d) (Repl. 1960), which sets out certain property that is exempt from the tax. The mentioned sub-section exempts,
“Tangible personal property used by manufacturers on processors or distributors, including ginners of cotton, and including the artificial drying of rice, for further processing, compounding or manufacturing; tangible personal property used for repair, replacement, or expansion of existing manufacturing or processing facilities, including the ginning of cotton, and including the artificial drying of rice or in creating new manufacturing or processing facilities; * ” *”
The equipment purchased by the company, and upon which exemption is claimed, consists of incubators used for hatching eggs. These incubators are made up of two separate units, known as setting units and hatching units, and are used in the following manner:
Eggs set in trays are first placed in a setting unit, where they remain for eighteen days under automatically controlled conditions. Temperature in the setting unit is controlled electrically, and uniform temperature is maintained by fans circulating the air in the unit. Humidity is controlled. The units are ventilated to supply oxygen and remove gases given off by the eggs. Eggs in the unit are turned hourly by an electric motor. After the eighteen-day period in the setting unit, the eggs are transferred to a hatching unit where they remain until they have hatched or until it is apparent that the remaining eggs will not hatch. The operation of the hatching unit is similar to the operation of the setting unit; temperature, humidity, and air are automatically controlled in the hatching unit. After hatching, the chicks are removed from the unit and transported to the i)lace where they will be grown.
Appellant contends that it is a “processor” within the contemplation of the tax exemption provision, and that the Legislature, in enacting the exemption provision, intended to exempt incubators purchased from out of state sources for use by Arkansas hatcheries.
We do not agree. In the first place, we have held that under the statute involved, the word “processing” has reference only to some step or process of manufacturing. Scurlock, Comm. of Rev. v. Henderson, 223 Ark. 727, 268 S. W. 2d 619. Pellerin Laundry Machinery Sales Co. v. Cheney, Commr., 237 Ark. 59, 371 S. W. 2d 524. In the latter case, we stated:
“Appellant emphasizes the word, ‘processing,5 but in interpreting the pertinent statutes, we do not consider ‘manufacturing5 and ‘processing5 as two distinct operations. 5 5
We agree with the learned Chancellor, who delivered an excellent opinion at the conclusion of the case, to the effect that one does not “manufacture” a baby chick, and the use of incubators is not a “processing” step therein. As he stated,
“Thus, by plaintiff’s [appellant’s] vieAV, if he chose to hatch his eggs in the old-fashioned way, by having brooder hens sit on them, his purchase of hens from out of state would be exempt from use tax, because such hens were ‘processing5 the eggs into, chicks. An incubator merely aids and abets the natural course of hatching, and is not a process in itself.”
A similar question arose in the case of Teague v. Scurlock, Commr. of Revenues, 223 Ark. 271, 265 S. W. 2d 528. There, it was contended that feed, purchased for chicks and poults, was exempt. Teague bought day-old chicks and poults, and fed them only commercial poultry feed until such time as they reached a proper size and weight for marketing. The grower contended that he was a manufacturer of chickens and turkeys, and the commercial feed purchased by him was a process in the “manufacturing” thereof. In denying the exemption, this court said,
“Without lengthening this opinion to state in detail appellant’s arguments and our reasons for holding against them, it is sufficient to say that we hold that the statutory language of exemption, as hereinbefore copied, does not afford the appellant any relief, because his business is not such ‘processing, compounding or manufacturing’ of commercial feed into broilers as is contemplated by the language used in the Statute.”
Appellant points out certain exemptions that have been added to the statute by the Legislature, following court decisions which had refused the exemption. For instance, the Henderson decision was handed down in 1954. In this decision, the court held that cotton ginners were not exempt. Thereafter, the 1955 Legislature amended the statute to specifically exempt “ginners of cotton.” In 1957 the Legislature again amended the statute to exempt “the artificial drying of rice.” Other instances of added exemptions by the G-eneral Assembly, following decisions of this court, are mentioned. Appellant argues thusly:
“These amendments to the statute by the Legislature, coming as they did after denials of exemptions had been made to specific processors, seem to be a clear pronouncement by the Legislature as to what was meant by the original exemption Act. This pronouncement made it clear that the Legislature did not intend to give the exemption statute the limited construction relied upon by appellee.”
We do not agree with this logic, for, though other exemptions were added, the subject matter of this litigation (incubators) was not included. Had the Legislature intended to exempt incubators, purchased from out of state, it could have as well amended the law in that respect as in the instances already cited. Certainly, an existing law is not presumed to be changed further than is declared in the amendatory act. To the contrary, the presumption is that the Legislature intended no changes other than those clearly expressed in the amendments. Hendricks v. Hodges, 122 Ark. 82, 182 S. W. 538. The point is discussed in 82 C.J.S., Section 384, Page 903, as follows:
“Where an amendment leaves certain portions of the original act unchanged, such portions rate continued in force, with the same meaning and effect they had before the amendment. So, where an amendatory act provides that an existing statute shall be amended to read as recited in the amendatory act, such portions of the existing law as are retained, either literally or substantially, are regarded as a continuation of the existing law, and not as a new enactment. The amendment of an act does not control the interpretation of another statute enacted prior to the amendment, nor does it change the meaning which the original statute acquired prior to the amendment.”
Let it also be remembered that a tax exemption must be strictly construed, “and to doubt is to deny exemption.” Morley v. E. E. Barber Construction Co., 220 Ark. 485, 248 S. W. 2d 689; Scurlock, Comm. of Rev. v. Henderson, supra.
We think, under all our decisions, that appellant falls short in establishing that he is a “processor” within the meaning of the Arkansas Compensating (Use) Tax Law exemption provision.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is a suit involving property rights between ,a couple previously divorced. Mr. Harvey L. Kuester and Mrs. Eileen Kuester were married in 1944; and in September 1958 the Garland Chancery Court awarded Mrs. Kuester a divorce, but expressly retained jurisdiction for the determination of the property, rights. In February 1959 the Court determined the property rights of the parties; and as to. one tract .own^d by them as tenants by entirety (and hereinafter referred-to as the “entirety property”), the decree recited: ,
£ ‘ That the' real property ' owned by Plaintiff and Defendant as an estate by the entirety, situated in Garland County, Arkansas, and fully described above, shall be offered for private sale, for a price of not less' than $7,500.00; that out of the proceeds of such- private sale, the sum of $4,000.00 shall be paid to Mrs. Martha Kuester of Chicago, Cook County, Illinois, prior to division of the net proceeds; . . . (Emphasis supplied.)
No one could be found who would pay $7,500.00 for the entirety property; and in September 1962 Mrs. Eileen Kuester filed a petition in the same cause alleging: that $6,000.00 was the best offer obtainable for the entirety property; that it should be sold for that amount; that Mrs. Martha Kuester was deceased; that the $4,000.00 stated in the 1959 decree as going to Mrs. Martha Kuester was a gift and had lapsed; and that the price of $6,000.00 received from the entirety property should be divided equally between Harvey L. Kuester and Eileen Kuester. Harvey Kuester, by proper pleadings, agreed to the sale of the entirety property for $6,000.00, but claimed the $4,000.00 (recited in the decree of February 1959 for Mrs. Martha Kuester) was not a gift but was repayment of a loan; and that such amount should go to the estate of Mrs. Martha Kuester, deceased.
The Chancery Court agreed with Harvey Kuester on the $4,000.00 item and ordered the entirety property sold for $6,000.00, with $4,000.00 to go to the estate of legal heirs of Mrs. Martha Kuester. Mrs. Eileen Kuester has appealed regarding the $4,000.00 item and urges three points, being:
“ (1) The lower court erred in ordering the payment of any monies to Mrs. Martha Kuester, not a party to this suit, from the proceeds of the sale of an estate of the entirety.
“ (2) The lower court erred in not holding that the payment of Four Thousand Dollars to Martha Kuester was a gift or a promise to make a gift; and lapsed on her death of Donee.
“(3) The lower court erred in holding that the payment of any monies to Martha Kuester or the estate of Martha Kuester was a binding obligation of Appellant, and does not do equity between the parties.”
We consolidate the three points for consideration. Only the parties, Mrs. Eileen Kuester and Mr. Harvey Kuester, testified in the hearing from which comes this appeal. Mrs. Eileen Kuester admitted that in 1945 she and her then husband, Harvey Kuester, received $4,000.00 from Mrs. Martha Kuester, mother of Harvey Kuester; that the money was used on the purchase price of a home in Chicago; that when Harvey and Eileen Kuester moved to Hot Springs they sold the Chicago property and used the proceeds to apply on the purchase of the entirety property here involved. Mrs. Eileen Kuester testified that she never signed any note to Mrs. Martha Kuester for $4,000.00 and never paid Mrs. Martha Kuester any interest; but admitted that she did not know whether Harvey Kuester had paid interest on the amount of $4,000.00.
Harvey Kuester testified that the $4,000.00 was a loan to Harvey and Eileen Kuester from Mrs. Martha Kuester; that no note was executed to evidence the amount; but for a number of years he paid his mother interest each year on the borrowed money. He testified:
“Q. Now the $4,000.00 that was agreed—at the time the decree was entered, you agreed to the entry of the decree in regard to settlement at that time, did you not?
“A. Yes, sir.
“Q. Was the $4,000.00 mentioned in that decree— the $4,000.00 which you testified you borrowed from your mother ?
“A. Yes, sir.
“Q. It was not a gift?
“A. No, sir, we were in no position to make any gifts of $4,000.00—never.
“Q. Was your mother in a position to make a gift of $4,000.00?
“A. No, sir.
“Q. Was she a widow?
“A. She was a widow for 18 years.
“Q. Did she have any income?
"A. About $43.00 a month Social Security, and I believe $30.00 a month from my sister’s flat, and at that time she supported her sister. ’ ’
Primarily it was a question of which party to believe : the Chancellor saw them and we cannot say that he was in error. That the parties received $4,000.00 from Mrs. Martha Kuester is admitted. There is nothing in the 1959 decree which said the $4,000.00 was a gift to Mrs. Martha Kuester. In 1959 Mrs. Eileen Kuester agreed that Mrs. Martha Kuester was to receive $4,-000.00; and that decree gave Mrs. Martha Kuester a vested interest in the $4,000.00. Mrs. Eileen Kuester has not established by sufficient testimony that the $4,000.00 due Mrs. Martha Kuester should be cancelled.
The fact, that Mrs. Martha Kuester’s estate was not a party to this case, was not urged in the Trial Court and, therefore, cannot be raised here for the first time. If Mrs. Eileen Kuester had thought Mrs. Martha Kuester’s estate or heirs to be necessary parties, she should have asked the Trial Court to make them parties. She may yet protect herself on this point by making a timely application to the Trial Court provided the $4,000.00 has not already been disbursed.
Affirmed.
Tbe petition also concerned a deed for grave spaces; but. that matter has been agreeably settled between the parties. ‘ ' ! | [
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Sam Robinson, Associate Justice.
This litigation involves the adoption of two children. The appellant, Jo Aim Richards, formerly Jo Ann Nesbitt, is the mother; Donald E. Nesbitt, one of the appellees, is the father. On August 8, 1962, the Probate Court of Pulaski County, First Division, acting on authority of Ark. Stat. Ann. § 56-106 (1947), appointed Ruth Johnston, Director of Child Welfare for the State of Arkansas, as guardian of the children, with full authority to consent to adoption without notice to or consent of the natural parents.
On October 9,1962, Mr. and Mrs. 0. R. Nesbitt, parents of Donald E. Nesbitt, father of the children, filed a petition in the Pulaski Probate Court asking that -the order authorizing the adoption be set aside and that they be granted custody of the children. The natural mother, Jo Ann, filed a response resisting the petition. Miss Johnston, guardian of the children, did likewise. Seven months later, on May 23, 1963, Donald Nesbitt filed a petition concurring in the petition previously filed by his parents.
On August 8, 1963, one year after the date of the original order appointing the guardian and giving her authority to consent to adoption, the probate court granted the petition to set aside the order authorizing the adoption. The natural mother, Jo Ann Richards, and Miss Johnston, the guardian, have appealed.
In cases, involving custody of children, we have held repeatedly that the interest of the child is the first thing to be considered. Carr v. Hall, 235 Ark. 874, 363 S. W. 2d 223; Benson v. Benson, 237 Ark. 234, 372 S. W. 2d 263. Here, the custody of the children is involved; they have been placed with people who are seeking to adopt them. Appellees are endeavoring to prevent the adoption.
To avoid confusion with regard to appellee, Donald Nesbitt, father of the children, and his parents, appellees, Mr. and Mrs. C. R. Nesbitt, we will refer to the father of the children as Donald, and refer to appellant, Jo Ann Richards, the natural mother, as Jo Ann.
Donald and Jo Ann were divorced in 1960. Jo Ann was awarded custody of the children, and Donald was ordered to pay $100.00 per month as child support. It appears that for about four months following the divorce he paid nothing. Finally, Jo Ann was permitted to move with the two children into an apartment owned by Donald’s mother, Mrs. C. R. Nesbitt. Jo Ann was not charged any rent, but neither did Donald pay the $100.00 per month support for the children. The arrangement really amounted to Jo Ann paying Mrs. Nesbitt $100.00 per month rent for the apartment, which appears to be mighty high rent considering that Jo Ann worked five days a week to support herself and the children.
In the' meantime, Donald married again, his new wife having three children, and after her two children were placed for adoption, Jo Ann married again.
Along about April, 1962, Jo Ann’s situation became desperate; she was in poor health and had to undergo surgery. Her doctor advised her to rest as much as possible.
The United Fund of Little Rock, a charitable organization, maintains what is known as a Family Service Agency. One of the functions of the Agency is to counsel with and assist people, in Jo Ann’s, predicament. In April, 1962, Jo Ann went to the Family Service Agency for help. As a result, Mrs. Dick, an employee of the Agency, got in touch with Donald. He came in and discussed the matter, promising to return; however, he did not return, and the Agency could not find him until the following July.
In an effort to relieve Jo Ann’s condition as much as possible and give her a little rest, the Agency placed the children in a foster home for one week. During this time Jo Ann and Miss Nellie Reed of the Agency were discussing and considering some kind of permanent arrangement that would be for the best interest of the children. As heretofore mentioned, Donald could not be located.
About the first of June the children were again temporarily placed in a foster home. Finally it was decided that the children should be adopted by a good family who would love and care for them, and rear them in a proper manner. With this end in view, the matter was taken up with Ruth Johnston, Director of the Child Welfare Division of the State Department of Public Welfare. Miss Johnston agreed that the children should be adopted and knew people who would love to have them and who met all the requirements of the State Welfare Department to qualify as adopting parents.
Miss Reed finally got in touch with Donald and presented the plan to him. He agreed that Miss Johnston be appointed guardian and agreed to the adoption. The agreement was in writing, subscribed and sworn to before a notary public. Donald’s consent, however, was not necessary because the adoption was under paragraph 4 of Ark. Stat. Ann. § 56-106 (1947).
Miss Johnston filed a petition in probate court asking that she be appointed guardian with authority to consent to the adoption. Among other things, the petition alleges: “Appointment of a guardian is sought because the parents of said children are unfit to properly care for the children and will not be able to care for said children. That said children are entitled to the love and affection of a normal Arkansas home. The Child Welfare Division has a home to place the children where the children will receive the finest care, love and affection.” The petition was granted. The children were placed for adoption with a family living in some county other than Pulaski, and adoption proceedings were instituted in that county.
A year later, the Probate Court of Pulaski County set aside the order authorizing Miss Johnston, the guardian, to consent to the adoption. As heretofore mentioned, the natural mother, Jo Ann, and the guardian have appealed.
The probate court set aside the order authorizing the adoption principally on Donald’s testimony that he gave his consent to the adoption in the first place because he thought he would go to jail for contempt of court because of his failure to abide by the court’s order to pay monthly support for the children. The answer to that contention, however, is that his consent was not necessary in the first instance, and the order of the probate court so provides. The order states: “IT IS THEREFORE CONSIDERED, ORDERED AND AD JUDGED THAT said Ruth Johnston, Director of Child Welfare, be and hereby [of the two minor children, Kimberly Dawn and Donald Mark Nesbitt] is appointed guardian of the person and estate with full right and authority to consent to adoption, without notice to or consent of the Natural Parent, or Parents; ...”
Moreover, Donald does not now say that he can or will support the-children if the adoption is blocked. In fact, he does not want the children. He testified that they would be a burden to him; he would depend on his parents to support and rear the children. There is no showing that his parents are suitable for that purpose. Furthermore, it does not appear that Jo Ann, who knows Donald’s parents, would consent to them having custody of the children, and there is nothing to indicate that the court would take the children away from Jo Ann without her consent. Donald and his parents gave Jo Ann insufficient help, if any at all, when she was in dire need of it. She consented to the adoption because in her opinion, and in the opinion of Miss Reed and Miss Johnston, it was the best thing for the children.
Appellees rely to a large extent on the case of Combs v. Edminston, 216 Ark. 270, 225 S. W. 2d 26. There, a young unwed mother had given consent to the adoption of the baby on the night the baby was born and was allowed to withdraw such consent before the entry of an interlocutory order. And in Martin v. Ford, 224 Ark. 993, 277 S. W. 2d 842, it is pointed out that consent may be withdrawn before the making of an interlocutory order. But those cases are not in point with the case at bar even though no interlocutory order of adoption had been entered in the county where that proceeding was pending until after the commencement of this action.
In the two above mentioned cases, no condition existed whereby, under the provisions of the statute, the consent of the parents could be dispensed with. Not so in the case at bar. Here, the adoption is controlled by paragraph 4 of Ark. Stat. Ann. § 56-106 (1947), which provides that the consent of the parents is not necessary where: ‘ ‘ a guardian of the child has been appointed by an order of the Probate or Juvenile Court giving the guardian authority to consent to adoption without notice to or consent of the child’s natural parents. In this case, the written, verified consent of the guardian shall be sufficient.” In the case at bar, a guardian of the children had been appointed by order of the probate court and the guardian had been given authority to consent to the adoption without notice to or consent of the children’s natural parents; therefore, under the provisions of the statute, Donald’s consent was wholly unnecessary.
In the original order it is stated that it is to the best interest of the children that the Director of Child Welfare be appointed guardian with power to consent to adoption. The evidence fully bears out that finding, and the court was in error in setting aside the order giving the guardian authority to consent to the adoption.
Reversed with directions to enter a judgment not inconsistent herewith.
Ward, J., dissents.
Holt, J., not participating. | [
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Carretón Harris, Chief Justice.
This litigation involves two questions of first impression. Thurman L. Adams, employed as a service station attendant for Parrish Esso Service Center at West Memphis, was injured in the early hours of May 6, 1960, admittedly in the course of his employment. The injury occurred when a gust of wind, on the service station lot, lifted appellee into the air, carried him approximately seventy-five feet, and dropped him on the concrete apron. The Commission held that the claimant sustained an accidental injury which arose out of and in the course of his employment, hut held in abeyance for future determination the entering of an award because of inconclusive proof relative to claimant’s temporary total, temporary partial, and permanent partial disability. The findings of the Commission were appealed to the Crittenden County Circuit Court, and that court affirmed the order entered by the Commission. From the judgment of the Circuit Court comes this appeal.
Two questions alone are involved in the litigation, and appellants rely on two points for reversal of the judgment as follows:
I
“Appellee’s claim was not filed within the time prescribed by law and was, therefore, barred by the statute of limitations.
II
“Appellee’s injury did not arise out of and in the course of his employment but instead was caused solely by an act of God, which was unrelated to his employment. ’ ’
I
Ark. Stat. Ann. § 81-1318 (a) (1) (Repl. 1960) provides:
“A claim for compensation for disability on account of an injury (other than a occupational disease and occupational infection) shall be barred unless filed with the Commission within two (2) years from the date of the accident.”
The following stipulation was entered into by the parties:
“1. That R. Dale Hopper, one of claimant’s attorneys would testify at the hearing on this claim that between the hours of Five (5:00) p.m. and Five Thirty (5:30) p.m. Friday, May 4, 1962, he deposited in the U. S. Mails at the Post Office, of West Memphis, Arkansas, a letter constituting a claim for Workmen’s Compensation Benefits in behalf of claimant, said letter being properly addressed to the Workmen’s Compensation Commission at Little Rock, Arkansas, and having-proper postage affixed.
“2. That Donald Hall, Postmaster of the "West Memphis Post Office would testify at the hearing that mail addressed to a Little Rock, Arkansas, address and deposited in the West Memphis Post Office with proper postage affixed thereon between the hours of Five (5:00) p.m. and Five Thirty (5:30) p.m. on Friday, May 4,1962, would in the ordinary course of mails, reach the Little Rock Post Office in time for delivery the following morning Saturday, May 5, 1962.
“3. That said claim was not actually received by the Workmen’s Compensation until Monday, May 7, 1962.”
Further,
“It is stipulated and agreed by and between counsel for each party herein that the Arkansas Workmen’s Compensation Commission’s office, Little Rock, Arkansas, is always closed for business on Saturday and Sunday of each week of the year and that the same was closed on Saturday and Sunday, May 5 and May 6, 1962.”
Counsel for both sides cite several Arkansas decisions on the question of limitation, but as the Commission pointed out, most of these decisions concern interpretations of law in contract and in tort. In fact, only one Arkansas case cited, relative to limitations, is a Compensation case, and in that case, the claimant did not file his claim for compensation for more than a year after the time provided by statute. The Commission, in holding that Sunday was not a day to be counted, relied in large measure on the New Jersey case of Potter v. Brady Transfer and Storage Company, 91 A. 2d 111. In that case the claimant filed his claim on a Monday, whereas the time period under the statute of limitations expired on the preceding day, Sunday. The court, in holding that the claim had been filed in time, did so on the basis that Sunday was, by law, a legal holiday, and the Sunday statute and limitations statute were therefore in conflict. The enactment of the statute declaring Sunday a legal holiday preceded the passage of the limitations statute, and the court said: “Whenever the Legislature fixes a time period, it should be assumed that it is enacting the law in the light of those other statutes.”
We need not discuss our approval or disapproval of the view held by the Workmen’s Compensation Commission (in excluding Sunday in computing the time limit); rather our opinion that the claim was filed in time is based on the fact that such claim would have arrived at the Commission office for filing on Saturday, except for the fact that the office was closed on that day. In the case of Mary Gail Coal Co. v. Rhodes, 284 S. W. 2d 97, the Kentucky Court of Appeals passed upon this same question, stating that there was, under Kentucky law, no legal basis for declaring Saturday a holiday.
“Aside from this, although Saturday is observed as a day of rest by the state offices in Frankfort, one may certainly assume it is a common understanding of the public at large that Saturday is not a recognized legal holiday.
“As is customary, appellee’s attorney chose the United States mail as the medium to deliver the application for compensation to the Board. Under normal circumstances this instrument would have arrived on time and have been seasonably filed, but instructions from the Board itself intervened and caused the lapse of the limitation period. As has been mentioned, appellee had no notice the postmaster had been instructed not to deliver registered and special delivery mail to the Board on Saturday and we believe a claimant, in asserting an alleged legitimate claim for compensation, should not be held subject to the adverse consequences of an expedient postal delivery arrangement of which he had no knowledge. January 15, 1954, did not fall on Sunday or a legal holiday, and the application sent by mail could have been delivered on that date in the usual course. What could have ordinarily been done, should be considered done, and the application should have been marked ‘filed on January 16, 1954’.”
Likewise, Saturday is not a legal holiday in this state, and we agree with the language of the Kentucky court that “one may certainly assume it is a common understanding of the public at large that Saturday is not a recognized legal holiday.” Appellants place great emphasis upon the meaning of the word “file,” contending that an instrument or claim cannot be considered filed until it is received by the proper officer, and that the date of mailing a notice or claim is actually immaterial. We consider appellants’ interpretation as highly technical, and we take occasion to point out the language used by this court (quoting a Mississippi case) in S. E. Prince Poultry Company v. Stevens, 235 Ark., 1034, 1038, 363 S. W. 2d 929, as being quite apropos to the case at bar.
“ ‘These Compensation Acts are entitled to and have universally received a liberal construction from the courts. The humanitarian objects of such laws should not, in the administration thereof, be defeated by overemphasis on technicalities—by putting form above substance.’ ”
To hold in accord with the position taken by appellants, could well result in working an unjust and undue hardship upon claimants in particular cases. For instance, some offices in the state and over the country close, not only on Christmas Day, but (dependent upon the date of Christmas) for several days thereafter. Should one be penalized because the instrument or claim would normally reach the proper officer on one of these days, but is not delivered because of the fact that the office is closed1? For that matter, mail is sometimes delivered to the wrong office, particularly where several departments are housed in the same building, and is not re-delivered to the proper department for a day or two thereafter. Should a claimant lose all rights, because of such an occurrence over which he has no control1? The answer is obvious, and we decline to hold that the claim was not filed in time.
II
While appellants concede that appellee’s injury arose during the course of his employment, they vigorously contend that the accident did not arise out of the employment, i.e., because of the employment, but that the injury sustained was the sole result of an act of God, unrelated to the employment itself. Counsel for both appellants, and appellee present excellent briefs, and it is pointed out that there is not a single reported case'in the United States where an individual was injured solely by the forces of a tornado or windstorm as in the case at bar. Appellants quote the general rule as stated by Schneider in the “Workmen’s Compensation Text,” Volume 6 (Perm. Edition), Page 78.
“The general rule with respect to injuries and deaths due to tornadoes, hurricanes, and other forms of windstorms is, if an employee, by reason of his employment, is exposed to a risk of being injured by storm ‘which is greater than the risk to which the public in that vicinity is subject, or if his employment necessarily accentuated the natural hazard from the storm, which increased hazard contributed to the injury,’ it is an ‘injury arising out of the employment, although unexpected and unusual.’ The test has been said to be ‘not whether the injury was caused by an act of God,’ but ‘whether the one injured was by his employment specially endangered by the act of God.’ ”
While most of the courts appear to accept this rule, the various jurisdictions have certainly reached different conclusions in applying the rule, and decisions from different states are frequently conflicting, in some instances where the facts are hardly distinguishable. Appellants insist, however, that in all of the cases, the injury complained of was not attributable solely to the elements (as here), but there were always other factors which, when connected with claimant’s duties, contributed to the injury. For instance, in one case, a smoke stack crumpled and fell upon an individual; in another, a building loaded with cottonseed hulls collapsed and injured a workman, the load being the contributing fac tor in the building’s inability to withstand the onslaught of the storm. Numerous other cases to the same effect are cited. On the other hand, as pointed out by appellee, some courts have not even required that the employees show that he was, because of his employment, exposed to a greater risk than the risk to which the general public in that vicinity was exposed. It has been sufficient in those cases that the employee merely establish that he was in the location where the injury occurred solely because of his employment. It is not necessary that we pass on this contention raised by appellee, and we do not pass on it, inasmuch as the Commission’s decision was based on the fact that Adams, because of performing his duties was, exposed to a more dangerous situation (as to the storm) than that of the general public in the vicinity, and we think there was substantial evidence to support that view.
Let us look to the circumstances surrounding the instant casé. Adams testified that he was employed as night manager of the station, and at the time in question was the only person working on the shift which started at 9:00 o’clock in the evening and ended at 7:00 o’clock the next morning. Claimant stated that it was raining, with thunder and lightning, at the time he went to work, and the weather remained “fairly rough” until the early hours of the morning. Though it continued to rain, the wind died down considerably for about an hour and a half before the accident. Adams testified that the •electricity at the station failed at about 3:30 A.M., due to lightning striking a transformer about a block east of the station. Adams then called the Police Depai’tment, and requested that the power company be contacted so that he could get his lights back on at the station. According to claimant, electricity controlled the gas pumps, lights, tire machine, battery charger, drink boxes and practically all facilities of the station. The witness stated that he decided that, while it was not raining, he would go out and “fasten up and secure up” out on the front, so that if it started raining hard again, he could stay in the office until the lights were bach on.
“I went out to the islands and anchored everything and walked out to my price signs which was out against the highway and pushed one concrete block up on the legs of it that were used to keep or prevent the wind from blowing it over, as much as possible.”
Adams was wearing a rain suit and overshoes, and was using a flashlight to find his way around. Claimant stated that as he was engaged in weighting down the price sign, he noticed the power company truck a short distance down the highway.
“I was raising up and I said, ‘Now I can tell him where those wires are down, to where I can get my lights back on that much quicker, because he couldn’t see the light wires down. ‘ * * * Just as I raised up and decided to tell him where the wires were at, I heard this storm.
* * * I had time to turn and go in the process of taking one step and that’s the last I know of until I found myself on the concrete.”
It developed that Adams had been blown about seventy-five feet, and the witness stated that he heard the wind, and then had a sensation of falling.
The Commission, in finding that the claim was compensable, stated:
“The uncontradicted proof in this case is the claimant, in the performance of his duties for his employer, had left the service station building and had gone outside to secure everything before the weather worsened; and while in the performance of these duties, was injured by an act of God, a windstrom. * * *
“In our view, the claimant here sustained an accidental injury which arose out of and in the course of his employment. The fact that he left the safety of the service station to go outside in the performance of his duties, and was there performing such duties when he ivas injured, 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 ivas subjected; for the general public was not required to go outside at such a time but could remain in places of safety.”
We think there was substantial evidence to support the finding of the Commission. Certainly, there was a duty upon Adams, as an employee, to protect the property of his employer, and the protection that Adams was seeking to afford, could not have been done without leaving the building. The acts being performed were as much a part of his duties as though he had been waiting on a customer when the wind struck. There is absolutely no evidence that Adams ivas not engaged in the work that he testified to at the time the injury ivas sustained. It was within the province of the Commission to determine whether Adams’ testimony was worthy of belief. The Commission decided that question in the affirmative, and we hold that the testimony of claimant constituted substantial evidence.
Affirmed.
214 Ark. 416, 216 S. W. 2d 796.
An interesting article by Samuel B. Horowitz, entitled “Workmen’s Compensation: Half Century of Judicial Developments,” appears in 41 Neb. L. Rev. No. 1 (Dec. 1961 Ed.). In Section 3 of the article, “Acts of God, Positional and Local Risks,” the author discusses the “increased risk” concept and the “actual risk” test wherein the sole question is whether the employment exposed the employee to the risk.
The location of the gasoline pumps.
At another point in his testimony, Adams stated that he saw the truck proceeding on the highway while sitting in the office and before he went outside.
According to the witness, as a result of the storm, “there was one of the glasses broken out and the oil racks out there just blown all over everywhere, the price sign was blown down and as to the other damage, Sir, honestly I don’t know.” | [
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Geoiige Eose Smith, J.
The appellees, two out-of-state insurance companies doing business in Arkansas, brought suit for a judgment declaring Act 527 of 1963 (Ark. Stat. Ann. § 66-2302 [Supp. 1963]) to be invalid on the ground that it was not enacted by a three-fourths vote in each house of the legislature. The defendants, the Insurance Commissioner and the Attorney General, contended that a simple majority vote, which is all the act actually received, was sufficient for its passage. The chancellor held that a three-fourths majority was required. He therefore declared the act to be invalid.
The main question is whether Act 527 increased the rate of privilege taxes levied against foreign insurance companies. If so, a three-fourths vote was required by Amendment 19 to the Arkansas Constitution. ■ This amendment, adopted in 1934, provides that none of the rates for property, excise, privilege, or personal taxes then levied shall be increased by the General Assembly except by the vote of three-fourths of the members elected to each house.
In 1934, when the amendment was approved, the premium tax against foreign life and health and accident insurance companies was 2%%, and that against other foreign insurers was 2%. Pope’s Digest, §§ 7965-66. These rates of taxation were continued in force through the years and were eventually embodied in § 69 of the Insurance Code—Act 148 of 1959.
On its face Act 527, now under attack, unquestionably increases the rates that were in effect in 1934. The act amends § 69 of the Insurance Code to provide that the premium tax shall be computed ‘ ‘ at the f olloAving rates: ’ ’ For life and disability companies “the tax rate” shall be 3%; for other insurance companies “the rate of tax” shall be 2Thus the act, in language wholly free from ambiguity, increases each tax rate by one half of 1%.
The appellants, in contending that Act 527 does not involve an increase in the rate of taxation, rely upon other provisions in the act which in substance permit any insurer to pay its premium tax at the old rate if it has made capital investments in Arkansas equal to half the total reserves upon its Arkansas insurance. It is argued that the sole purpose of the act was to compel foreign companies to invest their money in this state and that the increase in the premium tax is actually a penalty to be exacted from those companies that are unwilling to make investments here.
The short answer to this contention is simply that this is not what the legislature said. The act makes no mention whatever of a penalty. To the contrary, it refers explicitly and repeatedly to rates of taxation. Furthermore, subsection 8 of section 1 declares that any foreign insurer may “at its option” elect either to pay the higher tax or to make the specified investments and pay the tax at the lower rate. Hence a company might, as a matter of right, choose not to make the local investments, but it would nevertheless be compelled to pay its premium tax at the increased rate. If we should sustain the appellants’ position this provision in Amendment 19 might as well not have been adopted, for a simple majority of the legislature could increase the rate of any tax merely by affording the taxpayer some unacceptable alternative to paying the higher rate.
A secondary contention is that inasmuch as Act 527 contains a severability clause we should sustain the compulsory investment provisions even though the tax increase must be held to be invalid. In this view the sole effect of the act would be to require all out-of-state insurers to make the specified local investments.
This contention is unsound. A severability clause is frequently an aid to the courts in the construction of a statute, but, in the oft-quoted words of Justice Brandéis, it is not “an inexorable command.” Dorchy v. Kansas, 264 U. S. 286, 68 L. Ed. 686, 44 Sup. Ct. 323. While such a clause deserves reasonable consideration it should not be paid undue homage. Sutherland, Statutory Construction (3d Ed.), § 2408. For example, if an act should levy a new tax and create a new agency for its collection, no one could doubt that the invalidation of the tax would also do away with the collection agency, despite the presence of a severability clause. In Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, we declared an entire act to be invalid, in the face of such a clause, because we concluded that if the legislature had known in advance that part of the act was unconstitutional it would not have enacted the rest. That is really the test.
It is evident that Act 527 was intended to put into effect a single indivisible proposal. Insurers were offered the choice of paying a higher premium tax or of making extensive investments in Arkansas. These alternatives are complementary and interdependent. To enforce the one without the other would be such a perversion of the legislative intent as to be equivalent to the enactment of a statute that the General Assembly did not itself see fit to adopt. We must conclude that the chancellor was right in holding the entire act to be void.
Affirmed. | [
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Sam Robinson, Associate Justice.
Appellant, Lewis P. Johnson, age about 50 years, is now and has been for a long time, engaged in the florist business in Hot Springs.,‘Appellee, Virginia Kathleen Sturgis Johnson, age 40,- has been a lifelong resident of Arkadelphia. In the. Pall of 1962 the parties considered marriage. Virginia’s father opposed the marriage; he did not think that in the circumstances she was capable of looking after her property. She had considerable assets in a trust that was being administered by trustees, but she also had about $40,000.00 in a savings account. Mr. Sturgis, in an effort to prevent the marriage, had himself appointed guardian of his daughter, but he did not succeed in stopping the marriage. Appellant and appellee were married November 21, 1962. A short time thereafter, Mr. Sturgis had the guardianship dissolved.
About 30 days after the marriage, for the consideration of $32,500.00, paid from her savings account, appellee bought a home in Hot Springs. At her instance, both she and her husband were named as grantees in the deed. Appellee also bought about $8,000.00 worth of furnishings for the house. The parties then went on a trip to California. While on this trip Virginia learned that she was the victim of a cruel hoax; that appellant had ’married her merely for financial reasons.
To her horror appellee discovered that appellant had perpetrated a grievous fraud; that the man who had taken her as his wife, professing his love and affection, was not in love with her at all, but was actually in love with a man; she found love letters the men had written to each other. Upon making this discovery she left appellant promptly, while on the wedding trip, and filed this suit in less than 60 days after the date of the wedding, alleging the indignities that had been heaped upon her. She proved her cause of action. Although appellant contested the action he did not testify. Appellee was granted a divorce, and the decree provides that appellant’s name be stricken from the deed to the above mentioned real property.
On appeal appellant makes no contention that the trial court made an error in granting the divorce, but claims that he should be allowed to keep an interest in the property the appellee so generously placed in his name. He contends that since the property had been conveyed to both parties, resulting in an estate by the entirety, the chancery court could only cause the land to be sold and the proceeds divided, and relies on Ark. Stats. 34-1215. This statute is applicable where a valid estate by the entirety has been created. It has no application in a case of this kind where one of the parties fraudulently caused his name to be added to the deed. The court said in Tuyls v. Tuyls, 171 N. E. 2d 779 (1961): “Equity and good conscience require that a person shall not profit by his own wrong, and if it appears that the property came to the marriage by the sole efforts of the innocent mate and that the rights of third parties have not intervened, he or she may be entitled to its return without regard to who holds legal title.” In the case at bar it does not appear that any third party is affected by the decree.
Appellant is in the same position he would have been if appellee had owned the property in her name and had executed a deed setting up an estate by the entirety, which she could have done under the provisions of Ark. Stats. 50-413, as construed in Ebrite v. Brookhyser, 219 Ark. 676, 244 S. W. 2d 625. Certainly such a deed could be set aside on the grounds of fraud, there being no doubt that deeds can be set aside for that reason. TVe said in Hanson Motor Co. v. Young, 223 Ark. 191, 265 S. W. 2d 501: “Whether fraud existed in procuring a person to sign or become a party to a written instrument is ordinarily a fact question for the jury. Winter Park Tel. Co. v. Strong, 130 Fla. 755, 179 So. 289. While fraud is never presumed, the law requires good faith in every business transaction, and does not allow one party to intentionally deceive another by concealment or false representations. Sanders v. Berry, 139 Ark. 447, 214 S. W. 58. The duty of disclosure also arises where one person is in position to have and to exercise influence over another who reposes confidence in him whether a fiduciary relationship in the strict sense of the term exists between them or not. 23 Am. Jur., Fraud and Deceit, § 81. In Stewart v. Clark, 195 Ark. 943, 115 S. W. 2d 887, this court held that an act done or omitted which may be construed as fraud because of its detrimental effect, may justify the setting aside of a contract or deed irrespective of moral guilt.” And, in Jackson v. Smith, 226 Ark. 10, 287 S. W. 2d 571, we said: “That the deed from Mrs. Collins and Mrs. Jackson to Mr. Smith and Mr. Norvell is within the ‘family settlement’ rule is too clear to admit of doubt. Pfaff v. Clement, 213 Ark. 852, 213 S. W. 2d 356, is complete authority for such conclusions. But even as a ‘family settlement’, the deed cannot be upheld if the evidence shows that either fraud or imposition was practiced.”
Appellant cites several cases touching on the authority of the chancery courts of this state to dissolve an estate by the entirety, but none of the cases are in point; they do not deal with a situation where an estate by the entirety has been brought about by fraud practiced by one of the parties.
Affirmed. | [
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Frank Holt, Associate Justice.
The question presented in this case is the right of the appellee, Richard Swaffar, to maintain the present action for damages against the appellant, Ted Saum and Company, a corporation, based upon the alleged conversion of appellee’s truck. This action resulted when Mrs. Ruth Saum brought a foreclosure proceeding in chancery court to collect the balance due on a note made payable to her by the appellee and secured by a chattel mortgage on appellee’s truck. The appellee filed a general denial and a cross complaint against Mrs. Saum and the appellant, Ted Saum and Company, a corporation, for damages, alleging an unlawful conversion by them of appellee’s truck. The issues were properly joined with the appellant specifically pleading, inter alia, the defense of res judicata.
Upon trial the Chancellor awarded Mrs. Saum a judgment for $1,064.56 in her foreclosure suit against the appellee and dismissed appellee’s counterclaim against her for conversion of his truck. The Chancellor awarded appellee judgment for $4,500.00 against appel lant as damages for conversion of the truck from which judgment appellant brings this appeal. There is no cross-appeal. For reversal appellant contends that the issue of appellant’s liability to appellee is res judicata.
Appellee had driven a truck for appellant for several years before entering military service in August of 1958. He borrowed $3,550.00 from Mrs. Saum to pay off the balance due on his truck. The certificate of title was "delivered to him. Since he was unable to sell his truck before entering military service, he left it with appellant under a lease agreement. During a part of his one year in the service appellee’s truck was operated pursuant to this agreement. Appellant then sold the truck for $1,-500.00 to another driver. The appellee contends it was an absolute sale- without his knowledge and consent, therefore, it constituted an unlawful conversion of his property. The appellant contends the sale was conditional subject to appellee’s approval and delivery by him of the title certificate. Further, that appellee’s truck was always available to him upon payment of the balance of the mortgage on the truck to Mrs. Saum.
In December, 1959, appellee filed an action in the Washington County Circuit Court against Ted Saum, individually, for damages for unlawful conversion of the truck. Neither Mrs. Saum nor appellant, Ted Saum and Company, a corporation, was a party to that suit. Following this the present action was instituted in chancery court and while it was pending, the case in circuit court was tried in November, 1960. The jury returned a verdict for the defendant, Ted Saum, individually, and judgment was rendered in conformity with this verdict. Therefore, the appellant insists that the defense of res judicata is applicable to the present litigation. The appellee, however, contends the issue in this proceeding is not res judicata because the parties are not the same. Also, he argues that the appellant corporation’s liability is not limited to the action of one agent but is derived from the action of any of its agents, or the possibility that some agent other than Saum might have been involved in the alleged conversion.
The appellee’s pleadings in the previous litigation in circuit court and the present action in chancery court refer to one issue, the alleged conversion of appellee’s truck. The only difference between the two law'- suits, as between appellant and appellee, is that in the first one appellee names Ted Saum, individually, the defendant and in the present proceeding appellee names Ted Saum and Company, a corporation, as the defendant. Also, the cross complaint filed by appellee in the present action alleges: ‘ ‘ * * * that all the transactions hereinafter mentioned wrere between Richard Swaffar and Ted Saum, the husband of the plaintiff herein, and in all of such transactions the said Ted Saum was acting for the cross defendant, Ted Saum and Company, a corporation,-”. [Emphasis added] The proof conforms to this allegation.
We agree with the appellant that the present action is barred by res judicata. We think that the principle announced by us in Davis v. Perryman, 225 Ark. 963, 286 S.W. 2d 844, is controling in the case at bar. There wre quoted with approval:
* * a judgment in favor of either the master or principal on the one hand, or the servant or agent on the other, sued alone, is res judicata, or conclusive, * * * in a subsequent action against the other, a deriviative responsibility being present.” See, also, Patterson v. Risher, 143 Ark. 376, 376, 221 S. W. 468. In the case at bar the liability of appellant, Ted Saum and Company, a corporation, is derivative from tlie acts of its agent, Ted Saum, according to the pleadings and proof of the appellee. We think the following language from 50 C.J.S., Judgments, § 757, is applicable:
“Persons udio, although not parties or privies, were so connected in interest or liability with plaintiff or defendant in the former action that the judgment may be regarded as virtually recovered for them may avail themselves of such judgment as res judicata in a subsequent suit. So one wdioso liability is dependent on, or derived from, the liability of one who was exonerated in an earlier suit brought by the same plaintiff on the same facts may take advantage of the bar of the prior judgment even though he ivas not a party to the earlier action or in privity with the defendant therein.” [Emphasis added]
The language in Sides v. Haynes, 181 F. Supp. (Ark. 1960) concisely states the law in this state as to the reason for the doctrine of res judicata. There the court said:
=::= * ipjie £riie reason f0r holding an issue res judicata is not necessarily for the identity or privity of the parties, hut the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issue.”
Further, res judicata is applicable not only to an issue actually litigated, but also governs as to matters within the issue that might have been litigated. Thomas v. McCollum, 201 Ark. 320, 144 S. W. 2d 467; Rose v. Jacobs, 231 Ark. 286, 329 S. W. 2d 170.
We' hold that appellee’s cause of action upon his cross complaint in the present litigation is barred by jes judicata. Therefore, since the judgment must be reversed on this point, we do not reach the other points argued by appellant.
The judgment is reversed and the -cause dismissed. | [
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Ed. F. McFaddin, Associate Justice.
This litigation results from a traffic mishap in which appellee, E. R. Parker, sustained physical injuries and property damages. On April 6, 1961, Mr. Parker, accompanied by two companions, was driving his car in a heavy line of traffic in Hot Springs, and E. J. Breitenberg was driving his car immediately behind the Parker vehicle. The car in front of Parker stopped suddenly; Parker stopped suddenly; Breitenberg’s car struck the rear of the Parker car, damaging the vehicle -and inflicting a whiplash injury on Parker; and this litigation resulted. The jury awarded Parker a verdict of $20,000.00; and Breitenberg appealed, claiming three points:
“1. The Appellee Parker improperly asked, a question about the issuance of a traffic ticket to the Appellant Breitenberg and to Appellant Breitenberg’s prejudice.
“2. The Trial Court erred in failing to. grant Appellant’s Motion for a New Trial on the basis that the jury did not have time to consider the evidence.
“3. The verdict of the jury was excessive.”
I. Improper Question. When Mr. Parker was testifying the following occurred:
“Q. Now when you left the scene—Do you know whether the city policeman gave Mr. Breitenberg a ticket or not?
“A. I didn’t see it.
“MB. WOOTTEN: Your Honor, we object to any such, question as that.
THE COUBT: Sustained. The jury will disregard the question even though it was answered in the form that it was.”
Appellant says that the question about whether Breitenberg received a ticket for traffic violation was improper under Ark. Stat. Ann. § 75-1011 (Bepl. 1957), and requires a reversal under such cases as Garver v. Utyesonich, 235 Ark. 33, 356 S. W. 2d 744; Harbor v. Campbell, 235 Ark. 492, 360 S. W. 2d 758; and Girard v. Kuklinski, 235 Ark. 337, 360 S. W. 2d 115. We agree that the propounded question was improper; but the Trial Court promptly admonished the jury to disregard the question and the answer. The appellant seemed satisfied with the Court’s ruling, and neither moved for a mistrial nor made any other evidence of disagreement with the ruling. In these circumstances, we hold that any prejudice arising from the question was removed by the ruling of the Trial Court. See Horton v. Smith, 219 Ark. 918, 245 S. W. 2d 386.
II. Brief Time That The Jury Deliberated. The trial of this cause began on October 25th, and the verdict was returned on October 26th. On November 8, 1962, Breitenberg filed a motion for new trial, supported by the affidavit of counsel to the effect that less than fifteen minutes transpired from the time the jury left the box to consider its verdict until the time the jury returned to announce the verdict; and the appellant urges that this was too short a time to allow the jury to deliberate. When the jury came in with the verdict the appellant knew at that time how long the jury had been out, yet did not ask that the jury be sent back to reconsider the verdict or make any objection to the brevity of jury consideration until November 8th, which was long after the trial. If there had been any objection to be registered, it should have been registered before the jury was allowed to separate.
We find no merit to this point urged by appellant. We have no statute in Arkansas which prescribes a length of time that a jury should consider its verdict; but the general rule from the vast number of cases on the point is well stated in 89 C.J.S. p. 93, “Trial” § 462c:
“While the verdict should be the result of sound judgment, dispassionate consideration, and conscientious reflection, and the jury should, if necessary, deliberate patiently and long on the issues which have been submitted to them, where the law does not positively prescribe the length of time a jury shall consider their verdict, they may render a valid verdict ... on very brief deliberation after retiring, especially where the evidence is not complicated, or the facts are clearly drawn. The trial court may at its discretion, cause the jury to reconsider the case if their decision is so hasty as to indicate a flippant disregard of their duties. ’ ’
Appellant’s counsel cite us to no Arkansas case involving this question of speed of deliberation of the jury, and our search has failed to disclose any such case; but there are many cases from other jurisdictions, all to the effect that the losing party has no ground for a new trial on the basis that the jury verdict was reached in a very short time. Some such cases are: Beach v. Commonwealth (Ky.), 246 S. W. 2d 587; O’Connell v. Ford (R. I.), 191 A. 501; Urquhart v. Durham (N. C.), 72 S. E. 630; Carrara v. Noonan (R. I.), 31 A. 2d 424; Patillo v. Thompson (Ga. App.), 128 S. E. 2d 656; Gaskill v. Cook (Mo.), 315 S. W. 2d 747; and Rustigian v. Molloy (R. I.), 186 A. 2d 724. We like the language of the Kentucky Court in Beach v. Commonwealth, supra:
“The fact that the jury returned a verdict in about eight minutes after having the case submitted to them does not indicate to us that Beach did not receive a fair trial when the issues of fact were so clearly drawn. It is true that a verdict should be the result of dispassionate consideration and the jury, if necessary, should deliberate patiently until they reach a proper conclusion concerning the issues submitted to them. Yet where the law does not positively prescribe the length of time a jury shall spend in deliberation, the courts will not apply an arbitrary rule based upon the limits of time.”
III. Excessiveness Of The Verdict. Finally, appellant urges that the verdict of $20,000.00 is grossly excessive and we are cited to a number of our cases wherein verdicts have been reduced, some of which are: Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856; Oviatt v. Garretson, 205 Ark. 792, 171 S. W. 2d 287; So. Natl. Ins. Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487; and Ward Body Works v. Smallwood, 227 Ark. 314, 298 S. W. 2d 332. The rule, as to the province of this Court in regard to reducing verdicts, is well stated in Ark. Amusement Corp. v. Ward, 204 Ark. 130, 161 S. W. 2d 178:
“A verdict will be set aside by an appellate court as excessive where there is no evidence on. which the amount allowed could properly have been awarded; where the' verdict must of necessity be for a smaller sum than that awarded; where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion, prejudice * * * or of some error or mistake of principle, or to warrant conclusion that the jury were not governed by the evidence * ’* *.”
Every case involving the issue of excessiveness must be examined on its own facts; and before this Court can constitutionally reduce a verdict we must give the evidence in favor of the verdict its highest probative force and then determine whether there is any substantial evidence to sustain the verdict. That Mr. Parker received a whiplash injury in the collision is thoroughly established: there was testimony that the Parker car was entirely stopped; that Breitenberg’s car struck the Parker car with sufficient force to drive it fifteen feet forward and into the rear of the preceding car; that when Mr. Parker emerged from his car he was holding his head; that the investigating officer found Mr. Parker in such condition that he advised one of the other occupants of the Parker car to drive Mr. Parker to his home in Benton; and that this was done.
Mr. Parker was a well, active man, 63 years of age, before receiving his injuries. That he suffered tremendously from the injuries received in April 1961 until the time of the trial in October 1962 is thoroughly established : he has consulted numerous doctors, taken various kinds of pain easing medicines, worn a neck brace, and spent considerable amounts visiting clinics in Memphis and New Orleans for treatment of his whiplash injury; and he was still receiving treatment at the time of the trial. Dr. Walter Carruthers testified that he had been treating Mr. Parker for many months: that Mr. Parker had suffered excruciating pain; that x-rays revealed that prior to the whiplash Mr. Parker had some arthritic degeneration of the joint spaces between the fifth and sixth cervical vertebrae, common to men of Mr. Parker’s age, even though such condition was unknown to Mr. Parker and had never caused him any pain or inconvenience; that a whiplash injury is a snapping of the neck when a person gets his head thrown forward and back or from side to side; that as a result of the whiplash injury Mr. Parker is disabled permanently and to at least 25%. Dr. Thompson, called by appellants, testified that a whiplash injury can produce pain in a previously non-symptomatic case; that prior to receiving the Avhiplash injury Mr. Parker had a degenerative disk condition between the fifth and sixth cervical vertebrae; that the whiplash aggravated that .condition and caused pain; and that because of the whiplash injury Mr. Parker would have some permanent aggravation of his preexisting condition.
There is evidence in the record concerning the damages to Mr. Parker’s car, and also concerning the expenses he has incurred in being treated for his injury; but we have detailed sufficient of the evidence to demonstrate that we cannot say that the verdict is so grossly excessive as to require a remittitur.
Affirmed.
Holt, J., not participating.
While the cause was pending in this Court on appeal the death of E. J. Breitenberg was reported to this Court; and on motion of appellant the cause was revived and Jacob L. King, as executor of the estate of E. J. Breitenberg, was substituted as appellant; but we style the case as it was styled when first filed in this Court.
The pertinent portion of said affidavit reads as follows: “That from the time the jury left the jury box until it returned to the court room to announce its verdict, a total of some minute or two less than fifteen minutes was consumed. That a foreman was elected by the jury, as evidenced by the jury verdict and that a minute or two must have elapsed to allow the jury to leave the box and get to the jury room and a comparable amount of time for the jury to return from the jury room to the court room. That at the time it was announced by the bailiff that the jury had reached a verdict and wanted to return, that two to three minutes was consumed in getting all of the court attaches together and back in the court room and following this time, the jury returned. That there was less than ten minutes time in which the jury had to elect a foreman, discuss the evidence, vote and arrive at a verdict, and therefore improper consideration to the evidence and law was given. That this affidavit is made in support of the defendant’s motion to set aside the jury verdict and to render a new trial in the cause.” | [
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Frank Holt, Associate Justice.
The appellant and appellee are rice farmers and adjoining landowners. The appellant constructed a dam across a drainage ditch which was serving both appellant and appellee. Appellant claims this was necessary to prevent indigo-laden waters from flowing into this drainage ditch and damaging his rice crops. This dam diverted the flow of water upon appellee’s lands. Appellee cut the dam thus permitting the flow of water to again enter the jointly used drainage ditch. Appellant brought this action to require appellee to restore the breached dam; to enjoin him from such future conduct; and for the recovery of damages to his rice crops. The appellee responded that the ditch is a joint or community ditch; that the appellant should be enjoined from maintaining the dam resulting in the overflow of appellee’s lands; and, also, sought recovery for damages to his crops.
The Chancellor held that appellant had no right to dam up this drainage ditch and denied damages to both parties. From that decree appellant brings this appeal.
For reversal appellant first contends that the decree of the trial court is against the preponderance of the competent evidence. Since appellant’s Exhibit “A” is agreed to be a reasonably accurate portrayal of the reference points involved in this case we reproduce it for use in our discussion of the facts.
The appellee, Wimpy, has owned his property since 1949 and the appellant, Graves, has owned his 320 acres since 1952. As indicated by the reproduced exhibit, the appellant and appellee have a common boundary line running north and south. To the north of appellant Mr. Frierson is an adjoining landowner. Appellee’s property extends northward and is contiguous "to the Frierson property. On the Frierson property is an artificial lake which is infested with indigo. This is a noxious weed which is injurious to rice farming. In 1959 and in January 1962 Frierson drained his lake. The drainage flowed from Point “C” to Point “B” and thence to Point “A” into the drainage ditch used jointly by appellant and appellee. Appellant registered his complaint in 1960 and in July 1962 appellant dammed up the common drainage ditch at Point “A” to prevent the further drainage or flow of this indigo-infested water from the lake, or from “B” to “A”, into this ditch. This caused the waters to be diverted, upon appellee’s lands. In December 1962 appellee opened up this dam resulting in this lawsuit.
Shortly after appellant acquired his property in 1952 he dynamited a ditch at about Point “A” on appellee’s property for the purpose of releasing or draining water from appellant’s land, thus making his land tillable. According to the appellant, he and the appellee “got together”- and dug the present ditch in 1954 from Point “A” southward for approximately a mile along their common boundary. Appellant admits they did not know the exact location of their boundary line at that time, although he now claims the joint ditch is on his property except the southern part thereof. When this joint ditch was first constructed it was turned ninety degrees at the south end and then dug westward for one-half mile entirely across appellee’s lands to link up with the Mattix drainage ditch which was a part of the drainage system in this area that had existed for many years. In 1955 appellee widened this joint ditch, except the northern portion of it, for approximately three-quarters of a mile. In 1958 this one-mile-long joint drainage ditch between appellant and appellee was reworked. Appellant and appellee each applied for and received a subsidy from the federal government for this ditching program. However, the signed applications for the cost-sharing of the ditch work did not include ditch work north of Point “A”.
Mr. Ratliff, local office manager for the U. S. Soil Conservation Service since 1949, testified that he knew both parties to this suit and that they made separate applications to his office for a government subsidy in reworking this joint ditch on a cost-sharing basis. These applications were approved and the subsidies were paid. According to the government regulations the cost-sharing is conditioned upon proper maintenance by the recipient of the work subsidized. He testified that he was familiar with the “practices” according to these regulations and that the appellant and appellee agreed to them.
Mr. Neff, a local engineer for the U. S. Soil Conservation Service since 1940, studied the lands in the area and designed the reworking of this ditch for the purpose of providing drainage for a total of 560 acres. This area included drainage from some of the lands of appellant, appellee, Frierson and his lake. The size of the reworked ditch was determined by the size of this drainage area [560 acres] and fall of the land.
When the contractor completed the reworking of the ditch northward to Point "A” then appellee, at his own expense, had the contractor to continue from Point "A” northward to Point "B” for a distance of approximately sixty feet along the boundary between appellee and Mr. Frierson. Appellant contends that he never gave appellee permission to connect onto their joint ditch at Point "A” and registered repeated objections which is denied by appellee.
It is well settled that a decree of the Chancery Court will not be reversed on appeal unless contrary to the preponderance of the evidence. Hill v. Barnard, 216 Ark. 29, 224 S. W. 2d 31. Upon a review of the evidence in the case at bar we find it ample to support the Chancellor’s finding.
The parties, by their joint action, established a ditch in 1954 at which time it appears neither of them knew the exact location of their common boundary line. In 1955 the appellee widened a large portion of this ditch. In 1958 appellant and appellee each applied for and accepted a Soil Conservation subsidy payment according to the terms of which they agreed to carry out the Soil Conservation "practices” or program. The drainage area being served by this "practice” was 560 acres which included lands of appellant, appellee, Frierson and his lake.
We think that appellant and appellee each have a right, in the nature of a license, to the unobstructed use of this community ditch. We recognized such a right in the early case of Wynn v. Garland, 19 Ark. 23 (1857). In that case the owners of unsurveyed adjoining lands orally agreed to dig ditches for the purpose of draining their lands and constructed a main ditch as a boundary line between them. Later the lands were surveyed by the government and one of the parties closed the ditch in violation of the oral agreement and threw up an embankment so as to back the water upon the land of the other party. We held that the oral agreement between the parties was in the nature of a license which, having been accepted and acted upon, could not be disregarded and there was no right for either to close the ditch. See, also, Schuman v. Stevenson, 215 Ark. 102, 219 S. W. 2d 429, which cites the Wynn case and reaffirms its principles.
In the case at bar it is undisputed that the ditch southward from Point “A” was jointly constructed and used by the appellant and appellee from 1954 until 1962 as a part of the drainage system. The construction and maintenance of this common ditch necessitated the expenditure of labor and capital by both. This improvement of the drainage system in this area was accepted and acted upon by both parties in their farming operations.
■■ There is, also, compelling testimony in this case that there was a natural flow to the south from Point “B” to Point “A” and that there had been a ditch or slough carrying water southward in this general vicinity for many years. We think it is significant that, according to appellant’s Exhibit “A”, the natural flow in the 1951 ditch is southward to Point “B”. The artificial ditch’ from Point “B” to Point “A” is in substantially the same location as the natural drainage and, thus, did not materially change the natural course of the water. Boone v. Wilson, 125 Ark. 364, 188 S. W. 1160. At common law the waters of a natural stream cannot be obstructed by a lower proprietor so as to cause it to flow in another direction to the detriment of landowners above and about him. Monteith v. Honey, 135 Ark. 407, 205 S. W. 812.
We also think that appellant is estopped from having any right to erect the dam in question since the ditch to the north of it has been used by the appellee as part of a drainage system for four years. The appellant cites Vesper v. Woolsey, 231 Ark. 782, 332 S. W. 2d 602, to the effect that in the absence of “intervening equity” laches will not apply to shorten the statutory period of limitations. We think there were intervening equities in this case. By agreement the joint ditch between appellant and appellee was constructed in 1954, reworked by appellee in 1955, and reworked in 1958 through the efforts of both of them. Also, that portion of the drainage ditch in controversy, from Point “A” to Point “B”, was constructed by appellee at his own expense in 1958 and used continuously by him as a part of a drainage system until appellant constructed the dam four years later. In Stewart v. Pelt, 198 Ark. 776, 131 S. W. 2d 644, we quoted with approval as follows:
“ Since laches is generally regarded as being not delay alone, but rather delay working a disadvantage to another, it is evident that there is and can be no fixed or determinate rule for the application of the doctrine, no exact time, to an hour, a minute, or a year, within which a party’s claim to relief, or assertion of a right, is barred by lapse of time, but each case must depend on its own peculiar circumstances. In other words, the question is addressed to the sound discretion of the court. Nor in determining whether a claim is stale is the court confined to the statutory period, but may refuse relief in cases where the delay is less or greater than that named in the statute.”
See, also, Sanders v. Flenniken, 180 Ark. 303, 21 S. W. 2d 847; 30 C.J.S., Equity, § 112.
Under the facts in the instant case we think that appellant’s delay in asserting any right he might have had now operates as a species of estoppel against the assertion of any such right.
The appellant next urges for reversal that the trial court erred in admitting the testimony of Mr. Neff and Mr. Ratliff and the exhibits to their testimony. The testimony of Mr. Neff and Ratliff as experienced employees of the Soil Conservation Service related to their knowledge of the ‘ ‘ practices ’ ’ or program of that government agency and the business records and publications of their offices. Ark. Stat. Ann. § 28-930 (Repl. 1962) provides:
“Federal departmental or agency documents admissible.—-Books, records, reports, minutes of proceedings, and other documents of any department or agency of the United States kept, maintained or made in the performance of duties prescribed by law, or parts thereof or excerpts therefrom, shall be admissible in the courts of this State to prove the Act, transaction, event, or occurrence which the memorandum, report, record or other document records, reflects or shows. Provided, the contents of the books, records, reports, minutes of proceedings, and other documents are material and relevant. [Acts 1949, No. 293, § 3, p. 862.]”
We think that without the testimony of Neff and Ratliff the evidence is sufficient to sustain the Chancellor’s decree. However, we consider that their testimony and the exhibits thereto are material and relevant to the issue in the case at bar and are, therefore, properly admissible.
Affirmed.
Johnson, J., dissents. | [
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John B. Robbins, Judge.
This appeal is from a judgment of the Little River County Chancery Court which awarded current and back child support in a paternity action. Appellant, the Department of Human Services, contends the chancellor erred in considering appellee’s other illegitimate children in setting support for the child involved in this action and that the chancellor’s award of past child support is deficient. For the reasons hereinafter explained, we affirm the award of back child support but reverse the chancellor’s award of current support and remand for further consideration.
U.T. was born out of wedlock on March 10, 1976, to Barbara Trotter. On April 16, 1992, appellant, as assignee of Ms. Trotter, filed a complaint against appellee, Nathaniel Forte, alleging that he is the biological father of U.T. and seeking both prospective and retrospective child support. Blood tests were ordered by the court, but prior to trial appellee stipulated that he is U.T.’s father. A hearing was then held on the amount of child support to be awarded.
At trial, appellee testified that he has worked for Weyer-haeuser for the past fifteen years and that his usual take-home pay is between $250.00 and $260.00 per week after taxes, a $20.00 credit union fee, and health insurance are deducted. He testified that he pays rent of $150.00 per month, drives a 1978 Chevrolet Malibu automobile, and currently has $10.00 in savings and $20.00 to $30.00 in a checking account. He further testified that he has two other illegitimate children, three-year-old twins, by another woman. He stated that he helps support these children, although they do not live with him and he is not under a court order to do so. He stated that he could not put a dollar figure on the support he provides them but gets them whatever they need.
In reference to U.T., appellee testified that he has been providing support for him since he was born based on what Ms. Trotter has requested and U.T.’s needs. He stated that the reason Ms. Trotter has never needed public assistance in the past is because he pitched in at times when she needed extra help.
Barbara Trotter testified that she makes $10,000.00 to $11,000.00 annually, has been continuously employed since U.T.’s birth, and has always supported him. She stated that appellee has paid her less than $100.00 in the past year for U.T.’s support and that he has never paid her over $300.00 in any year. She testified that she has been threatening to file a paternity action against appellee for years but did not because she thought she would be able to work things out with him.
At the conclusion of the hearing, the chancellor awarded appellant current child support of $35.00 per week, although the child support chart provides $57.00 per week for one dependent at appellee’s income level. The chancellor stated that he was not following the chart because of appellee’s other two children and the fact that a paternity action would probably be brought on their behalf in the future. The order entered by the court did not give any reason for the chancellor’s decision not to follow the chart.
Arkansas Code Annotated § 9-12-312(a)(2) (Repl. 1991) provides:
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.
At the time of the hearing, the applicable family support chart was set out in the supreme court’s per curiam In Re: Guidelines for Child Support Enforcement, 305 Ark. 613 (1991). In this per curiam, the supreme court also listed the factors the court should consider in determining whether an amount specified by the chart is unjust or inappropriate. Payments made to support other children were not included in this list; however, these payments were specified in the per curiam’s definition of income.
Income refers to the definition in the federal income tax laws, less proper deductions for:
1. Federal and state income tax;
2. Social security (FICA) or railroad retirement equivalent;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by Court order.
Id. at 615.
Appellant first argues that the chancellor abused his discretion in considering appellee’s other two illegitimate children as justification for deviating from the child support chart. Appellant contends that the child support guidelines allow the chancellor to consider only those children that appellee is under a court order to support as justification for not ordering the amount set by the chart.
A chancellor, however, is not prohibited from considering other matters in addition to the child support chart in setting the amount of support. Clark v. Tabor, 38 Ark. App. 131, 135, 830 S.W.2d 873, 875 (1992). The child support chart and the criteria used for deviating from it are not conclusive, and there may be other matters in addition to the child support chart that have a strong bearing upon determining the amount of support. Stewart v. Winfrey, 308 Ark. 277, 280, 824 S.W.2d 373, 377 (1992).
In Waldon v. Waldon, 34 Ark. App. 118, 123-24, 806 S.W.2d 387, 390 (1991), this Court recognized that a payor spouse’s children by his present marriage could be considered by a chancellor in determining financial ability to support another child. This holding was again recognized in Clark v. Tabor, 38 Ark. App. at 135, 830 S.W.2d at 875, where this Court stated that a payor spouse’s other children, even if not supported under a court order, may be considered in determining the financial ability to support another child.
In the case at bar, there was evidence from which the chancellor could have found that appellee contributes to his other children’s support. Therefore, we cannot say the chancellor’s consideration of these children in setting support is in error. Nevertheless, we must reverse and remand this award to the chancellor because the method the chancellor employed in determining appellee’s child support obligation is not appropriate.
It appears that the chancellor applied appellee’s income figure of $270.00 to the chart under the column for three dependents, which showed support of $101.00, and then divided that figure by three, to arrive at support for U.T. of $35.00. In Waldon v. Waldon, supra, this Court held that the chart should be applied to the child that is before the court and that it is improper for the chancellor to have applied the chart based on three dependents and then divide that amount by three. “The result of applying the chart as the chancellor did here is that the amount of support for the one child was diluted, as the chart is structured so that the amount of support per child decreases in proportion to the number of added dependents.” 34 Ark. App. at 123, 806 S.W.2d at 390. Therefore, we must remand this decision to the chancellor with instructions to apply the chart based on the one child that is before it and then, if the chancellor finds this amount unjust or inequitable, to make such adjustments as he considers necessary supported by written findings.
Appellant for its second point contends the trial court erred in awarding only $6,000.00 for past support. In making this award, the chancellor stated that, based upon the equities of the case, the length of time Ms. Trotter waited in bringing the action, “everything considered,” arrearage would be awarded in the amount of $6,000.00. The grant or denial of an award of back child support in a paternity action rests upon the equities of a particular case, and in order to find that the chancellor committed reversible error, the appellate court would have to hold that his findings in this regard are against the preponderance of the evidence. Arkansas Dep’t of Human Servs. v. Hardy, 316 Ark. 119, 126-27, 871 S.W.2d 352, 357 (1994); Green v. Bell, 308 Ark. 473, 479-80, 826 S.W.2d 226, 230 (1992); and Ryan v. Baxter, 253 Ark. 821, 824-25, 489 S.W.2d 241, 244 (1973). In Arkansas Department of Human Services v. Hardy, the supreme court refused to reverse a chancellor’s denial of back support in a paternity action, stating that the question is simply what is fair. 316 Ark. at 126, 352 S.W.2d at 357.
Under the circumstances of this case, we cannot say the chancellor’s determination of what is fair is clearly against the preponderance of the evidence. Appellee testified that he has been providing support for U.T. since his birth. Although Ms. Trotter testified that appellee never paid over $300.00 in any year, she waited until U.T. was seventeen before bringing an action for support. Accordingly, we affirm the $6,000.00 award of back support and, on the issue of current support, reverse and remand for entry of an order consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Jennings, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from the Arkansas Workers’ Compensation Commission.
At a hearing before an administrative law judge on January 22, 1992, it was stipulated that appellant suffered a compensable injury on February 6, 1989, that appellee paid temporary disability through August 1, 1990, and that appellee paid a 12 percent rating to the body subsequent to that date. The appellant contended that she was entitled to continued total disability benefits for an indefinite period of time and to treatment by Dr. John Yocum. The appellees contended appellant was not entitled to additional permanent disability benefits and that the treatment which had been rendered by Dr. Yocum was an unauthorized change of physician. This appeal involves only the treatment rendered by Dr. Yocum up to the date of the law judge’s opinion.
The appellant testified that she fell on ice while at work, hitting her shoulder and hip. She was treated first in the emergency room at Warner Brown Hospital in El Dorado and subsequently by El Dorado doctors Gary Bevill (her family physician), J.C. Callaway and Robert S. Bell (orthopedic surgeons), and Dr. David L. Reding (a Little Rock neurosurgeon). Appellant testified that she got no better under the treatment of any of these physicians and that there was nothing comfortable that she could do. On March 17, 1989, appellant signed an A-29 form.
On July 5, 1989, Dr. Bevill released appellant to return to work. She went back and tried to work, but had to go home after approximately two hours. Appellant testified that she returned to Dr. Bevill who really did not know what her problem was, and he said he could refer her to another physician if she liked. Appellant said she first asked about Dr. Grimes (a Little Rock orthopedic surgeon); that Dr. Bevill said it would take a long time to get an appointment with him but maybe he could get her an appointment with another physician in the same suite of offices; that Dr. John Yocum’s name then came up and she said “fine.” Appellant testified that Dr. Bevill made the call to Dr. Yocum and made her first appointment.
Appellant was first seen by Dr. Yocum on July 12, 1989, and on that same day, Dr. Yocum wrote Dr. Bevill it was his impression that appellant was developing a frozen shoulder.
On July 13, 1989, Dr. Bevill wrote to appellee Travelers Insurance Company (appellee’s insurance carrier) that appellant continues to have pain and has requested a second opinion by an out-of-town orthopedic doctor, and “this is being arranged at the present time.”
The medical records show that on January 15, 1990, Dr. Yocum reported in a letter to Travelers that he had performed arthroscopy on appellant’s left shoulder, and she was admitted post-operatively to the Baptist Medical Center and discharged on January 16, 1990. The record also shows that after Dr. Bevill wrote Travelers on July 13, 1989, that appellant “has requested a second opinion by another out-of-town orthopedic doctor” and that “this is being arranged at the present time,” Dr, Yocum wrote to Travelers during the period of August 9, 1989, through Novem ber 29, 1991, some 21 letters informing them of appellant’s progress. These letters show that after Dr. Yocum had treated appellant for a long period of time, keeping Travelers informed of these treatments, he wrote them on January 11, 1990, that he thought “arthroscopic acromioplasty is now warranted” and that “I will schedule her for this at Baptist Medical Center.” The appellees even admitted paying part of Dr. Yocum’s bill, but said this was done by mistake.
The law judge issued an opinion which held that appellant was not entitled to total disability for an indefinite period, and the treatment of Dr. Yocum was unauthorized; however, he appointed Dr. Yocum “as claimant’s authorized treating physician.” The full Commission also found Dr. Yocum’s past treatment to be unauthorized. The Commission stated:
In summary, claimant knew the procedure to be followed in order to change physicians and was represented by an attorney. If she had wanted to change physicians to Dr. Yocum, her attorney could have filed a petition for a change and this current problem admittedly would not have arisen. However, claimant did not follow that procedure; therefore, respondent is not liable for Dr. Yocum’s treatment.
On appeal, appellant contends Dr. Yocum’s treatment was a referral and a written request for change of physician was not required; that Travelers Insurance Company waived its right to object to Dr. Yocum’s treatment by paying his bills; and that Travelers Insurance Company is estopped to deny benefits because appellant relied upon Travelers’ position that it would accept Dr. Yocum and did not file a change of physician form. Appellant argues that the carrier knew that a formal request for a change of physician had not been filed, but did not demand it or object, and that she relied in good faith on the carrier’s conduct and changed her position to her detriment. Appellant asserts that the issue of waiver was raised before the law judge and that the issue of estoppel was raised in her brief before the Commission. She states that in a brief to the Commission she argued as follows:
The crux of this case is this: If the carrier wanted to dispute the treatment and care by Dr. John H. Yocum, they should have done so early on and not paid the bill. I could have then come into court, got a change of physician to Dr. Yocum, and this problem would never have arisen. Therefore, they should have waived the right to contest the change of physician and should be estopped to deny it. It is even more interesting that the ALJ has now appointed Dr. Yocum as the treating physician.
The remainder of Dr. Yocum’s bill should be ordered paid.
This brief is not in the record before this court, but the Commission’s opinion refers to appellant’s brief to the Commission in the discussion of its holding that Dr. Yocum’s treatment was unauthorized. The law judge’s opinion refers to appellant’s contention of waiver, but the Commission’s opinion makes no finding as to whether the carrier had waived the right to contest the change of physician or was estopped from denying it. Because these issues appear to have been before the Commission, and have been argued by both parties in this court, we find that this matter should be remanded to the Commission for a finding on the issues of waiver and estoppel.
We, therefore, defer final ruling in this appeal until the Commission files with this court a copy of its opinion ruling on the issues of waiver and estoppel. No additional evidence should be taken by the Commission, and we leave to it the question of whether it should have additional briefs from the parties.
Remanded.
Cooper, J., dissents. | [
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James R. Cooper, Judge.
The appellant is the mother of two children, Andrew Michael Corley, born November 12, 1990, and Amber Michelle Corley, born October 22, 1989. She appeals a chancery court order terminating her parental rights and granting the adoption of the children by the appellees, Howard D. Dodgen and Cathy Ann Dodgen. We affirm.
On January 22, 1991, Andrew Corley was admitted to Sparks Regional Hospital with multiple fractures. On January 25, 1991, the appellee Arkansas Department of Human Services obtained an order finding both children dependent/neglected/abused and took custody of them. The Dodgens subsequently petitioned for and were granted temporary custody of the children after a review hearing on May 16, 1991. The court conducted review hearings during the following two years and found the reunification attempts unsuccessful and continued custody with the Dodgens. The Dodgens subsequently petitioned for termination of the parental relationship and for adoption pursuant to Ark. Code Ann. § 9-9-220 (Repl. 1993) . After a hearing on May 17, 1993, the chancery court found that, although the parents had made some effort to comply with the terms of the case plan, there was not a reasonable likelihood in the future that they could comply with the case plan to the extent that the best interest of the children would mandate that they be returned to them. The chancellor found that it was in the best interest of the children that the parental rights be terminated and the Dodgens’ petition for adoption be granted. On appeal, the appellant contends that the chancellor clearly erred in terminating her parental rights and in granting the adoption.
Chancery cases are reviewed de novo on appeal, and we will reverse the chancellor’s findings only if they are clearly erroneous or clearly against a preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993); Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988). Our case law is clear that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). However, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986).
Arkansas Code Annotated § 9-9-220 (Repl. 1993) provides in pertinent part:
(a) The rights of a parent with reference to a child, including parental right to control the child or to withhold consent to an adoption, may be relinquished and the relationship of parent and child terminated in or prior to an adoption proceeding as provided in this section.
(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under the subchapter on any ground provided by other law for termination and the relationship, or on the following grounds:
(2) Neglect or abuse, when the court finds the causes are irremediable or will not be remedied by the parent.
A. If the parents have failed to make reasonable efforts to remedy the causes and such failure has occurred for twelve (12) months, such failure shall raise the rebuttable presumption that the causes will not be remedied.
B. If the parents have attempted to remedy the causes but have failed to do so within twelve (12) months, and the court finds there is no reasonable likelihood the causes will be remedied by the eighteenth month, such failures shall raise the rebuttable presumption that the causes will not be remedied.
At the final hearing, Kathy Clark, a psychological examiner, testified that the appellant had substantially improved and that her behavior was less impulsive. However, she stated that the appellant had not taken responsibility for the physical abuse to her children. She went on to state that she could not say that the causes of abuse had been remedied. The appellant’s case worker, Monica Eisenhower, testified that the appellant had complied with all the terms and conditions of her case plan. She stated that she had seen a substantial improvement in the appellant, that she was more stable and was maintaining a job and housing. However, she stated that she would recommend termination of parental rights because of the seriousness of the abuse and because it was in the best interest of the children. She noted that the appellant had never admitted to the seriousness of the abuse. At the time of the hearing, the appellant was nineteen years old and separated from the children’s father. She testified that she had been in her present job for ten and a half months, received her GED, and completed counseling. She stated that she went to parenting classes and visited with her children as regularly as she could. She admitted that Andrew had been in her custody when he was injured. However, she stated that she did not know how he had been injured or who had hurt him. She stated that she was not responsible for his injuries and could guarantee that it would not happen again but that she could not have prevented it before. Therefore, we hold the chancellor’s finding that the causes of abuse have not been or will not be remedied was not clearly erroneous. Thus, he did not err in terminating the appellant’s parental rights.
A chancery court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the children. In re Adoption of B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992). In cases involving minor children, a heavier burden is cast upon the trial court to utilize to the fullest extent all its powers of perception in evaluating witnesses, their testimony, and the children’s best interests. Id. This Court has no such opportunity and we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carries as great a weight as one involving minor children. Id.
Ms. Eisenhower recommended that the Dodgens be allowed to adopt the children. She noted that the children had been with the Dodgens for two years and that some kind of permanency and stability needed to be established. She stated that she thought the ideal situation for the children would be permanent custody with the Dodgens and visitation with the appellant. The Dod-gens testified that they were close to the children and could provide a loving home for them. They testified that the children were doing well in their custody but that Amber misbehaved after visitation with the appellant. A home study was conducted which indicated that the Dodgens had adequate income to care for the children and that they could provide a nurturing home for them. James Corley, the father of the children, testified that he was not in compliance with his case plan and that if he could not have the children, he wanted the Dodgens to adopt them.
After reviewing the record, we conclude that the chancellor did not err in finding that it was in the best interest of the children to be adopted by the Dodgens.
Affirmed.
Jennings, C.J., and Rogers, J., agree.
Arkansas Code Annotated § 9-27-306(b)(l) (Repl. 1993) vests jurisdiction of adoptions under the Revised Uniform Adoption Act in the juvenile court where they arise during the pendency of a dependent-neglected proceeding. | [
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John E. Jennings, Chief Judge.
This case began as a post-divorce action by the appellant, Cathy Hunter, to modify the decree. During the course of the hearing the chancellor heard evidence relating to arrearages in child support allegedly owed by the appellee, Michael Stuart. After considering the evidence of appellee’s payments over a four-year period, the chancellor found an arrearage of $353.10. For reversal, appellant contends that the chancellor erred in giving the appellee credit against his child support obligation for savings bonds purchased at a cost of $3,300.00 and for $1,100.00 paid to the appellant prior to the date of the decree of divorce. We agree with both arguments and reverse.
The decree of divorce between the parties, entered on April 18, 1989, provided that the appellee would pay $400.00 per month as child support beginning May 1, 1989. At the hearing appellee testified that the parties had agreed that he would invest $100.00 per month in savings bonds for the children and pay only $300.00 per month to the appellant. The appellant denied entering into such an agreement. At the conclusion of the hearing the chancellor stated he could not find that such an agreement existed. He nevertheless gave the appellee credit against the arrearage for $3,300.00 paid to purchase savings bonds.
The appellant cites Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), for the proposition that chancery courts may not recognize private agreements by the parties for the payment of child support. See also, Ark. Code Ann. § 9-12-314(b) and (c) (Supp. 1989), and Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993). Appellee’s response is that the court’s ruling “does not alter the amount of support to be paid, but merely affirms the parties’ agreement as to the manner in which the support was to be paid.” Apart from the fact that the chancellor expressly stated he could find no such agreement between the parties, we agree with the appellant that the rule in Sullivan governs and that appellee should not have received credit against the arrearage for the cost of the savings bonds.
We also must agree with the appellant that the chancellor erred in giving the appellee credit for amounts paid prior to May 1, 1989. As a matter of law, appellee is not entitled to credit against child support arrearages for voluntary expenditures. Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980); Buckner v. Buckner, 15 Ark. App. 88, 689 S.W.2d 84 (1985).
The chancellor should have awarded judgment to the appellant in the sum of $4,753.10 and held that the savings bonds belong to the appellee. We therefore reverse and remand for the entry of a judgment consistent with this opinion.
Reversed and Remanded.
Cooper and Rogers, JJ., agree. | [
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John E. Jennings, Chief Judge.
Byrones Eugene Zeiler entered a conditional plea of guilty to possession of marijuana with intent to deliver, and was sentenced to five years with two suspended and fined $500.00. He brings this appeal pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, arguing that the trial court erred in denying his motion to suppress evidence seized during a nighttime search of his residence. Because we agree that the affidavit for the search warrant contained an insufficient factual basis to justify the nighttime search, we reverse.
Greg Donaldson, a police officer for the city of Clarksville, testified at the suppression hearing about the circumstances leading up to his procurement of the search warrant. After a confidential informant indicated that he could buy marijuana from appellant, Donaldson supplied the informant with money, and the informant entered appellant’s residence and returned with marijuana. Donaldson then prepared an affidavit and procured the warrant. He testified that the affidavit was the sole basis for the issuance of the warrant.
The affidavit describes a drug buy made by the informant from appellant at appellant’s residence on the evening of December 27, 1992. It includes the recorded serial numbers of the currency used to make the purchase of marijuana. The affidavit then states:
Because of the ease with which the dope can be disposed of and the fact that Zeiler is dealing it now and may get rid of what he has left or dispose of the money used in this buy, a nighttime search should be authorized.
The warrant issued that night recited that the affiant “has reasonable cause to believe and does believe” that at the described premises “there is now being concealed certain property to wit: marijuana and other controlled substance[.]” The warrant further states that “[d]ue to the danger of the immediate removal of the objects to be seized as described above in this warrant the issuing judicial officer authorizes execution of this writ at any time, day or night[.]”
In reviewing a trial court’s ruling on a motion to suppress because of insufficiency of the affidavit, we make an independent determination based upon a totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Thompson v. State, 42 Ark. App. 254, 856 S.W.2d 319 (1993). An affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. See State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). The issuing judicial officer must have reasonable cause to believe that (i) the place to be searched is difficult of speedy access; or (ii) the objects to be seized are in danger of imminent removal; or (iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. Ark. R. Crim. R 13.2(c); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). The affidavit should speak in factual, not merely conclusory, language. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980).
In State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991), the supreme court affirmed the trial judge’s granting of a motion to suppress. After quoting the language of Rule 13.2(c) regarding the circumstances that justify a nighttime search, the court said:
The affidavit in this case does not set out facts showing reasonable cause for [the issuing judge] to have found that any of the three circumstances quoted above existed. The affidavit merely provides that four previous sales of marijuana had been made by Jesse Martinez to Officer Hanes, that controlled substances were believed to be stored at the Martinez residence, and that another purchase was scheduled to occur at the residence that day. The affidavit is silent with respect to anything regarding reasonable cause to believe the marijuana would be destroyed or removed before the next morning. Thus, we hold it was error for the nighttime search warrant to have been issued.
Our holding is consistent with Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990), and State v. Broadway, supra. Both Hall and Broadway have facts similar to the facts in the present case. In Hall, supra, we held that an affidavit reciting simply that illegal drugs were at appellant’s residence and that a confidential informant had purchased marijuana there within the last seventy-two hours did not state facts sufficient to support the issuance of a nighttime search warrant. The Hall case is controlling of the present case in all respects.
Relying on Martinez, we held in Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993):
Neither the affidavit nor the sworn testimony set out facts showing reasonable cause for the issuing judge to have found that any of the required circumstances had been met for a nighttime search. A conclusory statement was made that the drugs to be seized were in danger of imminent removal, but no facts were stated to support this conclusion. The officers merely described the sales that had been observed thus far. We therefore hold that it was error for the nighttime search warrant to have been issued.
The affidavit in the case at bar speaks similarly in a conclusory statement about the necessity of a nighttime search. Officer Donaldson acknowledged on cross-examination that the affidavit was limited to the fact that marijuana was purchased that evening; it did not indicate whether more marijuana or other controlled substances were observed at appellant’s residence; it did not state whether any drug paraphernalia or other equipment used to package or distribute marijuana was present; it did not recite any other indications of drug activity at the premises such as a steady stream of traffic coming and going. In short, there was no showing of any factual basis to support the conclusion that “[appellant] may get rid of what he has left or dispose of the money used in this buy.”
While the search warrant was issued in violation of Rule 13.2(c), a motion to suppress will not be granted unless the violation is “substantial.” Ark. R. Crim. P. 16.2(e). It is well established that the nighttime intrusion into a private home upon a warrant issued in violation of Rule 13.2(c) constitutes a substantial violation. See Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993). Also, in accord with this line of authority, we do not find that the “good faith exception” applies to this case.
Reversed and remanded for the appellant to be allowed to withdraw his conditional plea.
Reversed and remanded.
Cooper and Robbins, JJ., agree. | [
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John E. Jennings, Chief Judge.
Appellant, Cargill, Inc., sued appellee, Storms Agri Enterprises, Inc., for repudiating a contract to purchase cottonseed from appellant and sought $12,012.00 in damages. At the conclusion of appellant’s case, the trial court granted appellee’s motion for directed verdict, holding that appellant had failed to produce any evidence that appellee’s repudiation of the contract had substantially impaired the value of the contract to appellant as required by Ark. Code Ann. § 4-2-610 (Repl. 1991). On appeal, appellant contends the trial court erred in directing a verdict for appellee and dismissing its claim for damages.
Appellant is a seller of cottonseed, a by-product of the cotton-ginning process, that is used as a component in the feed ration of dairy cattle. Appellee operates a dairy farm and for the past few years has purchased cottonseed from appellant. At trial, appellant contended that on November 14, 1990, appellee’s president, Bill Storms, verbally agreed to purchase from appellant seventeen truckloads of cottonseed at the rate of $176.00 per ton to be delivered to appellee’s farm. In support of its claim, appellant introduced into evidence Contract No. 5053, which recited the terms for appellee’s purchase of seventeen truckloads, each containing approximately 400 short tons of cottonseed, at $176.00 per ton. Under the terms of this contract, appellee had the option of accepting delivery of the cottonseed at any time from the date the contract was made until August 1991.
Appellant’s agent, John Fricke, testified that he received no objection concerning the contract from appellee and that appellee ordered three separate truckloads for delivery and paid for these truckloads pursuant to the terms stated in the contract. He testified that, in January 1991, he was informed that appellee had not signed and returned a copy of Contract No. 5053 as requested and that he contacted Bill Storms, who stated he had not received the contract and asked for another copy. Fricke stated that he then mailed him two more copies of the contract, which were not returned. He stated that, on February 25, Storms called him, told him that he had been quoted a price of $143.00 per ton for cottonseed, and wanted to know what appellant was going to do for him. Fricke stated he advised Storms that he could work something out but he would first have to have the signed contract returned. He testified that Storms then told him to deliver another truckload of cottonseed to appellee and he would decide whether he was going to sign the contract but that Storms canceled the delivery of cottonseed later that same day. Fricke testified that appellee’s cancellation of the delivery alerted him that there could be a problem with appellee’s future performance under the contract and that, on March 20, he sent appellee a letter stating the terms and conditions of the contract and advising him of the cash price of the contract if appellee canceled it. The letter concluded with a request that appellee advise appellant of its intentions for the balance of the contract by March 26, 1991. Fricke stated that appellee did not respond to his letter and that, on April 11, 1991, appellant’s legal department sent appellee a letter by certified mail, which stated:
You have received three loads under the contract with Cargill and a balance of 14 loads remain open on the contract. Because of previous communications with you indicating a possibility of breach on your part and because you have not replied to Mr. Fricke’s letter by the March 26 deadline, Cargill is treating the contract as breached and is demanding payment from you in the amount of $12,012.00, which is the difference between the contract price of $176.00 per ton plus $6.00 carrying charges and the current market of $143.00 per ton.
Fricke testified that appellant then canceled appellee’s contract effective March 20 and computed the damages owed by appellee by taking the difference between the contract price of $176.00 per ton and the market price to which Storms testified of $143.00 per ton times the remaining fourteen undelivered truckloads, at twenty-two tons per truck, and then adding the accrued storage fees for January, February, and March 1991.
Bill Storms, president of appellee, was also called as a witness by appellant. Although he did not admit that he had entered into a contract to purchase seventeen loads of cottonseed from appellant, he did admit he bought three loads from appellant for the same charges and terms as shown on Contract No. 5053. He also admitted receiving a registered letter from appellant and that he did not respond to this letter. He also stated that he had decided by the end of February 1991 that he was not going to order any more cottonseed from appellant.
At the conclusion of appellant’s case, appellee moved for a directed verdict, contending appellant had not produced any evidence that appellee’s repudiation of the contract “substantially impaired” the value of the contract to appellant as required by Ark. Code Ann. § 4-2-610 (Repl. 1991). Although the trial court found there was evidence of repudiation by appellee, the court held that appellant was still required to prove that appellee’s repudiation substantially impaired the value of appellant’s contract and that appellant had failed to present any evidence in support of this issue. On this basis, the trial court directed a verdict for appellee.
For its first point on appeal, appellant contends the trial court erred in holding appellant had failed to introduce evidence of substantial impairment in accordance with § 4-2-610 and directing a verdict for appellee. In deciding whether a directed verdict should have been granted, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into consideration all reasonable inferences deducible from it. Howard v. Hicks, 304 Ark. 112, 800 S.W.2d 706 (1990). Where the evidence is such that fair-minded people might reach different conclusions, then a jury question is presented, and it is error to grant a directed verdict. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 16, 858 S.W.2d 85, 86 (1993).
In awarding appellee a directed verdict, the circuit court relied on Ark. Code Ann. § 4-2-610 (Repl. 1991), which provides:
When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may:
(a) For a commercially reasonable time await performance by the repudiating party; or
(b) Resort to any remedy for breach (§ 4-2-703 or § 4-2-711), even though he has notified the repudiating party that he would await the latter’s performance and has urged retraction; and
(c) In either case suspend his own performance or proceed in accordance with the provisions of this chapter on the seller’s right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (§ 4-2-704).
The trial court interpreted the phrase “substantially impair” in this section to require that appellant must show some “special circumstances . . . that it’s going to cause special damage” in order to sustain a claim for anticipatory breach. Although we do not agree that such a showing was required under the facts of this case, we understand the trial court’s confusion, as the Uniform Commercial Code does not provide a useful definition of the phrase “substantially impair the value of the contract.”
Comment 3 to § 2-610 of the Uniform Commercial Code states:
The test chosen to justify an aggrieved party’s action under this section is the same as that in the section on breach in installment contracts [U.C.C. 2-612] — namely the substantial value of the contract. The most useful test of substantial value is to determine whether material inconvenience or injustice will result if the aggrieved party is forced to wait and receive an ultimate tender minus the part or aspect repudiated. [Emphasis added.]
Arkansas Code Annotated § 4-2-612(3) provides that whenever non-conformity or default with respect to one or more installments substantially impairs the value of the whole contract, there is a breach of the whole. Comment 4 to § 2-612 of the Uniform Commercial Code [Ark. Code Ann. § 4-2-612 (Repl. 1991)] states that substantial impairment must be judged in terms of the normal or specifically known purposes of the contract.
The phrase “substantially impair” as used in § 4-2-610 requires the factfinder to look at the materiality of a party’s repudiation as it relates to the entire contract. When a party repudiates as to a single installment or performance, it is incumbent on the party seeking damages under § 4-2-610 to prove the value of the contract as a whole was substantially impaired to justify his resort to his remedies for breach. See § 4-2-610(b). The determination of whether such a partial breach substantially impaired the value of the contract would be a question for the trier of fact. See Cherwell-Ralli, Inc. v. Rytman Grain Co., 180 Conn. 714, 433 A.2d 984 (1980); USX Corp. v. Union Pacific Resources Co., 753 S.W.2d 845 (Tex. Ct. App. 1988).
In the case at bar, however, it cannot be seriously argued that appellee’s repudiation of fourteen out of seventeen loads of cottonseed that it allegedly agreed to purchase did not substantially affect the value of the whole contract, and appellant should have been allowed to present its claim to the jury. The essential point is that the evidence here shows a breach of the whole contract, not just a part. Where a buyer’s conduct is sufficiently egregious, such conduct will, in and of itself, constitute substantial impairment of the value of the whole contract. See S & S, Inc. v. Meyer, 478 N.W.2d 857, 863 (Iowa Ct. App. 1991); Cherwell-Ralli, Inc. v. Rytman Grain Co., 433 A.2d at 987. See also Capital Steel Co. v. Foster and Creighton Co., 264 Ark. 683, 689-90, 574 S.W.2d 256, 259-60 (1978) (Remedies provided by the Uniform Commercial Code are to be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.)
Because we must reverse on appellant’s first point, we need not address the other issues raised.
Reversed and remanded.
Cooper, J., dissents. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s opinion. The ALJ found that appellant had failed to prove that her premature labor arose out of and in the course and scope of her employment with appellee. On appeal, appellant contends that there is no substantial evidence to support the Commission’s decision. We disagree and affirm.
The record reveals that appellant was five months pregnant while being employed by appellee in August of 1990. On August 17, 1990, appellant brought $1,000 in cash to work and left it in her purse. While at the office, the money was stolen. She discovered that someone had stolen her money when she had left work to run an errand. Appellant returned to work and reported the theft to her supervisor, John Phillips. Mr. Phillips phoned the police and reported the incident. A temporary employee confessed to the theft, and the money was returned to appellant. The episode, from its inception until the money was returned, lasted approximately thirty to forty-five minutes. According to appellant, she became so hysterical that she began to have contractions. She was hospitalized the same day and released two days later on August 19, 1990. On October 21, 1990, she again suffered pre-term contractions. She subsequently gave birth to a healthy child on November 12, 1990. Appellant filed a claim for temporary total disability benefits and medical costs related to her premature labor. Appellee controverted appellant’s claim by arguing that her premature labor was not causally connected to her work as a receptionist.
The Commission determined that appellant had failed to prove the existence of a causal connection between her work and the premature birth of her child. Appellant argues, however, that her injury was compensable under the positional risk doctrine. She contends that, but for the fact that she was required to keep her money in her purse at her desk in an area accessible to other employees, she would not have been the victim of this theft and thus would not have suffered the premature birth of her child.
Although the dissent states that we adopted the doctrine of positional risk in our decision Deffenbaugh Industries v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992), aff’d, 313 Ark. 100, 852 S.W.2d 804 (1993), we note that that decision was an affirmance by an evenly divided court and is not entitled to precedential weight. See France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987). Moreover, the supreme court reviewed and affirmed our decision in that case under a different theory, that of increased risk. Therefore, we have not adopted the doctrine of positional risk to date. We are reviewing the facts in this case to determine if this presents an appropriate case in which to decide if we are going to adopt the doctrine of positional risk.
An injury is deemed to arise out of the employment under the positional risk doctrine, if it is one that would not have occurred but for the fact that the conditions and obligations of the employment placed the employee in the position where the injury occurred. Kendrick v. Peel, Eddy & Gibbons Law Firm, 32 Ark. App. 29, 795 S.W.2d 365 (1990). The positional risk doctrine is implicated in circumstances where an employee is injured by a neutral risk to which she is exposed due to the conditions and obligations of her employment. Id. A neutral risk means that the risk which caused the injury was neither personal to the appellant nor distinctly associated with the employment. Deffenbaugh Industries & Travelers Ins. Co. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993).
The record discloses that appellant brought $1,000 to work and kept it in her purse on August 17. Appellant testified that the $1,000.00 was to pay for the birth of her child.
Mr. Phillips testified that the $1,000 was not company money. He said that he did not ask appellant to bring the money to the office on the day in question. Mr. Phillips stated that he did not know appellant had brought $1,000.00 to work that day. He said that he discouraged employees from bringing large sums of cash to the office and the plant. He added that he did not encourage anyone to bring any more money than they needed to get through the day. Mr. Phillips also remarked that the temporary employee would have had no reason, business or personal, to be in the office where appellant worked on the day in question.
The record further reveals that the night before the theft, appellant stayed all night at the hospital with her husband. Dr. Stephen R. Marks testified that emotional stress, such as that which might be caused by appellant’s husband’s illness, could possibly have triggered premature labor.
The Commission found that nothing about appellant’s work as a receptionist subjected her to the risk of theft; that the theft of appellant’s money was not the result of a work-related dispute between appellant and the temporary employee; and that appellant’s work setting did not expose her to the danger of the theft of her money. The Commission concluded that the positional risk doctrine did not apply to the facts of this case because the risk involved was not neutral but one personal to the appellant.
Where the Commission’s denial of relief is based on the claimant’s failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993). In conducting óur review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993).
After reviewing the record, we cannot say there is no substantial basis for the Commission’s denial of benefits. The record indicates that appellant’s job as a receptionist did not require her to handle sums of money. Apparently, appellant chose to bring the cash to work and leave it in her purse unattended. Also, the record reveals that employees were instructed not to bring valuables or excess money to work. We cannot disagree with the Commission’s conclusion that the risk to which appellant was exposed was personal and thus defeated compensability under the positional risk doctrine.
Although appellant purports to argue the positional risk doctrine, she suggests that the increased risk doctrine also applies. She contends that she was exposed to an increased risk of theft because of her employment setting.
Under the doctrine of increased risk, the injuries are compensable if the employment exposed the employee to a greater degree of risk than other members of the general public in the same vicinity. Under this theory, the claimant must only prove that the conditions of her employment, or the place where her employment required her to be, intensified the risk of injury due to extraordinary natural causes. Deffenbaugh Industries v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993).
As noted above, the Commission determined that appellant’s work as a receptionist did not increase the risk of theft and that appellant’s work setting did not increase the risk of theft of her money. After reviewing the evidence, we cannot disagree with the Commission’s determination that appellant’s work environment did not increase the risk of theft.
Affirmed.
Pittman, J., concurs.
Mayfield and Cooper, JJ., dissent. | [
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John E. Jennings, Chief Judge.
Robert Bridges was convicted by a jury of possession of cocaine with intent to deliver, possession of drug paraphernalia, maintaining a drug premises, and possession of a defaced firearm. He was sentenced to twenty years in the Arkansas Department of Correction for the cocaine charge, three years for possession of drug paraphernalia, three years for maintaining a drug premises, one year in the county jail for the firearms charge, and total fines of $6,245.00. The firearms charge, a misdemeanor, was merged with the felonies and all sentences were set to run concurrently.
On appeal, Bridges contends that the evidence was insufficient to support the conviction for possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and maintaining a drug premises. We hold that the evidence was sufficient and affirm.
In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). We must affirm if there is substantial evidence to support the verdict. Substantial evidence is evidence that is forceful enough to compel a conclusion that goes beyond speculation or conjecture. Hendrickson v. State 316 Ark. 182, 871 S.W.2d 362 (1994). The issue of the sufficiency of the evidence is a question of law. See Wooten v. State, 32 Ark. App. 198, 799 S.W.2d 560 (1990).
Appellant was standing on the porch at 1720 West 16th Street with several other men when detectives of the Little Rock Police Department arrived to execute a search warrant on July 29, 1992. An Intertech nine millimeter pistol was leaning against the wall directly in front of him and within his reach. The serial number was scratched off of the pistol, which contained nineteen live rounds of ammunition. A sawed-off twelve gauge pump shotgun with seven live rounds was standing against the porch wall farther away. A matchbox with white residue was lying on a porch windowsill. Appellant told officers he lived at the house.
In the living room a matchbox with cocaine residue was found under the couch, as was an empty Intertech box used to house a nine millimeter pistol. A plastic bag containing cocaine residue and a knife were on the fireplace mantel. A vase on the mantel held a small plastic bag containing several small pieces of crack cocaine. A plastic bag with marijuana residue was found behind the fireplace mantel.
Inside a dresser drawer in the middle bedroom were a marijuana pipe, paper, and residue. The pipe contained marijuana residue. A small plastic packet with cocaine residue was on top of the headboard. In a southeast bedroom dresser drawer were other plastic packets with cocaine residue. Various papers bearing the name of Willie Bridges and the address 1720 West 16th were found on top of the dresser. In the northeast bedroom were papers which belonged to Willie Bridges. Under the bed was a Guardian .32 caliber revolver.
Appellant testified that he had lived with his brother, Willie Bridges, from February 1, 1992, until the date of his arrest on July 29, except for a two-week period. He testified that he wanted to move back to El Dorado because he “got tired of being around drug dealers and gang banging and stuff like that. Crips.” He said there were “fifteen or sixteen coming around every day, all through the night, all through the day.” He testified that “all this drug activity had been going on while I was there.” He denied any participation.
Appellant’s argument in regard to the controlled substance and drug paraphernalia convictions is that since appellant was not in actual physical possession of either, the convictions may not stand. The argument is that appellant’s possession was merely “constructive” and that when conviction is based on constructive possession, factors other than mere joint occupancy of a residence must be shown to link the accused to the contraband.
Neither exclusive nor actual physical possession of a controlled substance is necessary to sustain a conviction. See Bailey v State, 307 Ark. 448, 821 S.W.2d 28 (1991); Johnson v. State, 35 Ark. App. 143, 814 S.W.2d 915 (1991). Constructive possession is sufficient. Bailey v. State, supra; Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). Constructive possession can be inferred when the controlled substance is in the joint control of the accused and another. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Bailey, supra; Hendrickson, supra. The State must show additional facts and circumstances indicating the accused’s knowledge and control of the contraband. Bailey, supra; Hendrickson, supra.
Constructive possession is the control, or right to control, the contraband in question. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982); Johnson v. State, 35 Ark. App. 143, 814 S.W.2d 915 (1991). Such control and knowledge may be inferred from the circumstances where there are additional factors linking the accused to the contraband. Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991); Mosley v. State, 40 Ark. App. 154, 844 S.W.2d 378 (1992).
Circumstantial evidence alone may be sufficient to support a conviction; indeed, the law makes no distinction between circumstantial and direct evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), cert. denied, 493 U.S. 959 (1989). Whether the circumstantial evidence excludes every other reasonable hypothesis is ordinarily for the factfinder to determine. See Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).
It is important to remember that jurors do not and need not view each fact in isolation, but rather consider the evidence as a whole. The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Shipley v. State, 25 Ark. App. 262, 757 S.W.2d 178 (1988). Jurors are instructed that they are not to set aside their common sense. AMI Crim. 103. When joint occupancy is the basis for a conviction of possession of contraband there must be proof of both knowledge and control on the part of the accused. See Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). In the case at bar appellant’s knowledge of the contraband and its sale from his home were admitted. Appellant’s control, or right to control, the controlled substances and the drug paraphernalia could be inferred by the jury from the facts and circumstances of the case. For example, the jury might infer that appellant resided in the “middle bedroom” because papers belonging to his brother, Willie Bridges, were found in the other two bedrooms. It was in the middle bedroom that the marijuana pipe was found and cocaine residue was found in plain view.
Furthermore, a bag containing cocaine residue was in plain view on the mantel in the living room in the house. Appellant’s possession of the Intertech pistol and the proximity of the Intertech box found under the couch in the living room to additional cocaine could be considered by the jury.
When all of the facts and circumstances of the case at bar are considered we cannot say that the evidence was insufficient to support the jury’s finding of guilt on the charges of possession of cocaine with intent to deliver and possession of drug paraphernalia.
Appellant’s final contention is that the evidence is insufficient to support his conviction on the charges of maintaining a drug house. The statute provides, in pertinent part, that it is unlawful for any person knowingly to keep or maintain any dwelling which is resorted to by persons for the purpose of using or obtaining controlled substances. Ark. Code Ann. § 5-64-402 (1987). We hold that the evidence was sufficient to support the conviction on this count.
Affirmed.
Robbins, J., concurs in part; dissents in part.
Cooper, J., dissents. | [
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John E. Jennings, Chief Judge.
Tony Plante hurt his right knee at work on September 12, 1988. He was ultimately treated by Dr. James Arnold, an orthopedic surgeon, who diagnosed a tear of the anterior cruciate ligament. On November 11, 1988, Dr. Arnold performed a “McIntosh repair,” an orthoscopic surgical procedure.
On April 10, 1989, Dr. Arnold released Mr. Plante to return to work with no restrictions. Because there is a 20% failure rate with the McIntosh repair, Dr. Arnold instructed Plante to return periodically to his office for “evaluation and laxity testing” for the next five years.
Mr. Plante returned to Dr. Arnold’s office on September 26, 1989, and July 26, 1990. He did not see Dr. Arnold on either occasion and the office notes designate these as “research visits.” The claimant returned again to Dr. Arnold’s office on July 22, 1991, for testing and evaluation. He was seen by Dr. Arnold on July 25, 1991, at which time it was determined that the McIntosh repair had failed and a synthetic ligament replacement was recommended.
The Commission found that the last bill received by respondents was paid on April 21, 1989; that no other bills were received from Dr. Arnold’s office until July of 1991; and that the respondent was unaware that the claimant had been instructed to return periodically to Dr. Arnold’s office.
This claim for additional compensation was filed on September 11, 1991. Before the Commission, the respondent contended that the statute of limitations had run. The claimant argued that the claim was not barred because medical services were “furnished” on September 26, 1989, and July 26, 1990. The Commission held the claim was barred and we agree.
Arkansas Code Annotated section ll-9-702(b) (Supp. 1993) provides, in part:
In cases where any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.
The supreme court has held that the furnishing of medical services constitutes payment of compensation in the context of this statute, and that such “payment” suspends the running of the time for filing a claim for compensation. Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 365 (1968); Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W.2d 211 (1956); Ragon v. Great American Indem. Co., 224 Ark. 387, 273 S.W.2d 524 (1954). See also Cheshire v. Foam Molding Co., 37 Ark. App. 78, 822 S.W.2d 412 (1992).
In holding that the claim here was barred by the statute of limitations the Commission relied, correctly we think, on McFall v. United States Tobacco Co., 246 Ark. 43, 436 S.W.2d 838 (1969). There, the supreme court said:
The appellant is correct in his statement that we are committed to the rule under Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W.2d 211, “that where an employer furnishes an injured employee medical services, this constitutes a payment of compensation or a waiver which suspends the running of the time for filing a claim for compensation.” The keystone to this rule is the two words “employer furnishes.” We have never held that medical services furnished by anyone other than the employer or his compensation insurance carrier, constitute payment of compensation or a waiver which suspends the running of the time for filing a claim for compensation. We are unable to see how an employer could furnish medical treatment without knowing, and without reason to know, that he is doing so.
The supreme court has also held that it is not the carrier’s responsibility to find out whether medical treatments are continuing, but is rather the claimant’s burden to act within the time allowed. Superior Federal Sav. & Loan Ass’n v. Shelby, 265 Ark. 599, 580 S.W.2d 201 (1979).
In the case at bar there is no contention that the respondent was aware of the claimant’s visits to the doctor’s office after April of 1989, nor was there any evidence that the respondent was aware that the doctor had instructed the claimant to return for periodic evaluation. The respondent therefore did not “furnish” any medical services after April of 1989, and the deci sion of the Commission holding the claim barred by the statute of limitations must be affirmed.
Affirmed.
Robbins, J., concurs.
Cooper and Mayfield, JJ., dissent. | [
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Sam Eobinson, Associate Justice.
On Marcb 12, 1962, appellant, Billy Huffman, was driving Ms automobile west on Alcorn Street in tbe City of Hot Springs. "When he reached Central Avenue he collided with an automobile owned by appellee, City of Hot Springs, and being driven by appellee, Bobby Digby, who, at the time, was a city policeman. Digby was answering a call to a corner on Central Avenue where someone had driven a car into the front of a store building. The City of Hot Springs and Digby filed this suit against Huffman, Digby alleging personal injuries and the City alleging damages to the automobile. The trial resulted in a judgment for the City in the sum of $142.00 for damages to the automobile, and Digby recovered- a judgment in the sum of $9,000.00 for personal injuries. Huffman has appealed.
Appellant first argues that the trial court erred in sustaining a motion filed by appellees to strike a cross-complaint filed by appellant in which he asked for damages done to his automobile. The suit was filed by the City of Hot Springs and Digby on the 30th day of March, 1962. On the 17th day of April, appellant filed his answer but did not cross-eomplain. On May 25, a little over a month later, appellant filed a cross-complaint in which he asked judgment in the sum of $272.00 for damages to his automobile. About eight months later, on January 17, 1963, the cause came on for trial, and at that time the court sustained appellees’ motion to strike the cross-complaint.
The trial court sustained the motion to strike the cross-complaint on the theory that Ark. Stat. Ann. § 27-1135 (Repl. 1962) requires the counterclaim be filed within 20 days from the date of the service of summons, and that here the claim was not filed for more than 30 days after the service of summons. As pointed out in Easley v. Inglis, 233 Ark. 589, 346 S. W. 2d 206, in this state, insofar as pleadings are concerned, there does not appear to be any valid distinction between a counterclaim and a cross-complaint.
Ark. Stat. Ann. § 27-1135 (Eepl. 1962) provides: “A defendant to any complaint or cross-complaint must appear or plead either generally or specially the first day after expiration of the periods of time set forth below, as the case may be: First. Where the summons has been served twenty (20) days in any county in the state; ...”
Ark. Stat. Ann. § 27-1121 (Repl. 1962) provides: ‘ ‘ The answer shall contain: . . . A statement of any new matter constituting a defense, counter-claim or set-off, in ordinary and concise language, without repetition. . . . In addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense [,] counter-claim’ or set-off, whether legal or equitable, as he shall have. ...”
The construction placed on the statute by the trial court is too narrow. We have held that where a defendant answers without filing any preliminary pleading such as a demurrer or motion, the answer must be filed within 20 days from the service of summons. Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439; Pyle v. Amsler, 227 Ark. 785, 301 S. W. 2d 441. Although those cases construed Acts 49 and 351 of 1955, the rule there announced is applicable to Act 53 of 1957, where, as here, the provisions added by the 1955 Act are not involved. Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S. W. 2d 784. We have also held that the filing of a valid motion meets the requirements of the statute, and in cases of that kind a default judgment cannot be taken against the defendant although he has not actually filed an answer. Stokenbury v. Stokenbury, 228 Ark. 396, 307 S. W. 2d 894; West v. Page, 228 Ark. 13, 305 S. W. 2d 336; Flippin v. McCabe, 228 Ark. 495, 308 S. W. 2d 824.
If a defendant files a valid pleading within the prescribed time he has done all the statute requires. We pointed out in Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439, that the purpose of the statute was to expedite litigation and prevent dilatory tactics. Of course after both parties are in court, the trial judge will not tolerate an unreasonable delay in disposing of the litigation. Here, the filing of the cross-complaint occasioned no delay whatever; it was filed on May 17 and the case did not come on for trial until about eight months later.
In many instances it would be wholly impractical to file a cross-complaint for personal injuries within the 20 day period in which the answer to the complaint must be filed. If the complaint is filed within a few days after the occurrence of the mishap giving rise to the cause of action, and this happens in many instances, the defendant may not know the extent of his injuries, or, for that matter, he may not know that he is injured at all.
Ark. Stat. Ann. § 27-1135 (Repl. 1962) provides that a defendant must either plead generally or specifically within a certain time. The filing of an answer meets the requirement of the statute, and there is no sound reason why a party should not be permitted to amend his pleading thereafter, provided, of course, such pleading is filed within a reasonable time. We have concluded that the motion to strike the cross-complaint should have been overruled.
During the course of the trial, the appellee, Digby, testified that he was not then working for the city; that he had been retired on pension because of the injuries he received in the collision in controversy. Appellant attempted to cross-examine Digby on the theory that he had been discharged by the city for misconduct. The trial court refused to permit counsel for appellant to cross-examine appellee Digby along that line. Counsel made it clear that he had reason to believe that appellee was discharged for misconduct. Counsel stated: “Your Honor, if allowed to ask the question we propose to ask on cross-examination, which is to ask the plaintiff, Bobby Digby, first; whether or not he is making any claim that his physical condition that he suffered as a result of this accident, whatever it may be, has any connection with his dismissal from the police force; and further, to ask the question whether or not he was discharged by the Civil Service Commission of the City of Hot Springs on the basis of misconduct. I believe the date of that being April 4, 1962. We think that both questions and anything from that that necessarily required questions are proper for several reasons. First, the question goes to the credibility. Second, it goes to the issue of damages of what lie may have lost, if anything, as a result of the accident. And further, if necessary, we would have the custodian of the records of the Civil Service Commission of Hot Springs testify, and those records will reflect that Bobby Digby was discharged on April 4, 1962, being subsequent to this accident, and that the Civil Service Commission records reflect that Bobby Digby was discharged after having been put on probation, and that the discharge was for misconduct on his part, which is clearly separate and apart and unrelated in any manner upon the accident upon which this lawsuit is based.”
Counsel should have been permitted to cross-examine appellee Digby as suggested. Wide latitude is permissible in cross-examining a party, who- is to be treated as any other witness, to-elicit facts contradicting his testimony given on direct examination or impeaching his credibility as a witness. Peterson v. Jackson, 193 Ark. 880, 103 S. W. 2d 640. It is said in 98 C. J. S. 125: “The office of cross-examination is to test the truth of statements of a witness made on direct examination. Cross-examination serves as a safeguard to combat unreliable testimony, providing a means for discrediting á witness’ testimony, and is in the nature of an attack on his truth or accuracy. The purpose of cross-examination, however, is not limited to bringing out a falsehood, since it is also a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner. The object of cross-examination, therefore, is to. weaken or disprove the case of one’s adversary, and break down his testimony in chief, test the recollection, veracity, accuracy, honesty, and bias or prejudice of the witness, his source of information, his motives, interést, and memory, and exhibit the improbabilities of his testimony. ’ ’
Appellant further complains of the trial court’s refusal to give the jury an instruction to the effect that appellees could not recover if the collision was due to an unavoidable accident. In this ease such an instruction would have been abstract, because there is no allegation in the pleadings and no evidence of an unavoidable accident. It is just a simple case of negligence; each side contending that the other negligently ran the traffic light when it was red, thereby causing the collision. In the circumstances, the court was not required to give an instruction on an unavoidable accident.
Reversed and remanded for new trial. | [
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Jim Johnson, Associate Justice.
This is an appeal from a conviction for voluntary manslaughter. Appellant Joseph Franklin Aden lived on a farm supervised by the deceased, Willis Cole, and had worked for Cole. A day or two before Aden shot Cole, Aden had started picking, cotton for a Mr. Collier.' The evening of September 18, 1962, Cole with his nephew went to Aden’s house where Cole determined, with anger, that Aden was working for Collier and that Aden planned to move from Cole’s farm the following weekend. Their conversation took place beside Cole’s truck. Aden testified that as he started to run back into the house, Cole hit him on the back of the head with a blackjack or something and knocked him to one knee. Cole then drove off. Aden went into his house, picked up his shotgun and a shell and drove to his parents’ home. Aden and his father testified that they examined his head and his mother insisted that he go to a doctor; that Aden and his father then drove to the nearest doctor, who was not at home; that Aden then decided to go home and pick up his wife and find another doctor; and that after passing Cole’s truck on the highway, Aden went to a gas station where he was backing up to a pump to get gas and air for a low tire when Cole’s truck pulled in. The testimony is in conflict as to whether Cole or Aden got out of his. vehicle first with a gun,.but there is little conflict in testimony that Cole shot first, either once or twice, before Aden shot. Aden’s shot hit the truck’s open door behind which Cole was standing, which in turn deflected the shot up into Cole’s right arm pit and side. Cole 'died shortly thereafter still holding a cocked pistol.
On September 19th, an information was filed in Randolph Circuit Court against Aden, charging him with murder in the first degree. He was tried on December 6, 1962, and because the jury could not agree on a verdict, a- mistrial was declared. Then the case was set for trial January 21, ,1963. At the close of this trial, the jury found appellant guilty of the crime of voluntary manslaughter and fixed his punishment at four years in the penitentiary. From the order on this verdict, appellant has prosecuted this appeal. For reversal appellant urges that the trial court erred in excluding the testimony of John Hannaford, who would testify that on the day before the killing the deceased told him that he, Cole, was going to kill appellant if he did not move (from his premises).
At commencement of trial appellant requested that the rule be invoked and all witnesses excluded from the court room. On the second day of trial during a recess, appellant’s counsel learned what John Hannaford could testify to and immediately had him subpoenaed, sworn and sent to the witness room. This witness had sat in the court room during most of the trial up to the time, he was subpoenaed, and had also heard most or all of the first trial. When appellant called Mr. Hannaford to testify, the State objected on the ground that he had been present in the court room during most of the trial and his testimony should therefore be excluded. The trial court stated (in its Findings following a motion for new trial): “In view of the fact the witness had been in attendance during both trials and there was testimony in the record concerning threats or alleged threats by the deceased to do. violence to the defendant, and the defendant testified that certain threats had been communicated to him, the court felt that in view of what had transpired, that the State’s objection should be sustained and the offered testimony excluded. It was the thinking of the court that if the Rule and the exclusion of witnesses from the court room during the taking of the testimony meant anything, that the objection of the State should be sustained.”
Harris v. State, 171 Ark. 658, 285 S. W. 867, deals directly with this situation. Among the number of authorities cited and quoted with approval therein is the following:
“In 14 Encyclopedia of Evidence, chapter ‘Witnesses,’ page 598, it is said: ‘The better rule seems to be that a witness is not disqualified from testifying by reason only of his having disobeyed, an order of exclusion, that his testimony ought not to be rejected and the party who called him deprived of his testimony where such party is himself without fault; but that such violation should only affect this witness’ credibility, or subject him to punishment for contempt.’ ” The applicable rule in the Harris case has been succinctly summarized as follows:
“Where counsel for accused did not know until a few minutes before offering testimony that witnesses would testify to certain facts, and for that reason they had not been called as witnesses and put under the rule, refusal to permit them to testify was an abuse of discretion, where they were offered before the close of testimony. ’ ’
For the error indicated it is necessary to reverse this case and remand the cause for new trial.
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Carleton Harris, Chief Justice.
This litigation relates to the changing of the beneficiary in several insurance policies by a subsequent will. "W. L. Clements, a resident of Phillips County, owned considerable real property in Desha and Phillips Counties, and seven insurance policies payable to his estate. One of these policies had been issued by the Mutual Life Insurance Company of New York in the amount of $25,000.00, and the other sis policies, each in the amount of $10,000.00, had been issued by the Equitable Life Assurance Society of the United States.
Approximately two weeks bei'oie his death, Mr. Clements made a holographic will, the provisions pertinent to this litigation, reading as follows:
“I hereby will to my wife Sarah Clements a $25,-000.00 insurance policy made payable to my estate with the Mutual Life of N. T. and written by Jim Hudson, Policy in my Lock box at the Phillips Nat. Bank where all papers are.
“I hereby will to my nieces and nephew all real estate in Desha County and Phillips County, Ark. namely Katherine Clements now of Memphis, Tenn., Mrs. Roy Turner of Lexa, and Lawrence Clements of Barton together with $60,000.00 worth of Insurance with the Equitable Life Insurance Co. with instructions that all my debts and taxes be paid. And all the property be held together for 5 years and rented to my present tenant for that period of time if he wants it on present terms less the clause on clearing in his present contract.”
No children were born to the marriage between Mr. and Mrs. Clements.
Petition was filed in the Probate Court of Phillips County for the probating of this instrument, and the will was duly admitted to probate, Lawrence Clements and Harry Neblett being named executors, as provided in the will. When the inventory was filed, no mention was made of the insurance policies, and appellant filed her exceptions, and subsequently, on May 5, 1961, filed her petition for statutory allowances and assignment of dower, alleging that she was the surviving widow of W. L. Clements; that she had renounced under the will, and was entitled to one-half of the gross value of all property owned by her husband at the time of his death, including one-half of all insurance proceeds payable to his estate. After the filing of various pleadings, counsel entered into a stipulation, as to pertinent facts, and the Probate Court rendered its decision on the basis of the stipulation, no oral testimony being heard. Thereafter, the court entered its findings as follows:
“That the proceeds of the six (6) policies of insurance issued by The Equitable Life Assurance Society of the United States on the Life of TV. L. Clements are not assets in the hands of the Executors, since the Testator, TV. L. Clements, changed the beneficiaries thereof by his Last Will and Testament, and such proceeds are the property of Katherine Clements, Mrs. Roy Turner and Lawrence Clements as beneficiaries thereof. That the widow, Sarah H. Clements, had no vested interest in the six (6) policies of insurance issued by Equitable Life Assurance Society of the United States. That the proceeds of the insurance policy issued by The Mutual Life Insurance Company of New York on the life of TV. L. Clements are not an asset of the Estate of W. L. Clements, since the Testator changed the beneficiary by his Last Will and Testament, and such proceeds are the property of Sarah H. Clements, as such beneficiary, and that the Executors should deliver to her such proceeds they now hold. That the widow, Sarah H. Clements, is entitled to one-half (%) of the personal property of the Estate as dower and shall not be charged with any claims or costs of administration >s
< < s * * that Sarah H. Clements, as widow of TV. L. Clements, is allotted as dower one-half (%) of the real property owned by TV. L. Clements at the time of his death, subject to one-half (%) of the mortgage indebtedness on said lands, * ~
Prom the order entered, appellant brings this appeal. Por reversal, appellant argues two points, as follows:
I.
“The proceeds of the seven (7) policies of insurance, payable to the estate of the decedent, passed to his executors as assets of the estate subject to the dower interest of the appellant as provided under Sections 60-501, Arkansas Statutes.
II.
“The devise to the appellees ‘of all real estate in Desha County and Phillips County, Arkansas, together with $60,000.00 of insurance with the Equitable Life Assurance Society of the United States with instructions that all my debts and taxes be paid’ constituted a contingent devise of property conditioned upon the payment of the debts and taxes.”
We proceed to a discussion of these points in the order listed.
I.
In all of the policies of insurance here involved, Clements reserved the right to change the beneficiary, and this right existed at the time of his death.. We think this point is controlled by Pedron v. Olds, 193 Ark. 1026, 105 S. W. 2d 70. That case involved a controversy between the wife and daughter of the insured, relative to the proceeds of insurance policies in which the wife was named as beneficiary; subsequently, however, the insured executed a will, designating his daughter as beneficiary. In holding with the daughter, this court said, “Did the will have the effect of changing the beneficiary? The lower court decided that it did.
“It is conceded by both parties that the beneficiary named in the policies had no vested interest, because under the provisions of the policies, he had the undoubted right to change the beneficiary in the manner therein provided. Under such circumstances, it is generally held that the beneficiary has no vested interest in the insurance during the lifetime of the insured, and such is our own holding. We do not appear to have heretofore de cidecl the exact question here presented, that is, whether the insured may change the beneficiary, where the power to change is given in the policy, without the consent of the beneficiary, by a testamentary provision, or must he pursue the method prescribed in the policy. The cases from other jurisdictions are in hopeless conflict, but it seems to us that the better rule is with the cases that hold that the insured may change his beneficiary by valid will. 0 0 *”
" * There are numerous cases holding that a policy may be assigned by the insured without the consent of the beneficiary where there is no vested interest in the beneficiary, and if the insured quits paying the premiums and the policy lapses, the beneficiary loses his interest therein along with the insured, and we can perceive no valid reason why, under similar conditions, a testamentary provision may not have the effect of changing the beneficiary. In the case before us, the beneficiary had no vested interest during the lifetime of the insured, and neither did the legatee under the will. Both provisions became effective on his death. The provision in the will conflicted with the provision in the policy designating appellant as beneficiary, and this being the insured’s last expression on the subject, it ought to control.”
This holding was reiterated in Eickelkamp v. Carl, 193 Ark. 1155, 104 S. W. 2d 814. Eickelkamp held a life insurance policy which named his wife as beneficiary. This policy, likewise, contained the usual provision that the insured could change his beneficiary by giving written notice to the company at its home office, and the change would become effective upon the company’s endorsement of the change on the policy. Thereafter, Eickelkamp and his wife were involved in an automobile collision while on a journey. Mrs. Eickelkamp died about noon, and Mr. Eickelkamp passed away some five or six hours later. At some time during that period, Eickelkamp was advised of his wife’s death. He then summoned two nurses and the secretary of the hospital, and executed a will shortly before he died, in which he changed the name of the beneficiary in the life insurance policy from his wife to her father. Suit was instituted by the father of Eiekelkamp, sole heir of the deceased, who would, of course, recover the proceeds of the insurance policy if it were payable to his son’s estate. We held that the change of beneficiary by will was valid, relying upon Pedron v. Olds, supra.
The A rkansas cases cited by appellant are not cases involving change of a beneficiary, or where the widow was taking against the will. Appellant cites a Missouri case, Plummer v. Metropolitan Life Insurance Company, 229 Mo. App. 638, 81 S. W. 2d 453, which does involve the change of a beneficiary in an insurance policy by testamentary provision. The Missouri court held that the provision in the will changing the beneficiary in the policy was valid, and the beneficiaries named in the will were entitled to receive the proceeds as against the beneficiary named in the policy, but held that the proceeds were subject to prior payment of the decedent’s debts. Appellant asserts that this is the better reasoning, but we can only say that cases from other jurisdictions are rarely relied upon when the question has already been passed upon by this court. We, therefore, hold that the provisions in the will, designating the particular beneficiaries for certain policies, had the effect of changing the beneficiary named in the insurance policies (the estate), i.e., the effect was the same (between the parties) as though Clements had written to the insurance companies and followed their required procedure in changing beneficiaries. It follows, therefore, that the Chancellor was correct in holding that the proceeds of these policies did not pass to the executors as assets of the estate, and accordingly, were not subject to the dower interest of the appellant.
II.
Learned counsel for appellant vigorously contend that the devise to appellees of all real estate in Desha and Phillips Counties, together with the $60,000.00 worth of insurance, constituted only a contingent devise of the property, conditioned upon the payment of the debts and taxes. It is asserted that the only debt that was outstanding at the time of Clements ’ death was a certain indebtedness to the Equitable Assurance Society, originally in the sum of $60,000.00, and secured by mortgage, executed in November, 1958, on real estate located in Desha County. Appellant states:
‘ ‘It is not a mere coincidence that the $60,000.00 insurance proceeds were the same amount as the mortgage indebtedness. It is not a coincidence that the insurance policies were written by the Equitable Assurance Society of the United States and the mortgage was made to the same company.”
Thus, appellant asserts that Clements intended for the mortgage indebtedness to be paid from the $60,000.00, and that any other construction does violence to the intention of the testator.
Of course, the wishes of the testator, as expressed in his will, are rarely carried out where the widow elects to take against the will. It may well be that Clements intended that the indebtedness to the Equitable be paid out of the $60,000.00, with the beneficiaries named taking the balance. But, it is also evident that Clements did not intend for his wife to take any of his real property. When Mrs. Clements elected to take against the will, it became impossible for the testator’s wishes to be followed. The election by appellee, of course, meant that, as to her, the husband had died intestate—i.e., “there was no will.” She cannot be deprived of statutory rights because of provisions in the instrument adverse to her interest—but neither can her rights be enlarged because of subsequent provisions favorable to her interest. To use an old expression, “She cannot have her cake and eat it, too.” This not only seems the proper logic to employ, but is likewise supported by authority. While there are apparently no Arkansas cases dealing with this exact situation, the question has been passed upon by courts of other states. In Ashelford v. Chapman, et al. 105 Pac. 534 [Kansas], the testator left a will, devising all real estate he owned in Kansas to his children, but also provided for his wife in the will. Clause 9 of the instrument was as follows:
“It is my further will that in the event at my decease I am indebted to any person or persons for the purchase, price of all or any part of the real estate owned by me, or for any lien created upon any of said real estate, for the payment of the purchase price of said real estate or any part thereof, that all my children shall equally contribute out of their share or shares of my estate given and bequeathed, granted and devised to them under this, my will, an amount sufficient to pay off all of said indebtedness. ’ ’
The widow renounced provisions for her benefit contained in the will, electing to take under the law, but then sought to enforce the cited clause against the children, contending that her dower should be set apart free from any liens. The Supreme Court stated:
“If provision be made for the widow in her husband’s will, she shall be cited to appear and make hex-election whether she will accept such provisioxi, or take what she is exxtitled to uxxder the law of descexxts and distributions, but she shall xxot be entitled to both. * " * The widow’s portion cannot be affected by any will of her husband, if she object thereto axxd relinquish all right conferred upon her by the will. [Citing statute] * * * From these statutes it is plaixx that a widow provided fox- by hex- husband’s will, to which she has xxot previously consented, has the choice of two rights, oxxe xxxxder the statute of descexxts axxd distributions, axxd oxxe uxxder the will; but she caxxxxot have both, except, of course, ixx cases where such is the purpose of the will. She may take either, but the election of one is a relixxquishmexxt of the other. Her choice is betweexx will axxd xxo will. If she take uxxder the law, there is xxo will so far as her lights are concerxxed. Hex- share is cax-ved out of the estate according to the law of descents and distributions precisely as if xxo will had beexx made. Thexx the will operates upon the residue. The will of what remains after she has been satisfied may create rights, and may impose obligations, but she is a stranger to them. Her election in effect partitions the estate into two separate and independent domains; one governed exclusively by the statute of descents and distributions, and one governed exclusively by the will. She occupies one, the beneficiaries of the will occupy the other, and there are no reciprocal relations between them. The beneficiaries of the will owe her no duty under the will, because she renounced all rights under the will, became an alien to it, and betook herself to her own peculiar demesne. She cannot invade their territory, and demand of them anything sectored or enjoined by the will, because she satisfied every claim she possesses when she elected to take according to law.”
Similarly, in the New York case, In Re Campbell’s Estate, 13 N.Y.S. 2d 773, it was held that the testator’s widow, who renounced a legacy to her of interest in a lodging house by electing to take dower in the testator’s estate, could not enforce a condition in the will -which bequeathed half of the testator’s lodging house business to his son, with the provision that the son should conduct the entire lodging house business for the benefit of other members of the testator’s family, so long as they desired, without charge. As the court stated,
“The condition written by the testator in his will was limited to testamentary benefits and solely to the members of his family who accepted such testamentary benefits. The widow by her rejection of the legacy is, therefore, excluded from the right to enforce the condition. ’ ’
In Volume 97, C.J.S., Section 1288(b), Pages 136 and 137, we find:
“Generally, the widow’s renunciation of her husband’s will precludes her from claiming or accepting any benefits thereunder, * * * and the provisions made for her in the will lapse, or become immaterial, becoming in effect, obliterated from the will, * * *.
‘ ‘ The rule precluding the widow from claiming benefits under the will has been applied to such benefits as a charge for her support, a provision for a home or its occupation, for income, and annuity, or for her funeral expenses. Renunciation operates as an extinguishment of trust provisions solely for the benefit of the person renouncing, and nullifies the interest of the surviving spouse as an income beneficiary of a trust created for her and others; and it also extinguishes a grant of a general power of appointment which otherwise might be exercised by the person renouncing to the benefit of his own estate.
“Moreover, a widow, who has renounced the will, may not, in order to increase her distributive share, compel persons taking under the will to comply with provisions therein, or an executor to make a sale of property or to serve for a nominal fee; and where a lease is made to the widow to effectuate provisions in the will for her benefit, by renunciation of the will she loses all rights both under will and under lease. ’ ’
Since, as far as Mrs. Clements is concerned, her husband died intestate, it follows that she is entitled to her dower interest in the lands (though devised to others), but, at the same time, she is charged with one-half of the indebtedness. In Harris v. Mosley, 195 Ark. 62, 111 S. W. 2d 563 we held that where land was mortgaged when appellant (the widow) married deceased, (as here) her dower rights in the land were subject to the rights of the mortgagee and those holding under him.
The litigation is thus disposed of, but another interesting question is presented in that the stipulation reflects that the real property on which the mortgage existed was sold by agreement of the appellant and appellees. The mortgage debt was deducted from the sales price, and the balance of the funds divided, one-half to Mrs. Clements, and the remaining one-half to the appellees. The mortgage debt was not probated as a claim against estate and Mrs. Clements apparently made no objection to the sale, but rather, voluntarily joined in the execution and delivery of the deed. Appellees are of the opinion that, by this action, appellant waived any rights she might have in attempting to secure the payment of the mortgage from the general assets of the estate. In view of what has heretofore been said, a discussion of this point is unnecessary.
Finding no error, the judgment is affirmed.
Mr. Clements died on November 1, 1959, less than a year alter his marriage to appellant.
Ark. Stat. Ann. § 60-501 (Repl. 1961) provides: “When a married man dies testate as to any part of his estate, or when a married woman dies leaving as her last will one executed prior to her marriage, the surviving spouse shall have the right to elect to take against the will and to take such part of the property as he or she would have taken had the deceased spouse died intestate.”
This, inter alia, reflects that all taxes and claims filed against the estate have been paid, and the estate is solvent.
A number of claims were filed against the estate, and, offhand, it would appear that some of these claims represent debts incurred before the death of Clements; however, this cannot be definitely determined from the record, and is immaterial in this litigation.
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Jim Johnson, Associate Justice.
This suit arises from a boundary line dispute. A similar controversy between appellee and appellant’s predecessor in title was involved in a prior suit, Brown Paper Mill Co., v. Warnix, 222 Ark. 417, 259 S. W. 2d 495. In that suit Brown Paper Mill Company sought to enjoin appellee Warnix from cutting timber on land claimed by Brown Company and to recover damages for timber already cut. At that trial appellee presented the testimony of the county surveyor relative to his survey of the boundary line. Brown Company disputed the accuracy of the county surveyor’s measurements, but offered “no persuasive substitute” in that Brown Company employed two surveyors who disagreed with each other and with the county surveyor. This court ruled, ‘ ‘ To accept any of the three suggested lines is to reject the other two. After studying the record we are not convinced that any one of the three is demonstrably more reliable than the other two. In these circumstances the chancellor rightly held that the plaintiff had not met its burden of proof. ’ ’
In the case at bar appellant, International Paper Company, successor to Brown Paper Mill Company, Inc., filed a complaint on August 13,1962, in Grant Chancery Court to enjoin appellee W. P. Warnix from cutting or removing any timber ‘ ‘ east of a marked and visible line established and maintained by plaintiff . .. between Section 33 and 32,” praying that plaintiff’s title be quieted and confirmed against defendant (appellee) and that the boundary line between the lands be established as marked by plaintiff. A temporary injunction was then issued. Appellee filed a general denial and thereafter an amended answer and cross-complaint in which he denied that he claimed any land east of the original line, and further denied that he had any notice or warning of the repainting of any lines contrary to that which he had blazed out, and cross-complained for damages in the sum of $500.00.
At trial of the cause on July 5, 1963, the chancellor found that the parties stipulated that the issue is the true location of the line, and found that the preponderance of the evidence proves that the true line is the one claimed by appellee, that the temporary injunction should be dissolved and appellee on his cross-complaint should be awarded $100.00 as damages. Prom this decree appellant has appealed, urging three points for reversal.
Appellant’s first point is, “The location of the line between appellant’s and appellee’s land is res ad judicata having been adjudged to be located as contended here by appellant. The trial court erred in refusing to recognize the line as determined in Brown Paper Mill Co. Inc. v. Warnix, supra.” Both parties seem to be under the misapprehension that this court adopted a line in the Brown case. On the contrary—this court specifically refused to select a line and stated that, “After studying the record we are not convinced that any one of the three [lilies] is demonstrably more reliable than the other two.” This court simply upheld the ruling that Brown Company had not met its burden of proof.
Appellant’s second point urged for reversal is that the clear preponderance of the evidence shows that the parties have accepted the line contended for by appellant. Three of appellant’s employees testified to marking a line with aluminum paint in 1958, following old red markings two-thirds of the way, which they understood and believed to be the true boundary line, and that they did so with appellee’s knowledge, consent and acquiescence. These three witnesses are apparently well qualified as foresters.; however none of them claimed to be surveyors or to have worked with a surveyor in locating this line; none of them testified to starting from a recognized corner, but testified that they had measured a certain number of feet from an existing fence which was some distance from the section corner. Appellee, on the other hand, denied that he had consented or acquiesced in that line and testified that the old red markings were those of a timber estimator who had cruised the timber and that the boundary line was in a different location, well-blazed by earlier surveys. Appellee and several of appellee’s witnesses testified to being present and working in a survey xcarty some years earlier and testified to where they understood the true line to be, describing the particular surveyor’s individual blaze as well as the section corner blaze with which this line corresponded. Reviewing the record on trial de novo, considering the disputed testimony on this point as well as the uncontradicted testimony of appellee relative to his damages (appellant’s third point), we cannot say that the chan cellor’s findings are against the preponderance of the evidence and must therefore affirm the trial court.
Harris, C. J., and George Rose Smith and Prank Holt, JJ., dissent. | [
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Ed. F. McFaddin, Associate Justice.
This is a boundary line dispute involving property in Lots 1 and 2 of Eapley Estate in Pulaski County. Rose Courts, Inc., an Arkansas corporation, owns the east portion of Lot 2; and Harry L. Hastings and wife own the west portion of Lot 1. Eunning north and south between Lots 1 and 2 there ivas and is an unopened avenue 40 feet wide, east to west, and the lots of the litigants herein abut on said unopened avenue. Eose Courts brought this suit against Hastings to have the Chancery Court establish the true location of the unopened 40-foot avenue, and also to enjoin Hastings from alleged trespass on Eose Court’s property west of the unopened avenue. Rose Courts claimed that the unopened avenue was about 84 feet east of where Hastings claimed it to be. Hastings claimed: (a) that previous litigation was res judicata against Rose Courts; and (b) if res judicata were not sustained, the unopened avenue was 84 feet west of where Eose Courts claimed it to be. Neither side claimed title in any way to the unopened avenue.
The litigation has a considerable historic background. In 1872 the Pulaski Probate Court directed the administrator of the Estate of Charles Eapley to file a plat of portions of Sections 10, 11, and 14. This plat was filed and showed said Lots numbered 1 to 8 of Eapley Estate, each lot containing approximately 9 acres; and the plat showed an unopened (and unnamed) avenue 40 feet wide east to west, running north and south, and separating Lots 1, 4, 5, and 8 on the east side of the avenue from Lots 2, 3, 6, and 7 on the west side of the avenue. The plat did not show definitely whether the property line immediately west of the Rapley Estate was- the Quapaw Line or the line of Cox’s Quapaw Addition, which addition is 170 feet east to west and several hundred feet north and south. This failure of the plat to establish the said west line of Rapley Estate was probably the origin of the litigation herein to be mentioned. Except for the matter of res judicata, subsequently to be discussed in detail, the issue could be simply stated: if the west line of the Rapley Estate bordered the Qua-paw Line, then the 40-foot avenue here involved should be as contended by Hastings; but if the west line of the Rapley Estate bordered Cox’s Quapaw Addition, then the 40-foot avenue should be as contended by Rose. In other words, a strip of about 84 feet is involved in the present litigation, depending on who is right about the location of the unopened avenue.
A voluminous record was made in the Trial Court with scores of exhibits consisting of plats, surveys, court orders, deeds, and other instruments. A number of engineers and surveyors testified, and some even repudiated their own previously made plats as to location of the 40-foot avenue. Such repudiation tended to place the issue in grave doubt as to the actual location of the 40-foot strip. The Trial Court denied Hastings’ plea of res judicata and fixed the 40-foot avenue at the place urged by Rose Courts; and from that decree Hastings has appealed, urging two points:
“1. The Trial Court erred in not holding the present action barred by reason of Pulasld Chancery Cases No. 82474, No. 90142, and No. 101718, based on the law of res judicata.
“2. The Court erred in not locating the forty foot avenue as shown on the C. T. Brandt Survey of December 11, 1947.”
We do not reach appellants’ second point because we are convinced that Hastings’ plea of res judicata should have been sustained; and we now give the situa tions which show the applicability of such plea. First, we give the line of title of each litigant from the various deeds, all duly recorded:
(a) Rose Courts, the present appellee, received its deed from Arkansas Courts, dated June 27, 1950; Arkansas Courts received its deed from Arkansas Real Estate Company, Inc., dated December 9, 1949; and Arkansas Real Estate Company, Inc. received its deed from Little Rock Investment Company dated April 4, 1947.
(b) Harry L. Hastings and wife received their deed from C. C. McCord, dated May 10, 1955; and C. C. McCord received his deed from the State of Arkansas, dated December 27, 1935.
Certain cases in the Pulaski Chancery Court need to be identified:
(a) Case No. 82474 was by C. C. McCord, as plaintiff, against Arkansas Real Estate Company, Inc., as defendant. The decree rendered in February 1949 recited that McCord’s title to the west 156.3 feet of Lot 1 Rapley Estate (that would be along the unopened avenue) was quieted, and that the boundary line between Lot 1 and Lot 4 (to the south of Lot 1) Rapley Estate “is shown by Exhibit 8 herein, same being a plat of the survey made by C. T. Brandt December 11, 1947.” It will be observed that McCord owned his portion of Lot 1 until May 1955, and that Arkansas Real Estate Company, Inc. owned its portion of Lot 2 until December 1949, and that the parties to the present litigation claim through the respective parties in said Case No. 82474.
(b) Case No. 90142 in the Pulaski Chancery Court was dismissed by voluntary non-suit and is unimportant.
(c) Case No. 101718 in the Pulaski Chancery Court was styled, Arkansas Real Estate Company, Inc., as plaintiff, v. C. C. McCord and wife, defendants, and filed January 18, 1955. In that case the Arkansas Real Estate Company, Inc. claimed ownership of the west 84 feet of Block 1, Rapley Estate (same being a portion of the Hastings property). It will be observed that Arkansas Real Estate Company, Inc. conveyed its title to Lot 2 in 1949 to Arkansas Courts, yet in 1955 Arkansas Real Estate Company, Inc. was claiming against McCord 84 feet from Lot 1, Rapley Estate. Against such claim in Case No. 101718, McCord pleaded that the decree in Case No. 82474 was res judicata against Arkansas Real Estate Company, Inc.; and by decree of July 28, 1955, McCord’s plea of res judicata was sustained.
(d) Case No. 107579 in the Pulaski Chancery Court is the present case; and Hastings has pleaded the earlier cases as res jiodicata.
Mr. R. M. Traylor, President of Rose Courts, and also President of both of the predecessor corporations, Arkansas Courts, and Arkansas Real Estate Company, Inc., was called as a witness by Rose Courts in this case; and Mr. Traylor' admitted on cross examination that the 84 feet involved in the present suit was the same 84 feet that was involved in Case No. 101718. It is true that on re-direct examination Mr. Traylor claimed he did not know what his attorneys had alleged in the previous cases; but Mr. Traylor’s admission must stand against Rose Courts, of which he is President. Such admission by Mr. Traylor is sufficient extrinsic evidence to identify the land in the previous litigation with the land in the present litigation and to establish Hastings’ plea of res judicata. It is true that Arkansas Real Estate Company, Inc. had conveyed by deed to Arkansas Courts before the decree in Case No. 101718, but nevertheless the plea of res judicata was successfully used in Case No. 101718, with Case No. 82474 as the support for such plea; and Traylor’s admission that the land in Case No. 101718 was the same as that claimed by Rose Courts in the present ease establishes that the land in the present suit is the same as the land involved in Case No. 82474. Such extrinsic evidence supports the plea of res judicata.
The Latin words, “res judicata,” literally translated into English mean “a thing adjudged”; and freely translated into English mean “the matter has been decided.” In Mo. Pac. RR. Co. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872, we quoted the language from American Jurisprudence to explain res judicata:
“ ‘Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ ”
In Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610, Mr. Justice Humphreys, speaking for the Court, said:
“The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School Dist. No. 6 v. Baggett, 172 Ark. 681, 290 S. W. 577; Cole Furniture Co. v. Jackson, 174 Ark. 527, 295 S. W. 970; Prewett v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S. W. 2d 735.”
TVe have given the line of title of Hastings and Bose Court to show that Hastings is in privity with McCord, and Bose Court is in privity with Arkansas Beal Estate Company. In Mo. Pac. v. McGuire, supra, we said:
“And in 30 Am. Jur. 957, in discussing who are privies within the rule of res judicata, it is stated: ‘In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right. It has been declared that privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject-matter of the litigation, and that the rule is to be construed strictly to mean parties claiming under the same title.’ See Meyers v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958, and eases and authorities there cited.”
In Cook v. American Cyanamid Co., 227 Ark. 268, 297 S. W. 2d 933, we said.:
“The contention that the parties are not identical under the doctrine of res judicata is without merit. See Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993, to the effect that a grantee, under the doctrine of res judicata, stands in the relation of privy to the grantor.”
In Carrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579, we quoted the language of the United States Supreme Court in Russell v. Place, 94 U. S. 606, which language had been approved by Mr. Justice Battle in McCombs v. Wall, 66 Ark. 336, 50 S. W. 876, which language is:
“ ‘It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to give this operation to the judgment it must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record—as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,—the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.’ ”
Here, as we have previously shown, Mr. Traylor’s testimony was the extrinsic evidence which clearly showed that the 84-foot strip here in issue was the same strip in issue in Case No. 82474, and that in Case No. 101718 the plea of res judicata was successfully urged in favor of McCord (predecessor in title to Hastings) as to the said 84-foot strip. In Morrow v. Raper, 222 Ark. 414, 259 S. W. 2d 499, Mr. Justice Millwee said:
“There is no contention by plaintiff that the 1946 judgment was obtained by fraud or collusion. The only contention is that the surveyors made a mistake in establishing the boundary line in that suit. The fact, if true, that the question of the boundary line may have been erroneously determined in the former suit does not impair the conclusiveness of a valid judgment rendered by a court of competent jurisdiction, which has not been set aside or corrected on appeal. Tri-County Highway Improvement Dist. v. Vincennes Bridge Co., 170 Ark. 22, 278 S. W. 627; Strauss v. Missouri State Life Ins. Co., 188 Ark. 286, 66 S. W. 2d 299; 30 Am. Jur., Judgments, § 156; 50 C.J.S. Judgments, § 704.”
In Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393, there had been a previous case to establish the boundary line between the parties; then later Timmons attempted to show that there was a street (called Ridge Street) between the properties of Brannan and Timmons, but we held the first case to be res judicata, saying:
“ ‘The test in determining the plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit. ’ The test is not whether the matters in the second suit were actually litigated in the former suit between the parties, hut whether such matters were necessarily within the issues and might have been litigated in the former suit.”
Appellee cites and strongly relies on Fawcett v. Rhyne, 187 Ark. 940, 63 S. W. 2d 349, and McCombs v. Wall, 66 Ark. 336, 50 S. W. 876; hut neither of these cases is ruling in the case at bar. In Fawcett v. Rhyne we held that the adjudication concerning one parcel in a larger tract was not res judicata in regard to another parcel, in the larger tract, not included in the previous case. In McCombs v. Wall we held that there was nothing, either in the record or in extrinsic evidence, to identify the land involved in the second case as having been in the original case, and thus res judicata was not established. The two cases relied on by the appellee are correct, hut the law enunciated in those cases is not applicable to the case at bar because, here, there is extrinsic evidence that the tract now involved was also involved in the previous litigation.
Finally, we mention Rose v. Jacobs, 231 Ark. 286, 329 S. W. 2d 170, wherein we quoted with approval from 50 C:J.S. 293, “Judgments” § 763:
‘ ‘ ‘ Since the identity of parties is not a mere matter of form, hut of substance, the rule of res judicata should not be defeated by minor differences of parties. Thus, where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal to the conclusive effect of the prior judgment, and a substantial identity is sufficient. * * * This rule, that there must he a substantial identity of parties as well as of the subject matter, is based on the fundamental principle that no man can be deprived of his property except by due process of law, a principle which in the United States has been embodied in the Federal Constitution, and in the constitutions of the several states. It has also been held that the true reason for holding an issue res judicata is not necessarily the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff ivho deliberately selects his f onion is bound by cm adverse judgment therein ioi a secooicl suit involvioig the same issues, eveoi though defendant ioi the secooid suit ivas oiot a party, oior ioi privity with a party, ioi the first suit.’ ”
So we conclude that Hastings’ plea of res judicata should be sustained; and it follows that the Chancery decree is reversed and the cause remanded, with directions to sustain Hastings ’ plea of res judicata and to dismiss the complaint of Rose Courts.
George Rose Smith, Ward & Johnson, JJ., dissent.
The original defendants were Harry L. Hastings and wife, and in the course of the litigation they transferred their title to the Hastings Realty Company, an Arkansas corporation. We continue to refer to all of the defendants as “Hastings.”
In some instances, they are referred to as “lots” and in others as “blocks”; but the interchange of these words is not a material matter in this litigation.
On this see Raper v. Morrow, 222 Ark. 414, 259 S. W. 2d 499, subsequently discussed.
Here is Mr. Traylor’s testimony:
“Q. Mr. Traylor, you have testified in regard to a conversation had between you and Mr. Hastings subsequent or shortly after Mr. Hastings’ purchase of the west part of Lot 1 or Block i of Rapley Estate?
“A. I did, sir.
“Q. And you testified that shortly thereafter you filed a lawsuit against Mr. Hastings?
“A. Well, I think it was after that. It was along about that same time. I don’t remember how many days or weeks or months it was, but it was leading up to it after Hastings bought the property and it came to a head about this 8U feet of ours that he is claiming. (Emphasis supplied.)
“Q. Was not that 84 feet that you are talking about exactly the same 84 feet that is involved in this lawsuit here now?
“A. That 84 feet that is involved in this lawsuit?
“Q. Yes.
“A. What is the number of this lawsuit? Do you mean the present lawsuit?
“Q. Yes, sir.
“A. What is the number of that lawsuit, not that 82474 that you had awhile ago, is it?
“Q. No, No. 107579.
“A. Of course, it woidd be. (Emphasis supplied.)
“MR. MITCHELL: Wait a minute.
“A. There is a suit about where this street goes and if you prevail you would come 84 feet over into our property, or 85, whatever it is.”
In addition to the cases heretofore cited, we have a number of other cases on res judicata which are germane to the points here discussed. Some such cases are: Watson v. Suddoth, 218 Ark. 960, 239 S. W. 2d 602, certiorari denied U. S. Supreme Court, 342 U. S. 885, 96 L. Ed. 664, 72 S. Ct. 174; Langford v. Griffin, 179 Ark. 574, 17 S. W. 2d 296; Jones Lmbr. Co. v. Wisarkana Lmbr. Co., 125 Ark. 65, 187 S. W. 1068; Cleveland-McLeod v. McLeod, 96 Ark. 405, 131 S. W. 405; Sauls v. Sherrick, 121 Ark. 594, 182 S. W. 269; Gordon v. Clark, 149 Ark. 173, 232 S. W. 19; Lillie v. Nunnally, 211 Ark. 202, 199 S. W. 2d 751; and Barton v. Meeks, 209 Ark. 903, 193 S. W. 2d 138. | [
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Carleton Harris, Chief Justice.
In July, 1959, W. E. Denniston and wife, appellees herein, hereinafter referred to in the singular as appellee Denniston, purchased from Charles Fite, d/b/a C. H. & F. Company, a house trailer on an installment contract. At that time Fite took out automobile insurance (including fire insurance) with the Phoenix Insurance Company, hereinafter called Phoenix, one of the appellees herein, the policy being issued to Denniston. The agent for Phoenix, Francis Hiller, did not deal directly with Denniston, except to advise him of the collision features of the policy that had been issued. The fire insurance coverage was in the amount of $3,500. Mr. Denniston moved the trailer to the school grounds at Oark, where he was serving as superintendent of the school, and the trailer was placed upon concrete blocks, and connected to utilities. In June, 1960, Denniston signed an application for insurance with the Farmers Union Mutual Insurance Company, hereinafter called Farmers, advising the soliciting agent for the company, Lowell Whittington, that the trailer had a value of $6,000. Denniston applied for $4,000 insurance on the trailer, and $1,000 on the contents thereof. On June 15, Farmers issued its policy, providing, inter alia,
“This entire policy shall be void if whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.
“This company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved whether collectible or not.”
The Phoenix policy contained a similar provision ivith reference to proration.
On January 17, 1961, the trailer and its contents Avere completely destroyed by fire. Both insurance companies Avere advised of the loss. Phoenix, at all times, has been ready to pay its prorata share of the loss. However, a dispute arose between Denniston and Farmers relating to the filing of a proof of loss, and, also, whether Farmers Avas liable for the entire amount of coverage it had issued under the Valued Policy Law. After cor respondence, mainly between counsel, for some period of time, Farmers, on May 18, 1961, instituted suit seeking a declaratory judgment to the effect that the policy was void, and should be cancelled as of June 10, 1960. The complaint alleged fraud in the procurement of the policy; that the Dennistons had refused to execute a sworn proof of loss as provided in the policy; that the Dennistons were contending that the trailer constituted real estate, and that the policy should be cancelled as of June 10, 1960, because of fraud. Farmers prayed that the court enter its declaratory judgment finding that it was not liable on the policy, and, in the alternative, that the trailer be declared personal property, and that Farmers be directed to pay only its prorata share of the loss with Phoenix. Fite filed an answer, setting up that he was the owner of the trailer, that it had been destroyed by fire, and that he was entitled to $2,798.88. Fite then filed a cross-complaint against Phoenix, seeking that amount.
The Dennistons answered, denying all material allegations, and filed their cross-complaint against Farmers, seeking judgment in the full amount of the policy; seeking judgment against Phoenix in the amount of $3,500, and asking for statutory penalty and reasonable attorneys’ fees against both companies. After the filing of other motions, the case proceeded to trial. At the conclusion thereof, the court entered its findings wherein it determined that the Dennistons were not guilty of fraud; that the completion of proof of loss forms was not required under the facts in the case; and that the Valued Policy Law was not applicable since the trailer was personal property. The court rendered judgment for the Dennistons in the amount of $4,546.67, plus 12% penalty, and an attorneys’ fee of $450.00. Of this amount, it was held that Phoenix should pay $1,633.34, $162.00 of the attorneys’ fee, plus 12% penalty, or a total of $1,991.34. Farmers was found liable to the extent of $1,913.33 as to the trailer, plus $1,000 on household goods, $288.00 of the attorneys’ fee, and 12% penalty, or a total of $3,550.93. Judgment was entered in accordance wii.li these findings, and from such judgment Farmers brings this appeal. The Dennistons have cross-appealed, contending that the court erred in declaring the trailer to be personal property, and asserting that they are entitled to the full coverage from Farmers. Phoenix cross-appeals as to the finding of the court that it is liable for penalty and attorneys’ fees. For reversal, appellant relies upon several points, which we proceed to discuss.
It is asserted that the policy is void because of fraudulent misrepresentations by Denniston in his application for insurance. This contention is based on the assertion that Denniston gave a fraudulent answer as to the value of the property, did not reveal the fact that another insurance policy was in force, and fraudulently withheld other pertinent information. As to the first, Denniston testified that, upon purchasing the trailer, he was advised that it had an original value of $6,000, but had been damaged in a fire; that, however, the seller stated to him that it was subsequently restored to equally good condition, even though sold to this appellee for only $3,500. Under Denniston’s testimony, he had a reasonable basis for believing the value given, and the soliciting agent for the company who viewed the property testified that, “I relied on Mr. Denniston. As far as I could tell, the home was worth what he said.” As to having'insurance with Phoenix, there was evidence that Denniston did not wilfully conceal that fact. In the first place, this policy was taken out by Fite with the Brown-Hiller Insurance Agency, and Hiller testified that he had no contact with Denniston except to advise by letter when the temporary collision coverage would expire. In the next place, no fraudulent answer was given on the application. Fourteen questions are listed in the application form, including the question, “Is there other insurance on any of this property? If so, how much and in what company?” This question, along with the other thirteen, is not an swered at all. Complaint is also made that the company was not informed that the property was encumbered. This is question No. 7 on the form, and is not answered. In fact, no questions relative to the property are answered at all, and the application form contains nothing more than the identification of the insured item (trailer and contents), cash value, amount of insurance (applied for), the rate and premium charged, and the signatures of the assured and the agent. The company issued a policy on this application, so it would appear that appellant did not consider the answers important; otherwise, it would have returned the application with directions that it be completed. As we stated in Mutual Reserve Fund Life Association v. Farmer, 65 Ark. 581, 47 S. W. 850:
“The applicant made no answer to the question marked “D” but left the space for answers as to the name and address of the physician referred to blank. If that was thought to be important, the application for the policy should not have been accepted until the answers were made by the applicant. Certainly, we would not say, under the circumstances, by this failure to fill out the blank for the answer, the applicant was suppressing the truth, especially in view of his previous answers, indicating a want of knowledge on the subject.”
Here, too, not only does it appear that the company considered the failure to answer the questions as unimportant, but a lack of knowledge on the part of Denniston is certainly indicated by the fact that no answers were given to any question. Clearly, there was substantia] evidence to support the finding of the court that no fraud had been committed.
It is asserted that Denniston refused to furnish appellant proof of loss, and the contract is therefore void. Under the provisions of the policy, an executed proof of loss is required within 60 days after the loss occurs, unless the time be extended in writing by the company. Proof on the part of appellee Denniston was that on January 17, 1961, the date of the fire, counsel for this appellee wrote a letter to appellant company, in which he advised of the fire, that the property loss was total, and requested proof of loss forms. Thereafter Carrol D. McCarty, adjuster for appellant company, went to Fort Smith, and learned of the existence of the Phoenix policy and of the encumbrance to Fite. McCarty conferred with John Bonds, representing Phoenix, and subsequently advised Denniston that he (McCarty) would be in Oark on a certain day.- McCarty failed to appear oh that occasion, and some days later returned, but was unable to locate Denniston. According to the adjuster, he left a letter and a proof of loss form with one of appellee’s neighbors, requesting that same be turned over to Denniston. This apparently took place about two weeks after the fire. On February 3, Denniston directed a letter to appellant, stating:
“I am sorry you missed seeing me today, for I do not quite understand what you mean by personal property, as the loss according to my way of thinking would be almost countless. We lost a 13-year accumulation of property, from needles to a TY. The following list may or not be what you mean:”
The letter then listed numerous items of personal property together with the valuation that he plaeed upon them.
It appears from the record that no further action was taken by the company directly with Denniston for some period of time, and there is no evidence that counsel for Denniston ever received any proof of loss forms as requested in his letter of January 17. As shown by the evidence, counsel for appellant directed a letter to Denniston on April 5, advising the latter that the complete file had been turned over to him, and that the file did not contain a proof of loss as required by the policy. A proof of loss was enclosed with the letter, and it appears that Denniston received the proof of loss form. The record is somewhat confusing, containing, as it does, numerous letters between counsel. However, it is undisputed that counsel for Denniston requested proof of loss forms on the day of the loss, and there is no evidence that these forms were furnished. Denniston denies that any proof of loss form was given to him by any neighbor, as stated by McCarty. It likewise seems undisputed that the company took no further steps to place in the hands of Denniston or his attorney any proof of loss forms until April 5, which was, of course, more than sixty days after the loss had occurred. Counsel for appellant offered to extend the time, but we are of the opinion that Farmers, by its conduct, waived the requirement for proof of loss. For one thing, the company should have sent the forms to Denniston’s counsel, as requested. For another, if the list (of personal property loss) contained in Denniston’s letter was not satisfactory, the company should have immediately advised him of that fact rather than waiting until April 5. Finally, under date of March 13, Richard Hopkins, claim director for Farmers Union Mutual Insurance Company, directed a letter to Denniston’s attorney, as follows:
“Dear Mr. Batchelor
Relative to your file No. 3411407364, W. E. Denniston, our letter of February 6, 1961, written by Mr. C. D. McCarty stated that our Company was ready to settle on the basis discussed by Mr. Bonds and Mr. McCarty. Since that date we have had no communication from you.
We would appreciate knowing if an attempt has been made by you to settle on this basis with the insured. We would like to dispose of the claim as soon as possible, and rvill be awaiting your reply.”
This letter is certainly evidence that Farmers had already investigated the claim, had determined upon a figure that it would pay, and was accordingly not insisting upon the proof of loss.
In National Union Fire Ins. Co. v. Wright, 163 Ark. 42, 257 S. W. 753, this court said:
“If an authorized agent, within the time specified for making proof of loss under the policy, enters into negotiations for the adjustment of the loss, or otherwise treats this requirement of the policy as having been complied with, or as waived, then the company cannot thereafter defend upon the ground that a proof of loss was not furnished.”
See also American Insurance Company v. Rector, 172 Ark. 767, 290 S. W. 367. In Conley v. Fidelity-Phenix Fire Ins. Co. of New York, 102 F. Supp. 474, (U.S.D., W.D. Ark., Ft. Smith Division), it was said:
“However, a failure to give notice or furnish proof of loss is waived by any conduct on the part of the insurer or its authorized agent inconsistent Avith the intention to enforce a strict compliance AAÚth the insurance contract in such regard. A waiver of formal proof of loss may be inferred under a variety of circumstances, such as subjecting the insured to an examination under oath as to the facts of the fire, or by retaining without objection a claim made Aid thin the 60 day period, or by charging the insured Avith the crime of arson. Any conduct on the part of the company or its representatives prior to the expiration of the sixty day period which lulls the insured into a feeling of security in that regard is sufficient to establish a Avaiver.”
It is asserted that the court erred in establishing the value of the trailer at $3,800.00, less depreciation. The court’s finding was based upon the fact that the trailer had been purchased for $3,500.00, and Denniston had added a porch, and various utility connections, AAThich were found to add $300.00 to the value. This point only relates to $300.00, and Ave are unable to say that there was no substantial evidence to support the finding.
Except for one further argument, concerning attorneys'’ fees, the remaining points relate to the cross-appeals.
The Dennistons contend that the court erred in holding that the house trailer was, within the meaning of the statute, personal property. We do not agree. The proof reflected that the trailer was placed on school property by the consent of the school board. It was set on concrete blocks, though not cemented to them, and the wheels were still on the trailer, although lifted from the ground and the air removed from the tires. Utilities were connected to the trailer. In Kearbey v. Douglas, 215 Ark. 523, 221 S. W. 2d 426, we said:
“The basic principles observed by the courts in determining whether personal property becomes a fixture by annexation to the land are discussed in Choate v. Kimball, 56 Ark. 55, 19 S. W. 108, and Tiffany on Real Property (3d Ed., §§ 606-626. We have held that the intention of the person making the annexation is a consideration of primary importance, Morgan Utilities, Inc. v. Kansas City Life Ins. Co., 183 Ark. 492, 37 S. W. 2d 90; but Tiffany rightly concludes that the courts apply an objective test and arrive at the annexer’s intention by looking to his outward acts rather than to the inner workings of his mind. Tiffany, supra, § 608. It thus becomes necessary to examine the manifestations of intent that have been regarded as controlling.”
A compelling reason for finding that the trailer did not lose its identity as personal property is the fact that it was placed on land belonging to the school district, rather than on land owned by appellee. Denniston did not even have a lease on the property, and it is apparent that he did not contemplate leaving it on school property thenceforth. In fact, his intention is best shown by his own testimony, wherein he stated,
“Naturally I would take it away if I did not sell it or would not want to leave it there unless I would sell it. ’ ’
In his discovery deposition, taken prior to the trial, Denniston stated that he intended to leave the trailer on the school ground ‘ ‘ as long as I was there working. ’ ’ When asked if he intended to take it away when he left, appellant replied, “Well, naturally, I guess I would.” It is evident that there was never any intention that the trailer should remain on the premises, except for a limited period of time, and the testimony referred to constituted substantial evidence to support the ruling of the trial court. Having reached the conclusion that the trailer was personal property, it becomes unnecessary to consider the Valued Policy Law as the statutory provisions do not apply to personal property.
We agree with appellant, and with Phoenix, that the court erred in holding that Denniston was entitled to recover the statutory penalty, and attorneys’ fees, from these companies. As to Farmers, the complaint sought $5,000.00, and only $2,913.33 (less penalty) was recovered in the litigation. As to Phoenix, the complaint sought $3,500.00, but only $1,633.34 was recovered. We have held many times that a recovery of the amount sued for is a prerequisite to recovering penalty and attorneys’ fees. Southern Farm Bureau Casualty Ins. Co. v. Brigance, 234 Ark. 172, 351 S. W. 2d 417; Kansas City Fire & Marine Ins. Co. v. Baker, 229 Ark. 130, 313 S. W. 2d 846, and cases cited therein.
In accordance with the views expressed herein, the judgment is modified to the extent that appellant and Phoenix are'not liable for penalty and attorneys’ fees. With this modification, the judgment, in all other respects, is affirmed.
From the record, Phoenix has apparently paid the amount of the lien held by Fite.
Phoenix, having already paid the lien in full, and such amount exceeding its total liability, was given judgment against Farmers in the amount of $807.54. This amount is included in the total judgment against Farmers of $3,550.93.
Appellant contends that counsel for appellee, by letter of May 2, 1961, admitted that Denniston had received a proof of loss form in February. The date that such proof of loss was received is not made dear by the letter, i.e., whether February or April, and, in fact, it is not entirely clear that counsel was referring to an actual company proof of loss form, since the letter states that Denniston had completed the proof of loss. Unquestionably, the only “proof of loss” sent to the company was the list of personal properly contained in the letter of February. 3.
Ark. Stat. Ann. § 66-3901 (1963 Supp.) called “Valued Policy Law.” | [
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Frank Holt, Associate Justice.
This is a motion by the appellee, State of Arkansas, to dismiss the misdemeanor appeals of the appellants for failure to file their appeals within sixty days from the date of rendition of judgment. The appeals were filed seventy-five days from the date of the judgment.
Appellee relies upon Ark. Stat. Ann. § 43-2732 (1947) [Crim. Code, § 340 (1869)] which reads:
‘ ‘ Misdemeanors—When appeal granted—Condition. —The appeal shall be prayed during the term at which the judgment was rendered, and shall be granted upon the condition that the record is lodged in the clerk’s office of the Supreme Court within sixty [60] days after the judgment.”
In resisting appellee’s motion the appellants rely upon Act 158 of 1963 which reads:
“SECTION 1. Section 1 of Act 218 of the Acts of 1909 (Arkansas Statutes 43-2701) is hereby amended to read as follows: ‘No appeals to the Supreme Court in a criminal case shall be granted, nor writs of error issued, except within sixty (60) days after rendition of the judgment of conviction in the case’ except that the trial judge with his discretion may by order entered prior to the expiration of said sixty (60) days extend the time for not to exceed an additional sixty (60) days.”
Pursuant to the provisions of this Act the appellants were granted a sixty day extension and within this time filed their appeals.
In reviewing the history of these Acts we find that the time limitation for appeal in all criminal cases was unquestionably the same until the 1963 Act. Thus, until now, there was no occasion for the present question to arise. We deem it necessary to clarify it by an opinion.
The Criminal Code (1869) § 327 provided that in felony cases the time for lodging an appeal with the supreme court was limited to sixty days after the rendition of judgment. Section 340 of the Criminal Code provided that the time for filing the appeal in misdemeanor cases was also limited to sixty days.
The next legislative expression on this subject was Act 218 of 1909. Section 1 of this Act [Ark. Stat. Ann. § 43-2701] limited the time to sixty days for an appeal to the supreme court in a “criminal case”. This section makes no distinction between felonies and misdemeanors. Section 2 of this Act [Ark. Stat. Ann. § 43-2703] refers to “all criminal cases, both felonies and misdemeanors,” which indicates the clear intention of the Legislature to encompass both types of offenses in dealing with this subject. Section 3 repealed all laws and parts thereof in conflict with the Act.
In addition to the fact that Act 218 of 1909 refers to both misdemeanors and felonies as being criminal cases, we have hold that ‘mimes’ and ‘misdemeanors’ are synonymous terms. In the early case of Rector v. The State, 6 Ark. 187, we said:
“ * * * A crime or misdemeanor is defined to be ‘an act committed, or omitted, in violation of a public law, either forbidding or commanding it.’ This general definition comprehends both crimes and misdemeanors, which properly speaking are mere synonymous terms, though in common usage, the word ‘crimes’ is made to denote such offenses as are of a deeper and more atrocious dye, while smaller faults, and omissions of less consequence, are comprised under the gentler name of misdemeanors only.”
See, also, Ark. Stat. Ann. § 41-101 (1947).
It follows, therefore, that Ark. Stat. Ann. § 43-2732 was supplanted by Act 218 of 1909 [Ark. Stat. Ann. § 43-2701] and that the amendatory Act 158 of 1963 [Ark. Stat. Ann. § 43-2701 (Supp. 1963)] now governs in all criminal cases, both felonies and misdemeanors, as to limitation of time in the filing of an appeal.
The motion to dismiss is denied. | [
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Sam Robinson, Associate Justice.
This is a case wherein the appellant, Arkansas State Highway Commission, condemned for highway purposes 6.1 acres of land belonging to appellees, Marvin D. Hood and wife. The Commission deposited $2,250.00 in the registry of the court as just compensation. Twenty-seven acres were in the original tract. After the taking 2% acres were separated by the right-of-way from that part remaining. The case was tried before the court sitting as a jury. There was an award of $12,500.00. The Highway Commission has appealed.
Appellee Hood is engaged in the nursery business and the land involved in this litigation was used to grow nursery stock. On appeal, appellant contends that the court erred in permitting the introduction of evidence showing the value of the nursery stock independent of the land on which it was growing.
It is firmly established that the measure of damages in this kind of case is the difference in the fair market value of the land before and after the taking. Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S. W. 2d 81; Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 349 S. W. 2d 132. In arriving at the before and after value it is proper to take into consideration all those things pertaining to the land that a seller or purchaser would consider in arriving at the market value. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535 (October 14, 1963). An exception to this rule is that profits from a business conducted on the property cannot be considered. Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802 (September 30, 1963).
Here, appellee introduced considerable evidence going to show the number, kind, and value of the various plants growing on the land condemned. There is evidence to the effect that the nursery stock itself was worth $13,370.00, and that the witness for appellee, P. M. Brown, took that value into consideration in arriving at the market value of the land. But it is clear from the witness’ testimony that he did not merely add his estimated value of the nursery stock to his estimated value of the naked land in arriving at the market value of the land with the plants in place. The witness testified that he did consider the value of the plants, but that was only one of the things considered in arriving at the market value.
The court had the correct conception of the law, and applied to the facts the proper rule of law for determining damages to be awarded the landowner. In the course of the trial the court said: “All right, let’s talk just a moment now about the law. Mr. G-oodson, I rather believe the general rule to be this: I think the Court should know what’s on that property. Then I think the Court would be interested in knowing the fair market value of the lands taken, which value can be calculated on the basis of the bare land plus whatever was growing there on the date the land was taken. That is, not what each plant would bring if sold to John Doe, Richard Roe, or Jim Smith, but what a willing buyer interested in this kind of business could walk out there and see all of this, and what he would be willing to give, not being-obligated to buy.” The court further said: “The best authority was in Corpus Juris, a general statement, which statement is made without exception ‘it is proper to consider’ and I am quoting, ‘the valuation of crops, trees, grass, etc., growing on the land, but they cannot be valued separately and apart from the value of the land’ that is the end of the quotation. Now, of course, I feel that it might be a factor in considering the overall subject of land values. A man might, for example, an expert, might want to check his findings against such an element as that, but as a single method of determining the land values, this authority which I think is absolutely in point, says that it is not permitted to follow that procedure. ’ ’
Appellant concedes that what the court said is a correct declaration of the law, but contends that the court did not apply that conception of the law in deciding the case. We do not find anything in the record which indicates that the court did not follow the correct principle.
Of course, a castle costing a million dollars, built in the desert 100 miles from the nearest habitation may add very little, if anything, to the value of the desert land. But if the land was being taken in a condemnation proceeding the landowner would be entitled to show that a very fine castle was located thereon. Actually, it is conceivable that in some instances structures on the condemned property may cause it to have less market value than if the structures were not there.
Here, it is shown that the highest value of the land was for its use as a nursery; that there were more than 11,000 nursery plants on the property. The jury, or in this case the court, had the right to take into consideration the value of the plants in arriving at the fair market value of the land with the plants located thereon. That is, the price that someone wanting to buy a plant nursery would pay for the land on which the plants were growing. Shelby County v. Adams (1932), 15 Tenn. App. 66.
Appellant contends also that in reaching a decision in this case the trial court took into consideration testimony that had been excluded on motion of appellant. The witness, Glen Rose, had testified that $50,000.00 for appellee’s nursery business was reasonable. Mr. Rose further testified: “You are taking so much of the deeper soil that if it was my nursery I would move off it and start over.” Counsel for the Highway Commission made the following objection: “If the Court please, I think at this time I am going to have to object to Mr. Rose’s testimony and move that it be stricken because he testified that this $50,000.00 represents Mr. Hood’s business. We submit to the Court that that is not a proper area of his appraisal in determining land values, and that if his appraisal is based on this over-all value of $50,000.00, saying as he states it in the record, that that was Mr. Hood’s business; it was a going business, and he based his estimation on that, and we move that his testimony be stricken as not being proper, immaterial, irrelevant.” The court sustained the objection. Later, in a memorandum of the findings the court said: “The Highway Department moved to strike Mr. Rose’s testimony and that motion was sustained; however, their objection went to the attempt of plaintiff to extract an opinion from Rose as to fair market value. Rose could not qualify in this respect and the Court so ruled. His knowledge of this nursery, together with his many years of experience in the business in the same locale certainly qualified him with respect to his other testimony.”
That part of the witness Rose’s testimony objected to by appellant, which objection was sustained, dealt with the $50,000.00 valuation of the business. In stating that he would move off and start over, Rose was only emphasizing his opinion of the damages to the property caused by the taking, and his testimony in that respect had no connection with the estimated value of the business.
All in all it appears that there was a fair trial without error. The judgment is affirmed. | [
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Frank Holt, Associate Justice.
The appellant, Oliver E. Austin, and the appellee, Hiram S. (Butler) Austin, are brothers. The appellant seeks to cancel a deed from their widowed father, M. Gr. (Mike) Austin, to the ap pellee on the contention that this deed was never delivered. The Chancellor held there was a valid delivery of this deed and quieted and confirmed title in appellee to the lands in question. On appeal the sole question presented to us for determination is whether the father, M. G-. (Mike) Austin, delivered the questioned deed of August 27, 1953 to his son, Hiram S. (Butler) Austin.
On August 27,1953, the appellant brought his father into Booneville in order that the father could make deeds to appellant and appellee, thus dividing certain lands between them. Accordingly, a scrivener prepared two deeds on this date. The Trial Court found that Oliver was present when these deeds were prepared, executed and acknowledged, and that he assisted in the preparation of both of them.
The deeds were delivered to the father as he left the scrivener’s office with Oliver. Shortly thereafter, according to Oliver, his father undertook to show him and Butler the deeds, whereupon Butler took his deed and refused to return it to his father and also took possession of Oliver’s deed. It is undisputed that Butler was not present when the two deeds were made. Butler testified that his first knowledge of them was acquired a few days after the date of the deeds when his father came to him in his room at his father’s house and delivered the deed to him as a reward for leaving his employment in 1950 and staying with and caring for him; that his father was emotional and cried when expressing gratitude for his filial love and attentions; that his father also handed him Oliver’s deed which he deposited in the house with other papers and effects of the family; that his father never requested him to return the deed nor did Oliver ever ask for his deed.
On October 29, 1953, or two months after the date of the deed in question, the father executed and had recorded another deed to Oliver which granted to him some of the lands described in the deed to Butler dated August 27, 1953. The October deed also reserved a life estate in the father as grantor. The August deeds did not. In the October deed the father recited he had not intended to deliver the August deed to his son Butler. There was also language in the October deed that he made a mistake in the August deed in not reserving a life estate in himself as grantor and that the August deed contained land intended for Oliver. The request by the father to make this new deed was relayed by Oliver to the attorneys who drafted the deed and brought it to the father who properly acknowledged and executed it. Butler had no knowledge of the execution of the October deed until after it was executed and recorded. Butler recorded his August deed on December 28, 1953. Butler continued to live with his father and care for him until the father’s death on May 28,1954.
As stated, the issue in this case is whether the father actually delivered the August 27th deed to his son Butler. If he did, the lands therein described belong to Butler; if not, then this deed should be cancelled as a cloud on Oliver’s title derived from the October deed.
It is undisputed.in this case that Oliver had actual notice and knowledge of his father’s deed, dated August 27, 1953, to Butler when Oliver, as a grantee, took the later deed, dated October 29, 1953. Butler was unaware of the execution of the deeds on August 27th and October 29th until after they were made. Since Oliver had notice of a prior unrecorded deed to his brother at the time the October deed to him was executed and recorded, Oliver was in the same legal position as if Butler’s deed were actually recorded. Skelly Oil Company v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425; Halbrook v. Lewis, 204 Ark. 579, 163 S. W. 2d 171. It follows that when Butler recorded his deed, since Oliver had notice of its existence, a presumption of delivery by the grantor, the father, arose and the burden was upon Oliver to disprove the delivery. The Trial Court held that Oliver did not offer sufficient competent proof to discharge this burden and we agree.
Butler testified positively that his father delivered his August deed to him; that neither his father nor any one else ever made a demand upon him for the return of his August 27th deed. Butler maintained that no one was present when his father delivered his deed to him along with Oliver’s. Oliver disputed this. He testified that he was present when his father said to both of them, “I’m going to show you boys the deeds, what I have done”; that Butler took the deeds and refused to return them. The appellant offered evidence to the effect that the father, as grantor, had said that he had made a mistake in the August deeds and he did not intend to deliver the deed to Butler. These statements to these witnesses were not made in the presence of Butler, the grantee, and the Court properly excluded such as being hearsay. With reference to the veracity of these witnesses we agree with the Trial Judge when he stated:
“The witnesses who testified are of the highest credibility and there can be no question but that Mike Austin told each of them exactly what each testified Mike told him, but the fact remains that it is hearsay and not competent evidence.”
The Court also held inadmissible the language in the October deed to the effect that the grantor had made a mistake and did not intend to deliver the August deed. The Trial Court properly excluded consideration of this language as being hearsay evidence and “surplusage and extraneous material, not a part of the conveyance itself and is incompetent as evidence in this case to show that there was no delivery of the deed to Butler Austin. ’ ’
The declarations of a grantor, in the absence of his grantee, are inadmissible to defeat the title which he has previously conveyed to his grantee. Reynolds v. Balding, 183 Ark. 397, 36 S. W. 2d 402. We consider this case to be controlling in the case at bar. There we said:
“* ® * Neither the testimony of the witnesses as to the declarations of their mother, Mary E. Mason, relative to her execution of the first deed to her daughter, Gertrude Balding, nor her subsequent recital in the deed to her daughter, Olive E. Miles, which was not made in the presence of Gertrude Balding, are admissible in evidence to defeat the deed to her. It is well settled in this State that the acts and declarations of the grantor or of a person in possession of a tract of land are admissible to show the character and extent of his possession, bnt not to contradict his deed to another. It has always been held by this court that the declarations of a grantor against the title of his grantee, made in the latter’s absence, are not admissible in evidence to defeat the title of the grantee.”
We also agree with the Trial Court that the statements and declarations of the grantor, subsequent to his August deeds and contemporaneous with the October deed, do not comprise any part of the res gestae and, therefore, are inadmissible. We consider the proffered evidence in the case at bar to he more in the form of a narrative of a past transaction and not so closely connected with the execution of the deeds as to constitute a part of the res gestae. Public Utilities Corporation of Arkansas v. Cordell, 184 Ark. 878, 43 S. W. 2d 746; Toney v. Raines, 224 Ark. 692, 275 S. W. 2d 771; Williams v. Martin, 226 Ark. 431, 290 S. W. 2d 442.
The Chancellor had the opportunity to observe the witnesses as to their demeanor, their visible reaction to the questions propounded to them, and the consistency or inconsistency of their testimony. From this vantage point he could evaluate their testimony. We do not disturb the findings of the Chancellor on appeal unless they are against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Hill v. Barnard, 216 Ark. 29, 224 S. W. 2d 31. We cannot say the Court’s findings are against the preponderance of the competent evidence.
Affirmed. | [
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Carleton Harris, Chief Justice.
This is a Workmen’s Compensation case. Sam Lofton was severely injured on November 24, 1958, while cutting timber, and made claim for benefits under the Workmen’s Compensation Act, against both Guyce Bryan and Dierks Forests, Inc., contending that Lofton was either an employee of Dierks, or an employee of Bryan as a sub-contractor of Dierks, and operating without compensation insurance. Dierks defended on the ground that Bryan was an independent contractor, and that the company was not liable for that reason, and Bryan asserted that the Commission did not have jurisdiction since he (Bryan) did not employ five or more employees. The referee found that claimant sustained an injury during the course of his employment; that Bryan was an independent contractor, and Dierks Forests, Inc., therefore, was not liable or responsible for the injury suffered; that Bryan, at no time, had more than four persons employed, and the Commission, therefore, was without jurisdiction. The claim was dismissed, and on appeal to the full Commission (at which time some additional evidence was taken) was likewise denied. Thereafter, the Circuit Court of G-arland County affirmed the Commission, and claimant has appealed to this court.
There is no evidence that Bryan had more than four employees, and appellant argues that Dierks is liable for compensation because (a) Lofton was an employee of Dierks or (b) Bryan was a sub-contractor without insurance, and this fact renders Dierks liable for compensation. Ark. Stat. Ann. § 81-1306 (Repl. 1960). See also Brothers v. Dierks Lbr. & Coal Co., 217 Ark. 632, 232 S. W. 2d 646.
The evidence reflects that on November 20, 1958, Bryan and Dierks Forests, Inc., entered into a written contract, wherein Bryan agreed to cut, fell, saw, split, and deliver at a designated place, all pulpwood on certain lands owned by Dierks in Perry County (designated in the contract) and to complete performance by December 15, 1958. After reciting that the contractor represented that he was engaged in the business of cutting and hauling pulpwood as an independent occupation, and had his own tools and equipment necessary to carry on such business, the contract provided:
“The Contractors will (either personally or through employees, agents or sub-contractors) perform this contract at their own expense by their own means and according to their own methods, and free from any control or right of control of Dierks as to the manner or method of performing this contract and shall not be required to render personal services, and neither the Contractors nor their employees or agents shall or may be required by Dierks to render any definite hours of work or labor in the performance of this contract, but on the contrary the Contractors may perform this contract at their own pleasure as to time and by whatever means and methods of performance they determine, and Dierks shall and may only look to the result of said work and require that it be in conformity with and completed within the period of this contract.”
Dierks agreed to pay Bryan $7.00 per cord for all merchantable pulpwood, and Bryan agreed to “pay, prior to delinquency, all Federal and State Social Security, Old Age Benefit, Unemployment, and similar taxes as are or may be imposed, and to indemnify and protect Dierks from all claims and liability on account thereof. ’ ’
The proof reflects that these provisions were fully carried out by the parties. Bryan testified that he did enter into an independent contract with Dierks, and was performing such contract at the time Lofton was injured. He stated that he performed the work in his own manner, determined the days that he would work, hired his own employees, including Lofton, controlled the entire operation himself, and never received any instructions from Dierks as to how the work should be carried out. He owned all of his own tools and equipment, including two power saws, an International tractor and trailer, and a pick-up truck.
Sam Lofton, claimant, testified that he lived at Crossett, and was working for Bryan at the time of his injury. He stated that he had been employed by Bryan, receiving wages of $1.50 per hour, for about five weeks before the accident. The claimant said that he left Crossett, at the request of Bryan, about the first week in November for the purpose of working on the job herein discussed. Lofton testified that Bryan paid him each week in cash, but he knew nothing about Bryan’s arrangements with Dierks. “He said he was going to get a contract from Dierks Forests Division to cut paper wood and he wanted somebody to cut it.”
Lowell Lofton, 24 years of age, son of claimant, testified that he (young Lofton) was employed by Bryan, and had been working with the contractor in Crossett before going on the job where the injury occurred. He stated that after.the Dierks job was completed, he went back to Crossett, still working for Bryan. “Well, when I went to work I went to work for Guyce. I didn’t know who else I was working for.” This was all the evidence introduced on the part of the claimant as far as the nature of his employment was concerned. The balance of appellant’s evidence dealt with the injury sustained by him.
Appellant relies in large measure upon the recent holding of this court in Clemons v. Bearden Lumber Co., Law Reporter, Volume 236, Page 636, 370 S. W. 2d 47, wherein we held that an asserted relationship of independent contractor did not exist, but the facts in that case are far different from those in the instant litigation.
In Clemons, although the company contended that the deductions were made for the convenience of the independent contractor, the record reflects that the company “held out” for Social Security and other payroll deductions; the men working for the alleged independent contractor were all paid by company check, in exactly the same manner as other Bearden Lumber Company employees; deductions were taken from paychecks for insurance just as though the workers were regular mill employees; and the company had the right to discharge Clemons at any time. The evidence further reflected that the company supervisor went out to the job frequently and gave certain instructions. None of these facts are present in the instant case, and the other cases cited by appellant are likewise clearly distinguishable. The entire proof offered'on behalf of claimant has been heretofore summarized, and even Lofton was unable to testify to any facts that support the argument here presented by appellant. Actually, we find no evidence at all which indicates either that Lofton was an employee of Dierks, or that Bryan was a subcontractor, rather than an independent contractor. It follows that the findings of the Commission were supported by substantial evidence.
Affirmed.
Johnson, J., not participating.
Supplemental opinion on Denial of Petition for Rehearing p. 642. | [
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Ed. F. McFaddin, Associate Justice.
Tbis appeal results from tbe fact that the Arkansas State Highway Commission named the wrong party as owner of a tract of land in an eminent domain proceeding. The said party erroneously named as landowner received the amount deposited in the Court, which amount the Highway Commission now seeks to recover. At the same- time, the true owner of the land seeks to recover from the Arkansas State Highway Commission the value of the land taken in the eminent domain proceedings. From a judgment on the issues there is this direct appeal and cross appeal.
Oh April 6, 1959 the Arkansas State Highway Commission (hereinafter called “Highway Commission”) filed this eminent domain proceeding involving a num ber of parcels, one of which was Tract No. 62 containing 31.7 acres. The complaint alleged that .the value of the said Tract No. 62 was $9,400.00; and that amount was deposited in the Registry of the Court so that immediate possession could be taken. The complaint of the Highway Commission named the appellant, Arkansas Real Estate Company, Inc. (hereinafter called “Real Estate Company”) as the owner of said tract; the Real Estate Company by answer admitted its ownership of the tract and claimed a greater amount as damages; and by order of the Circuit Court on August 3, 1959, the Real Estate Company received the said amount of $9,400.00 from the Registry of the Court.
' Then on August 10,1959, the appellees, W. H. Laney, et al., intervened in the said eminent domain proceedings, asserted their ownership and actual possession of the 31.7 acres, and claimed damages for said taking. With the status of affairs in the condition recited, this eminent domain case remained in abeyance in the Circuit Court until the Supreme Court decided the case of Laney v. Arkansas Real Estate Company, 234 Ark. 187, 350 S. W. 2d 911 (opinion of November 20, 1961), which held that the Laneys were the owners of the 31.7 acres here involved, as well as other lands. The Laneys called the said opinion of this Court to the attention of the Circuit Court in the present eminent domain proceedings and, as a result, recovered judgment against the Highway Commission for the $9,400.00, which was the amount the Highway Commission had stated to be the value of the 31.7 acres. From that judgment in favor of the Laneys, the Highway Commission brings the present appeal.
In this same eminent domain proceeding, the Highway Commission, after the judgment in favor of the Laneys, sought and obtained judgment against the Real Estate Company for the $9,400.00 which the Real Estate Company had withdrawn from the Registry of the Court on August 3,1959, as aforesaid; and from that judgment against it, the Real Estate Company prosecutes the present appeal.
I. The Judgment In Favor Of The Laneys And Against The Highway Commission. The affirmance of this judgment is a reasonably simple matter. The Arkansas Constitution (Art. 2 §22) says: “. . . private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor.” The eminent domain statute under which the Highway Commission proceeded was Ark. Stat. Ann. §76-533 et seq. (Repl. 1957). But the Highway Commission did not list the Laneys as the owners of the said land; so we have a situation—insofar as the Laneys are concerned—in which the Highway Commission admits the taking of the Laney land and admits the damages to be $9,400.00. The Laneys cannot be held responsible for the failure of the Highway Commission to name the correct owner of the title and party in possession of the land. It was through no fault of the Laneys that an erroneously named owner received the money from the Highway Commission seven days before the Laneys intervened in the case. The Laneys have been guilty of no laches, negligence, or delay, and are entitled to the protection of the Constitution for the value of their land taken and damaged. There is nothing in Ark. State Highway Comm. v. Kincannon, 193 Ark. 450, 100 S. W. 2d 969, in conflict with our present holding. The Circuit Court was correct in awarding the Laneys the judgment rendered in their favor.
II. The Judgment In Favor Of The Highway Commission- Against The Beal Estate Company. The decision on this issue is not so easy, because the Highway Commission alleged in the original complaint that the Real Estate Company was the owner of the 31.7 acres, and the Highway Commission consented and agreed that the Real Estate Company could withdraw the $9,400.00 deposited in the Registry of the Court, and this withdrawal was done by Circuit Court Order. The Real Estate Company claims: (a) that the eminent domain proceeding was a matter in rem; (b) that the Highway Commission is bound by its allegations as to ownership; and (c) that the payment of the money from the Registry of the Court is res judicata. To support its arguments the Real Estate Company relies heavily on the language of this Court in Bentonville RR. Co. v. Stroud, 45 Ark. 278. In that ease, the Railroad Company instituted eminent domain proceedings and, on appeal, sought to make the belated claim that the named defendants had not established their title. In rejecting such belated claim of the Railroad Company we said:
“The company alone can start the proceeding, and when it does so it must proceed against the owner (Mansf. Dig., Sec. 5458), and it selects the parties to be proceeded against at its peril, because, by starting the proceeding against them, it admits that they are the owners. S. & M. R’y. v. Rhea, 44 Ark,. 264.”
Assuming, without deciding, that the quoted language in the Bentonville case would apply to a situation like the one here in which the deposit was withdrawn in advance of any trial, nevertheless there is another and complete distinction between the Bentonville case and the one at bar; and that distinction lies in the fact that the State and its agencies may recover voluntary payments when it is shown that they were made in error. See Vick School Dist. v. New, 208 Ark. 874, 187 S. W. 2d 948. See also 40 Am. Jur. p. 822, “Payment” §157; and 70 C.J.S. p. 346, “Payment” §139. When an individual or private corporation makes a voluntary payment, such cannot ordinarily be recovered. But that rule—-of inability to recover a voluntary payment—does not apply to the State and its agencies. Our holding in Vick School Dist. v. New, supra, is a complete answer to the Real Estate Company’s reliance on the holding in Bentonville RR. Co. v. Stroud, supra. Even if the $9,400.00 had been paid by tbe Highway Commission to the Real Estate Company without eminent domain proceedings, the Highway Commission could have recovered the payment when it was shown, as here, that the Real Estate Company was not the owner of the land involved at the time the money was received by it and that the State paid the money through error.
The judgment of the Circuit Court in favor of the Highway Commission against the Real Estate Company is in all things affirmed. As for the costs: the Laneys will recover their costs against the Highway Commission; and the Highway Commission will recover its costs against the Real Estate Company.
The judgment in favor of the Laneys was signed and entered on September 7, 1962, and the record was filed in this Court well within the time allowed by the Circuit Court.
In its brief the Real Estate Company has cited a number of cases sbd texts, some of which are: U.S. v. Dunnington, et al., 146 U.S. 338, 36 L. ed. 996, 13 S. Ct. 79; 18 Am. Jur. p. 1009; and Nichols on Eminent Domain, Vol. 2, p. 14, and Vol. 6, p. 7.
The statute on withdrawal of deposit before final trial is Ark. Stat. Ann. § 76-537 (Repl. 1957). Some of our recent cases involving that statute are: Ark. Hy. Comm. v. Rich, 235 Ark. 858, 362 S. W. 2d 429; and Adams v. Ark. Hy. Comm., 235 Ark. 837, 363 S. W. 2d 134. | [
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Frank Holt, Associate Justice.
The appellants brought this action seeking an accounting and a declaratory judgment. They sought to recover deductions made by appellee from appellants’ earnings for 'Workmen’s Compensation Insurance coverage. In dismissing the action the Chancery Court rendered a decree finding that the appellants were independent contractors and that they liad elected, by written contract, to contribute the disputed deductions as their pro rata share of premiums for a policy of Workmen’s Compensation Insurance. Prom that decree appellants bring this appeal.
It is appellants’ contention that the only issue is whether “the deduction of sums from wages for defraying the cost of compensation coverage for the person from -whom the deduction has been made creates, as a matter of law, the relationship of employer-employee, regardless of any other factor.”
In support thereof appellants invoke Ark. Stat. Ann. § 81-1305 (B,epl. 1960) which requires every employer to secure compensation insurance for his employees and § 81-1320 which provides that no agreement is valid that requires an employee to pay any portion of the insurance cost. Therefore, such agreed insurance deductions are by operation of law illegal and should be refunded.
In the case at bar the appellants are truckers who signed a written agreement with the appellee to haul rocks from the quarry to the job site at $2.35 per ton, furnish their own trucks, gas, oil, maintenance, and auto insurance. The contract specifically provided that the appellants were independent contractors and that the appellee had no control over their hauling activities. The contract further provided that the appellee would carry a policy of Workmen’s Compensation Insurance for the benefit of appellants and that sufficient deductions would be made from appellants’ earnings to pay their pro rata share of the cost thereof. The appellants admit for the purpose of this appeal that if one item in the contract-—the Workmen’s Compensation Insurance deduction—were omitted, the contract would, in fact, establish an independent contractor relationship.
The appellants aver that the Chancellor erroneously took the position that they “must prove by evidence that they were employees.” We agree with the Chancellor. The burden of proof is upon the claimant to prove that he is an employee and acting within the scope of his employment in order to bring himself within the pro visions of the Workmen’s Compensation Act. Farmer v. L. H. Knight Co., 220 Ark. 333, 248 S. W. 2d 111. Also, a tax deduction or the payment of Workmen's Compensation Insurance on a workman by the employer may be considered in determining the status of employer-employee. Smith v. West Lake Quarry & Material Co., 231 Ark. 294, 329 S. W. 2d 167; Farrell-Cooper Lbr. Co., v. Mason, 216 Ark. 797, 227 S. W. 2d 444, and Ozan Lumber Co., v. McNeely, 214 Ark. 657, 217 S. W. 2d 341. But here it cannot be said that the appellants proved themselves to be employees by a preponderance of the evidence.
The appellants further contend that the agreed deductions from their earnings for Workmen’s Compensation Insurance Coverage estop the appellee from denying an employer-employee relationship. In support of this contention the appellants roly upon our recent case of Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270, where agreed deductions were made for the payment of Workmen’s Compensation Insurance. There the employer asserted as a defense to a workman’s claim for benefits that an independent contractor status existed and, therefore, the claimant could not recover because he urns not an employee. The case did not turn on the doctrine of estoppel as we found it unnecessary to reach that question. We held that since the appellee had contracted to furnish insurance coverage to the appellant, the appellee was bound by its contractural obligation and had no right to repudiate it regardless of the attitude of the insurance carrier. In the case at bar it is admitted that in at least one instance benefits were paid under this policy. If the benefits had been denied then the contractural obligation, as in the Stillman case, would be enforceable.
The Workman’s Compensation Act is designed for the benefit of the employer-employee relationship. It places a mandatory duty upon the employer to comply with it to insure the security of the employee. However, this Act does not prohibit employers and independent contractors from securing, by agreement, Workmen’s Compensation Insurance. We think it is desirable and implements the policy and purpose of the humanitarian objectives of the Act. Such offends neither'the spirit nor the letter of the law.
The decree is aiThm ■.!. | [
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Carretón Harris, Chief Justice.
On the night of February 16, 1963, a young woman resident of Monticello, a school teacher, 23 years of age, and her escort, Jerry Wilson, whom she had dated for some two years, parked in a lonely area in Drew County. The couple, on the evening in question, had previously met at a basketball game, following which they went to two restaurants, and, after leaving other friends, about midnight, drove to a country road, known as the old college road, and sometimes called “lovers’ lane.” According to the testimony of the young woman, they talked and listened to the radio for about an hour and a half, when they suddenly heard a voice on the man’s side, telling them to get out of the car. Wilson got out, and she moved to the other side, and shut and locked the door. Another man on that side of the automobile demanded that the door be opened. As she asked Wilson what to do, the first man struck her companion over the head with the butt of a pistol, and she started the car and attempted to drive off; however, in the hurry, she was unable to locate the light switch, and the car went into a ditch at the side of the road; also, shots were being fired at her, and she felt a burning sensation at the back of her head. The two men, Negroes, knocked the glass out on the right side of the car, turned off the motor and radio, and dragged the prosecuting witness to their car, placed her in the back seat, and drove off. The smaller of the Negroes got in the back seat with her, and criminally assaulted her, the larger one driving the automobile at the time. The car was then stopped, and the larger Negro raped her. Thereafter, each one raped her a second time, on all occasions threatening her life if she did not cease resistance. Following the second attack by the larger Negro, .he again got into the driver’s seat, the smaller one staying in the back with the victim, and after driving for a while, the car was stopped, and the larger man told her to take off all of her clothes. Despite her pleadings, she was compelled to do so, and was then told to ‘ ‘ start walking.” After walking, completely naked, for some distance over a .hard rock and gravel road, she finally came to a house occupied by a Negro couple, and screamed for help. The man and his wife permitted her to come in, and the husband told his wife to get some .clothes to put on the victim, and they then took her to town. Within a few hours, appellants were arrested, and charged with the crime.
On February 25, counsel was appointed to represent the defendants, and thereafter, on motion of such counsel, appellants were committed to the State Hospital for observation. Subsequently, the Superintendent of the hospital submitted his report, finding that both appellants were “without psychosis;” further, that appellants were not mentally ill to the degree of legal irresponsibility at the time of the examination, and that they were “probably” not mentally ill to the degree of legal irresponsibility at the time of the alleged commission of the offenses.
Thereafter, after the filing of several motions, which will be hereinafter discussed, the cases against appellants, by agreement of counsel for the state and the defendants, were consolidated for trial, and on April 9 the trial commenced, appellants pleading not guilty. The jury found both guilty of the crime of rape as charged, and the court thereafter entered its judgment, sentencing each to death.
After the trial, Harris obtained separate counsel, and a motion for new trial was filed. A similar motion was filed on behalf of Trotter by the court-appointed attorney, who had represented the defendants during all proceedings. After a hearing, the court entered its order overruling both motions. Thereafter, the convictions were duly appealed to this court.
For reversal, appellant Harris relies upon four points, and appellant Trotter relies upon the same first three points. The alleged errors of the court are as follows:
“1. The Court abused its discretion in overruling appellant’s motion for change of venue.
2. The Court erred in overruling appellant’s motion to quash the jury panel and further erred in not granting a new trial after the submission of additional evidence on the contention that racial discrimination existed in the selection of jurors in Drew County.
3. The Court erred in permitting state witness to testify to alleged admissions made by appellant.
4. The Court abused its discretion in appointing one counsel to represent both appellants.”
Before discussing these points relied upon by appellants, and argued in their briefs, we first discuss the proof offered at the trial as a matter of determining whether there was substantial evidence to support the verdict. As is customary, the first three assignments of error in the motion for new trial assert that the verdict of the jury was contrary to the evidence, contrary to the law, and contrary to the law and the evidence. In addition to the testimony of the prosecuting witness, heretofore related, the following evidence appears in the record.
Jerry Wilson, a senior student at Arkansas A. & M. College, and the companion of the prosecuting witness on the occasion of the acts in question, testified that, after leaving other friends, he and the young woman drove out to the old college road and parked, talking and listening to the radio; that shortly after 1:00 A.M. lie heard, a voice at the window, telling him to ‘ ‘ Get out of that car,” and he observed a Negro with a pistol standing at the window (later identified as Trotter). On opening the door to get out, the dome light of the car came on, and Wilson saw another Negro at the rear of the car that he subsequently identified as Harris; he gave Trotter his wallet and pocket change, and was ordered by that appellant to turn around. The witness testified that he was then hit in the back of the head, and knocked to the ground; that he heard a shot as the car suddenly drove away; that two other shots were fired, and he arose to his feet, and started toward the car which had gone into the ditch; that Harris grabbed him, but he managed to get free; that he broke away and ran to a house about a quarter of a mile back, and there telephoned the sheriff. Wilson had observed a 1953 or 1954 Plymouth with a light top and dark bottom parked a short distance back of where he had parked.
Sheriff Jack Towler of Drew County and other officers answered the call, but drove back into Monticello upon receiving information by radio that the young woman had been brought into town. Both the woman and Wilson were taken to the hospital; Wilson’s head was dressed, and, after remaining at the hospital for about an hour, he left with the officers. They proceeded to the home of Trotter, and the witness noticed the car beside the house, and identified it as the one he had earlier seen on the road at the scene of the crime. After examining the automobile, Wilson went inside the house with the officers, and recognized Trotter as one of the attackers. Thereafter, around 8:00 o ’clock in the morning, Wilson was taken to the jail to see Harris, who had in the meantime been arrested.
“We stood at the cell door. I saw this little Negro, which I know now as Harris, and he stood over by the bunk. I looked into the cell at him. I looked at this man and made the statement, ‘do you remember me? Have you seen me before?’ He looked right at me and remarked, ‘ yes I saw you last night. ’ ’ ’
When asked, during the trial, if lie was positive in Ms identification of the two men that had attacked him, Wilson replied, “Yes Sir. I am absolutely positive. I have no feelings of doubt.”
Dr. Paul Allen Wallick, a physician of Monticello, testified that he received a call to go to the hospital about 4:00 A.M.; that after arriving, he examined the young-woman and Wilson. As to the woman, he stated:
“She was on the examining- table. She was draped with a sheet. Underneath the sheet she had on a rather faded loose fitting- dress without any underclothes. There was blood over her face and in her hair and down her neck and shoulders. And some on the dress. There was blood down her legs and around her genital area— female area and up on the abdomen. She had a perforating wound of the scalp, again-in the area of the back of the head. One entrance was approximately an inch and a half from the exit. I’ll put it this way. The two openings were about an inch and a half apart.”
He stated that the head wound was caused by an object which “penetrated one side and exited on the other side.” In describing his examination of her private parts, the doctor stated:
“There was a large amount of bright red blood in the pubic hair, down the thighs, down to and below the knees. There was bright red blood, which was still fresh, coming from the female opening. There was blood on the external portion of the female opening* and also blood in the female canal—birth canal. She had a laceration or a tear of the hymeneal ring, which is commonly known as the virginal ring, which extended through the entire ring into the internal portion of the vaginal canal. ’ ’
He stated that she had been penetrated, and further, that he found large blisters on the ball and toes of each foot.
As to Wilson, the witness stated that he found a ragged lesion of the scalp in the parieto-occipital area (back of the head). The doctor stated that he washed the head area, shaved the hair from around the wound, applied a dressing, and gave the patient a shot of penicillin and tetanus toxoid.
Sheriff Towler verified that he had received the call from Wilson, and went to the place where the attack had occurred. There, he found an automobile in the ditch with the left front glass and the right vent glass broken; after receiving the radio report that the young woman had been taken into town, he immediately went into Monticello where he was informed that Trotter owned a car fitting the description that Wilson had given to him; he then proceeded to Trotter’s house, saw a 1953 or 1954 Plymouth two-toned automobile parked there, checked the car, and noticed stains of some sort on the rear seat, and observed that the hood was still warm. The officer testified that he was then admitted to the house by Trotter, and saw stains of some kind on the shorts which Trotter was wearing. Trotter was married, but was living with his Mother. The sheriff stated that he advised Trotter of his constitutional rights, and that the suspect did not have to tell him anything. The officer then questioned Trotter as to his whereabouts during the night, and was told that the appellant had gone to Dermott, naming persons who had purportedly been with him. The officer next asked Trotter if he could explain the blood on his shorts, but no explanation was forthcoming. Towler noticed a speckled shirt, lying on the foot of the bed, which Trotter stated was the shirt that he had been wearing. The shirt had blood on the right sleeve, and on the tail. Appellant identified the clothes that he had been wearing, and the sheriff rolled them up and placed Trotter under arrest. He was taken to the jail, Trotter driving his own car. The sheriff next checked with the persons that Trotter had mentioned as making the trip to Dermott with him, and from one of them, obtained information that caused him to go to the home of Albert Harris. Harris’ wife admitted the officers, and Harris was in bed. After being questioned relative to his whereabouts during the night, and what he had worn, Harris produced a pair of corduroy pants, and the sheriff dis covered a ladies’ wrist watch in Harris’ billfold which was found in the pocket of the trousers. Towler .stated that he told appellant that, under the Constitution, .he (Harris) did not have to say anything, bnt with that understanding, he would like to know about the watch. •Harris then said that he obtained the watch from Orion .Trotter, and further stated' that, after returning from Dermott, he and Trotter drove out on the road in the country, stopped their car and walked down to the automobile, which was parked; that they got the boy out, and took the young woman and put her in Trotter’s car. Harris stated that he was driving, and did not participate in any way in the 'rape.
After daylight, the car from which the woman had been dragged was examined, revealing shattered glass on the floor board and in the seat, and blood on the front cushion. An examination was made of Trotter’s automobile, and blood stains were found in the rear,- seat of the car, and also blood on the left rear door panel. The back seat was taken out, and a red billfold discovered. The billfold contained a poll tax receipt with the name of the prosecuting witness on it, a deposit slip from one of the Monticello banks, and several receipts from stores. Subsequently, the sheriff called the circuit judge, and obtained a court order to transfer the prisoners to the state penitentiary. Towler returned to the home of Trotter, and advised appellant’s Mother that he was looking for a gun that was involved in the alleged crime. When told that he would have to get a search warrant, the officer started to leave for that purpose, but was then informed that there was a gun in the house, and that it belonged to her. She pulled up a mattress, and took out a brown paper sack which had a 38 caliber pistol in it. Towler noticed a hair hanging from the ejector, and with the permission of appellant’s Mother, took the pistol with him. On closer inspection, he noticed that a part of the handle on the butt had been broken. On going-back to the scene, and making the search with one of the city officers, a piece of handle was found on the ground where the right vent of the car had been shattered. The gun, piece of handle, and various items of a woman’s clothing which were subsequently found by the officers in the general area of the crime, together with two bullets which were recovered from the car operated by the woman, were taken to the crime laboratory in Little Rock for examination.
Captain Paul McDonald of the State Police, in charge of the crime laboratory, testified that the broken piece of pistol handle fit the handle of the pistol which had been sent in, and also, in explaining to the jury the ballistics test that was made, positively identified one of the bullets found in the car as being fired from the pistol.
Dr. Robert R. Cole, resident physician at the University of Arkansas Medical Center, testified that he performed a benzidine test, and determined that the stains on the various articles of clothing were human blood. He was unable to type the blood stains, nor could he determine if the hair on the gun was the same as the sample received.
Artis Lee Jefferson testified that around 3:00 o’clock in the morning, he heard his dog barking.
“He was barking like he hadn’t been barking before and I told my wife I was going to get up and look and see Avhat was happening. About the time I got to the door somebody Avas bamming on the door. I never had heard anything like that before. There-was a bunch of screaming and hollowing and crying for help and I didn’t go to the door. So, finally the door opened and there Avas a lady with no clothes on. * * * I backed back in the room after I seen what kind of shape she was in. I told my Avife to come.”
Clemie Jefferson, the wife, verified the statements of her husband, stated that she gave the girl some clothes to put on, and noted the bleeding on the head and private parts.
This summarizes the evidence offered at the trial, and it is quite apparent that it was ample to sustain the finding of the jury. We now proceed to a discussion of the points specifically relied upon by appellants for reversal.
I.
The Question of Change of Venue. Ark. Stat. Ann. § 43-1502 (1947) sets forth the manner in which a defendants shall apply for a change of venue. That section requires the affidavit of two credible persons, who are qualified electors, residents of the county, and not related to the defendant in any way, wherein the facts relied upon for change of venue are set forth. In Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622, though no affidavits were presented, we held that the trial court erred in refusing to hear testimony in support of a motion for a change of venue. There, it was said:
“The court’s action in refusing to hear testimony was contrary to established principles. We have held that the trial court must be guided by the evidence and cannot rely upon its own knowledge of local conditions, for the judge must not also be a witness. ’ ’
In the instant case, the court did hear testimony, which was offered by counsel for appellants, including that of the Chief of Police of Monticello, the Sheriff of Drew County, and Mrs. Frances Jaggers, the editor of the Monticello newspaper. The evidence reflected that there had been a lot of discussion about the case, and the Chief of Police stated that it had received quite a bit of publicity; however, the witness said that he had not heard any threats made, nor any expression as to the guilt or innocence of the men who had been charged. The sheriff testified that appellants were taken into custody before common knowledge of the crime spread over the city and county; that there was no gathering of crowds; that he had received no information that caused concern as to tlieir welfare. Mrs. Jaggers testified that an article appeared in her paper on February 21, dealing with the arrest, and a subsequent article relative to the appointment of counsel and the transfer of the prisoners to the State Hospital. She stated that no unusual number of people had talked to her about the case, and that she had heard no rumors or statements of violent feelings toward the defendants.
Counsel for Harris asserts that appointed counsel did not have sufficient opportunity to make an investigation as to public sentiment. We.do not agree, since the record reflects that counsel was advised of his appointment to represent appellants on February 25, and the hearing on the request for change of venue was heard on April 5. It is also pointed out that the circuit judge entered an order on the same day that appellants were arrested, directing that the prisoners be transported to the State Penitentiary for safekeeping. We do not think this precautionary action by the circuit judge indicates that appellants could not obtain a fair trial in the county. In fact, it would appear that the order was issued before news of the crime became widespread. Certainly, it was prudent that such action be taken where such a violent crime had been committed. But the fact that the court was “playing safe,” as far as the welfare of the prisoners was concerned, does not establish a feeling of hostility and vindictiveness among the residents of the community. An individual may lock the doors of his home at night, but this does not mean that he expects someone to unlawfully enter his house; rather, it is only a precautionary move to prevent the possibility of that happening. In the cases of Perry and Coggins v. State of Arkansas, 232 Ark. 959, 342 S. W. 2d 95, and Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422, the defendants were charged with participation in the dynamiting of the Little Bock School Board Office, and other property, the violence being designed to harass the Little Bock School Board and certain city officials for their role in the integration of Negro pupils into the Little Bock school system. In the Perry and Coggins case, a change of venue was sought, which included thirteen supporting affidavits, nine of -the thirteen testifying at the hearing to the effect that the defendants could not receive a fair trial. The state filed counter affidavits from twenty-seven persons, twenty-one testifying to the contrary. In the Lauderdale case, both appellant and the state called witnesses in regard to the change of venue, twenty-three persons testifying. In each instance, the court declined to grant the motion, and we held that it had not been shown that the court abused its discretion in refusing to enter such an order.
Here, there is not one line of evidence in the record which indicates that appellants could not receive a fair trial in Drew County, and we certainly cannot say that the court abused its discretion in refusing to grant the motion.
II.
The Question of Racial Discrimination in the selection of Jurors in Dreio County. Appellants vigorously argue that members of the Negro race have been systematically excluded, or their number limited, in the selection of the jury panel. A motion to quash the panel because of systematic exclusion of members of the Negro race was filed by the court-appointed counsel on April 2, and counsel examined the sheriff, Cecil T. Boone, one of the jury commissioners, and Audrey Withers, the circuit clerk, relative to this contention. This evidence reflected that approximately 4,GOO poll tax receipts were issued in the county in 1962, of which approximately one-fourth was issued to Negroes. Examination disclosed that a poll tax book was furnished the jury commission, the book designating the race of the qualified .electors. The clerk their testified as to the number of Negroes who had served on the jury at the various terms of court since 1957. The court denied the motion. Following the filing of the motion for a new trial, additional testimony was submitted on this same point. This evidence included the fact that the percentage of non-whites .in Drew County was 33.9% of the total population.
Witnesses examined were the- county clerk, Boone the circuit clerk, Ed Grubbs, a jury commissioner, Arnett Spencer, a Negro citizen of Drew County, Arthur Brown, a Negro citizen of Drew County, Joseph Sims, likewise a Negro citizen of Drew County, and the sheriff. By this evidence, appellants sought to show that only a small percentage of eligible Negroes had served since 1953; that the jury commissioners had made no special effort to acquaint themselves with qualified Negro electors; that several Negroes called for jury service had been called several times before, and that many of the Negroes were over the age of 65 years.
At the outset, let it be stated that we are definitely of the opinion that, under our rules of procedure, appellants are not in a position to complain that they were not tried by an impartial jury, i.e., they did not exhaust their peremptory challenges. The record herein reveals that eight Negroes appeared on the jury lists; that two of these Negroes were excused by the court for cause, and three were excused by appellants’ counsel through peremptory challenge after the state’s attorney had accepted them; actually, three Negroes remained on the panel whose names were not called, because the jury had already been accepted before their names were reached.
Under Arkansas law (Ark. Stat. Ann. § 43-1922 (1947)), a defendant in a capital case is given twelve peremptory challenges, and, in the instant case, appellants only used eight peremptory challenges. Throughout the years, no rule of procedure has been more consistently adhered to than the rule that a defendant cannot complain of the composition of the jury if he does not exhaust his challenges. In Benton v. State, 30 Ark. 32, decided in 1875, Chief Justice English pointed out that this rule had stood as a precept of criminal practice in this state, for a period of over 22 years. In a long-line of cases, we have consistently upheld the rule to the present time. A cursory examination of our cases reveals over thirty-five criminal cases in which this rule has been cited and adhered to. Wright v. State, 35 Ark. 639; McDaniel v. State, 228 Ark. 1122, 313 S. W. 2d 77; Glenn v. State, 71 Ark. 86, 71 S. W. 254; Keese & Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542; Johnson v. State, 97 Ark. 131, 133 S. W. 596; Morgan v. State, 169 Ark. 579, 275 S. W. 918; Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650; and Kurck v. State, 235 Ark. 688, 362 S. W. 2d 713.
The Federal rule appears to be the same. In Jordan v. United States of America, 295 F. 2d 355 (1961), Jordan was found guilty by a jury of the purchase and sale of narcotics. In seeking to reverse the judgment, he set up two grounds, one of which was the fact that the .trial court erred in denying his motion to quash the jury panel. Jordan had been tried twice on these charges during the same jury term. In the first trial, the jury disagreed, and a mistrial was declared. Prior to his second trial, and during the same term, thirteen other defendants in narcotic cases had been tried and convicted. Government witnesses against Jordan had testified in some of the other trials. Jordan’s motion to quash the jury panel alleged the mistrial, the number of other cases involving narcotic violations and heard by some members of the same jury panel, and the publicity given such trials, as reasons for the impossibility of a fair trial for him before the jury panel. At the second trial various questions were asked at the v.oir dire examination of the jurors. There were no challenges for cause and Jordan exercised only five of his ten peremptory challenges. The selected jury consisted of four new members of the panel, two from the old panel, who had sat on none of the previous narcotic cases, and six of the old panel, who had been on such cases. In holding the alleged error to be without merit, the United States Court of Appeals, Tenth Circuit, in an opinion by Judge Breitenstein, said:
“By-his failure to exercise any challenge for cause, and by his use of only half of his peremptory challenges, the defendant has waived the right to complain that he was not tided by an impartial jury.”
On January 22, 1962, the United States Supreme Court denied Certiorari. See also Graham v. United States, 257 F. 2 724.
In People v. Ford, 168 N. E. 2d 33 (Illinois), Ford was found guilty of murder, and sentenced to the penitentiary for a term of 99 years. Several alleged grounds for reversal were raised, which were found to be without merit by the Illinois Supreme Court. From the opinion:
“Further objecting to the jury, defendant argues that he ivas prejudiced by the fact that the first eight jurors accepted were Negroes, by improper remarks made by the State’s Attorney during the voir dire, and by the length of the voir dire itself. It is true that the first eight jurors picked in this case were Negroes, and that after two of those jurors had expressed reluctance about serving upon an all colored jury and the defense counsel had asked that Negroes be excluded from the third jury panel, the court sustained the defendant’s motion and thereafter only white jurors were accepted. We fail, however, to see how defendant ivas prejudiced by this action. Since the record does not indicate that he exhausted his peremptory challenges, he was as much responsible for picking the first eight jurors as was the People, the remaining jurors were selected in accordance with his own request. We have frequently stated that a defendant, having failed to use his peremptory dial lenges, is in no position to complain concerning jury selections.”
These holdings seem to be in accordance with the general rule. In 50 C.J.S., Paragraph 256, Pages 1017 and 1018, we find:
“Failure to exhaiost peremptory challenges. It is ordinarily held that, if a competent jury is obtained without exhausting the peremptory challenges of the objecting party, he cannot avail himself of any error or irregularity in the summoning or selection of the jury, or in the action of the court in refusing to sustain a challenge to the array, or motion to quash the venire; or in excusing or not excusing jurors, or rejecting and discharging jurors if its own motion for insufficient cause.”
However, in Darcy v. Handy, 351 U. S. 454 (1955), when counsel did not exhaust his peremptory challenges, the United States Supreme Court stated:
“The failure of petitioner’s counsel to exhaust the means provided to prevent the drawing of an unfair trial jury from a community allegedly infected with hysteria and prejudice against petitioner while not dis-positive, is significant.”
"While under our holdings, throughout the history of this court, the alleged point is without merit, nevertheless, because of the fact that numerous cases from various jurisdictions have been reversed due to alleged discrimination in the selection of the jury panel, and because of the holding in Darcy that the failure to exhaust peremptory challenges is, though significant, not conclusive, we discuss the various facts relied upon by appellants to establish discrimination.
First, appellants point out that Negroes comprise 33.9% of the population, and 25% of the qualified electors of Drew County, but that for the past twenty-one consecutive terms of court, only 6.3% of the persons called for jury service have been Negroes. In Cassell v. Texas, 339 U. S. 282, it was held that a jury is not required to have proportional representation of races in order to assure equal protection of the law. In fact, that case held that proportional racial limitation, as such, is forbidden. It is true that up until the February 1963 term of court, the number of Negroes selected for jury service had not exceeded five, and in most instances did not exceed three; however, at the term of court in question, eight Negroes were called for service. If proper representation was included in this panel, there certainly could be no prejudice to appellants because of discrimination in prior years. Under that argument, a proper panel could never be selected. Appellants vigorously argue that none of the commissioners testified that they made an effort to become acquainted with the Negro electors in Drew County. This is an effort to bring the case within an additional holding in Cassell v. Texas, supra. There, jury commissioners in Dallas stated that the reason they did not select Negroes for the grand jury list was because of the fact that they did not know any who were qualified. It was shown that in selecting persons for grand jury service, the commissioners had consistently limited the selection of Negroes to not more than one on each grand jury. The United States Supreme Court reversed because of discrimination.
Two of the commissioners testified in the instant case, and their testimony was to the effect that they selected Negroes thát they knew to be qualified, but made no particular effort to learn of others who might be qualified. The third commissioner was not called by appellants to testify. Of course, because of population, the selection of eight jurors in Drew County, Arkansas, with a total population of slightly over 15,000, is hardly comparable to the selection of one juror in Dallas County, Texas, with a population of approximately 400,000, and we can find nothing in the Cassell case that indicates discrimination in the present case. In connection with this argument, appellants complain that the poll tax lists were used, which show the race of the elector. In Avery v. Georgia, 345 U. S. 559, the Supreme Court said,
“Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate. ’ ’
In Smith v. Texas, 311 U. S. 128, the same court stated that “discrimination can arise from commissioners who know no Negroes as well as from commissioners who know, but eliminate them.” This presents somewhat of an enigma, for it is puzzling to determine how a jury commissioner, who is acquainted with but few, if any, Negroes, can go about finding qualified members of that race without the use of a list designating the race of those eligible to serve. In other words, in making an effort to obtain qualified Negroes for the panel, his inquiry and investigation as to their qualifications to serve would seem to depend upon his first ascertaining that they were Negroes. Appellants assert that,
“While the jury commission has gone about to systematically include a few Negroes on the panel, they have done so in a manner as to further discriminate against the Negro by restricting the number to a few that it would be virtually impossible to actually get a Negro on a particular jury without the approval of the. prosecutor, even though there may be Negroes on the panel inasmuch as the state has ten peremptory challenges in a capital case.”
It is interesting to note that it is conceded that Negroes have been systematically included, but, according to this contention, there would have to be as many as eleven colored jurors on any regular panel in Arkansas, else there is discrimination. This contention was passed on adversely to appellants’ reasoning in Hall v. United States, 168 F. 2d 161.
Complaint is made that some Negroes called for jury service had been called several times before. While the record is far from clear, we are unable to determine that more than two members of this panel had been called before, one' on several different occasions. This would hardly seem sufficient repetition to indicate studied discrimination.
Finally, appellants mention that several who have served as jurors were 65 years of age or over. We know of no case which holds that elderly people, merely because of their age, are disqualified from jury service. Under Arkansas law, Ark. Stat. Ann. § 39-104, (Repl. 1962), persons 65 years of age cannot be compelled to serve on a grand or petit jury, and the court is authorized to excuse those who may be selected for jury service who are over 60 years of age, but there is certainly no evidence in this record that any juror was compelled to serve. It is entirely logical that the commissioners would be more acquainted with the qualifications of elderly or middle aged Negroes, since these men would have had more opportunity to establish themselves in the community. In Bailey v. Henslee, 287 F. 2d 936, nine facts were mentioned which the court said, in the aggregate, led to the conclusion that a prima facie case of limitation of members of the Negro race in the petit jury panel had been established, and that the state did not rebut it. Even then, the court commented that “this case may be a close one.” In the present case, it would not appear that over four of those factors are present to any degree, and we are not persuaded that discrimination is shown.
Question of State Testimony as to Admissions. This alleged error has reference to the testimony of the sheriff, wherein he stated that Harris admitted that appellants had placed the prosecuting witness in their car, and that he had driven same; also; the testimony of the sheriff that Harris stated that he obtained the watch from Trotter. The court instructed the jury at the time that this testimony could not be considered in determining Trotter’s guilt or innocence. It is urged that these admissions were introduced into evidence before the jury, without first having been considered by the court in the absence of the jury, and prejudicial error was thus committed. It is true that, normally, testimony relative to the voluntariness of a confession is first taken in chambers, and if the court finds that the confession was not voluntarily made, the state is not permitted to introduce it. On the other hand, if there is a question as to the voluntariness, the matter is presented to the jury for their determination. This procedure is generally followed where written confessions are under examination, and where there is a contention that the confession was involuntarily made. The failure to first hear testimony in chambers does not, in itself, mean that reversible error has been committed. In Davis v. State, 182 Ark. 123, 30 S. W. 2d 830, we said:
‘ ‘ The practice in such cases has been defined in numerous decisions of this court. It is to this effect. "When testimony in the nature of a confession is offered, the accused has the right to object to its admission, upon the ground that the alleged confession was not voluntarily made, in which event the trial court should hear testimony as to the circumstances under which the alleged confession was made, and should exclude the confession if it was not voluntarily made. If the testimony is conflicting on that question, the jury should be told to disregard the alleged confession unless they found that it was, in fact, voluntarily made, hut, if it appeared to have been voluntarily made, to consider it in connection with all the other evidence in the case.
"No such request was made, nor were any instructions asked upon that question. Statements in the nature of a confession are not to be excluded for the reason only that they were made to an officer having the accused in custody, and, if Long voluntarily made these statements to, or in the presence of, the witness Hendricks, there is no reason why he should not have been allowed to testify concerning them.”
Let it be remembered that there is no assertion that any statements were obtained by duress, threats, or promises. While it is true that the burden is on the state to establish the voluntariness of a confession or incriminating admissions, the record reflects that the sheriff told Harris (as well as Trotter) that he did not have to make any statements, and informed him of his constitutional rights. This fact stands undisputed.
It is alleged that Harris was denied his constitutional rights in that he was aroused from bed between 3:00 and 4:00 o’clock in the morning, questioned while partly undressed, arrested without a warrant, and not taken immediately before a magistrate. It is uncontradicted that Harris’ wife permitted the officers to enter the apartment, and no objection was offered to their presence during the investigation. Under our statutes, Harris’ wife could not be called by the state to corroborate the invited entrance, but she could have been called by Harris to refute the proposition. Certainly, there was ho occasion for the officers to wait until the daylight hours of the morning before questioning and arresting Harris, inasmuch as they had sufficient information to form a reasonable belief that he might well be a participant in the crime that had been committed. Ark. Stat. Ann. § 43-403 (1947) provides that a peace officer may make an arrest without a warrant where he has reasonable grounds for believing that the person arrested has committed a felony. The fact that one arrested is not taken immediately before a magistrate does not, of itself, invalidate a confession. State v. Browning, 206 Ark. 791, 178 S. W. 2d 77. Actually, it does not appear that the matters herein mentioned were objected to by appellant at the time. Counsel did object on the basis that the testimony was inadmissible as to Trotter, and, as mentioned, the court so instructed the jury. Counsel subsequently, objected when it was indicated that the prosecuting attorney would interrogate the sheriff about statements made by tlie prisoners as they were being returned from tlie penitentiary for trial. However, this objection did not go to the question of whether the statements were made voluntarily, and, moreover, the state proceeded no further with the interrogation. We find no merit in this contention.
The Question as to the Appointment of One Attorney to Represent Both Appellants. Finally,'it is urged that the court committed error in appointing only one attorney to represent both appellants. At the outset, it should be pointed out that no suggestion of prejudice to the rights of either appellant, because of this fact, was mentioned before or during the trial. This argument appears for the first time in Harris’ motion for new trial. In general, where the interests of defendants are conflicting, or the duties of counsel are found to be conflicting in representing more than one defendant, it has been held that there is a deprivement of the constitutional right to the effective assistance of legal counsel. There are numerous cases on this subject, but all are finally determined on the basis of the rule stated. For instance, in Glasser v. United States, 315 U. S. 60, Glasser had retained counsel named Stewart. An attorney named McDonnel was appointed for Glasser’s co-defendant, a man named Kretske. Subsequently, McDonnel informed the court that Kretske did not wish to be represented by him. The court suggested that perhaps Stewart could act as Kretske’s attorney. The defendant, Glasser, objected, stating, “I would like to have my own lawyer representing me.” A colloquy then insued between the court, McDonnel and Kretske, and Kretske advised that he had just spoken to Stewart, and that Stewart had said that he would accept the appointment. Glasser remained silent. It developed that a conflict of interest did appeal1, and Glasser, on appeal, pointed out that certain testimony, inadmissible as to him, was allowed without objection by Stewart on his behalf, because of Stewart’s desire to avoid prejudice to Kretske. The judgment was reversed. On the other hand, in Farris v. Hunter, 144 F. 2d 63, appellant charged that he was represented by counsel, appointed by the court, who also represented his co-defendant, and he stated that he had protested, contending there was a divergence of interest between the co-defendants, which rendered the same attorney incompetent to represent the two of them. The Circuit Court of Appeals for the Tenth Circuit, after obtaining a transcript of the testimonjr bearing upon this point, stated:
“In the light of the seriousness of this charge, we held the case in abeyance until a transcript of the testimony bearing upon this point in the court below could be transcribed and certified here for our consideration. From the record now before us, it is clear that the appellant did not contend in the trial court that he protested the appointment of Roberts’ attorney to also represent him, and that he did not point out or call attention to any conflict or divergence of interest between the co-defendants. Furthermore, there is nothing in the record from which it can be inferred that the representation of the co-defendants by the same counsel resulted in any embarassment to the attorney or prejudice to his clients.”
In Peek v. United States, 321 F. 2d 934, Peek contended that a conflict of interest existed between appellant and Susanna Peek, which prevented their joint trial counsel from giving to either his undivided loyalty. Peek was charged with robbery and conversion, and Susanna Peek, with conversion. In deciding adversely to this contention, the court held that the interests of appellant and Susanna were not in conflict with each other, and Peek had not been denied his right to counsel. In Lott v. United States, 218 F. 2d 675, the same argument was advanced. The court said,
“Upon submission, counsel for appellants raised as alleged fundamental error the fact that the court ap pointed the same counsel to represent defendants Reed, Pearce and Shaw, citing Glasser v. United States, 315 U. S. 60, 68-76, 62 S. Ct. 457, 86 L. Ed. 680. That case held that Glasser was deprived of his right, under the Sixth Amendment, to the assistance of counsel where the court, over objection, required his counsel to represent a co-defendant, with notice that their interests might be in conflict. Here there was neither objection, claim, nor notice to the court of any alleged conflict between the interests of the three defendants. We hold, therefore, that there was no denial of their constitutional right to the effective assistance of counsel.”
In Case v. State of North Carolina, 315 F. 2 743, Case and a co-defendant, Shedd, were indicted and tried jointly for the offense of rape. Both were found guilty, the jury recommending life imprisonment for Shedd, but making no such recommendation with regard to Case. This meant, for the latter, that a death penalty was mandatory. The same attorney represented both men, though Shedd’s family obtained additional counsel. When the trial commenced, counsel for Case moved for severance, stating that he represented both defendants, and that he was fairly certain that a conflict would arise between their interests. This motion was overruled. On appeal, the court (IT.S.C.A. Fourth Circuit) reversed, finding that this conflict of interest was present at every stage of the trial. It is pointed out in the opinion that counsel sat silent while Shedd’s confession was read, such confession not only implicating Case, but indicating that Case was the leader in the crime. In U. S. v. Bentvena, 319 F. 2d 916, three appellants, all represented by the same attorney, raised this same point. The argument was rejected, the court commenting that an appellant “must show some conflict of interest between himself and the other defendants represented by his attorney before he can claim successfully that the joint representation deprived him of his right to counsel.” A long list of cases to the same effect is then cited. Actually, it appears that each case must be determined on its own particular facts.
In the case before ns, as previously stated, there was no suggestion to the court that adequate representation could not be afforded by the single attorney appointed to represent the defendants. After the state rested, counsel took the appellants into chambers as a matter of making a record that the decision to testify, or not to testify, was being determined by the appellants themselves. Counsel discussed with defendants this question, and recommended, for reasons appearing in the record, that they not testify, but the decision was left tó Trotter and Harris. During this discussion, both appellants expressed their approval of counsel, and his efforts, during the trial.
We find no conflict of interest. Both men were charged with the same offense, which grew out of the same occurrence. The only evidence, which in any manner could be said to indicate a conflict of interest, ivas the statement of Harris made to the sheriff that, though he drove the car, he did not actually rape the prosecuting witness. This might indicate that he was only an accessory, but the distinction between principals and accessories was abolished in this state in 1936. See Ark. Stat. Ann. § 41-118 (1947). Accordingly, even under this statement, if Harris were guilty, he was guilty as a principal. When this testimony was offered, counsel immediately asked the court to instruct the jury that this evidence could not be considered in the case against Trotter. This action by counsel was vastly different from Case and Glasser, where counsel sat silent while evidence from one co-defendant strongly implicated the other defendant. It will also be observed that in Case, Shedd (whose confession had placed the chief blame on Case) received a lesser sentence than Case, indicating that this evidence had operated to his advantage, and to the disadvantage of his co-defendant. Here, both men received the same sentence.
For that matter, Harris does not argue that there was a conflict of interest; rather, it is only asserted that appointed counsel did not have time to investigate the background of both defendants. Counsel for Harris states that his client had been discharged from the United States Navy because of epilepsy, and, at the hearing on the motion for new trial, offered an exhibit relative to Harris’ medical history while in the Navy. It is also alleged that Harris was at the Fort Eoots Hospital for about a day. These allegations, and evidence offered, are an apparent attempt to show insanity. It must be remembered that both appellants were sent to the State Hospital for psychiatric examination, and the hospital submitted a report, heretofore referred to, but at any rate, the issue of insanity should have been raised, and the plea interposed, before, or during, the trial, in accordance with the statute. See Ark. Stat. Ann. § 43-1301 (Supp. 1963).
Various other assignments of error are mentioned in the motion for new trial, relating to instructions, a motion on behalf of appellants for closed trial, and other miscellaneous objections. Because of the length of this opinion, we will not specifically discuss these alleged errors, but all have been examined, and we find no prejudicial error.
Affirmed.
At the time of the criminal assaults, the attackers had pulled .down her undergarments.
This word is used in conformity with the statute. The Superintendent of the hospital stated as to Harris, “however, he does have syphilis and treatment will need to be continued, for a total of twenty days. For the past seven days he has been receiving 600,000 units Procaine Penicillin G. intramuscularly daily and this should be continued for thirteen more days after Apj !1 2nd.”
Trotter does not include this point as grounds for reversal.
At the trial, the prosecuting witness identified the ladies’ wrist watch and red billfold as her property.
The captain stated that he was unable to make identification of the other bullet due to its battered condition.
The record does not reveal the position of any of the names on the panel.
In this case the court said: “In York v. State, 91 Ark. 582, a felony case, where the trial court had, without sufficient legal grounds, excused five jurors from the regular panel, and caused bystanders to be summoned to take their places, the defendant accepted the jury without exhausting his challenges, and this court ruled that the error of the trial court was not prejudicial. Quoting from a previous decision, this court held that an accused has the right to the service of no particular juror, and that ‘when he has voluntarily taken his chance of acquittal at the hands of jurors whom he might have rejected, he must abide the issue.’ Mabry v. State, 50 Ark. 492. We perceive no sound reason why the same rule should not prevail in capital cases.”
Here the defendant moved that the panel be discharged because all of the members resided in or near Pine Bluff, where the trial occurred, and appellant insisted that he could not obtain a fair trial in that city. The motion was denied, and Morgan asserted in this court that the overruling of the motion constituted error. Among other reasons for finding appellant’s argument to be of no avail, this court pointed out that he did not exhaust the peremptory challenges allowed him by law in impanelling the jury.
Our emphasis.
Only electors are eligible to serve on a petit jury. Ark. Stat. Ann. § 39-208 (Repl. 1962). To qualify as an elector, one must, inter alia, pay a poll tax. Amend. 8, Art. 3, § 1, Ark. Const, of 1874. This case was tried before ratification of the 24th Amendment to the Federal Constitution.
The situation here is vastly different from that in Reece v. State of Georgia, 76 S. Ct. 167, where only six names of Negroes appeared out of five hundred and thirty-four names on the grand jury list, and one lived outside the county, two were over 80 years of age, one was partially deaf, and one was in poor health. In the instant case, one juror, 66 years of age, was excused because of illness.
The court properly and fully instructed the jury in this regard.
In capital cases, exceptions to an adverse ruling need not be noted, but it is still necessary that an objection be made. Fields v. State, 235 Ark. 986, 363 S. W. 2d 905.
“The defendants specifically object to the testimony of the Sheriff regarding- any statements made to him by the defendants, Trotter and Harris, for the reason that they had not been carried before a magistrate or charged with any crime, that making said statements while in custody without the benefit of counsel was in violation of their rights under Fifth Amendment and they had no way of knowing that said statements could be used to incriminate them.”
This procedure was commended in Nail v. State, 231 Ark. 70, 328 S. W. 2d 836. | [
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Sam Robinson, Associate Justice.
The issue' is the authority of the courts to appoint a guardian for children between the ages of 7 and 15, inclusive, who are not attending school, and to give the guardian custody of the children with directions to have them vaccinated to facilitate school attendance.
Appellants, Archie Cude and his wife, Mary Frances, are the parents of eight children, three of whom are between the ages of 7 and 15, inclusive. The children are Wayne Monroe, age 12, Delia Marie, 10, and Linda May, 8. Wayne went only to the second grade; the other two have not attended school at all. The children are not in school for the reason that the school authorities will not permit them to attend school because they have not been vaccinated against smallpox. The Cudes will not permit such vaccinations; they contend that it is contrary to their religion.
This litigation was commenced by Ben Core, Prosecuting Attorney for the Ninth Judicial District of the State of Arkansas, filing in the Probate Court of Polk County, on behalf of the State, a petition alleging that the three Cude children were not attending school; that the father, Archie Cude, had been fined on three occasions for violating the law requiring that parents send their children to school, and he has persisted in his refusal to have the children vaccinated so that they can attend school, and that the father has avowed that he will never permit the children to be vaccinated; that unless the children are removed from the custody of the natural parents they will not have all the benefits and advantages of a school education. The petition asks that the children be placed in the custody of the Child Welfare Division of the State Welfare Department.
The appellants responded, contending first, that the probate court did not have jurisdiction, and further, that vaccination of the children was against respondents’ religious beliefs. There was a full scale hearing; it was shown that the children were not attending school because they had not been vaccinated; that the appellants would not permit them to be vaccinated because of their religious beliefs, and appellant, Archie Cude, testified that if the children were taken from him and vaccinated he would not accept them back.
The court appointed Miss Ruth Johnston, Director of the Child Welfare Division of the State Welfare Department, as guardian of the children. The order further provides: “Said guardian is authorized and directed to file a petition in the Chancery Court of Polk County, Arkansas, for the purpose of obtaining the physical control and custody of the children for the purpose of having such children properly vaccinated and immunized against the disease of smallpox, and thereafter enrolled in the public schools of this State, all in accordance with the laws of this State, and all to be done by qualified and licensed and practicing physicians of this State as soon as is reasonably possible after the said children are in the custody of said guardian. After the immunization of the said children, the guardian shall offer, through the office of the Prosecuting Attorney for the 9th Judicial Circuit, to deliver the said children back into the custody of the Defendants, and the guardian is authorized and directed to do so, and if the Defendants shall not accept the said children back into the home of the Defendants, then the said guardian is hereby authorized and empowered to consent to the subsequent adoption of the said children by a party or parties acceptable to the Guardian and to the Probate Court which may consent.”
Pursuant to the foregoing order, the guardian, Ruth Johnston, filed a petition in the chancery court asking for custody of the children. Over appellants’ protest the petition was granted. The Cudes have appealed.
Actually, there are two appeals; one from the order of the probate court appointing the guardian; the other from the order of the chancery court giving Miss Johnston custody of the children. The cases have been consolidated on appeal.
For the purposes of the appeal, we will assume that the Cudes, in good faith because of their religious beliefs, will not permit the children to be vaccinated. Then the question is whether they have the legal right to prevent vaccination. The answer is that they do not have such right.
There is no question that the laws of this State require parents to send to school their children between the ages of 7 and 15, inclusive. Ark. Stat. Ann. § 80-1502 (Eepl. 1960) provides: “Every parent, guardian, or other person residing within the State of Arkansas and having in custody or charge any child or children between the ages of seven [7] and fifteen [15], (both inclusive) shall send such child or children to a public, private, or parochial school under such penalty for non-compliance with this section as hereinafter provided.”
The school administrative authorities of the State of Arkansas have adopted a regulation requiring vaccination as follows: “No person shall be entered as a teacher, employee or pupil in a public or private school in this state without having first presented to the principal in charge or the proper authorities, a certificate from a licensed and competent physician of this State certifying that the said teacher, employee or pupil has been successfully vaccinated; or in lieu of a certificate of successful vaccination, a certificate certifying a recent vaccination done in a proper manner by a competent physician; or a certificate showing immunity from having had smallpox. . .” There is no question about the validity of this regulation. State v. Martin, 134 Ark. 420, 204 S. W. 622; Seubold v. Ft. Smith Special School Dist., 218 Ark. 560, 237 S. W. 2d 884.
It is clear that the law requires that the children attend school, and a valid regulation requires that they be vaccinated. The next question is: Are appellants, because of their religion, exempt from the law and the regulation requiring that the children be vaccinated so that they can go to school? It will be remembered that appellants do not object to the children going to school; it is the vaccination that is objectionable to them. But, according to a valid regulation, the children are not permitted to go to school without having been vaccinated.
■Article'2, Sec. 24 of■ the ■ Constitution of Arkansas provides“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, . denomination or mode of worship above any other.” The foregping provision of the Constitution means that anyone has the right to worship God in the manner of his own choice, but it does not mean that he can engage in religious practices inconsistent with the peace, safety and health of the inhabitants of the State, and it does not mean that parents, on religious grounds, have the right to deny their children an education.
The U. S. Supreme Court said in Prince v. Commonwealth of Massachusetts, 321 U. S. 158, S. Ct. 438, 88 L. Ed. 645: ‘ ‘The right to practice religion freely does not include liberty to expose the community or the child to communicable diseases or the latter to ill health or death . ... Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached'the, age of full and legal, discretion when they can make that choice for themselves. ’ ’
It is a matter of common knowledge' that prior to the development of protection against smallpox by vaccination, the disease, on occasion, ran rampant and caused great suffering and sickness throughout the world. According to the great weight of authority, it is within the police power of the State to require that school children be vaccinated against smallpox, and that such requirement does not violate the constitutional rights of anyone, on religious grounds or otherwise. In fact, this principle is so firmly settled that no extensive discussion is required. ■ " •
In the early case of Reynolds v. U. S., 98 U. S. 145, the issue was whether a Mormon who believed in polygamy was immune from the operation of the statute forbidding- the practice of multiple marriage. There, the court said: ‘ ‘. ... the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere and prevent a sacrifice? Or if a wife religiously believed it was her duty to- burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?”
In cases too numerous to mention, it has been held, in effect, that a person’s right to exhibit religious freedom ceases where it overlaps and transgresses the rights of others. We cite a few cases upholding the validity of statutes requiring vaccination, and affirming orders of courts authorizing blood transfusions, etc. In Re Whitmore, 47 N. Y. Supp. 2d 143; vaccination of school child. Sadlock v. Board of Education, 58 A. 2d 218; vaccination of school child. State v. Perricone, 181 A. 2d 751; giving blood transfusion to infant. New Braunfels v. Waldschmidt, 207 S. W. 303; vaccination of school child. Hosier v. Barren County Board of Health, 215 S. W. 2d 967; vaccination of school child, Board of Education of Mountain Lakes v. Maas, 152 A. 2d 394; vaccination of school child. In Re Clark, 185 N. E. 2d 128; blood transfusion for three year old child.
This court said in Seubold v. Ft. Smith Special School District, 218 Ark. 560, 237 S. W. 2d 884: “In Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643, 25 Sup. Ct. 358, the Supreme Court of the United States considered the matter of compulsory vaccination as infringing on rights claimed under the United States Constitution, and held that a State law requiring compulsory vaccination did not deprive a citizen of liberty granted by the United States Constitution. More recently, in the case of Zucht v. King, 260 U. S. 174, 67 L. Ed. 194, 43 Sup. Ct. 24, the United States Supreme Court again considered the matter of compulsory vaccination; and Mr. Justice BRANDEIS, speaking for the Court said: ‘. . . Long before this suit was instituted, Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765, had settled that it is within the police power of a state to provide for compulsory vaccination.’ ”
Appellant contends that in the circumstances of this case the probate court does not have jurisdiction to appoint a guardian. The Constitution of Arkansas, Article 7, Sec. 34 provides: “In each county the Judge of the court having jurisdiction in matters of equity shall be judge of the court of probate, and have such exclusive original jurisdiction in matters relative to . . . guardians . . . The judge of the probate court shall try all issues of law and of facts arising in causes or proceedings within the jurisdiction of said court, and therein pending” (our italics).
It will be noticed that the above provision of the Constitution gives probate courts jurisdiction in matters relative to guardians, and provides that the probate court shall try all issues of law and facts in causes within the jurisdiction of the court and pending therein.
In 1911, b3^ Act 215, the G-eneral Assembly created what is known as the Juvenile Court. For the purposes of the Act, all persons under 21 years of age are considered wards of the state, Ark. Stat. Ann. § 45-201 (1947), and a dependent or neglected child means any person under the age of 21 who “. . . has not proper parental care or guardianship . . .” Ark. Stat. Ann. § 45-203 (1947). The county judge was made the judge of the Juvenile Court.
Ark. Stat. Ann. § 45-210, which is a part of Act 215 of 1911, provides: “Any reputable person, being a resident of the county, may file with the clerk of the court, having jurisdiction of the matter, a petition in writing-setting forth that a certain child, naming it, within his county, is either dependent, neglected or delinquent, as defined in section 1 [§§ 45-203, 45-204]; and that it is for the best interest of the child and this State that the child be taken from its parent, parents, custodian or guardian and placed under the guardianship of some suitable person to be appointed by the court; and that the parent, parents, custodian or guardian of such child, are unfit or improper guardians, or are unable or unwilling to care for, protect, train, educate, correct, control or discipline such child, or that the parent, parents, custodian consent that such child be taken from them. ’ ’
Ark. Stat. Ann. § 45-221 (1947) provides that the juvenile court may appoint a guardian for a dependent or neglected child. In the case of Ex Parte King, 141 Ark. 213, 217 S. W. 465, (1919); this court held that in some instances the juvenile court could appoint guardians. However, both Judge McCulloch and Judge Frank Smith wrote strong dissents to the effect that under the Constitution, only the probate court had jurisdiction in matters of guardianship. (At the time of that decision the county judge was also the probate judge.) But, regardless of the soundness of the King case, all doubt as to what court has jurisdiction to appoint a guardian was put to rest by the Probate Code of 1949. Section 191 of Act 140 of the Acts of 1949 (Probate Code) provides: “The jurisdiction of the Probate Court over all matters of guardianship, other than guardianships ad litem in other courts, shall be exclusive, subject to the right of appeal, (c) Not to conflict with Juvenile Courts. The provisions of this code shall not be construed to affect the jurisdiction of authority now vested in Juvenile Courts except in the matter of appointment of guardians.”
Without doubt, the foregoing act gives the probate court exclusive jurisdiction in all matters of guardianship, including the appointment of guardians; hence, whatever jurisdiction the juvenile court had to appoint guardians under the act creating such courts, as construed in the King case, is now vested in the probate court. Under the provisions of Article 7, Sec. 34 of the Constitution, “The judge of the probate court shall try all issues of law and of facts arising in causes or proceedings within the jurisdiction of said court and therein pending. ’ ’
The issue of whether the three children of appellants were neglected was before the probate court in the proceeding for the appointment of a guardian, and the court had jurisdiction to determine that fact. The evidence that the parents would not permit vaccination and thereby enable the children to attend school is sufficient to base a finding of neglect. In Re Marsh, 14 A. 2d 368; Morrison v. State, 252 S. W. 2d 97; Santos v. Goldstein, 227 N. Y. Supp. 2d 451.
Appellants argue that Archie Cude has been fined on three occasions for not sending the children to school, and that the State has no other remedy. This action was not instituted for the purpose of punishing Cude, but to enable the children to obtain a reasonable education. The fact that Cude has been fined for violation of the law in not sending his children to school in no way benefited the children. It did uot bring about the desired result of the children being sent to school.
Appellants argue other points, all of which have been considered and found to be without merit.
Affirmed.
Johnson, J., dissents. | [
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Paul Ward, Associate Justice.
The Workmen’s Compensation Commission, in four separate cases, found appellees, Gerald Gordon, Robert Hyde, O. A. Richardson and James D. Wilson, totally and permanently disabled from silicosis contracted while working in a coal mine belonging to appellant—Peerless Coal Company. The award was affirmed by the circuit court, and this appeal follows. The four claims were consolidated for hearing at all stages on a joint record, and they are jointly here on appeal.
Appellant relies on two principal grounds for a reversal. One, the Commission’s awards are not supported by substantial competent evidence. Ttvo, the Commission acted without jurisdiction and in excess of its powers. For reasons hereafter set out we are unable to sustain appellant on either ground.
ONE
The Commission held that all four of the claimants are totally and permanently disabled with silicosis and that each was last injuriously exposed to the hazards of the disease within the last three years while employed in appellant’s mine. We do not understand appellant seriously challenges the finding that appellees are totally and permanently disabled, nor do we think it could do so. As to three of the claimants the evidence is beyond question, and, as to the other one, we find substantial evidence to support the finding of the Commission as to the extent of his disability.
Appellant does, however, ably and forcefully argue that there is no competent evidence to show its mine was ever a silica hazard. In support of this contention appellant introduced into evidence the results of three scientific tests performed in 1961. Rather than attempt to set out in detail the facts revealed by these tests, it may be conceded for the purpose of this opinion, that they show the silica content of the air taken from the mine to be harmless—that it would not induce silicosis. It appears to be appellant’s contention that such scientific evidence overcomes the testimony introduced on behalf of claimants. In fact appellant contends there is no evidence to show there was (in the mine) silica dust capable of causing silicosis. This being true, says appellant, there is no substantial evidence in the record .to sustain the finding of the Commission. For reasons presently set out, we are not convinced by the above argument.
In the first place we point out that the tests performed by appellant did not necessarily prove there was never at any time harmful silica dust in the mine. The air tested was taken in 1961 under conditions controlled by agents of appellant; it was near the entrance, and the ground had been dampened. These conditions bear little semblance to those under which appellees worked. It is undisputed that appellees worked for many years, often in a heavy dust, hundreds of feet underground. In the record there is testimony which, we think, amounts to substantial evidence to support the finding by the Com mission that there was silica dust present in the mine sufficient to create a silica hazard. A few instances of such testimony are briefly set out below.
(a) The State Board of Health’s laboratory examined rock samples taken from subject mine in 1952 and found them to contain over 40% silicates.
(b) In the subject mine there is a layer of rock under the strata of coal. This rock is frequently blasted, causing a dense dust deep in the mine. It was often necessary to drill into the rock preparatory to blasting, and this also caused an accumulation of dust. To prevent an excess of rock dust, water was passed through the drill but sometimes the water hose broke while the drilling continued. At times the dust was so thick it was difficult to see clearly more than a few feet. Frequently it was necessary to put sand on the iron tracks used by the coal cars. Appellant admits silica is present in many rocks.
(c) The doctors first testified that claimants had silicosis, but later they admitted they were influenced by the knowledge that claimants had worked many years in coal mines. Apparently, had the doctors not had this information, they would have or might have diagnosed the disease as emphysema—a similar disease but one not covered by the act. In other words, it appears .to us that the doctors were merely taking into consideration the case history of the patient as a usual aid to diagnosis.
(d) Finally, x-rays of claimants’ lungs indicated the presence of silica.
For a reversal, appellant relies on the case of Collier-Dunlap Coal Company v. Dickerson, 218 Ark. 885, 239 S. W. 2d 9, pointing out what we there said:
“To affirm this case we would have to take judicial knowledge that the hazard of silicosis existed in appellant’s mine. This Court will not take judicial knowledge of such alleged fact.”
and further:
“If the rock, coal, or other elements in appellant’s mine give off silica dust causing the hazard of silicosis to exist, then such fact can be proved without great difficulty. Without such fact being proved the evidence is not sufficient to warrant the making of an award. ’ ’
In the cited case, however, we pointed out facts which differ from the facts in the case under consideration. We said: “There is no evidence in the record showing that any silica dust was ever in appellant’s mine. In fact there is no evidence on the point one way or the other.” We think, as previously pointed out, there is no such lack of evidence in the record in the case under consideration.
We are not convinced by appellant’s contention that the case here is distinguishable from the case of Peerless Coal Company v. Jones, 219 Ark. 181, 240 S. W. 2d 647. There we sustained appellee’s claim based on silicosis on even less direct proof than we have here. It is true that in the cited case there were no negative tests made of the air in the mines, but, as previously indicated, the tests in this case were not such as to preclude the possibility of silica dust in the mine at other times and locations.
From all the above we must conclude the record contains substantial evidence to sustain the Commission’s findings. Also, as stated in the Jones case, supra:
“We have many times held that the Workmen’s Compensation Law should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant.”
TWO
We see no merit in appellant’s argument that the Commission acted without jurisdiction because claimants did not give appellant notice according to Ark. Stat. Ann. § 81-1314 (c) (1) (Repl. 1960) which provides:
“(1) Except as herein otherwise provided procedure with respect to notice of disability or death, as to the filing of claims and determination of claims shall be the same as in cases of accidental injury or death. Writ ten notice shall be given to the employer of an occupational disease by the employee, or someone on his behalf, within ninety (90) days after the first distinct manifestation thereof, and in the case of death from such an occupational disease, written notices of death shall also be given to the employer within ninety (90) days thereafter. ’ ’
Appellant says the record shows claimants failed to give it notice within the 90 days specified above. Conceding, for the purpose of this opinion, no proper notice was given, that fact does not bar appellees claim, because no objection was raised by appellant at or before the first hearing on their claims. See: Gunn Distributing Company v. Talbert, 230 Ark. 442, 323 S. W. 2d 434. It is true that the above case construed Ark. Stat. Ann. § 81-1317 which provides for notice in usual accidental injury cases. It reads: “Notice of injury or death for which compensation is payable shall be given within sixty [60] days after the date of such injury or death (1) to the Commission and (2) to the employer.” We know of no sound reason why the rule (regarding waiver of notice) applicable to occupational diseases should be different from that applicable to accidental injuries. In both instances the statute provides that notice shall be given. The only real differences are that § 81-1317 requires that notice be given within sixty days to both the Commission and the employer while § 81-1314 (c) (1) requires ninety days notice be given only to the employer. If, as held in the Talbert case, siopra, notice can be waived in accidental injury cases we think it can, in the same manner, be waived in occupational disease cases.
In conformity with what has been said above, we affirm the judgments of the trial court from which comes this appeal.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is a suit to quiet title brought by the appellants, Murray Whitfield Coulter and George Prothro Coulter, against the appel lees, Julia Clemons et al. Other parties were added by cross complaint and third party procedures. The appellants claimed title to the real estate here involved by mesne conveyances from those who owned the lands prior to the 1932 tax sale for the 1931 taxes. The appellees claimed by statutory possession acquired under the deed issued because of such tax sale. The decree of the Chancery Court in favor of the appellees was reached largely because of the finding that the appellants were claiming under a forged deed; and that issue of forgery becomes the most important point on this appeal.
Before discussing the forgery matter, however, we give other background information. The appellants, in seeking to quiet their title, claimed: (a) that the lands here involved were originally owned by Harris Brothers, who became bankrupt in 1931; (b) that the 1932 tax sale was void for failure of the Clerk to affix his certificate before the date of sale; (c) that there was no valid statute curing such defect; (d) that the trustee in bankruptcy conveyed the lands to E. W. Prothro in 1933; (e) that E. W. Prothro conveyed the lands to the appellants in 1933; and (f) that the appellants were minors in 1933 and within proper time brought this suit—not to redeem the lands from taxes but—to quiet their title to the lands under the claim that their predecessors in title were the owners of the lands.
The appellees claim under a deed from the State Land Commissioner in 1935, the lands having forfeited to the State in 1932 for the delinquent taxes of 1931; and appellees claim: (a) that, regardless of the validity of the tax sale, the appellees under the tax deed have paid taxes on the lands (admitted to be wild and unimproved) for more than fifteen years; (b) that such payments make good title; (c) that, the deed from E. W. Prothro to the appellants is a forgery; and (d) that the appellants have no title to the lands and therefore cannot maintain this suit.
The alleged deed from E. W. Prothro to appellants was dated August 28, 1933, and recorded August 3, 1940 —A lapse of almost seven years between date of execution and date of recordation. At the time of the date of the deed the appellants were children, aged one and three years respectively, and were nephews of E. W. Prothro. The appellants brought this suit within the permissible time after arriving at full age. The suit was filed on April 16, 1952, and remained untried until 1962 because of other litigation later to be mentioned. Trial in the Chancery Court in 1962 resulted in a holding that the deed from E. W. Prothro to the appellants was a forgery; and this appeal challenges the correctness of that holding. The appellants raise three points:
“1. The Court erred in holding that the deed of E. W. Prothro, dated August 28, 1933, conveying the lands to appellants, was a forgery and that by reason thereof appellants had no title to the lands involved.
“2. The testimony of E. W. Prothro in the form of a deposition introduced as evidence by appellees is binding upon them, and the court erred in not so holding.
“3. The Court erred in holding that appellants had not shown title in themselves and in dismissing appellants’ complaint for want of equity.”
1. Forgery. It was established that the Trustee in Bankruptcy of Harris Brothers executed a deed dated August 17, 1933, conveying the land here involved to E. W. Prothro; that the deed was actually delivered on August 23,1933 to E. H. Coulter, Sr., a brother-in-law of E. TV. Prothro, and the deed was recorded the same day delivered; that E. H. Coulter, Sr. is the father of the appellants, Murray "Whitfield Coulter and George Prothro Coulter; that E. H. Coulter, Sr. was an attorney and had represented E. W. Prothro previously; that the challenged deed here involved was dated August 28, 1933 but was not recorded until August 3, 1940, a lapse of almost seven years; and that the challenged deed here involved purported to have been acknowledged by E. W. Prothro before T. P. Oliver, a Notary Public.
T. P. Oliver testified that he never signed the said acknowledgment on the deed and that his signature thereon was a forgery. Furthermore, Mrs. T. P. Oliver, the wife of T. P. Oliver, testified that she was the chief operator for the Southwestern Bell Telephone Company in El Dorado; that she and T. P. Oliver had been married 32 years; that she was well familiar with the signature of T. P. Oliver; and that the signature of T. P. Oliver on the acknowledgment of the questioned deed was not the signature of T. P. Oliver. The Olivers were entirely disinterested witnesses.
Other instruments admittedly signed by E. TV". Prothro were introduced in evidence in order to establish his genuine signature. Some of these were: (a) a deed from E. TV". Prothro to O. E. McGugan, dated January 1, 1934; and (b) a deed from E. TV. Prothro to Lionel Robertson, dated January 23, 1934. Thus, contemporaneous instruments were in evidence containing the admittedly genuine signature of E. W. Prothro. Then C. TV. Talbot, President 'of the First National Bank of Fordyce, and with 43 years experience in handwriting, testified that the purported signature of E. TV. Prothro on the questioned deed (that is, from E. TV. Prothro to Murray Whitfield Coulter and George Prothro Coulter) was not written by the same person who had signed the McGugan and the Robertson deeds, as previously set forth. Here is Mr. Talbot’s positive testimony on the point as abstracted by the appellants :
<£I am now handed a photostatic copy of a deed purporting to have been executed by E. W. Prothro to George Prothro Coulter and Murray Whitfield Coulter, dated August 28, 1933, and filed for record in Calhoun County on August 3, 1940, which deed I have examined previously and it is my opinion, based upon my experience since 1920, and from a careful examination of these deeds that the signature of E. W. Prothro on the deed to George Prothro Coulter and Murray Whitfield Coulter is not the same handwriting as the signature of E. W. Prothro on the McGugan and Robertson deeds.”
Other admittedly genuine signatures of E. W. Prothro were in evidence: one was his signature on a deed from Prothro to Johnson Brothers in August 1933; and the other was a signature of Prothro on an indemnity bond executed at the same time, 17111011 indemnity bond was signed by E. W. Prothro as principal, and E. H. Coulter as surety. The Chancery Court compared Prothro ’s signature on the deed here in question, as against the admitted signatures in the Johnson transaction. The only evidence against the forgery was that of E. W. Prothro, which came into the record in the manner discussed in Topic II, infra. E. W. Prothro testified that he signed the deed to the appellants on the date shown and delivered the deed to his sister, who ivas the mother of the appellants; that the appellants were small children at the time; and the deed was a gift to them.
The appellees had the burden of proving the forgery by a preponderance of the evidence. Thompson v. Kinard, 168 Ark. 1057, 272 S. W. 668; Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524; Ledbetter v. Smith, 202 Ark. 144, 149 S. W. 2d 564. Did the testimony of E. T\T. Prothro outweigh the testimony of Mr. and Mrs. Oliver and C. L. Talbot, and the admittedly genuine signatures as against the questioned signature ? The thought and study which the learned Chancellor gave to this question of forgery and to the entire case is exemplified by the opinion which he delivered and which is in the transcript. On the evidence as we have outlined it—and the record contains no other for the appellants—the Chancery Court concluded that the alleged deed from E. W. Prothro to the appellants was a forgery; and we cannot say that such finding is contrary to the preponderance of the evidence. Therefore, we affirm the finding that the deed from E. W. Prothro to the appellants was a forgery, and that the appellants are without title.
II. The Testimony Of E. W. Prothro As Binding On Appellees. The appellants insist that the appellees brought into the trial of this case the testimony of E. W. Prothro and are, therefore, bound by his testimony to the effect that he signed the questioned deed to the appellants. The answer to this contention necessitates a mention of previous litigation between these appellants. We have reference to the case of Coulter v. Anthony, 228 Ark. 192, 308 S. W. 2d 445, decided by us on November 4, 1957, and certiorari denied by the Supreme Court of the United States on November 17, 1958, 358 U. S. 73; 3 L. Ed. (U.S.) 118; 79 S. Ct. 153. The said Coulter-Anthony case (involving the same tax sale as here) was No. 1557 in the Calhoun Chancery Court; and E. W. Prothro was a party defendant, being brought in by cross complaint just as in the present case. He gave a deposition in answer to interrogatories propounded to him by the opposite side (just as here), and his deposition was offered in that case under Sub-section (d) of Section 1 of the Discovery Statutes of 1953.
The present case in the Calhoun Chancery Court was No. 1559; and by agreement, the deposition of E. W. Prothro in Case No. 1557 was used'by the present appellees, since Prothro was a party adverse to them in this case. Here is what transpired in the Lower Court when the deposition of E. W. Prothro was offered:
“L. WEEMS TEUSSELL: If the Court please, at this time I would like to offer in evidence the Interrogatories propounded to Dr. Ernest Prothro, who was an adverse party in Case No. 1557 and who was made an adverse party in this Case No. 1559. This instrument is now offered by the defendants without being bound by the testimony of E. W. Prothro, who is an adverse party, and is offered under Section 1, Act 335 of 1953. . . .
"IT. A. GENTRY: We would like to interpose our objections to the introduction of these two depositions or the testimony given by these two witnesses found in the record of Coulter v. Anthony, Case .No. 1557, not because it is testimony given in that case but because it is evidence that goes to fraud, or an undertaking to prove some fraud on the Bankruptcy Court or by Officers of the Bankruptcy Court in acquiring this property that is in litigation today. That has nothing to do with this case. ...”
Later, and just before the close of all the testimony, the following occurred:
‘ ‘ MR. GENTRY: If the Court please, Mr. Trussell has offered all the rebuttal testimony I wanted to offer in the deposition of Dr. Prothro. We would make that our testimony.
"MR. TRUSSELL: Since I have offered it, do'you agree that I am offering it as an adverse party or do you prefer to offer it?
"MR. GENTRY: We want it in the record, after they introduced their testimony about the validity of the deed.
"MR. TRUSSELL: Very well, your Honor, that is all.
"MR. GENTRY: That is all we have.”
We have copied the pertinent excerpts from the proceedings of this trial to show just how the deposition of E. W. Prothro came into the record, and to establish that it was offered by the appellees as the testimony of an adverse party. Act No. 335 of 1953 (now found in Ark. Stat. Ann. § 28-348 et seq. [Repl. 1962]) provides that the introduction of a deposition of a person makes such deponent the witness of the person' introducing the deposition "... but this shall not apply to the use by an adverse party of his deposition. . .- .” Therefore, the appellees had the right to offer the deposition of E. W. Prothro without being bound by his answers. The appellees so stated when they offered the deposition, and the appellants did not make any claim in the Trial Court that the appellees would be bound by the answers of Prothro. We find no merit in the claim of the appellants that the appellees were bound by the testimony of E. W. Prothro.
III. The Appellants Claim That Their Title Shotold Be Quieted. This point was practically eliminated when we affirmed—in Point I, supra—the Chancery finding that the appellants were claiming under a forged deed. A forged deed does not pass title. Bird v. Jones, 37 Ark. 195; Wilson v. Biles, 171 Ark. 912, 287 S. W. 373; McCarley v. Carter, 187 Ark. 282, 59 S. W. 2d 596. Therefore, with the deed from E. W. Prothro to appellants held to be a forgery, the appellants have shown no title in themselves. Prom 1935 to the tidal of this cause the appellees, under color of title, had paid the taxes on the lands, admitted to be wild and unimproved (Ark. Stat. Ann. § 37-102 [Repl. 1962]); so the appellants had no title to be quieted.
The decree is affirmed.
On this point see Coulter v. Anthony, 228 Ark. 192, 308 S. W. 2d 445, which case is discussed on another point in Topic II, infra.
The fact that E. W. Prothro testified that he signed the deed does not completely foreclose the appellees on this issue of forgery, because his testimony is the same as that of any other party in the case. We can easily imagine a situation wherein a son was charged with forging his father’s name to a check. The testimony of the father —to the effect that he had signed the check himself—would not conclusively establish that there had been no forgery. In 23 Am. Jur. p. 679, “Forgery” § 8, there is a discussion of forgery by the use of one’s own name with intent to deceive; and there are annotations cn this point in 41 A.L.R. 229, 46 A.L.R. 1522, and 51 A.L.R. 568.
There is another case by these appellants, styled Coulter v. O’Kelly, 226 Ark. 836, 296 S. W. 2d 753, but it has no direct bearing on the present litigation. | [
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Ed. F. MoFaddin, Associate Justice.
We are here concerned with the voir dire examination of the jury panel. Appellants, Mrs. Elizabeth Hogg, and her husband, filed this action against George A. Darden and his son, alleging- that in a traffic mishap Mr. and Mrs. Hogg sustained injuries and damages all because of the fault and negligence of the defendants. Upon issues joined the cause was tried to a jury and a verdict rendered for the defendants (appellees here). The appel lants seek a new trial because of the rulings of the Tria Court in regard to the voir dire examination of the jury panel, and urge two points:
“I. The Court erred in denying plaintiff’s counsel’s request that the Court refrain from interrogating the panel regarding liability insurance and not permitting counsel to do this himself.
“II. The Court erred in not permitting the requested question regarding defendant’s apparent ability to pay.”
Prior to the voir dire examination, appellants’ attorney filed the following written request with the Trial Court:
“NOW COMBS Plaintiff and requests of the Court in chambers immediately in advance of trial, that he be permitted to ask each of the members of the jury panel, separately and individually, each of the following questions:
“1. Do you or any member of your immediate family work for, own any stock in, or have any direct or indirect interest whatever in any casualty insurance company?
“2. If you believe from the testimony and the instructions given to you by the Court that plaintiff in this case is entitled to a judgment in a substantial amount and if you also at the same time believe that either or both of the'defendants may not be financially able to pay the amounts to which you think plaintiff is entitled, will you be freely willing to go ahead and render judgment in the full amount to which you think plaintiff entitled, without any reduction on account of defendant’s apparent inability to pay, and just let us worry about collecting the judgment?
“The Court having previously given indication to plaintiff that the Court feels (a) that plaintiff’s counsel is not entitled to interrogate each prospective juror on the jury panel voir dire separately and individually and (b) that one or more of the foregoing questions might not be proper, and plaintiff’s counsel preferring to have these matters ruled upon in advance and out of the presence of jury and without colloquy in the presence of jury, now respectfully requests that the Court make his ruling out of the presence of the jury in advance of voir dire and it is the further request of plaintiff that these questions not be propounded to the jury by the Court. ’ ’
The written request was heard by the Court away from the jury; and the Court ruled as to Request No. 1:
“The Court holds that Request No. 1 is a proper question and can be asked if counsel for the plaintiff thinks he needs to ask it. But the Court reserves the right to use his discretion in whether this question is asked each individual juror of the jury panel, which in this case consists of twenty-four members, and if he propounds this question to twenty-four members, twenty-four different times, the Court certainly reserves the right, in its discretion, to stop the propounding of the question individually to each member of the jury panel, if it appears not to serve any useful purpose in testing the interest on voir dire of any member of the jury panel. ’ ’
As to Request No. 2, the Court ruled:
“The Court finds that it is not a proper question in the form in which it is asked. The content of that question may be inquired of the jury. ’ ’
As to so much of the request, which sought to have the Court agree not to ask any questions, the Court ruled:
“As far as the request saying that the Court is.requested not to ask certain questions, the Court overrules that part of the request, and the Court -will ask whatever questions the Court feels is proper to ask the jury panel. ’ ’
The records reflects that after the Court made the foregoing rulings outside of the hearing of the jury the following occurred, in open Court on voir dire examination of the jury panel:
“Thereupon the Court and counsel went into open Court and after the jury panel was sworn to answer questions touching on their qualifications as jurors in the above styled case, the Court interrogated said panel as to knowledge of the collision involved, knowledge of the suit about to be tried, acquaintanceship and relationship to parties and their attorneys, whether any member of the jury panel had been a party either as plaintiff or as defendant in a suit growing out of an automobile collision, if any of them were agents, employees, or in any other capacity represented any insurance company or companies writing automobile casualty liability insurance, or if any of them owned any stock in or had any financial interest in any insurance company or companies writing automobile casualty liability insurance, whether any of them knew any reason at all that would keep them from trying this case in accordance with the evidence presented and the instructions of law given to them by the Court, and if each of them would, if selected to serve on the jury, try this case and decide the same solely on the evidence introduced and on instructions of the Court without sympathy for our prejudice against either party . . .
“The Court then inquired of counsel if either of them hacl any additional questions to ash the jury and both replied that they did not have any questions to ash of the jury panel. The Court then told the jury panel to be seated while the Clerk prepared the list of eighteen names. The list of the first eighteen names being prepared by the Clerk, counsel for both parties exercised three peremptory challenges and the twelve remaining members were seated as jurors, sworn, and served as the jury that tried this case.”
The failure of appellants’ counsel to ask any question of the jury on voir dire in open Court—as shown by the italicized portion of the above—is the decisive matter on this appeal. It has long been recognized in this State that “litigants in civil cases, as well as in criminal cases, have the right to examine the jurors separately in order to determine whether such jurors are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject of course to the right of the Court to control the extent of such examination, acting in its sound discretion.” (Baldwin v. Hunnicutt, 192 Ark. 441, 93 S. W. 2d 131.) In Mo. Pac. Transp. Co. v. Johnson, 197 Ark. 1129, 126 S. W. 2d 931, the above quoted language was reaffirmed, ■with the additional holding that Section 16 of Initiated Act No. 3 (as found in Ark. Stat. Ann. § 39-226 [1962' Repl.]) did not take away such right of the litigant to interrogate the individual juror, subject always to the right of the Trial Court to control “the extent of the examination of each separate juror.”
The record in the case at bar clearly shows that the Trial Court was thoroughly familiar with the law. As to the questioning of each juror regarding connection with insurance companies, the Court advised the appellants’ counsel that the question “is a proper question and can be asked if counsel for plaintiff thinks he needs to ask it.” That ruling gave the plaintiffs the right which they had requested; so appellants cannot now say that such right was denied them. The Court properly reserved the power to control the extent of the questioning; and that ruling was in accordance with our cases, as previously quoted. The point is that when the hearing* was resumed in the presence of the jury, appellants’ counsel did not see fit to ask any question; so the claimed right was recognized but remained unexercised. The failure to make examination constitutes a waiver. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26. See also 5 C.J.S. 1014, “Juries” § 252. We find no error in the ruling of the Trial Court as regards the right of appellants to interrogate the jurors personally.
As regards the second request of .appellants, the Court advised the counsel in chambers that the question was not properly framed; but appellants’ counsel did not see fit to reframe the question or propound any question like it in the voir dire examination; so no right was denied the appellants. Affirmed.
Emphasis supplied.
In 11 Ark. Law Rev. p. 117 there is an article by Hon. R. A. Leflar entitled: “The Criminal Procedure Reforms of 1936—Twenty Years After”; and, as regards Section 16 of the Initiated Act, the author says on Page 126:
“Selection of Jurors. Prior to adoption of the Initiated Act, interrogation of prospective jurors was almost always left to counsel, who commonly asked the same questions at length of each juror, thereby taking up a vast amount of time. Often the selection of jurors took more time than all the rest of the trial. Some lawyers tried to expedite the process but others, practically uncontrolled by the judge, asked apparently irrelevant as well as relevant questions almost interminably. Section 16 of the act provided that in all cases, both civil and criminal, the judge shall examine prospective jurors upon their statutory qualifications, leaving further questions to be asked, in the judge’s discretion, by either the judge or the lawyers in the case. This permits many questions to be asked of the jury panel as a group, rather than individually, but it does not eliminate the right of counsel to have jurors questioned individually upon matters of disqualification which may have a personal basis, nor does it justify an arbitrary refusal by the judge to allow counsel to examine the panel or its members. The practice as it stands now conforms with the American Bar Association recommendations on the topic.”
We have had occasion in comparatively recent cases to discuss the matter of how to examine the jury panel on voir dire as to insurance connections. See DeLong v. Green, 229 Ark. 100, 313 S. W. 2d 370; and Malone v. Riley, 230 Ark. 238, 321 S. W. 2d 743. | [
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Frank Holt, Associate Justice.
This is a partition proceeding in which the Chancellor awarded appellee’s attorney a fee, taxing it as part of the costs. On appeal appellants contend for reversal that this litigation is an adversary proceeding and, therefore, the court erred in assessing an attorney’s fee as costs.
The appellant, George Guynn, Sr., the appellee, Beth Guynn, and Hugh Guynn upon the death of their father in 1947 were his sole heirs at law. Thus, as tenants in common, each owned an undivided one-third interest in the five-acre homestead. In August, 1961, Hugh and his wife conveyed their one-third interest to appellee. In September, 1961, appellee conveyed to appellant, George Guynn, Sr., an undivided one-sixth interest in these lands. In June, 1962, the appellant, George Guynn, Sr., was judicially declared incompetent and committed to the Arkansas State Hospital. On August 13, 1962, the appellee filed this action for partition of these lands making the appellants, George Guynn, Sr., and his wife, Mabel, defendants.
Appellee alleged in her petition that said lands were not susceptible of division and should be sold and the proceeds divided as the appellants’ and appellees’ respective interests appeared; that appellee’s deed conveying a one-sixth interest in the lands to the appellant, her brother, George, Sr., was secured through undue influence and should be canceled. A Guardian Ad Litem was appointed to defend the interest of appellant, George Guynn, Sr., then a patient at the Arkansas State Hospital. Answers and amended answers were filed by the appellants denying that the lands were not susceptible of division and, also, denying the appellee’s contention as to their respective interests.
Upon trial the appellee presented one witness to the effect that the lands were not susceptible of division and should be sold. The appellants presented no witness and their proof -was limited to cross-examination of appellee’s witness. The appellee and appellants then stipulated that each owned an undivided one-half interest. Thus, the only issue remaining before the court was whether the lands were susceptible of division. The Clmncellor rendered his decree to the effect that appellants and appellee each owned a one-half undivided interest as stipulated and appointed commissioners to determine if the lands should be partitioned or sold. There were no objections by the appellants to this decree. The commissioners unanimously recommended in their report that the lands were not susceptible to an equitable division in kind and that the property should be sold. Thereupon the court entered an order granting the parties fifteen days from January 28, 1963 to file written objections to the report of the commissioners. On March 19, 1963 the court rendered its decree finding no objections had been filed to the commissioners’ report; that the lands should be sold as recommended and that the matter of assessing attorneys’ fees and court costs should be held in abeyance pending sale of the property.
The sale was duly perfected as required by statute. On May 15, 1963 the Chancellor rendered an order of distribution of the sale price of $6,100.00, dividing it equally between appellants and appellee after assessing the costs, including an allowance of $250.00 for attorney’s fee to appellee’s attorney, thus, making appellants responsible for $125.00 of this fee. The appellants filed no objections to any of these numerous proceedings nor to the final order of distribution except that part allowing appellee’s attorney a fee to be assessed as costs.
In urging that this allowance of an attorney’s fee as costs is error appellants rely upon Ark. Stat. Ann. § 31-1825 (Bepl. 1962) which is Act 386 of 1921. In construing this statute we have held that in a partition suit no attorney’s fee can be allowed as costs if it is an adversary proceeding. Lewis v. Crawford, 175 Ark. 1012, 1 S. W. 2d 26; Warren v. Klappenbach, 213 Ark. 227, 209 S. W. 2d 468; Beasley v. Beasley, 224 Ark. 1058, 278 S. W. 2d 100; Reagan v. Rivers, 233 Ark. 518, 345 S. W. 2d 601; Hendrickson v. Duncan, 236 Ark. 722, 370 S. W. 2d 131. We have, also, held that in a partition suit where the proceedings are not of an adversary nature a reasonable attorney’s fee for the plaintiff’s attorney should be assessed and taxed by the court as costs against all the parties according to their respective interest. Ramey v. Bass, 210 Ark. 1097, 198 S. W. 2d 835. There we held that “a contest over the payment of attorneys’ fees would not of itself be sufficient to make the partition proceedings adversary.” In the case at bar, after the stipulation, the allowance of the attorney’s fee is the only real issue.
Where the services of the plaintiff’s attorney in a partition suit result in a benefit to the whole subject matter of the litigation, or his services are accepted and acquiesced in by the parties benefiting therefrom, it is proper for the Chancellor to award an attorney’s fee and tax such as costs in the action. Ramey v. Bass, supra. We think that appellants have benefited from the result reached in the sale of this land and, further, they acquiesced in the partition proceeding except as to the attorney’s fee.
The appellants urge, however, that since a Guardian Ad Litem was appointed for George, Sr., and filed plead ings ill this cause, although they merely adopted the answers of the appellants, this made the proceeding adversary. We do not agree. The appointment of the Guardian Ad Litem and the pleadings filed by him in behalf of his incompetent ward met the minimum requirements of the statute. The Guardian Ad Litem, in requiring strict proof, was meeting the formalities required of him. In Ramey v. Bass, supra, where we approved an attorney’s fee, one of the interested parties was, also, an incompetent.
In the case at bar the court properly awarded an attorney’s fee to appellee’s attorney to be taxed as costs and paid by appellants and appellee according to their respective interests.
We are not unmindful that Act 386 of 1921 is now amended by Act 518 of 1963. However, it is unnecessary to reach a discussion of this amendatory Act under the facts in the instant case.
Affirmed.
“Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition, it shall he la%vful for the court rendering such judgment or decree to allow a reasonable fee to the attorney bringing such suit, which attorney’s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.” [Emphasis added.]
On September 5, 1963 the Chancellor, upon petition of appellants, rendered an order finding appellant, George Guynn, Sr., was discharged from the Arkansas State Hospital on February 22, 1963 as being “mentally competent to manage his affairs.” The Chancellor then authorized and directed the delivery of appellants’ funds from the partition sale. | [
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Frank Holt, Associate Justice.
This is an action by the appellee against the appellant for recovery of damages and statutory penalty resulting from the loss of a cow. This action is predicated upon the appellant’s failure to construct suitable and safe stock guards as required by statute. Upon a jury trial the appellee was awarded $225.00. On appeal the appellant urges for reversal that under the facts in this case there was no duty upon the Railroad Company to construct and maintain stock guards at the crossing in question.
The appellee owns and operates a dairy farm. His home and barn are situated on thirteen acres on the east side of the railroad tracks. On the west side of the tracks he owns ninety-five acres of pasture land. According to the appellee a public crossing, at or near his farm, was the only way he had of getting his cattle from one side of the tracks to the other. The appellee maintained that he had given proper notice to appellant to restore the cattle guards removed by it in 1957. Appellee testified that on the west side of the railroad his property comes up to the railroad right-of-way where the roadway crosses in an east-west direction. Appellee’s wife testified that each day she drove the herd of cattle back and forth across the railroad tracks at this highway crossing and that she had to open a big gate on each side of the tracks. She testified that on this particular day as she was herding the cattle across the tracks some of them strayed up the tracks at the crossing and one of the cows, heavy with calf, fell off the side of the tracks and into a ditch where it died. She testified that she did not know why the cow slipped and fell. The foregoing constituted appellee’s pertinent evidence as to an enclosure.
It is our duty as a matter of law to determine the sufficiency of evidence. St. Louis Southwestern Ry. Co. et al. v. Braswell, 198 Ark. 143, 127 S. W. 2d 637.
Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee, as we must do on appeal, Capital Trans. Co. v. Howard, 217 Ark. 333, 229 S. W. 2d 998, we do not find any substantial evidence that meets the proof required by this statute upon which appellee bottoms his claim. This statute reflects that it is the duty of appellant, upon proper notice, “to construct suitable and safe stock guards on either side of said inclosure where said railroad enters said inclosure.” [Emphasis added.] Construing the evidence in the light most favorable to the appellee it is to the effect that he owned land on both sides of the railroad tracks and that it was necessary to drive his cattle across the tracks at a “public crossing.”
In Missouri Pacific Railroad Co. v. Miller, 185 Ark. 937, 50 S. W. 2d 618, we said:
¡i* =* * reme¿y tinder the statute referred to is exclusive to the oivners of inclosures, but has no application to damages sustained by others on account of the negligent and careless maintenance of a cattle guard.” [Emphasis added.]
Also, see Chicago, R. I. & P. R. Co. v. Fitzhugh, 82 Ark. 179, 100 S. W. 1149.
This statute does not place any duty upon the railroad to construct stock guards at a public crossing or road. The duty is to construct guards where the railroad enters one’s enclosure. There is no substantial evidence presented in the case at bar that appellee is the owner of an enclosure bisected by the railroad. Further, since this statute is in derogation of the common law and penal in nature, we must strictly construe it. St. Louis Iron Mountain & So. Ry. Co. v. Hood, 67 Ark. 357, 55 S. W. 134.
Inasmuch as it is necessary to reverse the case on the point discussed, we do not reach the other points appellant relies upon for reversal.
The judgment is reversed and the cause remanded.
Ark. Stat. Ann. (Repl. 1957).
“73-623. Stock guards required when railroad passes through inclosure—Notice.—It shall be the duty of all railroad companies organized under the laws of this State or any other State, which have constructed or may hereafter construct a railroad which may pass through or upon any inclosed lands of another, whether such lands were inclosed at the time of the construction of such railroad or were inclosed thereafter, upon receiving ten [10] days’ notice in writing from the owner or agent of said lands to construct suitable and safe stock guards on either side of said inclosure where said railroad enters said inclosure, and to keep the same in good repair. * * *”
“73-624. Penalty for failure to maintain stock guard.—Any railroad company failing to comply with the requirements of the preceding section shall be liable to the person or persons aggrieved thereby for the actual damages caused to said person or persons by reason of the failure of any railroad company to properly construct, keep and maintain in good repair said stock guards; and in addition to the actual damages, said railroad company shall be liable for a penalty of not less than twenty-five dollars [$25.00] nor more than one hundred dollars [$100.00] for each and every offense; and said penalty may be collected, together with said actual damages, by a civil suit in any court having jurisdiction thereof.”
Statutes on “public crossings” are: Ark. Stat. Ann. § 73-1601 at seq. and § 76-113 (Repl. 1957). However, such statutes do not appear applicable to the case at bar. | [
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James R. Cooper, Judge.
The appellant in this automobile insurance case struck a pedestrian while driving an automobile she had previously insured with the appellee, Colonial Insurance. The pedestrian obtained a jury verdict of approximately $22,000.00 from his insurer, Allstate, which then received a judgment for this amount against the appellant. The appellant’s insurance company, the appellee, denied coverage, claiming that the appellant’s automobile policy had been cancelled for nonpayment of premium prior to the date of the appellant’s accident. After reviewing the pleadings and the affidavit and deposition of the appellant, the trial court found that no contract existed between the parties at the time of the accident and entered summary judgment for the appellee. From that decision, comes this appeal.
For reversal, the appellant claims that the trial court erred in granting summary judgment because a question of fact existed for a jury’s determination. We agree, and we reverse and remand.
The party moving for summary judgment must show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Keller v. Safeco Ins. Co., 317 Ark. 308, 311, 877 S.W.2d 90 (1994). All proof submitted must be considered in the light most favorable to the non-moving party, and any doubts or inferences must be resolved against the moving party. Id. On appeal, the court determines if summary judgment was proper based on whether the evidence presented by the movant leaves a material question of fact unanswered, id. at 311-12, and summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals an aspect from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ. Baxley v. Colonial Insurance Co., 31 Ark. App. 235, 240, 792 S.W.2d 355 (1990).
Most of the facts in this case are undisputed by the parties. On February 11, 1991, the appellant signed an application for automobile insurance with the appellee and paid two months premium, which provided coverage until April 12, 1991. The policy application incorrectly stated the appellant’s mailing address as 108 Jim Bob Circle rather than the correct address of 106 Jim Bob Circle. The appellant signed the application without noticing the mistake. On March 7, 1991, the appellee sent a premium notice to the appellant at the incorrect address shown on the application. The appellant never received the premium notice and, at the hearing on the appellee’s motion for summary judgment, the appellee’s attorney stated that the premium notice was returned to the appellee after the accident, stamped “return to sender.” On March 29, 1991, the appellee mailed a notice of cancellation to the appellant at the incorrect address, stating that her automobile policy would lapse April 12, 1991, for nonpayment of premium. This notice was also returned to the appellee and was stamped “returned to sender 4-14-91.”
In her deposition, the appellant testified that she never received a policy, premium notice, or any correspondence from the appellee after she signed her application; that two weeks before the end of March, she called the agency and advised a woman with whom she spoke that she had not received anything from the insurance company and that the woman took her telephone number and stated that she would get back with the appellant but never did respond; and that, the day after the accident occurred, the lady with whom she had previously spoken stated that she remembered the appellant’s previous call checking on the status of her policy. The appellant also testified that she had moved to a new address on Walker Street three weeks before the accident occurred but she had not advised the insurance company of her new address or filed a change of address with the post office.
Although it was undisputed that the appellant had not paid the policy premium for coverage after April 11, 1991, we hold that a jury question remained regarding whether the appellee properly cancelled the appellant’s policy. Arkansas Code Annotated § 23-89-304 (Supp. 1991) provides in part:
(a)(1) No notice of cancellation of a policy to which § 23-89-303 applies, and no notice of cancellation of a policy which has been in effect less than sixty (60) days at the time notice of cancellation is mailed or delivered, shall be effective unless mailed or delivered by the insurer to the named insured.
(2) No notice of cancellation to any named insured shall be effective unless mailed or delivered at least twenty (20) days prior to the effective date of cancellation, provided that, where cancellation is for non-payment of premium, at least ten (10) days’ notice of cancellation accompanied by the reason therefor shall be given.
Arkansas Code Annotated § 23-89-306 (1987) provides that “[p]roof of mailing of notice of cancellation, or of intention not to renew, or of grounds for cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice.”
The appellee argues that, because it mailed proof of cancellation to the address shown on the policy application, which was signed by the appellant, it complied with § 23-89-304 and its cancellation of the appellant’s policy prior to the date of the accident was therefore valid. The appellee relies on Carmichael v. Nationwide Life Insurance Co., 305 Ark. 549, 552, 810 S.W.2d 39 (1991), and Pittsburgh Steel Co. v. Wood, 109 Ark. 537, 542, 160 S.W. 519 (1913), for the proposition that one is bound under the law to know the contents of the paper signed by him and cannot excuse himself by saying he did not know what it contained. The appellee concludes that, although it is disputed whether the appellant or the appellee’s agent caused the wrong address to be placed on the appellant’s policy application, the appellant signed the application and is therefore bound by the statements included in it.
The appellee also points out that the appellant acknowledged that she moved from her address between the last of March and the first week in April without notifying the appellee or the post office, suggesting that, even if the notices had been mailed to the appellant’s correct address, she might not have received them.
The appellant responds that she gave her correct address to the appellee’s agent and he made the mistake in completing her application; therefore, she argues, the appellee is responsible for the mistake. She relies on General Agents Insurance Co. v. St. Paul Insurance Co., 22 Ark. App. 46, 51, 732 S.W.2d 868 (1987), where we held that, when the facts had been truthfully stated to the soliciting agent but, by fraud, negligence, or mistake, are misstated in the application, the company cannot set up the misstatements in avoidance of its liability, if the agent was acting within his real or apparent authority and there is no fraud or collusion on the part of the insured. See also Time Ins. Co. v. Graves, 21 Ark. App. 273, 282-83, 734 S.W.2d 213 (1987); and Gilcreast v. Providential Life Ins. Co., 14 Ark. App. 11, 13, 683 S.W.2d 942 (1985). We note that the cases cited by both the appellee and the appellant regarding statements made in applications are to be distinguished from the case at bar because, in those cases, the applications involved statements critical to the risks being assumed by the insurance companies; whereas, here, the mistake was merely a clerical one.
In her brief, the appellant also relies on this Court’s holding in Swinney v. Atlanta Casualty Co., 42 Ark. App. 80, 854 S.W.2d 728 (1993). However, since the appellant’s brief was written, the Supreme Court has overruled that holding. See Atlanta Casualty Co. v. Swinney, 315 Ark. App. 565, 868 S.W.2d 501 (1994), where the Supreme Court held that, under § 23-89-306, whether a notice was received by the insured is irrevelant according to the statute, as “[p]roof of mailing is sufficient proof of notice.” 315 Ark. App. at 567.
In Swinney, the Supreme Court noted that the appellee had presented no evidence to challenge the proof of mailing. However, in the case at bar, the appellant has presented evidence that the notice was sent to an address which the appellee had reason to know was incorrect. Under the circumstances of this case, we think a jury could have found that the appellee was aware that it had an incorrect address for the appellant when it mailed her notice of cancellation and, therefore, did not properly cancel her policy. See Merrimack Mutual Fire Insurance Co. v. Scott, 219 Ark. 159, 163, 240 S.W.2d 666 (1951); scc also National Investors Fire & Casualty Ins. Co. v. Chandler, 4 Ark. App. 116, 121, 628 S.W.2d 593 (1982).
We hold that whether the appellee had knowledge or should have known that the appellant’s address on the application was incorrect is a material question of fact for the jury’s determination which should have been answered before the trial court determined whether sufficient notice of cancellation was given. We therefore reverse and remand for trial.
Reversed and remanded.
Mayfield and Rogers, JJ„ agree. | [
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John E. Jennings, Chief Judge.
On January 11, 1989, Carolyn Orren, an employee of Smackover Nursing Home, sustained a compensable injury to her back while lifting a patient. On April 17, 1989, Ms. Orren again hurt her back at work.
During the course of this litigation the employer’s workers’ compensation insurance carrier went bankrupt, and the Arkansas Guaranty Fund has entered an appearance for the purpose of pay ing benefits due to the claimant. In the meantime some of the claimant’s medical bills incurred as a result of the compensable injury have been paid by Blue Cross Blue Shield, her medical insurance carrier.
The primary issue in the case at bar is whether the Guaranty Fund must pay the claimant’s medical bills, notwithstanding that they have already been paid by Blue Cross Blue Shield. On this question the Commission said:
The initial issue in this case is whether A.C.A. § 23-90-117 applies in this case. That section states in pertinent part:
(a)(1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim, shall be required to exhaust first his right under the policy.
(2) Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under the insurance policy.
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We agree with the Commission’s interpretation of Ark. Code Ann. § 23-90-117 and its holding that the Guaranty Fund is not responsible for paying medical bills previously paid by Blue Cross Blue Shield.
Appellant also argues that the disposition of the case at bar is governed by our decision in Owen Drilling Co. v. Allison, 33 Ark. App. 60, 800 S.W.2d 728 (1990). In Owen Drilling we held that neither the employer nor its insurance carrier was entitled to an offset for the amount paid toward medical expenses by a claimant’s private medical insurance carrier. Our opinion was based on case law and an analogy to the collateral source rule. We agree with the Commission that the case at bar is governed by statute, not the common law.
Appellant contends that the Commission erred in holding that she was not entitled to additional temporary total disability benefits beyond February 5, 1990. The Commission found that the claimant’s healing period ended on February 5, 1990, and this finding is not challenged on appeal. Clearly, temporary benefits may not be paid after the end of the healing period. Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987).
Affirmed.
Mayfield and Rogers, JJ., dissent. | [
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John Mauzy Pittman, Judge.
Larry Chase appeals from his conviction at a non-jury trial of theft by receiving property valued in excess of $200.00, a Class C felony. Being found to be an habitual offender, appellant was sentenced to ten years in the Arkansas Department of Correction. Appellant does not contend that he did not commit theft by receiving. He argues only that the evidence is insufficient to support a finding that the stolen property exceeded $200.00 in value. We agree and affirm as modified.
At trial, appellant moved to reduce the charge to a misdemeanor. When the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the State and will affirm if there is any substantial evidence to support a finding of guilt. Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another and pass beyond mere speculation or conjecture. Austin v. State, 26 Ark. App. 70, 760 S.W.2d 76 (1988).
The property owner testified that two of her eight specially manufactured and recently installed copper downspouts were stolen from her house on May 26, 1992. She testified that the eight downspouts installed in May 1992 cost $262.50 each, for a total of $2,100.00. She stated that the $262.50 price per downspout included the cost of installation. Without dispute, the two downspouts were removed from the house by an unidentified individual. Appellant subsequently came into possession of the stolen downspouts. Jerry Ford, of Blume’s Scrap Metal, testified that he purchased two flattened copper downspouts from appellant on May 26, 1992, for seventy cents a pound, for a total of $48.00. Thereafter, the owner identified these downspouts as those stolen from her home.
A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (1987). Theft by receiving is a Class C felony if the value of the property is less than $2,500.00 but more than $200.00. Ark. Code Ann. § 5-36-106(e)(l) (1987). “Value” is the market value of the property at the time and place of the offense or if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense. Ark. Code Ann. § 5-36-101(1 l)(A)(i) and (ii) (Repl. 1993). The purchase price paid by the owner for property is admissible as a factor to consider in determining market value when it is not too remote in time and bears a reasonable relation to present value. Coley v. State, supra; Stewart v. State, 302 Ark. 35, 786 S.W.2d 827 (1990). The State bears the burden of establishing value. Coley v. State, supra.
Here, there was no testimony separating the cost of the two downspouts from the cost of installation. The owner also stated that the two downspouts were replaced shortly after the theft; however, she did not state at what cost. We cannot conclude that there is substantial evidence to support the lower court’s finding that the property value exceeded $200.00 as there was no testimony concerning the property value without installation. We affirm appellant’s conviction of theft by receiving stolen property but reduce his conviction to a Class A misdemeanor. Ark. Code Ann. § 5-36-106(e)(3) (Repl. 1993). We remand for resentencing consistent with this opinion.
Affirmed as modified and remanded.
Mayfield, J., dissents. | [
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George Rose Smith, J.
It is a familiar rule that when a testator purports to leave A’s property to B and by the same will also leaves other property to A, A cannot claim both his own property and the testamentary gift. He must elect to take one and relinquish the other. McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L.R.A. (n.s.) 657; Collins v. Fincher, 235 Ark. 587, 361 S. W. 2d 86. This is a suit brought by the appellee for a construction of her husband’s will, the question being whether she is required to make such an election with respect to certain property mentioned in the fourth paragraph of the will. The chancellor held that no election was necessary.
The testator, Roy Pittman, had an interest in two tracts of land lying in LaGrue Bottoms in Arkansas county. Tract 1 was owned by Pittman and the appellee as tenants by the entirety, consisted of 440 acres, and was the site of a half-acre camp operated by Garland Simpson. Tract 2 was owned by Pittman and his brother Floyd as tenants in common, consisted of 80 acres, and was about three quarters of a mile west of Tract 1. Both tracts had formerly belonged to Storthz Brothers.
Paragraph 4 of the will is really two paragraphs, Avhich read as folloAvs:
“I give, devise and bequeath to my wife, Inona Pittman, for her life, my undivided one-half interest in lands OAvned by myself and my brother, Floyd Pittman, in LaGrue Bottoms, the lands Avere purchased from Storthz Brothers, and I give, devise and bequeath to my Avife, Inona Pittman, the right to cut and sell the merchantable timber from said lands and to retain the purchase price therefor for herself, except I give, devise and bequeath to my nepheAv, Garland Simpson, a half acre out of said lands Avhere the camp belonging to Garland Simpson is iioav located.
“I give, devise and bequeath my undivided one-lialf interest in and to the above described lands, being those lands purchased from Storthz Brothers and Avhich I oAvn together with my brother, Floyd Pittman, to my nephew, Floyd Lee Pittman and HoAvard Pittman [the appel lants], share and share alike, in fee simple absolutely, subject to the life estate in my wife and the rights given here thereunder and except the half acre above bequeathed to my nephew, Garland Simpson.”
It is impossible to be certain whether the testator meant to refer to both tracts or only to Tract 2. On the one hand, he describes the land as being owned by him and his brother Floyd. This description applies only to Tract 2. If Paragraph 4 is construed to refer only to Tract 2 no election by the appellee is necessary, because the testator did not attempt to devise property that actually belonged to her.
On the other hand, the will recites that Garland Simpson’s camp is located upon the land in question. Here the reference is to Tract 1, which is the site of Simpson’s camp. If Paragraph 4 is construed td refer to both tracts the appellee must make her election, because in other paragraphs of the will she was given other property that was actually owned by her husband. She would have to decide whether to accept the other property and take only a life estate in Tract 1 or to give up the other property and claim Tract 1 as the surviving tenant by the entirety.
Where the will is susceptible of two interpretations the governing rule is to favor that construction which dispenses with the need for an election. “The first and fundamental rule, of which all the others are little more than corollaries, is: In order to create the necessity for an election, .there must appear upon the face of the will itself ... a clear, unmistakable intention, on the part of the testator ... to dispose of property -which is in fact not his own. This intention to dispose of property which in fact belongs to another, and is not within the donor’s power of disposition, must appear from language of the instrument -which is unequivocal, which leaves no doubt as to the donor’s design; the necessity of an election can never exist from an uncertain or dubious interpretation of the clause of donation. It is the settled rule that no case for an election arises unless the gift to one beneficiary is irreconcilable -with an estate, interest, or right which another donee is called upon to relinquish; if both gifts can, upon any interpretation of which the language is reasonably susceptible, stand together, then an election is unnecessary.” Pomeroy, Equity Jurisprudence (5th Ed.), § 472. “A will is not to be construed to dispose of property belonging to someone other than the testator if it is susceptible of any other construction.” Page on Wills (Rev. Ed., 1962), § 47.13.
Here the testator was mistaken either in saying that he and his brother owned the land or in saying that it was the site of G-arland Simpson’s camp. One mistake seems to be as likely as the other. Thus Paragraph 4 is reasonably subject to two interpretations. In this situation, under the authorities cited, the chancellor was right in construing the language to be a reference to Tract 2 only, for that interpretation makes an election unnecessary.
Affirmed.
Harris, C.J., not participating. | [
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Frank Holt, Associate Justice.
The appellees brought this action against the appellant for the recovery of damages caused by a fire allegedly started by appellant on his property and permitted by him to get out of control and spread to appellees’ lands. There are several appellees owning the lands which together aggregate 475 acres. Liability was denied by the appellant and upon a jury trial the appellees were awarded damages totaling $5,-466.00. On appeal appellant relies for reversal upon five points.
The first point appellant urges for reversal is that Ark. Stat. Ann. § 50-104 (1947) is not applicable to the case at bar because it has been superseded by sub-section seven (7.) of Ark. Stat. Ann. § 41-507.
Appellant contends that from the interrogatories propounded to and as answered by the jury his liability was plainly fixed under the provisions of Ark. Stat. Ann. § 50-104, or a non-existent statute. It is appellees’ contention, however, that under their pleadings, the facts in the case, and the interrogatories submitted by agreement to the jury that the appellant was liable under Ark. Stat. Ann. § 50-104, the common law, and, also, Ark. Stat. Ann. § 41-507 et seq. Accepting as true the contention of appellant that his liability was fixed by the jury under the provisions of Ark. Stat. Ann. § 50-104, we do not agree with him that this 1875 Act was repealed or superseded by the 1935 Act [Ark. Stat. Ann. § 41-507-514], This later act deals primarily with the preservation of the forests of our state by virtue of its criminal liability provisions, although it provides for double damages by civil action. Armstrong v. Lloyd, 230 Ark. 226, 321 S. W. 2d 380; Lamb v. Hibbard, 228 Ark. 270, 306 S. W. 2d 859. This act contains numerous conditions which constitute misdemeanor or felony violations. Although the 1935 Act provides for criminal liabilities and double damages and the 1875 Act provides only for civil remedies, there is no conflict or repugnancy between these two acts. In 1946, or eleven years after the enactment of Ark. Stat. Ann. § 41-507-514, we recognized the 1875 Act [Ark. Stat. Ann. § 50-104] as being a valid and subsisting act. Swearengen v. Johns, 210 Ark. 119, 194 S. W. 2d 445.
The appellant next contends that the court erred in permitting appellant’s conviction under Ark. Stat. Ann. § 41-507 to be considered on the issue of liability to all the plaintiffs. The appellant had been charged and convicted of a misdemeanor under this statute with only appellee Gilley being the prosecuting witness. Cecil v. State, 234 Ark. 129, 350 S. W. 2d 614. Appellant contends that evidence of this undisputed conviction should be limited to appellee Gilley only and should not be considered on the issue of liability to the remaining appellees. Ark. Stat. Ann. § 41-511 provides:
“Conviction prima facie evidence in civil action.— Conviction for violation of [this act] * * * shall be prima facie evidence of responsibility in civil action to recover damages * *' V’
The court permitted evidence of appellant’s conviction to be admitted without restriction and gave the Court’s Instruction No. 9 which reads as follows:
“A conviction for violation of allowing fire to escape or to spread to tlie lands of any person other than ’the builder of the fire shall be prima facie evidence of responsibility to recover damages.”
Another portion of this act, Ark. Stat. Ann. § 41-510, provides:
“Damages to be recovered in civil action.—Persons, firms or corporations starting or being responsible for fires that occasion damage to any other person shall make satisfaction in double damage to the party injured. Damages are to be recovered by civil action. ’ ’ [Emphasis supplied.]
We think that it was the intention of the Legislature that where the same fire is the basis for a criminal conviction and then the basis for a later suit for civil damages, such conviction is admissible in civil actions not only in behalf of the prosecuting witness in the criminal case, but also in behalf of “any other person” suffering damages from the same fire. In this case the same fire was the basis for the criminal conviction as well as the multiple suits for civil damages.
The appellant further urges for reversal that the Court’s Instructions No. 12 and 12A erroneously deal with the joining and non-joining landowners as being in the same class. The 475 acres involved in this litigation form a block of lands located in four sections. It includes forested lands, cut-over lands, brush lands, and grass lands. Only a part of the damaged property adjoins appellant’s land, however, all of the property involved is contiguous. There is ample authority to the effect that it is not necessary that property abut or have a common boundary line to come within the meaning of a statute when the words “joining” or “adjoining” are used. We construed the word “adjoining” in the case of City of Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198 (1889). There it was contended that a lot was not “adjoining” because it did not abut upon or have a common boundary with a street. The court there said:
(¡is =» =::= property adjoining the locality to be affected is any property adjoining or near the improvement which is physically affected, or the value of which is commercially affected, directly by the improvement, to a degree in excess of the effect upon the property in the city generally.”
See, also, Matthews v. Kimball, 70 Ark. 451, 66 S. W. 651; Board of Improvement Dist. No. 5 v. Offenhauser, 84 Ark. 257, 105 S. W. 265; Freeze v. Improvement Dist. No. 16 of City of Jonesboro, 126 Ark. 172, 189 S. W. 660.
In the case at bar we are of the opinion that there was such a unity of the tracts of land, a part of which adjoins appellant’s land, that it could be reasonably foreseen such lands would be affected or damaged by this particular fire set by the appellant. Further, Ark. Stat. Ann. § 50-104 clearly provides in the first sentence that:
“If any person shall set on fire any grass or other combustible material within his inclosures, so as to damage any other person, such person shall make satisfaction in single damages to the party injured, * * [Emphasis supplied.]
It is the latter part of this statute which provides for notice to adjoining landowners and, by this language, we do not construe the statute to limit liability only to ad joining landowners. To hold otherwise would be an unreasonable construction of this statute.
Further, it appears that there was no specific objection on this point made to these instructions. It is well settled that where a specific objection is not made in the Trial Court to an instruction not inherently erroneous we cannot first consider it on appeal. Stockton v. Baker, 213 Ark. 918, 213 S. W. 2d 896; Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629; Holimon v. Rice, 208 Ark. 279, 185 S. W. 2d 927.
Appellant also contends that:
“It was error for the Court to rule on testimony and to formally instruct the jury that the damages for loss of personal property are to be based on the value of the use of the personal property to the owner.”
The appellant specifically complains about the admissibility of appellee Ward’s testimony as to the value of certain items of his personal property destroyed by the fire. Ward first placed their value at $1,000.00 to him and on cross-examination he could only justify their value at $145.00. The personal items were a radio, four bedsteads, ice box, table, heater, cook stove, phonograph, pants and shirts. Appellant contends that the market value or replacement cost is the true test. We find no merit in appellant’s contention. The measure of damages for marketable chattels possessed for purposes of sale is their value as determined by the market price, but the measure of damages for chattels possessed for the comfort and well-being of their owner is not based on value in a secondhand market but on the value of their use to the owner who suffers from their deprivation. Featherston v. Hartford Fire Ins. Co., (Ark. 1957) 146 F. Supp. 535; Kimball v. Goldman, 117 Ark. 446, 174 S. W. 1185; Phillips v. Graves, 219 Ark. 806, 245 S. W. 2d 394; Farm Bureau Mutual Ins. Co. of Ark., v. Cusick, 235 Ark. 27, 356 S. W. 2d 740.
There is, also, another answer to this contention. Appellee Ward sought recovery of $3,044.00 for his total damages. On appeal the appellant only questions the value as to the personal items. Since the jury awarded $1,500.00, or $1,544.00 less than sought, it cannot be said that the prejudicial error resulted. There was sufficient evidence of damages to items other than personal property to constitute the basis for the jury’s total award and, thus, any error was rendered harmless.
The appellant further urges for reversal that:
“The instructions, when read as a whole, are conflicting, confusing, and repetitious.”
We find no merit in this contention. The Court’s Instruction No. 1 provides in pertinent part as follows:
“If, in these instructions any rule, direction or idea be stated to you in varying ways, any emphasis thereon is not intended by me, and none must be inferred by you. For that reason you are not to single out any certain instruction against the others, but you are to consider all of the instructions, and regard each in the light of the other.”
We have carefully reviewed appellant’s contention and we are of the opinion that upon consideration of the instructions as a whole and each in the light of the other the instructions fairly and adequately enunciated the law in the case at bar. Wright v. Rochner, 233 Ark. 50, 342 S. W. 2d 483.
The appellees urge on cross-appeal that as a matter of law they were entitled to double damages and the Trial Court was in error in not awarding double damages notwithstanding the jury’s verdict. We cannot agree. Upon a review of this record we do not find that the appellees specifically sought double .damages in their pleadings. Oil Fields Corp. v. Cubage, 180 Ark. 1018, 24 S. W. 2d 328. This statute [Ark. Stat. Ann. § 41-510] providing for double damages, being penal in nature, must be strictly construed and no one can invoke its benefits who does not bring himself strictly within its terms. Missouri Pacific R. Co. et al v. Lester, 219 Ark. 413, 242 S. W. 2d 714; Lamb v. Hibbard, 228 Ark. 270, 306 S. W. 2d 859.
The judgment is affirmed both on direct and cross-appeal.
“Actions for damages by fire—Notice of setting fire—Effect.— If any person shall set on fire any grass or other combustible material within his inclosures, so as to damage any other person, such person shall make satisfaction in single damages to the party injured, to be recovered by civil action, in any court having jurisdiction of the amount sued for; but if any such person shall, before setting out fire, notify those persons whose farms are joining said place which he proposes to burn that he is going to fire such grass or other combustible matter, and shall use all due caution to prevent such fire from getting out, to the injury of any other person, he shall not be liable to pay damages as provided in this section. [Act Feb. 3, 1875, No. 48, § 5, p. 128; C. & M. Dig., § 10323; Pope’s Dig. § 1298.]”
“Forest fires—Allowing fire to escape—-Burning brush or debris—Camp fires—Destroying fire warning notices—Duties of state forestry commission — Burning new ground — Penalties.—* . * * 7. Anyone desiring to burn any new ground, field, grass lands or woodlands adjoining woodlands or grasslands of another, shall if such lands lie within the boundaries of a forest protection unit, a National Forest or any other area that has organized fire protection, report to the protection agency the time that he intends to burn his lands and the location of the same before he starts his fire. Failure to do this shall constitute a misdemeanor. [Acts 1935, No. 85, 8 1, p. 209; Pope’s Dig., § 3049.]”
“You are instructed, if any person shall set on fire any grass or other combustible material within his enclosures, so as to damage any other person, such person shall make satisfaction in single damages to the party injured, to be recovered by civil action in any court having jurisdiction of the amount sued for; but if any such person shall, before setting out fire, notify those persons whose farms are joining said place which he proposes to burn that he is going to fire such grass or other combustible matter, and shall use all due caution to prevent such fire from getting out, to the injury of any other person, he shall not be liable to pay damages. So if you find from a preponderance of the evidence that the defendant, Belton Cecil, set on fire any grass or other combustible material within his enclosure without giving notice thereof, before setting the fire, to persons whose farms joined the defendant’s where he proposed to burn, that he, Belton Cecil, was going to fire such grass or other combustible material, or that Belton Cecil failed to use all due caution to prevent such fire from getting out, to the injury of these plaintiffs, and that either or both of such failures, if you so find, caused damages to one, some or all of these plaintiffs, then your verdict will be against the defendant Belton Cecil and in favor of such plaintiffs as you so find were damaged, if any.”
“The statute requires both the giving of the notice and the use of due caution in preventing the fire from spreading. If the notice is not given as required by law, the use of due caution in preventing the fire from spreading becomes unavailing as a defense to the action.”
Court’s Instruction No. 17: “Should you find for the plaintiffs, the Court instructs you that the values of the articles of personal property that were destroyed were the reasonable values of the use of the property to the plaintiffs, and you will not necessarily accept values as fixed by the owners of the property; and it will he proper for you to consider the reasonableness of the values as testified to by the plaintiffs, the purchase price of each article of property, when it was purchased, the use to which it has been put, and the condition of the property at the time it was destroyed.” | [
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Sam Robinson, Associate Justice.
Appellant, John J. Carroll, is in the business of selling poultry and livestock equipment. He also sells and erects “Coldbath” all steel poultry buildings. On June 14, 1960, appellee, W. K. Jones, purchased from appellant a prefabricated Coldbath chicken house, 40' x 330'. Under the terms of the contract of purchase, hereinafter referred to as the original contract, Carroll was to put the building together on Jones’ farm, along with certain poultry equipment. The total contract price was $12,560.00.
After the building was constructed by Carroll and put in operation by Jones, it fell down. At the time Jones had about 7,000 hens in the building, along with poultry equipment, such as nests, water troughs, etc. The hens actually belonged to the Nutrena Company. Jones was feeding and looking after them for the consideration of $600.00 per month. After the building collapsed the Nutrena Company removed from the premises the chickens that were not killed. Jones’ contract with the Nutrena Company was thereby terminated.
Later, Carroll and Jones entered into an agreement whereby Carroll agreed to reconstruct the building. The agreement providing for the reconstruction of the building is as follows: “This agreement made and entered into on this 13th day of February, 1961, by and between John J. Carroll Company, Party of the First Part, and W. K. Jones, Party of the Second Part, is as follows: First Party hereby agrees to reconstruct present metal chicken house to the best of their ability, replacing ox-repairing all water fountains and automatic feeders and reinstall all wiring and electrical system using present electrical wiring. First Party will use Thiifto Pane plastic in replacing the plastic xiow in use. Party of the First Part has ninety days to reconstruct said building to the satisfaction of the Party of the Second Part. When job is completed the Party of the First Part will hire an independent engineer to test the strength of the trusses and other parts of the framework as to durability. Each truss is to have 5600 pounds vertical strength. The party of the first part will pay the party of the second part $1,000.00 for damages in loss of contract with Nutrena. After the terms of this agreement have been complied with this will complete full settlement between pai'ties.”
Subsequently, Jones filed this suit against Carroll for breach of tike original contract, alleging that the coxxtract was partly in writing and partly oral. The Complaixxt alleges: “At all times mentioned herein the defendaxxt knew the purpose for which said building was to be constructed and used, and as a part of said contract the defendant represented and warranted to the plaintiff that said plans and specifications would be reasonably satisfactoiy; that all of the matei-ials to be used in the erection and consti-uction of said building would be reasonably satisfactory; that all of the materials to be used in the erection and construction of said building would be reasonably satisfactory and suitable for the purposes for which they were to be used; and that said building would in all respects be erected and constructed in a reasonably suitable and satisfactory manner.” Jones further alleged that Carroll had breached the contract and as a consequence thereof he had been damaged in the sum of $6,221.28. Later the Complaint was amended and there was an allegation of • damages in the sum of $11,221.28.
Defendant denied all the allegations of the Complaint and alleged: ‘ ‘ That in consideration of any claim for damages on the part of the plaintiff resulting from any equipment or material furnished by the defendant or any construction undertaken by the defendant, the defendant furnished to the plaintiff $1,000.00 in new brooder stoves and equipment, in addition to performing reconstruction work on the building described in the plaintiff’s complaint for which the defendant received no pay and which he was under no obligation to do, but did as a consideration on this settlement.” Carroll also cross-complained and asked judgment in the sum of $2,183.35 as the unpaid balance on the original contract, and for $1,000.00 alleged to have been paid in the settlement agreement.
Upon a trial to a jury there was a verdict in the sum of $4,000.00 in favor of Jones; a judgment was rendered accordingly. Carroll has appealed.
First appellant contends that the second agreement whereby Carroll undertook to reconstruct the building superseded the original contract, and therefore, Jones can not recover damages sustained by reason of the breach of the original contract by Carroll. Perhaps paragraph 2 of appellant’s answer can be construed as setting up the defense of a supplemental agreement superseding the original contract, but the answer is not entirely clear on this point. The terms of the alleged settlement agreement are not set out in the answer, nor is the agreement, which is in writing, made a part of the answer as an exhibit. The answer, in itself, can not be said to be sufficient to apprise the plaintiff that the defendant was relying on a settlement agreement as. a rescission of the original contract.
The original contract was introduced in evidence by the plaintiff. Counsel for the defendant—appellant— specifically stated that he had no objection to its introduction. Appellee Jones was examined extensively both on direct and cross-examination regarding the original contract, including the details of how it was made and how it was breached. Moreover, other than the doubtful language contained in the answer, there is nothing in the record to indicate that appellant was relying on the supplemental agreement as a defense to the suit on the original contract. The case was tried on the question of whether there was a breach of the original contract, and without objection submitted to the jury on that theory.
In connection with this point appellant relies on Whipple v. Baker, 85 Ark. 439, 108 S. W. 830, but that case is clearly distinguishable from the case at bar. There, it was abundantly clear that, as a complete defense, the defendant relied on a settlement agreement which had been performed with the exception of the payment of a $47.00 item. The court said that the failure to pay the $47.00 did not authorize the appellee to treat the settlement agreement as null and void. Whipple had performed the other parts of the settlement agreement by dismissing a suit, releasing an attachment, cancelling a lease, and allowing Baker the use of a store for a reasonable time, all of which was done prior to the commencement of the suit then before the court. In the case at bar there was no substantial compliance by Carroll with the settlement agreement.
Carroll agreed to reconstruct the building to the satisfaction of Jones. This was not done. When the building was put up the second time there was danger of it falling again, and at his own expense, Jones had to put two rows of posts in the building from end to end. In addition, there were 120 some odd leaks in the roof. There is evidence that it would cost $5,000.00 to repair the roof to the point where it could be warranted not to leak. The settlement agreement further provides that “when job is completed the party of the first part will hire an independent engineer to test the strength of the trusses and other parts of the framework as to durability. Each truss is to have 5600 pounds of vertical strength”. No test was made as provided in the agreement. It is claimed that a test was made somewhere else on some other building, but this is not as the contract agreement provided or contemplated. In fact, it appears that if a test had been made on the building after the reconstruction, but before Jones put in the. extra posts, it would have again collapsed.
The agreement further provides that “party of the first part will pay the party of the second part $1,000.00 for damages in loss of contract with Nutrena”. The $1,000.00 was not paid. Carroll did, however, furnish additional equipment to the extent of about $700.00. Moreover, according to the terms of. the settlement agreement, it was not to become a complete settlement between the parties until it was complied with. It was never complied with. On this point appellant also relies on the cases of Swinton v. Cuffman, 139 Ark. 121, 213 S. W. 409, and Hill-Ingham Lumber Co. v. Neal, 89 Ark. 385, 117 S. W. 247. Both cases are clearly distinguishable on the facts-.
Appellant argues that the trial court erred in giving Instruction No. 7, as follows: “You are tolcl that if you find the plaintiff is entitled to recover, by preponderance of the evidence, and that the contract was breached which was entered into on or about the 14th day of June, 1960, or the agreement of the 13th of February, 1961, and that the defendant did not comply with said terms to the satisfaction of the party of the second part as defined by the instructions of the Court in the preceding instruction, you are told that the plaintiff will be entitled to be reimbursed for: (1) Loss of earnings, if any, directly resulting from the breach of the contract." (2) Any repairs made or which you find to be necessary to be made in the future growing out of the breach of the contract. (3) Any damages, if any, to the equipment in the building growing out of a breach of the contract. (4) The reasonable rental value of the building or any delay, if any, in the completion of construction of said building, growing out of the breach of the agreement, if any. ’ ’
In support of his argument on this point appellant cites Plunkett v. Meredith, 72 Ark. 3, 77 S. W. 600; Graham v. Jonesboro L. C. and E. R. Co., 111 Ark. 598, 161 S. W. 729; Northern Const. Co. v. Johnson, 132 Ark. 528, 201 S. W. 510; Mitchell & Pumphrey v. Caplinger, 97 Ark. 278, 133 S. W. 1032; Leifer Mfg. Co. v. Gross, 93 Ark. 277, 121 S. W. 1039. None of these cases cited by appellant is in conflict with the holding in Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, 79 S. W. 1052, which is the bellwether case in this state on the question of the measure of damages for breach of contract.
The rule of law applicable here on the measure of damages was announced in the old classic case of Hadley v. Baxendale, 9 Exch. 311. In the Hooks case, Mr. Justice Riddick pointed out that the first rule laid down in Hadley v. Baxendale is “that damages which may fairly and reasonably be considered as naturally arising from the breach of the contract, according to the usual course of things, are always recoverable”. Judge Riddick went on to say that this rule has never been questioned or doubted. In 15 Am. Jur. 112, it is said: “In accordance with the general principle governing the allowance of damages, a party to a contract who is injured by its breach is entitled to compensation for the injury sustained and is entitled to be placed, in so far as this can be done by money, in the same position he would have occupied if the contract had been performed.” Dozens of cases are cited in support of the text. Moreover, the Uniform Sales Act regarding a breach of warranty is to the same effect. Ark. Stats. 68-1169, paragraph 6.
Carroll is in the business of selling poultry equipment, including the selling and construction of poultry buildings. It can be fairly inferred from the evidence that he is thoroughly familiar with the needs of those producing poultry, and the natural consequences that would follow the collapse of an all metal building con- taming about 7,000 hens which the owner of the building was feeding for someone else.
Appellee Jones testified that he sustained damages in the total sum of over $15,000.00. On the proposition of loss of earnings, an exhibit was introduced as part of his testimony which shows that he lost $4,700.00 by reason of losing the Nutrena contract. There is evidence that such loss grew out of the collapse of the building. He had been receiving about $600.00 per month from Nutrena before the building fell down. The exhibit shows in detail the expense incurred in repairing the building after it was reconstructed to keep it from falling down the second time; it shows that reasonable rent on the building for two months while it was being reconstructed was $600.00, and it shows in detail the damages to the poultry equipment caused by the falling of the building. We cannot say as a matter of law that any of the items of damages mentioned was not the direct and natural result of the breach of contract.
The trial court refused to give appellant’s Instruction No. 3, as follows: “You are instructed that if you find by a preponderance of the evidence that the plaintiff failed to pay the defendant a part of the purchase price of the equipment and building, then you will find the defendant entitled to recover from the plaintiff on his counterclaim that portion of the original purchase price which remains unpaid.” The instruction did not take into consideration the evidence of the defendant having breached the contract, and the theory of breach of contract on which the case was tried; hence, there was no error in the court’s refusal to give it.
Appellant also argues that the trial court erred in admitting testimony given by Jones regarding the damages he sustained. Jones had prepared a list specifically detailing the damages and the amount of each item. It was stipulated by the parties that he would testify to these items as shown by the exhibit, and the exhibit was introduced in evidence. Appellant objected to it on the ground that it was not relevant or competent, not as to the manner in which the evidence was introduced. The evidence of the damages appellee sustained was entirely relevant, competent and material. It was, therefore, admissible.
Appellant also complains of the court not having submitted to the jury a form of verdict pertaining to the balance owed by appellee on the original contract, as alleged in the cross-complaint. When the court properly refused to give-appellant’s instruction No. 3, and appellant failed to ask for a valid instruction in lieu thereof, the jury was left in the dark as to the circumstances in which a verdict could’ be rendered on the counterclaim. It could have been confusing to the jury- to have a form of verdict regarding a counterclaim without having been instructed by- the court on the law applicable to such claim. In the circumstances the appellant should have' reduced to writing the form of verdict requested. This was not done.
Appellant argues other points, but what we have said covers all the issues raised on appeal.
We find no error. The judgment is affirmed. | [
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Sam Robinson, Associate Justice.
The trial court held that the cause of action alleged in this case is barred by statutes of limitation; dismissed the complaint, and the plaintiff has appealed.
In 1944 appellant and Arthur McCree, husband and wife, acquired as an estate by the entirety, the parcel of land involved herein. On February 15, 1950 the McCrees were divorced, but there was no order affecting the property. In September, 1950, the property was mortgaged to the Springhill Bank & Trust Company. The mortgage was signed by Arthur McCree and is purported to have been signed by appellant, Erline McCree (now Erline McCree Taylor). The mortgage was foreclosed by a decree of the chancery court December 23, 1954. Pursuant to the terms of the decree, Rush Hooten, Commissioner, sold the property at a commissioner’s sale on February 3, 1955. F. H. Goodwin was the purchaser, and he in turn conveyed to appellee, Kary Haynie Goodwin.
On December 22, 1959, appellant filed a suit against appellee to set aside the sale of February 3, 1955, alleging that she had not signed the mortgage; that her name had been forged thereto. On February 16, 1961 appellant took a non-suit and the case was dismissed without prejudice. On February 15, 1962, within one year from the taking of the non-suit but more than five years after the judicial sale, appellant filed the present suit to set aside the sale held on February 3’, 1955 under the terms of the foreclosure decree. Summons was issued but was returned marked “Non est (Kary Goodwin in Mississippi) ”.
On January 18, 1963, appellee Goodwin filed a motion to dismiss the complaint alleging that the present suit had not been commenced within one year from the taking of the non-suit because the defendant, appellee, was a non-resident of the state and no warning order had been issued. On January 22, 1963, appellant had a warning order issued and it was published. Later, it was stipulated that appellee Goodwin moved from Arkansas and became a resident of Mississippi about January 1, 1958. On February 3, 1963, appellant had another summons issued. It was served on appellee February 4,1963, which, of course, was more than one year after the non-suit.
Ark. Stats. 37-108 provides: “All actions against the purchaser, his heirs or assigns, for the recovery of (lands sold by any collector of the revenue for the nonpayment of taxes, and for) [sic] lands sold at judicial sales shall be brought within five [5] years after the date of such sale, and not thereafter; saving to minors and persons of unsound mind, and persons beyond seas, the period of three [3] years after such disability shall have been removed.”
The original suit was filed within five years from the date of the judicial sale, but the five year period expired February 3, 1960. The non-suit was taken February 16, 1961; appellant had one year from that time to again commence action. Ark. Stats. 37-222. The complaint in the present action was filed on February 15, 1962, within the year, but no warning order was issued until January 24, 1963. The defendant was a non-resident and had not been a resident of Arkansas since-1958. Where the defendant is a non-resident, suit is not commenced until the warning order is issued. Burks v. Sims, 230 Ark. 170, 321 S. W. 2d 767; Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203, 105 S. W. 77. Here, the warning order was not issued until more than one year had expired from the date of the non-suit.
Appellant argues that by filing the motion to dismiss on January 18, 1963, appellee entered her appearance. Even so, suit was only commenced at that time, Burks v. Sims, supra; this was more than a year after the non-suit had been taken.
Affirmed. | [
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George Rose Smith, J.
The appellee, Wallace H. Benson, was granted a divorce in the court below. This appeal questions only that part of the decree that awarded him the custody of the couple’s three children, a boy and two girls, aged ten, eight, and six. It is contended that it would be to the children’s best interest for them to be in their mother’s care.
Wallace Benson and Attie Lou . Strickland were married in 1951, both being in their teens. They had grown up in Calhoun county, but during the eleven years of their married life they lived in Camden, where Wallace worked for a paper company. In June of 1961 Wallace’s older brother, Gervis Benson, came up from Texas to make his home with them, paying nothing for his room and board.
Each spouse blames the other for their separation late in May, 1962. Attie Lou stayed with a friend in Camden for a few days. On June 4 Attie Lou took the three children and accompanied her brother-in-law, Gervis, to Dallas, Texas. They say that they consulted an attorney, who advised Attie Lou to seek a divorce in Mexico. Attie Lou and Gervis immediately went to Mexico, where Attie Lou obtained a divorce the next day, June 5. The two were married in Mexico on June 6 and returned to Dallas, where they rented an apartment and lived together as man and wife. The appellee did not learn the whereabouts of his wife and children until about two months after they left Camden.
The controlling consideration is the best interest of the children; custody is not awarded or withheld with any thought of rewarding or punishing either parent. Tidwell v. Tidwell, 224 Ark. 819, 276 S. W. 2d 697. Here the chancellor, in announcing his decision, recognized the reluctance of the courts to take young children from their mother, but he considered this to be an exceptional ease in which that action was called for. We cannot say that he was wrong.
The environment that the children would have in Dallas leaves much to be desired. Attie Lou is employed at a cafeteria, where her working hours are from 9:00 ■a.m. until 1:00 p.m. and from 4:30 p.m. until 9:00 p.m. Hence for the greater part of the time that the children are not at school they would be in the care of a maid or baby sitter.
Gervis Benson is hardly the ideal person to act as a foster father to the children. Gervis’s own father testified that Gervis.had been addicted to drinking for ten years and was getting worse every year. Gervis’s mother also appeared as a witness for the appellee and testified that Gervis had been dishonorably discharged by the Navy for peddling dope. (Gervis says that his discharge was the result of his having been court-martialed for intoxication.) The county sheriff testified that Gervis had been jailed twelve or fifteen times for drunkenness and fighting. It will be remembered that Gervis, after having enjoyed his brother Wallace’s hospitality for a year, ran away with Wallace’s wife and children and took up what was actually an adulterous relationship with the woman, since the Mexican divorce was unquestionably void. It is fairly open to doubt whether a relationship so originating is likely to be permanent'.
By comparison the outlook for the children in Calhoun county is a bright one. There they will live with their father in the home of his parents, who are fairly young to be grandparents and in fact have a son of their own who is a year younger than the oldest of Wallace and Attie Lou’s three children. Wallace is still employed at Camden, a few miles from his parents’ residence, but he will be at home after working hours. We cannot say whether or not Wallace seriously mistreated his wife during their marriage; upon this issue the evidence is in hopeless conflict. It is reasonably certain, however, that even if he was at fault Wallace will be a better influence in the lives of his children than Gervis would be.
In a case of this kind the chancellor’s opportunity to reach the right decision is immeasurably better than ours. He has the advantage of seeing everyone concerned at first-hand and is thus in a position to give all the testi mony its proper weight. This case presents a close question, upon which strong arguments can be made on both sides, but we cannot say with confidence that the chancellor was wrong in awarding the custody of the children to their father.
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Jim Johnson, Associate Justice.
This is an action for damages allegedly resulting from a firing in violation of the terms of a labor contract. The action was brought by a former employee against the employer.
On March 12, 1959, appellant Clara Andrews was discharged by her employer, appellee Victor Metal Products Corporation. Appellant applied for unemployment benefits, which were denied. Appeals were taken under the Employment Security Act up through the Jackson Circuit Court. That court found that the record compiled in the appellate process contained substantial evidence to support the administrative findings of appellant’s disqualification for unemployment benefits. A judgment was entered denying appellant such benefits. No appeal was taken from that judgment. That case was number 2040 in the Jackson Circuit Court.
Sometime after the commencement of the action for unemployment compensation, appellant filed the present suit against appellee in Jackson Circuit Court for damages for breach of her employment contract. At the time appellant was fired, appellee had an agreement with A. F. L. Local 230, Aluminum Workers International Union, of which, appellant was a member in good standing. The contract provided in part as follows:
“Article II. Section 2. The company has the right to discharge or suspend any employee for cause, including failure to comply with published or posted plant rules and the terms of this agreement. Such employee and president of the Local Union shall be advised in writing by the Company within 24 hours of such discharge (excluding Saturday and Sunday) of the reason for such discharge or suspension; and the employee shall have the right to question if the discharge or suspension was for cause or violation of such plant rules or the terms of this agreement by appeal in writing within three working days through the grievance procedure established herein, including arbitration.”
Appellant contends that she received no written notice of the termination as provided in the company-union contract, and that she was thus prevented from following the grievance procedures. In response to request for admissions, appellee specifically admitted that, “Victor Metal Products Corporation never at any time between March 12,1959, and September 15,1960, advised Clara Andrews in writing of the reason for her discharge because of the fact that she was present at the discharge and informed personally and had knowledge. Advice was given in writing after claim for Employment Security Benefits was filed.”
Appellee answered appellant’s complaint by general denial and entered a plea of res judicata. In support of such plea the judgment rendered in Jackson Circuit Court case No. 2040 was made a part of the record. On January 23, 1962, the trial court sustained appellee’s plea of res judicata and dismissed appellant’s complaint. An appeal to this court followed. With only a partial record of the proceedings in Jackson Circuit case no. 2040 before us on that appeal, we, on October 15, 1962, reversed the trial court’s judgment and remanded the cause for further proceedings. See Andrews v. Victor Metal Products Corp., 235 Ark. 568, 361 S. W. 2d 19.
Upon remand appellee, at a hearing before the Circuit Court on February 22, 1963, presented a motion for summary judgment and introduced into evidence the entire transcript as well as the trial briefs in Jackson Circuit case no. 2040. Thereupon the trial court again dismissed appellant’s complaint, stating, “That the issues in the cause having been previously tried by this court in Circuit case no. 2040, plaintiff is estopped to bring this action. ’ ’ From this second dismissal, appellant prosecutes the present appeal.
For reversal appellant urges two points which are closely related, if not identical, which are: (1) the issues in this cause have not been previously tried by the Jackson Circuit Court in case no. 2040, and (2) appellant is not estopped to bring this action.
With the complete record in the Jackson Circuit case no. 2040 before us on the present appeal, it appears that that case was tried according to the terms of the Employment Security Act, Ark. Stat. Ann. §§ 81-1101-81-1122 (Eepl. 1960). Section 81-1105 sets forth the conditions of eligibility for unemployment compensation; Section 81-1106 sets forth the conditions of disqualification among which is subsection (b) (1) which reads as follows:
“If he is discharged from his last work for misconduct in connection with the work. Such disqualification shall be for eight (8) weeks of unemployment as defined in subsection (i) of this section.”
The record reveals that appellant was fired from her employment and thereafter filed a claim for unemployment benefits under the provisions of Ark. Stat. Ann. § 81-1107 (Eepl. 1960). The Employment Security Division local office made a determination that appellant was disqualified for compensation under, the provisions of § 81-1107 (b) (1) in that appellant was discharged for insubordination. Under the provisions of § 81-1107 (d) (2) an appeal wTas taken from the decision of the agency to an Appeals Eeferee. The Eeferee affirmed the determination of the agency and from such affirmance an appeal ivas taken, under the provisions of § 81-1107 (d) (3), to the Board of Review. The Board of Review upon a hearing affirmed the findings of the Appeals Referee and from such affirmance appellant, under the provisions of § 81-1107 (d) (7), appealed to the Jackson Circuit Court. The only jurisdiction the circuit court had in regard to judicial review of the decision of the Board of Review is set forth in § 81-1107 (d) (7):
“In any proceeding under this subsection the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, will be conclusive and the jurisdiction of said court shall be confined to questions of law.”
The circuit court, in making its ruling in case no. 2040, advised the attorneys of record by letter as follows:
“It is the opinion of the court that the contract between the Petitioner [appellant] and Victor Metals in no way binds or affects the State of Arkansas. The decision of the Board of Review is affirmed by this court.”
Appellee earnestly contends that the central and determinative issue in Jackson Circuit ease no. 2040 was whether appellant was legally discharged under the terms of the union contract when the company failed to give the written notice which the contract called for. It is true that appellant included argument on the violation of the terms of the contract in her brief submitted to the circuit court, however, there is no- indication from the record that the labor contract had nor, under the particular facts in that case, could have had (Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610) any bearing whatever on the decision reached by the Agency, the Appeals Referee, the Board of Review, or the Circuit Court. In our view the sole question involved in Jackson Circuit case no. 2040 was, simply, whether appellant was eligible for unemployment compensation benefits under the provisions of the Employment Security Act.
This being so, we find that Jackson Circuit case no. 2040 is not res judicata to the present common law action which grew out of a contractual relationship between appellant and appellee. See generally, Clark v. Whitney, 194 Ark. 858, 109 S. W. 2d 930.
Reversed and remanded. | [
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Paul Ward, Associate Justice.
Appellant, Robert M. Swift, owned 190 acres of land on which he operated a dairy. On March 4, 1960 he and appellee, Leroy Love-grove, Jr., entered into a written agreement (hereafter referred to as a contract) wherein appellant purported to sell and appellee purported to purchase the land, including the dairy cows and equipment. The contract, not drawn by an attorney, is crude and indefinite in its terms.
The parties however agree as to the following: (a) The price of the land was $16,500 and the price of the cows and equipment was $12,500; (b) appellee made a down payment of $2,000 and then made four other payments of $200 each; (c) there was no definite agreement as to when the balance would be paid, but appellee was to get credit for one-half of the profits from the operation of the dairy to be applied on the balance of the purchase price; and, (d) appellee was to pay one-half of the expense incident to the dairy operation. It is not disputed that the parties operated under this arrangement for only three or four months after which time it was terminated. The cause and circumstance of such termination are the issues in this litigation.
The contention of appellee (as set ont in his complaint filed in the circuit court) is (a) that an essential part of the contract and agreement was for appellant to keep a record of the dairy profits and to give him (appellee) credit each month on the purchase price but that appellant failed and refused to do so, and (b) that on July 1, 1960 it was mutually agreed to rescind the entire contract and for appellant to refund to appellee the sum of $2,800. On the other hand, it is the contention of appellant that he made no such agreement, that appellee refused to carry out his part of the contract, and therefore he was due the balance of the purchase price.
The above conflicting contentions were presented to the trial judge, sitting as a jury. After hearing the testimony of both parties and their wives, the trial court, after making extensive findings of fact and law, found the issues in favor of appellee and rendered judgment in his favor for $2,800. Among other things the court found appellee had advanced $2,800 and that there was an agreement to rescind the contract. The court further found that the parties had entered into a partnership operation or joint adventure as to the dairy operation, and that “the contract as drawn is more in the nature of a memorandum of mutual undertakings of the parties, and without oral interpretation and explanation, is ambiguous”.
The judgment of the trial court must be affirmed. It is not contended by appellant that there is no substantial evidence to support the court’s findings. It is contended, however, by appellant that the trial court had no right to find there was a rescission and that there was a partnership arrangement because it had no right to vary a written contract. Appellant cannot be sustained in either' contention.
We have many times recognized the right of parties to a contract to vary it or rescind it by mutual consent. See: Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379; First National Bank of Belleville, Illinois v. Tate, 178 Ark. 1098, 13 S. W. 2d 587; and, Scottish Union and Na tional Insurance Company v. Wilson, 183 Ark. 860, 39 S. W. 2d 303. It is equally well settled that an ambiguous contract is subject to interpretation, and “its meaning is a question of fact for the jury and should be submitted to a jury.” The above quote is taken from the case of The Travelers Indemnity Co. v. Hyde, 232 Ark. 1020, 342 S. W. 2d 295. In this case the trial court sat in the capacity of a jury.
We find no merit in appellant’s final contention that the trial court erred in refusing to grant a new trial on the ground of newly discovered evidence. Appellant’s motion was based solely on an affidavit made by appellee’s brother. The trial court was correct in refusing appellant’s motion for reasons hereafter mentioned. In the case of Missouri Pacific Transportation Company v. Simon, 200 Ark. 430, 140 S. W. 2d 129, four specific requirements for granting a new trial on newly discovered evidence are set forth. A casual reading of the affidavit reveals that none of the requirements was met in this case. It suffices here to quote what the trial court said about the one requirement of diligence:
“No diligence has been shown to show any effort to obtain the testimony of Robert Lovegrove, by subpoena or by deposition. That prior and at the time of .trial, defendant, Swift, had full knowledge of any information available to him so far as Robert Lovegrove was concerned.”
Since no error has been shown, the judgment of the trial court is affirmed.- | [
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George Rose Smith, J.
This appeal is from a verdict and judgment finding the appellant guilty of rape and sentencing him to imprisonment for life.
We find the evidence sufficient to support the verdict. At the time of the offense, March 10, 1963, the prosecutrix was twelve years old. The accused, a mature divorced man, had been keeping company for several months with the child’s mother, a widow. On the day in question Rogers asked the child to stay with his own mother, who was ill, while he did some carpentry work at a house nearby. The two left the child’s home in his ear, but he did not drive to his mother’s house. Instead, he parked the car on a lonely side road and, according to the prosecuting witness, committed two acts of rape.
In the meantime the child’s mother had gone in her own car to bring her daughter home. After a short search the mother discovered the defendant’s parked car. The prosecutrix, crying, at once fled to her mother and related what had taken place. The child was taken to Dr. McCoy, whose examination disclosed that her private parts were inflamed and contained what “looked like a typical male ejectory excretion.” (The doctor was not asked whether he had prepared slides so that his findings might be confirmed by laboratory tests.) It was Dr. McCoy’s opinion that the prosecutrix had recently had sexual intercourse.
The evidence that we have narrated is substantially undisputed. Rogers testified that he had been drinking for three or four days before the Sunday in question. He remembered having driven away from the home of the prosecuting witness with the intention of going to his mother’s house, but he professed to have no recollection of anything that happened immediately thereafter.
Even without the persuasive testimony of Dr. McCoy the evidence given by the prosecuting witness is sufficient to support the conviction, there being no requirement that her testimony be corroborated. Hodges v. State, 210 Ark. 672, 197 S. W. 2d 52; Stevens v. State, 231 Ark. 734, 332 S. W. 2d 482. We find nothing in the record to indicate that the trial court was in error in holding this child to be a competent witness. Needham v. State, 215 Ark. 935, 224 S. W. 2d 785.
The principal argument made by the appellant’s present counsel, who did not try the case, concerns an objection made to certain testimony given by Dr. Kirby. This physician examined the child on the day following the offense and, like Dr. McCoy, found evidence of irritation. He also took saline washings for laboratory examination. His testimony then continues in this manner:
“Now, being coroner I was called on Monday morning at the laboratory at the Boone County Hospital where the saline solutions were taken and where they had a slide which they said was given to them by Dr. McCoy—
“[Defense counsel]: We object. Hearsay.
“The Court: Sustained.
“Q. From your examination there, and what you were able to wash out and find, in your opinion, there had been male sperm, or there was nothing but male sperm in her?
“A. These washings were sent to Mr. [sic] Mae Nettleship, and she .told me—
“[Defense counsel]: We object.
“The Court: Sustained.
“Q. From what you saw was there male sperm in there?
“A. I didn’t see any sperm, but that was a day later.
“Q. Did you see the slide left by Dr. McCoy?
“A. I did, the one Dr. McCoy identified as the slide.
“Q. In your opinion was that sperm?
“A. It was.
“ [Defense counsel]: We object.
‘1 The Court: Overruled.
" [Defense counsel]: Exceptions.”
It is now contended that -the State did not lay a proper foundation for Dr. Kirby’s comment, upon the slide prepared by Dr. McCoy. That is, inasmuch as Dr. McCoy did not testify that he prepared the slide and delivered it to the hospital laboratory, Dr. Kirby’s reference to the slide as "the one Dr. McCoy identified” necessarily involved a resort to hearsay.
There are two fatal weaknesses in this contention. First, there was no objection to the statement that Dr. McCoy had identified the slide. In fact, the only objection that the court overruled was to the next question and answer: "Q. In your opinion was that sperm? A. It was.” The objection was apparently based upon the fact that the doctor was being allowed to express an opinion. Upon that basis the objection was properly overruled, for the witness had qualified as an expert. If counsel intended to rely upon the hearsay rule as well, that rule should have been brought to the court’s attention.
We considered a similar argument in Conway v. Hudspeth, 229 Ark. 735, 318 S. W. 2d 137. There the objection in the trial court was apparently made in reliance upon the hearsay rule. On that basis it was correctly overruled. In rejecting the same contention that is now before us, that no proper foundation had been laid, we said:
"It is now insisted that no proper foundation for Steen’s rebuttal was laid ... In fairness to the trial court this contention cannot be sustained. The only objection to Steen’s rebuttal was this: ‘If the court please, the statement to him by J. Lee Hensley is not admissible. ’ The court ruled that the evidence was competent for the sole purpose of going to Hensley’s credibility, and the objection was pursued no further. We think the court reasonably understood the objection as being based upon the hearsay rule, and upon that understanding the ruling was correct. If counsel thought that no proper foundation bad been laid, tbe point sbonld bave been brought specifically to tbe court’s attention. Had tbat course been followed tbe omission now complained of might readily bave been supplied in the trial court. ’ ’
Secondly, tbe only pertinent assignment in tbe appellant’s motion for a new trial is this: ‘ ‘ Tbe court erred in permitting Dr. H. V. Kirby to interpose irrelevant answers to questions after tbe court bad ruled the same not admissible.” This objection goes only to the matter of relevancy; there is no complaint tbat part of Dr. Kirby’s testimony may have been based upon hearsay. When tbe motion for a new trial assigns only one specific reason for an objection to certain testimony a different reason cannot be urged upon appeal. Burrow v. Hot Springs, 85 Ark. 396, 108 S. W. 823.
We find no prejudicial error in tbe record.
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Carleton Harris, Chief Justice.
Eva Bebout, appellee herein, and M. L. Bebout, appellant herein, were married on August 18, 1946. They lived together until April or May of 1961, at which time appellant left the home. Thereafter, on May 16, 1961, appellee filed her petition for separate maintenance. A motion to quash was filed by appellant on June 5, 1961, and on November 27 of the same year a general denial was filed. Thereafter, on February 1, 1962, M. L. Bebout filed a cross-complaint, seeking a divorce on the grounds of general indignities. On February 5, a hearing was held on the question of temporary allowances, and appellant was directed to pay $50.00 per month temporary alimony to his wife, together with an attorneys ’ fee. On June 16, 1962, Mrs. Bebout filed an “Amended and Substituted Complaint” in which she alleged general indignities, and asked the court for an absolute divorce. On June 28, appellant filed an answer denying the allegations in the substituted complaint, and on the same day, filed a suit for divorce in Las Vegas, Nevada. On July 9, 1962, the Madison County Chancery Court heard the cause on its merits. Mrs. Bebout testified, along with Donna Swift, a witness on her behalf. Appellant did not testify, nor was any evidence offered on his behalf, though the court considered the testimony that Bebout had given on February 5, same having been transcribed and introduced by appellee as an exhibit. At the conclusion of the trial, the court awarded appellee a divorce, and vested her with absolute title to the home place in Madison County, which had been held as an estate by the entirety. The proof reflected also that appellant and appellee had sold a piece of property to third parties, and had taken a promissory note payable to themselves for the unpaid purchase price, together with a mortgage to secure same. The note and mortgage were held in escrow by the First National Bank of Huntsville. The court, likewise, held that, under the evidence, Mrs. Bebout was entitled to the proceeds of the note. No actual decree was entered for one year, same being signed on July 8, 1963, nunc pro tunc as of July 9, 1962. From the decree, appellant brings this appeal.
It is necessary that this case be reversed because of insufficient corroboration of the wife’s testimony- as to grounds for divorce. In fact, Mrs. Bebout’s testimony itself was rather weak as to indignities suffered. She stated that, during their marriage, her husband did not fuss, quarrel, or find fault with her. She said that he simply told her that he no longer intended to live with hex’, and left. ‘ ‘ I think he had another woman. ” However, the proof reflected that he was livixig with another couple, axid there is xio evidexice to substantiate her assertion. Oxx cross-examination, she did state that oxx axx oc casion “lie choked me and tolcl me he was going to kill me and bury me * *
Donna Swift, the witness offered by appellee, ivas asked by counsel,
‘ ‘ Q. You have heard her testify. Do you know that what she has testified to is true ?
“A. I think so, yes. ’’
Subsequently, on cross-examination, Mrs. Swift was asked several questions relative to the property owned by the parties, and she answered,
“All I know is what she has told .me. She and I are very good friends, and she has visited with me several times, and told me about these things, but —”
It really is not clear from Mrs. Swift’s testimony as to exactly what she meant by, “All I know is what she has told me.” It could relate to both the grounds for divorce and the matters concerning the rights of the parties in property they owned, or the statement could be taken as referring only to the properties. Actually, from her apparent lack of. personal knowledge, it would appear that Mrs. Swift was not really acquainted with any of the facts. However, be that as it may, the testimony, “I think so, yes” does not constitute sufficient corroboration to comply with legal requirements. Of course, actually, corroborating evidence, to carry the proper amount of weight, should detail the facts with which the witness is familiar, but even where the evidence is abbreviated, as here, the witness should be positive in her statements. In Highsmith v. Highsmith, 219 Ark. 123, 240 S. W. 2d 5, the corroborating witness stated that she understood appellant left her husband on the date of separation without cause, and that she was under the. impression that he was good to her. A divorce was granted, and the case appealed to this court. In reversing that decree, we said:
“Our court has many times held in such cases that the testimony of the plaintiff must be corroborated. One case is Sisk v. Sisk, 99 Ark. 94, 136 S. W. 987, where the facts are similar to this case. A recent case (January 29, 1951) is Stimmel v. Stimmel, 218 Ark. 293, 235 S. W. 2d 959. Here the deposition of Zelma Pumphrey plainly shows that she knew very little about the material issues and that her statements were based on impressions or hearsay. ’ ’
The pleadings were not amended to allege desertion, nor was there any corroborating evidence to that effect.
Since appellee has not sustained her cause of action as required under our decisions, it follows that the court erred in granting her a divorce. It may well be that the Chancellor, in disposing of property rights, reached the right conclusions, both from an equitable and legal standpoint, but we do not reach these questions, since the reversal of the Chancellor’s finding as to the divorce means that the entire decree must fall.
Reversed.
Appellant had stated, in the hearing on February 5, that Mrs. Bebout had made the last $500 payment on the home place:
“Q. You let her make the payment then with the understanding that she was to get title to the place, is that it?
“A. Right.
“Q. Then if that was your understanding, if she did make the payment then she was entitled to the title because you were going to let it go back? You didn’t care about it, is that right?
“A. That’s right.”
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Sam Robinson, Associate Justice.
Appellant, Edith Epps, filed this personal injury suit in the Pulaski Circuit Court alleging that she received bodily injuries when she stepped in a hole in the sidewalk which adjoins appellee’s property on Main Street in Little Rock. Appellee, Remmel, answered denying the allegations of the complaint. Later, defendant filed a motion for a summary judgment. The trial court granted the motion, rendered a judgment in favor of the defendant, Remmel, and the plaintiff, Epps, has appealed.
One of the grounds for the granting of a summary judgment is that there is no genuine issue as to a material fact. Ark. Stat. Anno. § 29-211 (Repl. 1962).
Ark. Stat. Anno. § 19-3806 (Bepl. 1956) gives cities of the first class the power to require by ordinance, resolution, or order, that owners of property abutting on its streets build, maintain and repair sidewalks. It is said that Little Bock has such an ordinance, and to give appellant the benefit of any doubt on that point, in this case, we will assume that there is such an ordinance.
The allegations in the complaint that must be considered in determining whether the trial court was correct in rendering a summary judgment are as follows:
“Plaintiff alleges that at the time of the accident hereinafter described the sidewalk hereinbefore mentioned was out of repair and in an unsafe and dangerous condition for the passage of pedestrians over it. .
‘ ‘ That on the 19th day of December, 1961, about 9 :30 o’clock A.M. plaintiff was walking along said sidewalk in front of the property of defendant,. and stepped and fell into a hole in said sidewalk and violently fell on said street, as a result of which she sustained the injuries hereinafter set out.
“That the negligence of the defendant consisted of the following: Carelessly and negligently and unlawfully leaving the holes in said sidewalk open and unprotected; that defendant knew or .should have known the dangerous condition to the sidewalk; that defendant maintained a nuisance and a menace to those lawfully in and about the said street, and compelled to use said sidewalk; in failing and neglecting to cause the street to be made reasonably safe for persons passing along such street before the occurrence of the slipping and falling of plaintiff.
“That at all times hereinafter mentioned the said Main Street was and still is a public street in common use by the residents of said City and others. That the Arkansas Stats; 1947, provides that the owners of property shall rebuild, maintain and repair foot pavements pursuant to Section No. 19-3806-7.”
In support of his motion for a summary judgment, appellee property owner filed an affidavit stating in substance: That lie inherited, the property; that it was held in trust for him until he became 35 years of age in 1951, at which time the property was conveyed to him; that the sidewalk in front of the property is in the same condition as it was when he inherited the property; that he has not at any time had any demand or request from the city to do any maintenance or repairs on the sidewalk, and that he has done none. Appellant filed no response to the affidavit.
Assuming for the purposes of this decision that a city ordinance requires the property owner to repair the sidewalk adjoining his property and appellant failed to comply with the ordinance, still there would be no liability by the appellee property owner to the appellant solely by reason of his failure to make the repairs. It is said in Restatement, Torts, § 288, p. 761: “Such ordinances [requiring adjoining property owners to repair sidewalks] are construed as creating a duty enforceable only by the municipality and do not subject such owners to liability for bodily-harm caused to a-wayfarer bj^ their violations of the ordinances. See also, Major v. Fraser, 368 P. 2d 369; Sternitzke v. Donahue’s Jewelers, 83 N. W. 2d 96; Woods v. City of Palatka, 63 So. 2d 636; Vissman v. Koby, 309 S. W. 2d 345; Schaefer v. Lenahan, 146 P. 2d 929. There is an exhaustive annotation on the subject in 88 A. L. R. 2d 340, citing dozens of cases supporting this rule.
Of course, if appellant had affirmatively done something to the sidewalk, thereby causing a dangerous or hazardous condition, there could be liability as was pointed out in Arkansas Fuel Co. v. Downs, 205 Ark. 281, 168 S. W. 2d 419. But, in the case at bar, appellee shows by his affidavit that nothing of that kind occurred, and appellant did not raise an issue on that point by filing a counter-affidavit.
If appellant contends that the condition of the sidewalk was caused by an affirmative act of the property owner, appellee’s affidavit should have been controverted. By way of illustration, it is stated by Barron and Holtzoff, Federal Practice and Procedure, 1231 (we have adopted Rule 56 of Federal Practice and Procedure, Arki Stat. Anno. § 29-211 [Repl. 1962]): “To take a simple example, if in an action on a promissory note, the defendant in his answer denies the making of the note; the plaintiff makes a motion for a summary judgment, accompanying it by an affidavit of a person who swears that he saw the defendant sign the note; and the defendant does not file an opposing affidavit, summary judgment should be rendered for the plaintiff. On the other hand, if the defendant files an affidavit to the effect that his purported signature is a forgery or that it was affixed by a person who was not authorized to do so, a genuine issue as to a material fact is created, and the case must go to trial.” The court said in United States v. Dollar, 100 F. Supp. 881: “The motion [for summary judgment] requires the opposition to remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact.”
From the record in this case it does not appear that there is a genuine issue of a material fact, and when the established law is applied to the facts as shown by the record, there can be no recovery. The trial court was, therefore, correct in sustaining the motion for a summary judgment.
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Frank Holt, Associate Justice.
The appellants, M. Y. Hatchett and Dorothy Dixon Hatchett, d/b/a Southern Ozarks Realty Company, brought this action to recover a real estate brokers commission from the appellees, Sam M. Robinson and wife, Leva Robinson. The jury returned a verdict in favor of the appellees from which verdict and judgment comes this appeal. For reversal appellants rely upon five (5) points, each of which relate to the refusal or the giving of instructions. In reversing this case we deem it necessary to discuss only two of these points.
The appellees were the owners of forty-five (45) acres of land near the City of Clinton, Arkansas. On July 10, 1956, the appellees, by written contract, gave to the appellants, as real estate brokers, exclusive listing of their property for the purpose of procuring a purchaser at a price of $13,000.00 .with $5,000.00 required as down payment and the balance, with interest at six per cent (6%), to be paid at $75.00 per month. The contract provided for the payment of a commission of ten per cent (10%) of this sale price. It further provided for a like commission if sold “at any other price and on any other terms” acceptable to the appellees. The contract was an exclusive listing for a period of twelve (12) months from its date and to continue thereafter until thirty (30) days notice in writing was received by appellants. The contract also provided that if the listed property was sold to a purchaser procured by or through appellants after termination of the contract the full commission would be due the appellants. Appellants inserted an advertisement in a newspaper, the Commercial Appeal of Memphis, Tennessee, concerning various tracts of land they were authorized to sell and on July 11, 1957, Mr. and Mrs. H. G-. McMillen, who lived in Tipton, Tennessee, wrote the appellants concerning lands in Van Burén County. As a result of correspondence between the McMillens and appellants, the McMillens came to Van Burén County on May 22, 1958 for the purpose of inspecting and purchasing property. On this date the appellants showed the McMillens the appellees ’ property and upon inspection the McMillens indicated they wanted to purchase this property provided they could dispose of their property in Tennessee.
After they returned to Tennessee additional correspondence ensued between appellants and the McMillens and in the last letter from the McMillens, on August 4, 1958, they advised appellants they were unable to sell their property but did have some prospects. In March, 1959, appellants wrote the McMillens but received no response. From August, 1958, until August 9, 1962 nothing further was heard from the McMillens. On this latter date the McMillens appeared at the appellees’ home and visited briefly. Upon their leaving Mrs. Robinson called appellants and advised them the McMillens were on their way to appellants’ office to see them. The appellees contend that the subject of the sale of the property was not renewed nor discussed during this visit with the McMillens. The appellants contend that when the Mc-Millens came by their office the subject was discussed. Further, when Mrs. Robinson called she importuned appellants to “do your best”. Mrs. McMillen testified that at this time they had not been able to sell their property in Tennessee and, therefore, were not interested in purchasing the Robinson property. She testified that she and her husband, now deceased, were on a vacation and did not renew a discussion of their purchase of the property with either appellees or appellants. On September 8,1962, or a month later, they came to the Robinson home and inquired if the property was still for sale as they were interested again since they had found a buyer for their property in Tennessee. The Robinsons, appellees, advised they would sell them their property for $11,500.00 cash, whereupon the McMillens inquired whether they should deal with the appellants. To this the Robinsons replied that they considered the exclusive listing terminated as of two years previously. This is denied by appellants. The McMillens agreed to the purchase for $11,500.00 cash without contacting the appellants. The McMillens left town that day. The next day the appellees called the appellants and asked that they come to the appellees’ home. When the appellants arrived they were advised by the appellees of the transaction with the McMillens and they wanted to have an understanding about the commission. Upon appellants’ refusal to agree to a reduction in their commission the appellees proceeded to close the sale on September 12, 1962 without the proffered assistance of appellants. The appellants had shown the property to other prospective customers and at the reduced sale price of $12,000.00.
Upon appellees ’ refusal to pay the appellants a commission of ten per cent (10%) on the sale price of this property, the present action was instituted. The appellees took the position that the appellants did not procure the McMillens as purchasers and further that the contract was modified by oral agreement from an exclusive to an open listing.
On appeal appellants assign as error the giving of Defendants’ Instruction No. 3 which reads as follows:
‘ ‘ Gentlemen of the jury, the plaintiffs seek to recover a commission from the defendants based upon an exclusive listing contract for the sale of the real property belonging to the defendants. The plaintiffs allege that they procured a purchaser for said lands by virtue of the authority given them by the listing contract, and are, therefore, entitled to their commission as set forth in the contract. In this connection, you are further instructed that before you would be warranted in finding for the plaintiffs, M. Y. Hatchett and Dorothy Dixon Hatchett, you must find from a preponderance of the evidence that the plaintiffs procured a purchaser for the real estate involved in this cause who was ready, able and willing to buy the lands so listed upon the terms stipulated in the contract, and unless you so find, your verdict should be for the defendants, Sam M. Robinson and Leva Robinson.”
Proper specific objection was made to this instruction by appellants. The instruction was both abstract and confusing in that it tells the jury a purchaser must be found ready, able and willing to buy when it is undisputed that the property was paid for in cash by purchasers who were originally discovered by appellants through their advertising and later contacts and showing of the property. We said in the case of Sharp v. West, 176 Ark. 616, 3 S. W. 2d 692, that: “* * * There could be no better evidence of one’s being ready, able and willing to buy than the fact that he did actually buy.”
The instruction also provided that the purchasers procured must be ready, able and willing to buy upon the terms stipulated in the contract or the verdict should be for the defendants. The contract provides for the payment of a commission if sold on the stated terms of $13,000.00 [$5,000.00 down payment and balance at 6% interest payable $75.00 per month]. It also provides for payment of a commission “if sold at any other price and on any other terms” acceptable to appellees. The property sold for $11,500.00 cash. We think the Instruction should have made adequate reference to “other terms”.
In the case of Stiewel v. Lally, 89 Ark. 195, 115 S. W. 1134, we said:
‘ ‘ There are authorities holding that, even where the owner, in order to make a sale to a purchaser brought by the agent, is compelled to vary the original price or terms, the agent is entitled to commission on the sale. [Citing cases] * * * We find nothing in the law as stated by the authorities which declares that the procuring agent shall be denied his compensation on account of a modification of the original terms as proposed to the agent. ’ ’
Consequently the giving of this Instruction was erroneous and constituted reversible error.
The appellants further contend that the Court erred in giving Defendants’ Instruction No. 4 which reads as follows:
“The defendants, Sam M. Robinson and Leva Robinson, contend as a matter of defense to plaintiffs’ complaint that prior to the sale of said lands by defendants, it was agreed by and between plaintiffs and defendants that the exclusive listing contract, upon which plaintiffs action is based was modified by oral agreement to the extent that said listing would cease to be an exclusive one, and that same would continue as an open listing with the right in defendants to sell the land in question to anyone not procured by plaintiffs without liability to plaintiffs for a brokers commission. In this connection, you are further told that under the law that parties to any contract may modify it by an oral agreement. If you find from a preponderance of the evidence that plaintiffs and defendants orally agreed to modify the original listing contract by changing the exclusive listing to an open listing agreement which would permit defendants to sell and dispose of their property to one not procured by plaintiffs, without liability to plaintiffs for a commission, your verdict should be for the defendants.”
This instruction is abstract in that it instructs on matters not in the evidence. Proper specific objection was made to this instruction and it should not have been given under the facts in this case.
It is true that parties to a written agreement may orally modify the terms by mutual agreement or consent of the contracting parties. Haering Oil Company v. Beasley, 221 Ark. 607, 254 S. W. 2d 951. If there was a mutual agreement between the parties in the case at bar there is no evidence of such in the record before us. Mrs. Robinson testified that in a conversation with Mrs. Hatchett over the telephone she withdrew the exclusive listing and left it an open listing two years prior to the date of the sale of the property. Mrs. Hatchett denies this. Treating the testimony most favorably to the appellees, Mrs. Robinson does not state that Mrs. Hatchett agreed to the withdrawal of the exclusive listing. In effect, she states that she advised Mrs. Hatchett they Avere going to list the property with other agents.
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Ed. F. McE1 addin, Associate Justice.
This is a test suit to determine the legality of the proceedings and election ballot involving the County Hospital Units in Desha County; and necessitates a study of Amendments 17 and 25 of the Arkansas Constitution, as well as the cases construing these amendments. On July 9, 1963, the County Court of Desha County made an order, the pertinent portions of which are:
‘ ‘ That there exists the necessity for the constructing and equipping of a hospital at McGehee and that plans, specifications and estimates of cost as may be necessary for reasonable understanding of the nature, extent and approximate cost thereof shall be prepared and filed in the office of the County Clerk of the County and shall there remain and be held subject to the inspection of any and all persons interested. That Stowers & Boyce, Architects, Little Rock, Arkansas be, and they are hereby appointed and employed to prepare and file such plans, specifications and estimates of cost.
! ‘ That there exists the necessity for the reconstructing, extending and equipping of the county hospital at Dumas and that plans, specifications and estimates of cost as may be necessary for reasonable understanding of the nature, extent and approximate cost thereof shall be prepared and filed in the office of the County Clerk of the County and shall there remain and be held subject to the inspection of any and all persons interested. That Wittenberg, Delony & Davidson, Architects, Little Rock, Arkansas, be, and said firm is hereby, appointed and employed to prepare and file such plans, specifications and estimates of cost.”
The said plans and specifications were duly filed; and on August 5, 1963, the County Court entered an order, the pertinent portions of which aro:
“That Wittenberg, Delony & Davidson, Architects, Little Rock, Arkansas, heretofore appointed by this court, filed in the office of the County Clerk of the County on the 10th day of July, 1963, plans, specifications and estimates of cost covering the constructing and equipping of a hospital at McGehee and that said plans, specifications and estimates of cost are now on file in the office of the County Clerk and are subject to the inspection of any and all persons interested. The estimated cost to the County of the proposed work is approximately $240,000, it being contemplated that the balance of the total estimated cost will be obtained from an agency or agencies of the Government of the United States of America. The Court has examined said plans, specifications and estimates and has determined that the work covered thereby would be in -the best interest of the County and its citizens.
“That Stowers & Boyce, Architects, Little Rock, Arkansas, heretofore appointed by the Court, filed in the office of the. County Clerk of the County on the 10th day of July, 1963, plans specifications and estimates of cost covering the reconstructing, extending and equipping the county hospital at Dumas and that said plans, specifications and estimates of cost are now on file in the office of the Comity Clerk and are subject to the inspection of any and all persons interested. The estimated cost to the Comity of the proposed work is approximately $160,000, it being contemplated that the balance of the proposed work is approximately $160,000, it being contemplated that the balance of the total estimated cost "will be obtained from an agency or agencies of the Government of the United States of America. The Court has examined said plans, specifications and estimates, and has determined that the work covered thereby would be in the best interest of the County and its citizens.
“That the proposed County Hospital units at Mc-Gehee and Dumas shall be parts of the single Comity Hospital to serve the citizens of the County and shall be operated and administered by the single County Hospital Board. As such, and in order to avoid unnecessary duplication of medical facilities, said Hospitals units shall be deemed to be one improvement within the meaning of Amendment No. 17 to the Constitution of the State of Arkansas and should be submitted as a single ballot question in the special election mentioned herein below.
“That the questions of constructing, reconstructing, extending and equipping said projects, heretofore in this Order specifically identified, and the levying of a building tax for the purpose of paying the principal of, interest on and Paying Agent’s fees in connection with bonds of the Comity proposed to be issued under the provisions of Amendment No. 17 to the Constitution of the State of Arkansas, as amended by Amendment No. 25, to obtain the necessary funds for financing the said portion of the cost of said projects to be borne by the County shall be submitted to the qualified electors of Desha Comity, Arkansas at a special election which is hereby called to be held on the 10th day of September, 1963, and that said questions shall be placed on the ballot in substantially the following form:
“It is proposed to construct, equip and extend County Hospital facilities for the citizens of Desha County by constructing and equipping a hospital at McGehee at an estimated cost to the County of $240,000, and by re constructing, extending and equipping the Hospital at Dumas at an estimated cost to the County of $160,000 (it being contemplated that the balance of the total estimated cost of both said Hospital and facilities will be obtained from cm agency or agencies of the Government of the United States of America), and to issue General Obligation Bonds of the County under Amendment No. 17 to the Constitution of the State of Arkansas, as amended by Amendment No. 25, to provide funds for the payment of the estimated cost of said Hospital units to be borne by the County, in accordance therewith there is hereby submitted to the voters of Desha County, Arkansas, the questions of voting for or against said construction, reconstruction, extension and equipment (called ‘Construction’), and for or against the levying of a building tax to pay the principal of, interest on and Paying Agent’s fees in connection with said bonds.
“Indicate hoto you wish to vote by marking the ballot with cm ‘X’ in the box opposite the question:
“For Construction ..............................................................................□
“Against Construction ..................................................................□
“For Building Tax.............................................................................□
“Against Building Tax ..............................................................□”
(Emphasis supplied.)
The election was duly held on September 10, 1963, with the ballot having the full matter before it, as italicized above; and the vote was in favor of the hospital issue and the building tax therefor. The appellant then filed this suit ■ in the Chancery Court to enjoin the County Judge from further proceedings in the matter of the hospital; and the complaint alleged:
“That the purported approval of said questions in said manner was illegal and of no effect, being in violation of Amendment 17 to the Constitution of the State of Arkansas, as amended by Amendment No. 25, in that the voters were deprived of an opportunity to vote upon each contemplated improvement separately, as provided in said Amendments.
“That the purported approval of the equipping of the hospitals to be constructed and a tax to pay bonds, a portion of the proceeds of which will be used to equip, was illegal and of no effect, being withiout sanction under Amendment No. 17 to the Constitution of the State of Arkansas, as amended by Amendment No. 25. Said Amendments make no provision for equipping hospitals and, therefore, the proposal to equip is unauthorized and the inclusion of the proposal in the proceedings renders them illegal and void.
“That unless restrained and enjoined, the defendant will convene the Quorum Court of Desha County, Arkansas for the purpose of levying a continuing annual building tax to pay the principal, interest, and paying agent’s fees of bonds of the County which will be issued to pay the County’s portion of said costs, all in violation of the Constitution and laws of the State of Arkansas, and in violation of the right of plaintiff and others similarly situated, to be secure from unlawful and illegal exactions.”
The defendant (County Judge) resisted the complaint, and, inter alia, prayed for a decree:
“. . . declaring and holding that the election of September 10, 1963, and all proceedings prior to and in connection with the election were legal, valid'and effective and that defendant is authorized by law to proceed to take the necessary action to secure the construction and equipping of the hospital buildings at McGehee and Dumas, to issue bonds to finance the County’s portion of the costs thereof and to levy a continuing annual building tax to pay the principal of, interest on, and paying agent’s fees for the bonds.”
The cause was heard by the Chancery Court on an agreed statement of facts which incorporated most of the matters that we have already detailed, and also stated -.
“The proposal approved by the voters of Desha County, Arkansas, in the election is for the constructing and equipping of a hospital in the city of McGehee, Deslía County, Arkansas, and for reconstructing, extending and equipping an existing hospital in the city of Dumas, Desha County, Arkansas. There will be no physical connection between the hospital to be constructed and equipped at McG-ehee and the hospital to be reconstructed, and extended and equipped at Dumas. The plans, specifications and estimates of cost for the two hospital building's were prepared and submitted separately by different architectural firms. The question of construction and reconstruction of the two physically separate buildings was submitted to the voters of the County as a single proposal. The voters were required to approve or disapprove the construction and reconstruction of both buildings, there being no provision whereby a voter could vote for construction or reconstruction in one location and against construction or reconstruction in the other location. The proposal for the building tax to finance the County’s proportion of the cost of both hospitals was also submitted as a- single question, and there was no opportunity for a voter to vote for the building tax to finance the County’s proportion of the cost of the hospital in one location and against the building tax to finance the County’s proportion of the cost of the hospital at the other location.
“The proposal submitted to and approved by the voters in the election of September 10, 1963, includes the equipping of the hospital to be constructed at McGeheo and the equipping of the hospital to be reconstructed and extended at Dumas. A portion of the proceeds of the bonds also will be used to pay the cost of equipping the hospitals.
‘ ‘ The reconstruction, extension and equipping of the hospital at Dumas and the construction and equipping of the hospital at McGeheo are necessary for the hospitalization needs of Desha County and its citizens and the separate locations at Dumas and McGehee are necessary and in the public interest from the standpoint of the ready and near availability of adequate hospitalization facilities to all citizens of the County. One facility without the other would be inadequate and insufficient to meet the hospitalization needs of the County and its citizens.”
Trial in the Chancery Court resulted in a decree in favor of appellee and this appeal ensued, in which the appellant urges three points:
“I. The proposed action of appellee is prohibited by Amendment No. 10 to the Constitution and should be enjoined unless authorized by Amendment No. 17 to the Constitution as amended by Amendment No. 25.
“1.1. The proposed action of appellee is not authorized by Amendment No. 17 as amended by Amendment No. 25 because at the election piirporting to authorize the proposed action of appellee the voters were deprived of the right to vote separately on each contemplated improvement.
“III. The proposed action of the appellee to equip the two hospitals is not authorized by Amendment No. 17 as amended by Amendment No. 25.”
I. Are The Two Hospital Units Separate Hospitals? Appellant’s first two points are discussed together under this topic. The appellee claims that he is acting under the power and authority of Amendments 17 and 25 to the Arkansas Constitution. The real issue presented is whether the ballot should have allowed the voter to vote separately on the hospital project at Mc-Geliee and separately on the hospital project at Dumas. It is evident from the order and the ballot that the voter had to vote for or against the hospital project as a whole, and was not permitted by his ballot to vote for MeG-eliee and against Dumas, or vice versa. The appellee particularly calls attention to Section 4 of Amendment 17, which reads:
“More than one building or improvement may be embodied in all such proceedings, except that separate plans, specifications and estimates for each building or extension shall he made and filed, and a description of each building sufficient to indicate to the electors with reasonable certainty what building or extension he is voting on, shall appear on the ballot, beneath which shall be the words, ‘For Construction’ and ‘Against Construction’, after each contemplated improvement . . .”
The appellant says that each “building” in the above quoted provision means exactly what it says; and that since one building is to be in Dumas and one is to be in McGehee, there should have been a separate vote on each one. But it must be remembered that only three building projects are listed and concerned in Amendments 17/25. These are: (a) court house; (b) county jail; and (c) county hospital. The language in Section 4 of Amendment 17 about “each building,” means that the construction, etc., of a court house cannot be combined on the same ballot item with construction of a jail, or the construction, etc., of a jail combined on the same ballot item with the construction of a hospital, etc.; but the Amendment does not mean that if a hospital consists of two buildings, in the same town or in separate towns, each building must be listed and voted on separately. The case of' Kenoin v. Hillman, 226 Ark. 708, 292 S. W. 2d 559, involved the building of a main hospital in Fordyce “with emergency units thereof in Sparkman and Carthage. ” It was there urged that the Amendments 17/25 contemplated the construction of a single hospital unit in one town, and did not contemplate or authorize the construction of emergency units located at points other than the place of the main hospital. We held that the separate emergency units at other places were proper and legal.
The County Court stated, in the case at bar, that the County Hospital of Desha County was to consist of two units, one at McGehee and one at Dumas, but both were to be under the same Hospital Board. By rules of judicial notice we know: that Dumas is in the northern por tion of Doslia Comity and had a population of 3,540 according to the 1960 Ü. S. Census; that McGehee is in the southern portion of Desha County and had a population of 4,448 according to the 1960 U. S. Census; and that these two towns are over twenty miles apart. The purpose of a county hospital is to provide for the county and not for any one portion. The County Court said that the feasible way to provide the people of Desha County with hospital facilities was to have a unit situated at Dumas and a unit situated at McGehee, but both under one Hospital Board. We find that this was proper under the facts of this case and in line with our holdings for the liberal interpretation to be given Amendments 17/25, some of which cases are: Bond v. Kennedy, 213 Ark. 758, 212 S. W. 2d 336; Garner v. Lowery, 221 Ark. 571, 254 S. W. 2d 680; and Jeffery v. Fry, 220 Ark. 738, 249 S. W. 2d 850. We hold that there is no merit in the first two points urged by the appellant.
II. Hospital Equipment. The appellant urges that the Amendments 17/25 provide for the “construction, reconstruction, or extension” of a county hospital, but that there is no provision for the equipment for a county hospital; and that, therefore, the equipping of the hospital is not within the purview of the Amendments; and on this point the appellant is supported by a brief amici curiae. We find no merit in this point argued by the appellant and the amici curiae. While not involving the Amendments 17/25, nevertheless this Court said in Railey v. Magnolia, 197 Ark. 1047, 125 S. W. 2d 278: “The building and equipping of a hospital is a single enterprise. ...” A hospital is' more than a mere building of four walls and a roof. Webster’s Dictionary defines a hospital as: “An institution or place where sick or injured persons are given medical or surgical care.” A bare and empty building could hardly fit that definition. We like the language of the Supreme Court of Alabama in Noble v. First National Bank, 1 So. 2d 289: “The definition of a hospital, established by the proof and uncontraclicted, was as follows: ‘An institution for the reception, care, and medical treatment of the sick or wounded; also the building used for that pur pose.’ ” Certainly the equipping of the hospital is an essential part of its construction.
Furthermore, in McArthur v. Campbell, 225 Ark. 175, 280 S. W. 2d 221, we held that the air conditioning of the Pulaski-County Court.House was a "reconstruction or extension” of the Court House, and said:
"There is authority for the equipping and furnishing of buildings authorized by Amendment No. 17. See Atkinson v. Pine Bluff, 190 Ark. 65, 76 S. W. 2d 982; Lindsay v. White, 212 Ark. 541, 206 S. W. 2d 762; Railey v. City of Magnolia, 197 Ark. 1047, 126 S. W. 2d 273; Tunnah v. Moyer, Mayor, 202 Ark. 821, 152 S. W. 2d 1007.”
The decree of the Chancery Court in this cause is in all things affirmed; and for good cause shown an immediate mandate is ordered.
The County Court order also involved a jail at Arkansas City, and Court House reconstruction at Arkansas City. These two matters were defeated by the vote of the electors and are not before us.
Amendment No. 25 amended Section 1 of the original Amendment No. 17 so as to add “county hospital” to Section 1 of Amendment No. 17. See Hughes v. Jackson, 213 Ark. 243, 210 S.W. 2d 312; and Garner v. Lowery, 221 Ark. 571, 254 S. W. 2d 680.
Bonner v. Jackson, 158 Ark. 526, 251 S. W. 1; Forehand v. State, 53 Ark. 46, 13 S. W. 728; Hano v. Fayetteville, 90 Ark. 292, 119 S. W. 287; Board of Trustees v. Pulaski Co., 229 Ark. 370, 315 S. W. 2d 879; Stephens v. City of Springdale, 233 Ark. 865, 350 S. W. 2d 182. | [
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Jim Johnson, Associate Justice.
This is a suit for damages resulting from rock throwing following a rock and roll concert. Appellant, Twin City Amusement Company, Inc., leased Barton Coliseum and adjoining parking areas from the Arkansas Livestock Show Association for the night of April 21, 1961, for the purpose of holding a rock and roll concert. Tickets were sold to the public and both Negroes and Whites attended. Mrs. Joe Felton of Little Rock took a carfull of young teenagers to the concert, including one of her own children. She parked on the Livestock Show grounds near the Coli seum. After the show, she was proceeding toward an exit gate with the five or six children in her station wagon when she was forced to stop in a line of vehicles waiting to leave the show grounds. At that point (about two blocks from the gate and three blocks from the Coliseum entrance) two colored youths approached her car and demanded that one or more of the boys sing a rock and roll song and tried to pull the boys out of the station wagon or get into the vehicles themselves. Mrs. Felton and the children screamed and honked to attract help. In the car following Mrs. Felton were several teenagers, including appellee Isaac Salater who was driving his family’s automobile. These young men voluntarily went to Mrs. Felton’s aid, and a fight ensued with the colored boys. The white boys tried to end the fight, got back into appellees’ automobile, locked the doors and closed the windows, but the colored boys began throwing rocks and swinging rocks. tied in bandanas, breaking the window and otherwise damaging the car and cutting Isaac deeply across the scalp. Isaac maneuvered his car out of the line of traffic, across a field to an exit gate and reported the incident to a fireman directing traffic, who in turn called the police stationed at the main gate.
Appellee Peter Salater, father of Isaac Salater, filed suit against Twin City Amusement Company, Inc., on April 10, 1962, in Pulaski Circuit Court for damages to his car and for injuries to his son, alleging that such damages and injuries resulted from the negligence of appellant. At trial on February 19, 1963, the jury returned a verdict for Peter Salater for $303.00 for automobile damage and medical expenses, and $750.00 for Isaac’s pain and suffering. From the judgment on the verdict comes this appeal. For reversal, appellant contends that the trial court erred in not directing a verdict for appellant because there was no substantial evidence of any negligent act on the part of appellant which proximately resulted in injury to appellees.
The record reveals that appellant’s lease was the standard form of lease used by the Coliseum {i.e., the Ar kansas Livestock Show Association) which provided that the lessor supply, among other things, firemen and policemen for the protection of the public, parking lot attendants, ticket sellers, etc., and the' number of such employees was decided by the lessor; the lessor also retained control of the concession stands and reserved the right to expel anyone out of line. For this particular concert, the Coliseum hired ten off-duty police officers and some firemen. In addition there were 011-duty policemen present. The testimony is in conflict as to whether there were any disturbances during the performance, the consensus of the testimony is that any threatened disturbance that might have occurred was quickly broken up by officers in the Coliseum. The record is silent as to whether any officers were assigned or were present in the parking areas after the concert other than at the gate and outside the Coliseum entrance.
This appears to be a case of first impression on this type of suit in Arkansas. We have reviewed a number of cases from other jurisdictions, among them Hawkins v. Maine & New Hampshire Theaters Co., 132 Me. 1, 164 A. 628; Whitfield v. Cox, 189 Va. 219, 52 S. E. 2d 72; Worcester v. Theatrical Enterprises Corporation, 28 Cal. App. 2d 116, 82 P. 2d 68; Hart v. Hercules Theatre Corp., 258 App. Div. 537, 17 N. Y. S. 2d 441; Dickinson v. Eden Theatre Co., 360 Mo. 941, 231 S. W. 2d 609; Nash v. Stanley Warner Management Corp. (D. C.), 165 A. 2d 238; Gross v. Wiley, (Or.), 373 P. 2d 421, and Stevenson v. Kansas City, 187 Kan. 705, 360 P. 2d 1; as well as various encyclopedias and an excellent annotation, 29 A.L.R. 2d 911, entitled “Liability of owner or operator of theater or other amusement for assault on patron by another patron.” We find the duty owed by a proprietor of a place of amusement to his patrons in a case such as this succinctly set out in Restatement, Torts, § 348, as follows:
“A . . . possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons or animals if the possessor by the exercise of reasonable care could have
(a) discovered that such acts were being done or were about to be done, and
(b) ' protected the members of the public by
(i) controlling the conduct of the third persons, or
(ii) giving a warning adequate to enable them to' avoid the harm without relinquishing any of the services which they are entitled to receive ...”
Restatement, Comment c, following § 348, supra, observes that while such a proprietor is not an insurer, he has a duty to police his premises and employ enough servants to afford reasonable protection.
This was a sudden, unexpected and unforeseeable affray. Appellees would, in effect, require appellant to be:an insurer of their safety, whereas appellant is in fact required only to exercise reasonable care. A statement in Stevenson v. Kansas City, supra, is apt:
“To foresee that plaintiff while attending the wrestling matches would be assaulted at the hour of 11:00 pan. at the particular spot on the particular ramp on the way to the particular rest room in the Memorial Building in Kansas City would indeed require imaginative foresight and such is not the type of foreseeability required under our law. Only the standard of the reasonable and prudent man, ... is required.”
While it might be desirable and very much in the interests of society to prohibit the type of “entertainment” offered in the instant case by requiring the exercise of the highest degree of care by the proprietor, however such a rule could not be imposed without adversely affecting all places of amusement and public gathering. As was said in the Stevenson case, supra:
“To apply such-a high degree of vigilance would make a public amusement impossible because of the ex pense of guards, time for searching customers to discover possible weapons, etc.”
Nothing in the evidence suggests that more servants were necessary to provide reasonable security at the time and place here in question, or that more servants could have prevented the affray. Certainly a proprietor is not required to have an attendant, guard or usher for every patron.
In the absence of facts which would have charged appellant with the discovery contemplated in Restatement, Torts, § 348, supra, there was nothing to submit to the jury. Since the case has been fully developed, we must therefore reverse and dismiss.
McFaddin, J., dissents; Robinson, J., not participating. | [
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Paul Ward, Associate Justice.
The bonds of matrimony between the parties hereto were dissolved first by a decree in the State of Georgia and again by a decree in this State. It is from the latter decree that comes this appeal. The material facts involved are hereafter summarized.
Appellant (George Thomas Carr) and appellee (Orine Carr) were both domiciled in Greene County, Arkansas when they were married on August 2, 1952. To this union a daughter (Norma Jean) and a son (Bruce Edward) were born. About the time the parties were married appellant joined the armed forces where he has remained until this date. At present he is a sergeant in the U. S. Air Forces, stationed at Turner Air Force Base located in Albany, Georgia, where he has been since early in 1959. During the intervening years of his service appellant was stationed at other-places as his duties required. During all this time he and Orine lived together as husband and wife. There is, however, no contention by appellant that they established a domicile at any place before he was assigned to the Albany base in 1959.
About tbe middle of 1959 appellee and the children joined appellant at Albany and stayed until appellant brought them back to her parents in Arkansas in December, 1960. Apparently the reason for appellant’s action was that Orine did not want to stay ‘ ‘ alone ’ ’ in the apartment while her husband was away several weeks on a military assignment. At least, appellant did not at that time tell Orine their marital relations had ended.
On December 28,1961 appellant filed suit for divorce in Georgia and proceeded to secure constructive service on his wife. On January 13, 1962, while appellant was visiting in Arkansas, he told his wife about the suit in Georgia and on the same day she received a newspaper containing a publication of official notice of the suit in Georgia. Also on the same day (January 13,1962) Orine filed suit for divorce in the Greene County (Arkansas) Chancery Court, and procured personal service on appellant. In addition to a divorce Orine asked for alimony, custody of the children, and child support. On January 31, 1962 appellant entered a general denial. Later, by proper pleadings, appellant introduced a duly authenticated copy of the divorce decree, dated March 19, 1962, which had been granted by the court in Georgia, contending that the Arkansas Court must give full faith and credit to such decree. Based on the above contention appellant moved the trial court to dismiss appellee’s complaint. Responding, appellee alleged her husband was not a domiciliary of Georgia at any time prior to the rendition of the decree in that State and that, consecprently, said decree' was not entitled to full faith and credit by the courts of Arkansas. The trial court refused to dismiss appellee’s complaint, and the cause proceeded to a trial.
Upon the testimony presented the trial court found, among other things, that appellant was not a domiciliary of Georgia as appellant claims, that the said decree was not entitled to full faith and credit in Arkansas, and that the Greene County Chancery Court had jurisdiction of the cause of action. The court then granted a divorce to appellee, gave her an alimony allotment and custody of the children, and ordered appellant to pay a specified amount each month for the support of the children.
Appellant concedes the power and jurisdiction of the trial court to grant alimony, child custody, and child support, and its decree in those respects is not here questioned and is not an issue on this appeal.
The Only Issue Is Moot. The only issue on direct appeal is stated by appellant in these words:
“The only issue raised by appellant in this appeal is that the trial court erred in holding that the divorce decree obtained by him in the State of Georgia was not entitled to full faith and credit in the courts of Arkansas for the reason that he was not a bona fide resident of the State of Georgia.”
In view of the fact that all matters relating to alimony, custody and support have been settled to the satisfaction of both parties, we cannot escape the conclusion that the question appellant here raises is moot, and its solution can be of only academic concern to him. So far as we are informed appellant’s only interest is to be sure he has an absolute divorce good in all states. If we affirm the trial court appellant has such a divorce by virtue of the Arkansas decree. If we reverse the trial court then appellant is fully protected by the Georgia decree. The situation here is very similar to that described in Alton v. Alton, 347 U. S. 610, 74 Sup. Ct. 736; 98 L. Ed. 987, where a similar issue was held to be moot.
Shortly before the date of the decree appellant filed a motion to dismiss appellee’s cause of action based on certain letters written by appellee’s attorney to Air Force officers in Albany, Georgia. Thereupon appellee filed a motion to strike appellant’s motion. The trial court refused both motions. On cross-appeal appellee contends the trial court committed reversible error in overruling her motion. On oral argument appellee’s attorney, with commendable candor, absolved his client from any complicity in connection with the letters he wrote. In view of the disposition we made of the direct appeal, we find that this issue is also moot, and the cross-appeal is likewise dismissed.
We hereby reinvest authority in the trial court, if it sees fit to do so, to remove from the files of this case the said motion of appellant to dismiss, and also to allow appellee’s attorney an additional fee not to exceed $100.
Appeal and cross-appeal dismissed. | [
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Prank Holt, Associate Justice.
This is an appeal from a probate court order admitting the will of Alabama Parker to probate and dismissing the appellants’ petition contesting the will. For reversal the appellants first urge that the testatrix lacked testamentary capacity and was subjected to duress and undue influence in making her will. Since these two points are so intertwined we consider them together. On appeal this cause is considered de novo and it is well settled that we affirm a probate court order in a will contest unless against the preponderance of the evidence. Parette v. Ivey, 209 Ark. 364, 190 S. W. 2d 441.
On June 4, 1959 the testatrix, Alabama Parker who was seventy-eight years of age, went to her lawyer’s office and executed her will which is now in question. She died on September 21, 1962, survived by twelve children and a grandson as her only heirs at law. In her will she bequeathed $1.00 each to seven of her children and the grandson, the appellants, and named her remaining five children, including the appellee, K. F. Parker, Executor, as residuary devisees to share equally.
In behalf of validity of the will, Emma Jean Burton, a retired school teacher and decedent’s friend of longstanding, testified that at the request of the testatrix she was present when the will was read, witnessed the signing- together with Geneva Paschal [now deceased] and both of them attested to it. She testified that she considered Alabama competent to execute the will. The testatrix’ personal physician from 1947 until her death in 1962 testified that in his opinion the testatrix was mentally competent to make the questioned will and to understand such a transaction. The attorney who drafted the will had handled legal matters for the testatrix and had known her for approximately forty years. He testi fied that he considered her mentally competent. Further, that when he read it to her in the presence of the attesting witnesses the testatrix replied, “That is it, that is the way I want it,” and proceeded to sign her will. He testified that he did not discuss the provisions of the will with anyone other than the testatrix and it was drafted strictly in accordance with her request. There was testimony by a granddaughter of the testatrix, Sandra Kay Parker, fifteen years of age, that she had lived with her grandmother most of her life and that she considered her to be competent and capable to conduct her affairs. There was evidence by other witnesses that the testatrix was physically and mentally capable of transacting her personal and business affairs.
The appellants offered evidence that their mother was feeble from age, had difficulty recognizing people, was very forgetful, and appeared mentally confused. Old age, physical incapacity, and partial eclipse of the mind will not invalidate a will if the testator had the capacity to understand the making of the will on the date it was made. Yarbrough v. Moses, 223 Ark. 489, 267 S. W. 2d 289. In the case at bar Sandra Kay Parker testified that her grandmother was unable to easily recognize people because she. had cataracts on her eyes. Within a month after the execution of the will the testatrix, accompanied by a friend, made a train trip to Chicago where one of her children lived and thence to California where another one of her children resided. She had included both of these children among the residuary or principal beneficiaries in her will. From Chicago she Avas also accompanied by the fifteen-year-old granddaughter who testified that her grandmother required no medical attention of any kind on the trip.
The appellants further urge that their mother was dominated and subjected to undue influence by Ernestine Parker, the daughter and youngest child who resided Avith her mother from 1953 until her mother’s death in 1962. This Avas denied by Ernestine Avho testified that she in no manner influenced her mother and that she had no knowledge of the circumstances surrounding the making of the will.
We have long adhered to the rule that the burden of showing the lack of testamentary capacity and undue influence in the making of a will is upon the contestants. Werbe v. Holt, 218 Ark. 476, 237 S. W. 2d 478; Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665. Also, we have frequently defined the requisite mental capacity to make a valid will. It is that the testator must have (1) the ability to retain in memory without prompting the extent and condition of his property, (2) the mental ability to comprehend to whom he is giving his property, and (3) realization of the deserts and relationship to him of those he excludes from his will. Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433.
With respect to undue influence, we have long adhered to the rule that:
“ * * * The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property.”
McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. The argument of undue influence is directed solely at Ernestine Parker who lived with her mother. It is significant that the mother saw fit to include four of her other children along with Ernestine as the principal beneficiaries, each sharing equally. In Bruere v. Mullins, 229 Ark. 320 S. W. 2d 274, we said:
“* * ® one having the testamentary capacity to make a will, is not required to mete out equal and exact justice to relations, and the motives Or partiality, affection or resentment by which they are influenced are not reviewable; and if one has the capacity to make a will, he may make it as eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate.”
Appellants also contend that the will was not properly executed. It is undisputed that the will was signed by the testatrix and in the presence of two attesting witnesses. Both witnesses were disinterested since neither was given any “beneficial interest by way of devise.” Ark. Stat. Ann. § 60-402 (Supp. 1963). Further, we think that proof of the execution of the will was properly made.
In the case at bar we agree with the Probate Judge that the appellants have not sustained the burden of proof required of them in establishing the lack of testamentary capacity of their mother or that undue influence was exerted upon her or that her will was not properly executed.
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Paul Ward, Associate Justice.
Tbis is tbe fourth appeal to this Court involving some phase of the Ward M. Black Estate. A brief reference to the three former appeals and some of the pertinent background facts will help to clarify the issues presented on this appeal.
Ward M. Black died November 19, 1958. At the time of his death he owned a drug store, valued at about $75,000, located at 4200 Asher Avenue in Little Bock. He left other property (real and personal) valued at about $30,000. The deceased left no children or other lineal heirs, and his closest of kin (disclosed by anyone at that time) was a brother, Walter L. Black. Walter died in August 1962 leaving, as his only heir, one son (Walter L. Black, Jr.) who is the appellant on this ap-' peal. Walter L. Black, Jr. was appointed administrator of the estate of Ward M. Black soon after his death. About ten months thereafter a purported will of Ward M. Black was found in which he gave the drug store to Cecil E. Morton, a clerk in the drug store and of no kin to the deceased. The rest of his estate was given, in varying amounts, to his brother (Walter L. Black), to two sisters-in-law, and to two cousins (one of whom is Clio Thompson). Clio Thompson, as executrix, offered the purported will for probate on October 1, 1959.
First Appeal. When the court admitted the purported will to probate over the objections of Walter L. Black he prosecuted an appeal to this Court. The issue was whether the purported will was a forgery. We reversed the trial court, and remanded the cause for further development. Black v. Morton, 233 Ark. 197, 343 S. W. 2d 437-decided February 27, 1961. Second Appeal. After another trial the court again admitted the purported will to probate as a valid will. On appeal the issue was the same as on the first appeal, and we held the purported will to be a forgery. Black v. Morton, 234 Ark. 360, 352 S. W. 2d 177—decided December 18, 1961. On the third appeal we affirmed an order of the probate court allowing a fee of $2,500 for the attorneys representing Clio Thompson as administratrix of the estate of Ward M. Black. Black v. Thompson, 235 Ark. 725, 361 S. W. 2d 753—decided November 19,1962. It is noted here that the same attorneys who represented Cecil E. Morton on the first and second appeals also represented Clio Thompson on the third appeal and are representing the appellees on this appeal.
Present Litigation. As before stated, on December 18,1961 we held the purported will of Ward M. Black to be a forgery. As things appeared at that time it seemed in order, of course, to close the estate of Ward M. Black. In such event it would have been the duty of Clio Thompson to make a final accounting and deliver the assets of the estate over to Walter L. Black, Jr. However, as- it now appears, certain persons (including Clio Thompson) received information (possibly the latter part of 1961 or the early part of 1962) that Ward M. Black not only had a living brother, Walter L. Black, but also had a living brother, William Edward Black.
At any rate, on August 30, 1962 Clio Thompson, as administratrix of the estate of Ward M. Black, deceased (and others) filed a “Petition for Determination of Heirship” to the estate of the deceased. In this petition it was stated:
(a) She (Clio Thompson) was appointed administratrix in June 1960 and has served constantly since that-date; '(h) Ward M. Black died intestate on November 19, 1958; (c) since her appointment as administratrix she has conducted an extensive and prolonged search for the heirs to the estate of Ward M-. Black; (d) she has finally located the widow and three' children of William Edward Black [died March 20, 1962] who was a brother of Ward M.' Black and Walter L. Black; (e) the said widow’s name is Nannie Black, and the names of the said three children are Floyd Black, Leroy Black (sons) and Mrs. Clifford J. Wilson (daughter).
The above petition was signed and'sworn to by Clio Thompson, by the above named widow and by the children of William Edward Black, deceased.
The prime issue presented to the trial court was whether William Edward Black was a brother of Ward M. Black. If they were brothers, then it must be conceded that one-half of the estate goes to appellant and that the other one-half goes to appellees as their interests appear—otherwise, all the estate goes to appellant. After an extensive hearing, the trial court held, in effect, that William Edward Black and Ward M. Black were brothers. From the above holding, appellant prosecutes this appeal.
Appellees, by the introduction of census reports, court records, photographs, a family bible, and oral tes timony, presented to the court the following history of a Black family.
(a) Matthew Anson Black, in the early 1800s, moved from Georgia to northwest Arkansas-—he was married to Lucinda Lowery, (b) Of this union there were born a daughter, Mary Jane Blade, a son, Thomas Jefferson Blade, (and four other children), (c) The said Thomas Jefferson Black and Mary Jane Cooper were married October 2,1873—of this union was born one son, William Edward Blade; they were divorced in 1877, and on April 24, 1884 Thomas Jefferson Black married Fannie Boss; to this union were born Ward M. Blade and Walter L. Black.
Appellant makes no serious effort to disprove the above facts as they relate to a Black family. He does, however, strenuously urge that there is no satisfactory proof that the Thomas Jefferson Black who was the father of William Edward Black is one and the same person who was the father of Ward M. Black and Walter L. Black. In addition, appellant points out certain facts and circumstances which, he says destroy the credibility of appellees’ testimony. Briefly, some of these are: (a) Clio Thompson made no mention of a brother, William Edward, when she named the heirs of the deceased at any time during 1960 and 1961 although she was a cousin of the deceased; (b) Clio Thompson said she didn’t mention the possibility of another heir (William Edward) until May 1962 although the record shows they were working on the family tree in January and February 1962; (c) Appellees’ own testimony shows that Mary Jane Cooper was only thirteen or fourteen years old when she married Thomas Jefferson Black; (d) Although William Edward Black was living in northwest Arkansas during all the extensive litigation over this estate, he never made any claim thereto.
Not overlooking the above suspicious facts and circumstances, we cannot say they are of such force as to conclusively disprove the purported relationship between William Edward Black and the deceased.
It may be conceded that some of these facts (and other facts not mentioned) justify a suspicion as to the good faith of Clio Thompson in her efforts to locate the heirs of the deceased and in her efforts to sustain the validity of the purported will, yet we are unwilling to say they are conclusive proof of her bad faith. It may be pointed out that she was at all times acting on the advice of her attorneys; that she was under no special duty to determine heirship if she thought the purported will was valid, but this duty did arise when the purported will was declared invalid by this Court. It may also be pointed out that appellant (as administrator) had the same duty imposed on him. In all events there is no contention that appellee heirs have been guilty of any misconduct or bad faith and (if they are in fact heirs of the deceased) they should not be penalized for the real or fancied misconduct of someone else.
In addition to the documentary evidence referred to previously, the court heard oral testimony tending to show William Edward Black and the deceased were in fact brothers.
Clio Thompson testified that her mother was Roxie Ann Ross who was a sister to Annie Ross who married Thomas Jefferson Black; that she lived within a mile of them and knew them well; that Ward M. Black and Walter L. Black were sons of Thomas Jefferson and Fannie Black; that Thomas Jefferson Black was the son of Matthew Anson and Lucinda Lowery Black; that Thomas Jefferson Black told her he was once married to Mary Jane Cooper and that they had a son named William Edward Black. Appellant admits the force of this testimony but contends it should not be considered because of her conduct and manifest interest. There is, however, other testimony to support the testimony of Clio Thompson. Anna Hill, a disinterested witness 74 years of age, testified that her mother was Mary Jane Cooper; that William Edward Black was her half brother; that her mother was married to Thomas Black. Also, corroborating testimony was given by two nephews of Thomas Jefferson Black.
In view of the above and of other testimony and documents found in the record, we are unwilling to say the finding of the trial court was against the weight of the evidence. There are other points urged by appellant which we now consider.
Excluded testimony. We see no reversible error in the court’s exclusion of certain testimony. Appellant was allowed to question appellees ’ attorneys to some extent in an effort to disclose the “background” leading-up to the filing of the petition for determination of heir-ship, but the court refused the inquiry to the extent desired by appellant. In our opinion the court’s action was proper. The inquiry was irrelevant to the real issue of whether William Edward Black and the deceased were brothers.
Administratrix fee. The trial court allowed Clio Thompson a fee of $2,500 as administratrix of the Ward M. Black estate. Appellant contends she is not entitled to any fee because of her alleged bad faith, or in any event, she is not entitled to the amount of $2,500. We are unable to agree with appellant on either count. This Court, on the third appeal, refused to condemn her motives, and we find nothing in this record to compel us to change our minds. It is true that she has apparently been very active in trying to establish the heirship of the appellees but she was acting in conformity with Ark. Stat. Ann. § 62-2914 (Supp. 1961) although she stood to gain nothing from her activities. Neither are we convinced that she is not entitled to the full amount of $2,500. She was not only charged with the duties ordinarily required of a personal representative but she was charged with running the drug store and renting the houses and farmland. In the case of Saad, Executor v. Arkansas Trust Co., 225 Ark. 33, 280 S. W. 2d 894, we approved a fee of $5,000 to an executor where the estate was only fifty percent larger than the one here involved. In that case we quoted with approval the following from the case of Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12,
“Being familiar with the services rendered, the judge, in fixing the allowance could act upon his own knowledge of their value, and we would not overturn his findings thereon, unless clearly erroneous.”
We cannot here say the trial court was clearly in error in allowing the fee of $2,500.
Accounting. We have carefully examined the record and find nothing to show that Clio Thompson, as administratrix, failed to account for all of the assets of the estate that were delivered into her possession. The assets were checked out to her on a list, which detailed each item. The list, signed by her, by the appellant and by the co-administrator, showed a total value of $400 for all the articles. This alone seems to effectively refute the contention that Clio Thompson appropriated valuable jewelry to her own use.
Appellant’s claim. Appellant filed a petition to be reimbursed for expenses incurred in defending against the forged will. The statement of costs and expenses was as follows:
Charges of various investigators........................$ 349.32
Charges in connection with examination and testimony of handwriting expert ............................................. 1,070.00
Transcripts for appeals................................................ 828.00
Briefs on appeals ............................................................... 827.70
Deposition costs .................................................................. 440.55
Clerk and Sheriff costs ................................................ 116.60
Travel expense ..................................................................... 180.90
Long Distance telephone ............................................. 55.05
Attorney Fees ........................................................................ 15,000.00
Total .......................................................................................$18,868.12
The court refused to allow the claim or any part of it. In doing so, we think the court erred. Appellees do not appear to deny that appellant paid out all the items of expense above tabulated except the last item of $15,000. As to this item they state: “A probate court has no power or jurisdiction to pay an attorney who renders services to an heir on a private contract.” We agree that appellant had no right to make a contract for legal services which was binding on the court. That is the effect of the holding in Gilleylen v. Hallman, 141 Ark. 52, 216 S. W. 15, and it is also the effect of Ark. Stat. Ann. § 62-2208 a. and e. (Supp. 1961). However, it does not follow that the court, in this instance, does not now have power and jurisdiction to approve appellant’s claim. Not only did the trial court have such power under the statute above mentioned, but we think it also had the power under the general doctrine of unjust enrichment. This rule was succinctly stated in American University v. Forbes, 183 A. 860, 88 N. H. 17, to the effect that a person shall not be allowed to profit or enrich himself unjustly at the expense of another. In this case, as it is now abundantly evident to everyone, the heirs of William Edward Black would not-be in court today and they would not have received one penny from the estate of Ward M. Black had not appellant retained competent legal assistance and had he not made costly preparations in contesting the probation of the fraudulent will. Therefore, we think the trial court should have allowed appellant’s claim in full to be paid out of the assets of the estate. Upon remand the trial court is directed to enter an order in accordance with what we have just said. Otherwise, the decree of the trial court is affirmed.
Affirmed in part and reversed in part with.directions. | [
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George Bose Smith, J.
By this eminent domain proceeding the appellant is acquiring four tracts of land in Harrison. The jury valued the tracts at a total of $78,000, which was somewhat higher than their worth as fixed by the condemnor’s witnesses and somewhat lower than that fixed by witnesses for the owners.
Near the end of the trial the condemnor offered in evidence a county court order, entered in 1930, which purported to create a highway right-of-way across one of the tracts. The purpose of the offer was to show that the value of the tract was reduced by reason of the existence of the easement. The trial court excluded the proffered exhibit on the ground that no such easement had been mentioned in the pleadings.
This ruling was correct. Written pleadings are required so that each party may know what issues are to be tried and may thus be in a position to enter the trial with his proof in readiness. Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439. A failure to plead a material matter is prejudicial to the opposing party if it puts him at an unnecessary disadvantage in the presentation of his case.
That was the situation here. County court orders such as this one are entitled to a presumption of validity. Bollinger v. Ark. State Highway Comm., 229 Ark. 53, 315 S. W. 2d 889. Nevertheless we know that in a great many instances the order can be successfully attacked by the landowner. One common defect, mentioned in the Bollinger opinion and in counsel’s objections below, is the county court’s not having been legally in session upon the date of the entry of the order. Another is the fact, referred to in many of our decisions, that the enabling statute is defective in failing to provide for notice to the landowner, so that the order becomes valid only when actual notice is given, as by an entry upon the land. See Miller County v. Beasley, 203 Ark. 370, 156 S. W. 2d 791; Ark. State Highway Comn. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283; Ark. State Highway Comn. v. Cook, 233 Ark. 534, 345 S. W. 2d 632.
It is fair to suppose that the owners of the tract now in question may have been able to produce proof that the county court order was void. They were caught by surprise, however, because the existence of the asserted right-of-way was not mentioned in the condemnor’s pleadings. To the contrary, the complaint alleged, that the tract was owned by Hefley and his wife, and the parties stipulated that the allegations of ownership were correct. There was nothing in the pleadings to warn the Hefleys that the condemnor was relying upon the easement supposedly created in 1930. It would not be fair to permit the plaintiff to profit by the prima facie validity of the county court order without affording the landowners an opportunity to challenge it. We think the trial court acted within its sound discretion in refusing to allow the order to be received in' evidence.
The appellant’s other arguments have to do with the admissibility of evidence. Counsel summarizes fourteen instances in which it is said that improper proof was introduced by the landowners. In six of these instances, however, there was no objection to the testimony. In four others there was a motion to strike all of the particular witness’s testimony. In each of these four eases at least part of the witness’s evidence was admissible; so the motion to strike was correctly denied. St. Louis, I. M. & S. Ry. v. Taylor, 87 Ark. 331, 112 S. W. 745.
We find no prejudicial error in the other four instances. The witness Saunders, a real estate dealer, was familiar with one of the tracts, but at first he did not know exactly what part of it was being taken. To meet this difficulty his testimony was interrupted to allow another witness to explain that a certain number of acres were being taken. It was then proper for Saunders to state a per acre value for the land.
The testimony of Carr, another real estate dealer, is challenged on the ground that he gave no basis for his expert opinion. As we pointed out in Ark. State Highway Comn. v. Johns, 236 Ark. 585, 367 S. W. 2d 436, that opinion was admissible on direct examination. Counsel might have attempted to discredit the witness by showing through cross examination that he had no reasonable basis for his conclusions, but no such effort was made.
Hosea Hefley, in giving his opinion about the value of one tract, was allowed to detail the materials that had gone into the construction of a building upon the property. He did not try to set forth the cost of the materials. This proof was perhaps more detailed than it needed to be, but there was no real objection to the witness’s being permitted to describe the improvements in this way and thereby to explain factors that he had considered in forming his opinion about the fair value of the property.
We find no merit in the other objections that were made to the testimony.
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Paul Ward, Associate Justice.
This appeal conies from an order of the Probate Court admitting to probate the will of John P. TIanel who died at the age of 64 years. The will was offered for probate by the deceased’s sister, Charlotte Springle, and it is being contested by appellant who is the deceased’s brother.'
John P. Hanel, who had worked as a farm hand for more than 40 years for Miss Lillian Howell and her sister, Miss Nettie Howell, had accumulated real and personal property to the extent of approximately $30,000. He left no direct descendants; but he did leave three surviving sisters and the appellant, a brother. At the time of his death the deceased lived in the home of the Howell sisters.
In April, 1962 when Hanel became ill it was arranged for him to go to the hospital. Before leaving home, he signed the paper which was later probated as his will. After his death in January, 1963 this paper was found among his private papers in the Howell home, and it reads as set out below.
“After expenses are paid, cash to be divided to my sisters, Lottie, Josephine and Marie and Bonds 9 (1000) H, 6 (1000), 1 (500) G. Bonds, 1 (1000), 1 (500) E. Bonds, also $2,000.00 postal savings. Divide my land to my three sisters.
“My car and cattle go to Howells.
/s/ John P. Hanel”
“Witness
/s/ Nettie Howell
/s,/ Lillian W. Howell”
Urging a reversal, appellant relies on the three separate grounds hereafter set out and discussed.
One. It is first argued: “There -is no proof that John P. Hanel wanted to make a will in April, 1962, when the proffered instrument was prepared.” After hearing all the testimony the trial court found that the deceased “. . . intended the aforesaid instrument to be his last will and testament.” We think the evidence clearly supports that finding. The unquestioned and uncontradicted testimony of Lillian Howell, 71 years old, and Nettie Howell, 69 years old, was to the following effect: while Hanel was packing his bag to go to the hospital Nettie asked him if he had made a will. His reply was that he had started to do so several times but never had. Following that, he got a list of all his assets and gave the list to Nettie as she wrote out the instrument in question. When he was asked about his brother, Rudolph, he replied: “Rudolph has got all of my money that I want him to have. If I gave him any, he would drink it up.” Nettie and John (deceased) both used the word “will” during the discussion preceding the signing by the deceased and the sisters.
In the complete absence of any suggestion or contention that the deceased intended to do otherwise than to execute a will, we must conclude that the trial court’s finding is supported by the weight of the evidence.
Two. We can see no merit in appellant’s contention that “The proffered instrument contains no testamentary provisions.” It is true, of course, that the instrument contains no such words as “devise” and “bequeath” which are often found in many mils, but, as we have often pointed out, such formalities are not necessary to the validity of a will.’ In the early case of Arendt v. Arendt, 80 Ark. 204, 96 S. W. 982, this Court in approving a will in the form of a letter written by the deceased to his wife, said:
“This will is in the form of a letter from William Arendt to his wife. But, to quote the language of a distinguished author, ‘the law has not -made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and if this appear to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded.’ ”
See also the case of Cartwright v. Cartwright, 158 Ark. 278, 250 S. W. 11, where we again held a letter to be a will, using this language: “If the offered instrument is testamentary in effect, its particular form is unimportant . . . .”
See also 57 Am. Jur. Wills § 7 (1948), where we find:
“Tlie question whether or not a particular writing is testamentary depends on the dispositions which it makes, and not on the form of the instrument, the use of legal or conventional terms, or the name by which it is designated. ’ ’
In the instrument under consideration the deceased did not use the conventional words “give and bequeath to my sisters”, but instead he used the words “to be divided to my sisters”. The latter wording leaves no doubt in our minds that the deceased meant for his sisters to have his property.
Three. Finally, it is insisted that “The proffered instrument Avas not executed with the formalities required by Arkansas laAv for a avíü”. This contention is based on the language used in Ark. Stat. Ann. § 60-403b (Supp. 1961) and the testimony of the Howell sisters. The above sub-section reads: “The attesting Avitnesses must sign at the request and in the presence of the testator”.
It is admitted that the tivo HoAvell sisters signed the instrument in the presence of the deceased but it is contended that they did not sign ‘ ‘ at the request of the testator”. It is true that AAdien each of the sisters Avas asked if the deceased specifically requested her to sign the instrument, the answer Avas that he did not. Although it appears from the above that, technically, there was a non-compliance Avith the provisions of the statute, we are convinced there Avas a substantial compliance under the facts and circumstances of this case. There can be no doubt that the deceased understood he was making a Avill. He Avas asked if he Avanted to make a will, and his actions showed that he did; he Avas ill and was leaving for the hospital at the time; he AAras asked if he Avanted to leave any property to his brother, and he explained AAdiy he did not; and, AArhen he signed the instrument the tAvo sisters Avere in the room Avith him and he saAv and permitted them to sign as AAdtnesses.
It would be a strict, if not indeed a dangerous, construction of the statute to require proof that the testator must make a specific request of each witness to sign his name to a wall to make it valid. If the strict construction ■of the statute here advocated by appellant were approved, it could, in all probability, invalidate many walls heretofore drawn by competent and careful attorneys. The purpose of the law relative to the execution of walls is and should be to protect testamentary conveyances against fraud and deception and not to impede them by technicalities. In the case of Anthony v. College of the Ozarks, 207 Ark. 212, 180 S. W. 2d 321, in construing the same statute here involved, we said (quoting Rogers et al v. Diamond, 13 Ark. 474):
‘ ‘ ‘ The policy of the statute is to guard against frauds in the execution of wills, so often made under circumstances when the testator is liable to be imposed upon, or unduly influenced ....
■ The fact of publication, therefore, is to be inferred or not, from all the circumstances attending the execution of the will.’ ”
Also, in this early case of Rogers et al v. Diamond, supra, 487, this Court, in construing this same portion of the statute said:
“, . . each of the attesting wdtnesses must sign his name as a witness, at the request of the testator, but such request might be inferred from the attendant circumstances in proof by signs or gestures as well as words . . . .” (Emphasis added.)
The above quoted statement was approved in McDaniel, ad. v. Crosby, et al., 19 Ark. 533, and also in Leister v. Chitwood, 216 Ark. 418, 423-424, 225 S. W. 2d 936.
In our opinion, the facts and circumstances revealed above amply sustain the action of the trial court in admitting subject instrument to probate as the last will and testament of John P. Hanel.
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Per Curiam.
On April 13, 1994, by an unpublished opinion, we affirmed appellant’s conviction of two counts of aggravated robbery. On June 13, 1994, forty-one days after our mandate issued May 3, 1994, appellant’s attorney filed this motion for an attorney’s fee.
Motions for attorney’s fees from attorneys appointed to represent indigent appellants in criminal cases are required by Ark. R. Sup. Ct. 6-6(c) to be filed not later than thirty days after issuance of the mandate. Heretofore we have exercised our discretion to consider such motions for attorney’s fees filed significantly later than thirty days after the mandate issued. However, by per curiam opinion delivered October 13, 1993, we gave notice that we would no longer consider motions for attorney’s fees filed more than sixty days after our mandate issues. Houston v. State, 43 Ark. App. 167, 856 S.W.2d 326 (1993). Because appellant’s motion for an attorney’s fee in this case was filed within sixty days after issuance of our mandate we will grant the motion.
This opinion is being published as notice to the bar that hereafter, consistent with Rule 6-6(c), we will no longer consider motions for attorney’s fees filed more than thirty days after our mandate issues unless good cause for delay in filing the motion is presented.
The motion for attorney’s fee is granted in the amount of $650. | [
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John B. Robbins, Judge.
On February 4, 1993, appellant Robert Gadberry was found guilty before a jury of sexual abuse in the first degree and was sentenced to five years in the Arkansas Department of Correction. On appeal it is argued that the court erred in: (1) allowing the state to introduce testimony from the criminal investigator concerning statements made by the victim; (2) allowing a social worker to stand next to the victim while she testified; (3) allowing into evidence testimony about other acts allegedly committed by the appellant; (4) denying appellant’s motion for a directed verdict; and, (5) allowing two counts of sexual abuse to go before the jury.
The fourth argument raised in appellant’s brief is that the trial court erred in denying his motion for a directed verdict based on insufficiency of the evidence. Under the rationale of Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992), we review the sufficiency of the evidence prior to a review of trial errors. In a challenge to the sufficiency of the evidence we must determine whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other passing beyond suspicion and conjecture. Id. In determining whether there is substantial evidence to support the jury’s verdict, it is permissible to consider only that testimony which tends to support the verdict of guilt. Winters v. State, 41 Ark. App. 104, 848 S.W.2d 441 (1993).
In this case appellant was charged with violating Ark. Code Ann. § 5-14-108(a)(3) (1987), which provides:
(a) A person commits sexual abuse in the first degree if: # * *
(3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.
Arkansas Code Annotated § 5-14-101(8) defines sexual contact as any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.
The seven-year-old victim in this case testified that appellant touched her on her privates through her clothing. The victim testified that she asked appellant to stop but he would not leave her alone. She further testified that appellant had “tickled” her before, but this touching was different from the tickling.
Jim Carr, a criminal investigator with the Marion County Sheriff’s Department, testified that he interviewed the victim after the alleged incidents. Carr testified that the victim stated appellant touched her in her private area on two occasions. When asked what her private area was, the victim indicated to him that it was her crotch area.
During the course of the investigation Investigator Carr took a statement from the appellant after he signed a rights form and initialed beside each listed right. In the statement appellant admitted rubbing the victim’s “back part” for a “few minutes.” In the statement appellant admitted to touching both the seven-year-old victim and her younger sister on their “private parts.” Based on the above, we find that there was sufficient evidence for the jury to convict appellant of sexual abuse in the first degree.
As his first argument appellant contends that “the trial court erred in conducting a hearing pursuant to Rule 804(b)(7) of the Arkansas Rules of Evidence without the child testifying although she was in the courthouse and by not allowing the [appellant] to put on any witnesses concerning the child’s truthfulness.” Appellant contends that it was error to allow the criminal investigator, Mr. Jim Carr, to testify at trial as to statements made by the victim because the Rule 804(b)(7)(A) hearing was improperly con ducted and because Rule 804(b)(7) was inapplicable inasmuch as the child-victim was available and in fact testified at the trial.
The Rule in question, Rule 804(b)(7) of the Arkansas Rules of Evidence, provides:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: «Í»
(7) Child hearsay in criminal cases. A statement made by a child under the age of ten (10) years concerning any type of sexual offense against that child, where the Confrontation Clause of the Sixth Amendment of the United States is applicable, provided:
(A) The trial court conducts a hearing outside the presence of the jury, and, with the evidentiary presumption that the statement is unreliable and inadmissible, finds that the statement offered possesses sufficient guarantees of trustworthiness that the truthfulness of the child’s statement is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. The trial court may employ any factor it deems appropriate including, but not limited to those listed below, in deciding whether the statement is sufficiently trustworthy.
1. The spontaneity of the statement.
2. The lack of time to fabricate.
3. The consistency and repetition of the statement and whether the child has recanted the statement.
4. The mental state of the child.
5. The competency of the child to testify.
6. The child’s use of terminology unexpected of a child of similar age.
7. The lack of a motive by the child to fabricate the statement.
8. The lack of bias by the child.
9. Whether it is an embarrassing event the child would not normally relate.
10. The credibility of the person testifying to the statement.
11. Suggestiveness created by leading questions.
12. Whether an adult with custody or control of the child may bear a grudge against the accused offender, and may attempt to coach the child into making false charges.
(B) The proponent of the statement gives the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
(C) This section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable rule of evidence. [Amended by Per Curiam dated May 11, 1992.]
At the pretrial hearing on this matter the state alleged that the child victim was unable to remember everything which occurred in the same detail as when she spoke to Investigator Carr. The victim did not testify during the pretrial hearing. Although it would have been well had the child testified at this pretrial hearing, the rule does not require it. Mr. Carr testified to the trustworthiness of her statement. He testified that the child’s answers were spontaneous, “there was not hesitation in her answer.” Other factors to which Carr testified indicating trustworthiness included: no difficulty in remembering; no bias against appellant; no leading questions were asked; and the terminology used to indicate the area appellant touched.
Appellant contends that the pretrial hearing was improperly conducted because he was not permitted to call the child-victim’s mother as a witness. When appellant advised the court that he wished to call the mother to testify the court inquired as to what her testimony would be. Appellant responded that the mother would testify that the victim talked to her about a single pinching incident and never related anything about something hap pening to her brother or sister. The court stated that such testimony would not affect its decision because the fact that the alleged victim only made a limited statement initially is typical in cases of sexual abuse of children. The appellant did not then attempt to call the mother to testify.
Appellant’s additional argument under this point is that the Rule 804(b)(7) hearsay exception is inapplicable because Rule 804 exceptions only apply if the declarant is “unavailable.” Here, not only was the child-victim/declarant available to testify, the child actually testified. However, Rule 804(a)(3) defines “unavailability as a witness” to include a declarant who testifies to a lack of memory of the subject matter of his statement. See David v. State, 269 Ark. 498, 601 S.W.2d 864 (1980). The child-victim testified that appellant touched her privates through her clothing on two occasions but could not recall when this occurred, nor the details of the second touching. Investigator Carr testified that the victim related to him that these two incidents occurred once in appellant’s home and once in the victim’s home, and that these events occurred sometime after Christmas, 1991.
If a witness has only a partial recollection, the witness may be partially unavailable. In McCormick on Evidence, 4th ed., § 253, p. 130-131 (1992) it is stated:
Preliminarily it may be observed that while the rather general practice is to speak loosely of unavailability of the witness, the crucial factor is actually the unavailability of his testimony. As will be seen, the witness may be physically present in court but his testimony nevertheless unavailable.
McCormick goes on to provide that if the forgetfulness is only partial, the appropriate solution would be resort to present memory to the extent of recollection, supplementing with the hearsay testimony to the extent required. Id. at 133.
We conclude that the victim was partially “unavailable” due to her lack of memory. The trial court found the victim’s statement introduced through Investigator Carr was trustworthy and met the requirements of Rule 804(b)(7). A trial court’s rulings on matters pertaining to the admission of evidence is within the judge’s discretion. His rulings will not be set aside absent an abuse of discretion. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). As pointed out in Duvall v. State, 41 Ark. App. 148, 852 S.W.2d 144 (1993), the danger of the admission of hearsay statements without the opportunity to question the reliability of the assertion is alleviated by the opportunity to cross-examine the declarant. Citing Idaho v. Wright, 110 S. Ct. 3139 (1990). The victim/declarant was subject to cross-examination in this case. Furthermore, the hearsay testimony, although more specific, was duplicative of the victim’s testimony as well as the appellant’s confession, and could be considered harmless error under Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992). We cannot say that the trial judge abused his discretion in allowing investigator Carr to testify as to statements made by the victim.
Appellant alleges for his second point on appeal that the trial court erred in allowing a Department of Human Services social worker to stand next to the victim while she testified. The court overruled appellant’s objection, stating:
The Court has already seen the witness in this case, and can tell how upset and distraught the witness was simply coming into the courthouse. So the Court, just from my own subjective impressions, realizes that this child needs emotional support, certainly as does any victim, but probably more than the typical victim in a case such as this. So I’m going to allow the DHS worker to stand there beside the witness chair.
Arkansas Rules of Evidence Rule 616 states:
Rule 616. Right of victim to be present at hearing. — Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim’s parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.
The Department of Human Services had custody of the victim at the time of appellant’s trial and had the right to have its representative present in the courtroom during the trial under the above rule. In the case of Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993), the mother of a victim was allowed to accompany her child to the witness stand. As in Wallace, the social worker accompanying the victim to the witness stand is of no consequence since appellant has not shown that any prejudice resulted. Prejudice will not be presumed and we do not reverse absent a showing of prejudice. Id.
Several other jurisdictions have allowed similar seating arrangements in cases involving minor victims who testify about sexual abuse. See Boatwright v. State, 385 S.E.2d 298 (Ga. App. 1989)(defendant’s rights not violated when foster parent of child victims allowed to stand behind children during their testimony); Strangers. State, 545 N.E.2d 1105 (Ind. App. 1 Dist. 1989)(pres-ence of silent supportive adult seated behind child witnesses was not inherently prejudicial and did not violate due process rights); State v. Rogers, 692 P.2d 2 (Mont. 1984)(no prejudice shown where child witness permitted to testify while sitting on the prosecuting attorney’s lap); State v. Johnson, 528 N.E.2d 567 (Ohio App. 1986), cert. denied, 498 U.S. 826 (1990)(trial judge did not err in permitting eight-year-old victim to testify while sitting on aunt’s lap); State v. Dempier, 764 P.2d 979 (Or. App. 1988)(trial court entitled to permit child victim to testify while sitting on foster mother’s lap); Commonwealth v. Pankray, 554 A.2d 974 (Pa. Super. 1989)(trial court did not abuse its discretion by permitting child witness to sit in grandmother’s lap while testifying — no prejudice shown); Mosby v. State, 703 S.W.2d 714 (Tex. App. 13 Dist. 1985)(a guardian ad litem who was seated behind child witness during child’s testimony did not affect jury’s assessment of the witnesses’ credibility); State v. Hoyt, 806 P.2d 204 (Utah App. 1991)(witness of tender years may be accompanied to witness stand by an adult to ease the inherent emotional turmoil of testifying); State v. Jones, 362 S.E.2d 330 (W.Va. 1987)(no prejudice shown in allowing seven-year-old victim to testify while sitting on foster mother’s lap).
Appellant’s third point on appeal is that the trial court erred in denying his motion in limine and allowing into evidence testimony concerning other acts allegedly committed by the appellant. During the trial the victim and Investigator Carr testified about appellant improperly touching the victim’s siblings. This testimony was admissible under the rationale of Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), where the supreme court stated:
[W]e will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing ‘a proclivity toward a specific act with a person or class of persons with whom the accused has a intimate relationship.’
Id. at 71, quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Appellant’s third point is without merit.
Appellant’s final point on appeal is that the trial court erred in allowing two counts of sexual abuse to go to the jury when there was insufficient evidence to support one of the charges. Again, appellant alleges prejudice but fails to identify it. Appellant also fails to cite any authority for this alleged error. We do not consider assignments of error that are unsupported by convincing argument or authority. Womack v. State, 36 Ark. App. 133, 819 S.W.2d 306 (1991).
Affirmed.
Jennings, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Judge.
This is the second appeal of this Workers’ Compensation case.
The initial claim was brought by appellee Mary Reddick who alleged she sustained a compensable injury on October 11, 1988, when she slipped and fell while leaving the premises of an apartment that she was cleaning. The appellants, Jenny’s Cleaning Service, and its carrier, Wausau Insurance Company, controverted the claim for workers’ compensation alleging the appellee was the sole proprietor of Jenny’s Cleaning Service and not a covered employee under the Workers’ Compensation Act, and it was stipulated that no filing was made with the Commission to elect coverage for her as the owner of Jenny’s Cleaning Service.
After a hearing, held August 28, 1989, an administrative law judge held that the appellee was not a covered employee because she failed to file with the Commission written notice of her election to be included in the definition of “employee” as required by Ark. Code Ann. § 11-9-102(2) (1987). In an opinion filed June 15, 1990, the Commission found that the appellee was a covered employee, and the law judge’s decision was remanded for a determination of whether the appellee sustained a compensable injury and, if so, the benefits to which she was entitled. The appellants appealed to this court, and in an unpublished opinion handed down June 12, 1991, we dismissed the appeal on the holding that orders of remand are not appealable orders.
On remand, after a hearing held January 21, 1992, an administrative law judge found that appellee sustained a com-pensable injury on October 11, 1988; that she was entitled to temporary total disability benefits at a compensation rate of $20.00 per week for a period commencing October 11, 1988, and continuing through January 16, 1990; and that she had sustained a 20 percent physical impairment to the body as a whole but had no wage-loss disability because she was “now making wages which is obviously more than when she was working for Jenny’s Cleaning Service.” In an opinion filed November 24, 1992, the Commission affirmed and adopted the opinion of the law judge.
The appellants appeal from the June 1990 and November 1992 opinions of the Commission contending: (1) the Commission erred as a matter of law in determining it was not necessary for the appellee to make a formal written election for Workers’ Compensation coverage; and (2) the Commission’s finding that the appellee had substantially complied with Ark. Code Ann. § 11-9-102(2) and was a covered employee was not supported by substantial evidence. The appellee has filed a cross-appeal contending that the Commission’s finding that she was not paid a wage was not supported by substantial evidence.
We affirm on appeal and reverse on cross-appeal.
The record on appeal consists of the transcript of the first appeal to this court as well as the transcript of the hearing after remand. The record contains testimony given by the appellee and her fourteen-year-old granddaughter, Jenny Sigmon; the appellee’s daughter, Maxine Alvard (who is the mother of Jenny Sigmon); Pamela Sue Fuller, an insurance agent; and Patsy Doss, who ran a cleaning service for which the appellee had previously worked.
The appellee, a 70-year-old woman who had completed two years of high school, started Jenny’s Cleaning Service in September 1987. Jenny’s Cleaning Service was a sole proprietorship which employed the appellee and Maxine Alvard. Prior to September 1987, appellee worked for Patsy Doss the operator of Town and Country Cleaning, a cleaning service that cleaned newly constructed buildings for MCO. When Town and Country went out of business, Jenny’s Cleaning Service took over cleaning for MCO, which required their subcontractors to carry workers’ compensation insurance or allow a percentage to be taken from their checks to cover workers’ compensation insurance under MCO’s policy.
On September 16, 1987, appellee made application for workers’ compensation insurance with Pamela Fuller. The applica tion, which did not elect coverage for a sole proprietor, listed Jenny’s Cleaning Service as the employer, and Jenny Sigmon was listed as the “proprietor/officer, overseer” with an approximate annual salary of $10.00. The application also stated that the business had two employees and a total payroll of $8,500.00. The application bore the “signature” of Jenny Sigmon, but was actually signed by the appellee who signed the name “Jenny Sig-mon.”
There is some dispute as to whose idea it was to set up the business in Jenny’s name. The appellee testified that Patsy Doss told her to use “Jenny’s Cleaning Service” to set up the business and appellee would be covered. Maxine Alvard testified that appellee talked with her and said that the insurance agent, Pamela Fuller, said if it was set up in Jenny’s name and used her social security number, then Jenny could be the sole proprietor and both Maxine and appellee would be covered if one of them got hurt. Pamela Fuller testified that the appellee gave her the information that Jenny was the proprietor and told her to set up the business in that manner. Patsy Doss testified that she explained to the appellee how to set up the business and that she had set her business up in the name of her five-year-old daughter.
On this evidence, the law judge held the appellee was not an employee of Jenny’s Cleaning Service within the meaning of the Arkansas Workers’ Compensation Act and was not entitled to benefits under the Act because she had failed to file written notice with the commission of an election to be included in the definition of employee as required by Ark. Code Ann. § 11-9-102(2).
The 1990 opinion of the full Commission reversed the decision of the law judge and remanded the case to him. The Commission stated:
It is obvious to us that what took place was a comedy of errors rather than a deliberate attempt to defraud on the part of anyone. Ms. Doss told Ms. Reddick that she had had her own cleaning service set up in the name of her daughter because she was divorced and wanted to provide security for the child. Someone mentioned the arrangement to Pam Fuller, who had an office in the same building as Patsy Doss. Ms. Fuller had only sold 3 or 4 workers’ compensation policies, and it appears that she was not well versed in the subject. She and Ms. Reddick seem to have thought that the premium would be lower that way. Ms. Fuller checked a policy manual and could not find a minimum age for an owner of a business. She therefore set up the policy in the manner that was suggested by Patsy Doss, deferring to Mrs. Doss’ “expertise.”
There can be no doubt that the designation of Jenny Sigmon as the owner was a subterfuge and that Mary Lois Reddick was the true owner and sole proprietor of Jenny’s Cleaning Service. However, we can find no dishonest intent in her action; rather, she was merely following suggestions of the previous owner and of an insurance agent. The application for insurance that she completed named Lois Red-dick as an employee and truthfully showed a token annual salary ($10) for Jenny Sigmon. Mary (Lois) Reddick testified that Jenny did help her mother and grandmother clean a few times and that she was paid a small amount of money. Mary Reddick’s draw from the operating account, however, was included in the payroll that she reported to the insurance company. There can be no doubt that she intended herself to be a covered employee. Pam Fuller had the same intention and knew that Mary Reddick was one of the two employees listed for the business. Furthermore, the premium was computed upon her salary. We therefore find that she was in substantial compliance with Section 102(2) and that it was unnecessary for her to file a formal A-18.
We think it important to note that Jenny’s Cleaning Service, which cleaned for MCO, was subject to the Workers’ Compensation Act by virtue of being a subcontractor employing one or more employees. Ark. Code Ann. § 11-9-102(3)(D) (1987).
Appellants argue that the Commission’s finding that the appellee intended herself to be a covered employee and therefore substantially complied with the statute is not supported by the evidence. They contend the money drawn by the appellee was not included in the payroll reported to the insurer; that the evidence in the record supports anything but a “comedy of errors”; and that appellee is a shrewd conniving person with a fraudulent scheme to obtain coverage without paying additional premiums. We think there is substantial evidence to support the Commission’s version of the situation.
In the first place, Ms. Fuller testified that the appellee told her there would be two employees and that Jenny would not be doing any cleaning and did not need to be covered. Moreover, the copy of the application for insurance which is attached to Ms. Fuller’s deposition lists the number of employees as “2” and at bottom of the front page of the application it is written “Lois Reddick-Employee(grandmother of owner).” In the second place, Ms. Alvard testified that Ms. Fuller told them to set the company up in that way so that both the appellee and Ms. Alvard would be insured. Finally, appellee testified that she went in to see Ms. Fuller who filled out an application, and both of them signed it. Appellee said that before she paid Ms. Fuller she asked “Will I be covered?” and Ms. Fuller responded if she set it up under Jenny’s Cleaning Service she would be covered. The appellee said, “And I asked her three times.”
Therefore, under the evidence we cannot say the Commission’s finding that appellee intended herself to be a covered employee, that Ms. Fuller had the same intention, and that Ms. Fuller knew appellee was one of the two employees listed for the business is not supported by substantial evidence.
Nor do we agree with the appellants’ contention that the Commission erred in finding that the money drawn from the business by the appellee was included in the payroll. The application for insurance states that the “Total Payroll Basis” is $8,500.00. In addition, the information page of the policy for the period 09-16-87 to 09-16-88 shows a “Total Estimated Annual Remuneration” of $8,500.00 upon which the premium of $411.00 is based. The business ledgers of Jenny’s Cleaning Service for the period October 1987 through September 1988 reflect that Jenny’s Cleaning Service received approximately $9,000.00 in gross income. From the other evidence in the record it is evident that Jenny’s had at least $500.00 in expenses. Indeed, appellee paid a premium of $411.00 for workers’ compensation insurance coverage. Therefore, the amount available to the appellee for payroll and her “draw” could not have exceeded $8,500.00, and there is evidence to support the Commission’s finding that the appellee’s “draw” from the operating account was included in the payroll she reported to the insurance company.
Moreover, even if the initial premium was incorrectly computed, the insurer has the right to adjust the premium if more premium is owed. The policy itself states that the premium basis is subject to verification and change by audit. Indeed, the renewal policy for the period 09-16-88 to 09-16-89 reflects an increased total estimated annual remuneration of $8,925.00 and an estimated annual premium of $541.00.
Appellants also argue that the Commission erred as a matter of law when it held it was not necessary for appellee to make a formal written election for workers’ compensation coverage.
Arkansas Code Annotated § 11-9-102(2) (1987), provides:
“Employee” means any person, including a minor, whether lawfully or unlawfully employed in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his employer. The term “employee” shall also include a sole proprietor or a partner who devotes full time to the proprietorship or partnership and who elects to be included in the definition of “employee” by filing written notice with the Workers’ Compensation Commission.
The form established by Commission regulations for such a filing is called an “A-18.”
Appellants argue that the appellee cannot be covered because, although the name of the business was in Jenny Sigmon, appellee was the sole proprietor and she failed to make a written election of coverage.
The Arkansas Supreme Court has not decided the question of whether filing the A-18 form with the Commission is essential as a matter of law for coverage under the Act. In Gilbert v. Gilbert, 19 Ark. App. 93, 717 S.W.2d 220 (1986), a three-judge panel of this court thought it was essential. (See the last paragraph of the opinion at 19 Ark. App. 96, 717 S.W.2d 222.) However, on rehearing three judges of the court did not agree. 19 Ark. App. 96B-96F, 719 S.W.2d 284. On review by the Arkansas Supreme Court, Gilbert v. Gilbert, 292 Ark. 124, 728 S.W.2d 507 (1987), the court did not reach the issue of whether the filing of the A-18 form with the Commission was essential, but citing 4 Larson, The Law of Workmen’s Compensation, § 92.25 (1993), the court said there is some authority for the view that filing the form is not essential. 292 Ark. at 128, 728 S.W.2d at 509. The reason our supreme court did not reach the issue of whether filing the form is essential was because it said “even if Gilbert had filed, and was eligible for coverage under the Act, insurance coverage was never obtained.” Id.
Thus, the holding of the court of appeals as to essentiality of filing the form was not necessary to its decision because, as held by the supreme court, even if the form had been filed — no insurance had been obtained. A slightly different situation was involved in INA/Cigna Insurance Co. v. Simpson, 21 Ark. App. 222, 772 S.W.2d 353 (1989), where this court held it was not necessary to decide whether the filing of the form was essential because we affirmed the Commission’s finding that the insurance carrier who had collected premiums for four years on a policy that provided coverage for the proprietor was estopped to deny that such coverage existed. Therefore, the question of whether the filing of the form is essential for coverage of the proprietor of the business has not been decided where a policy has been issued which provides for such coverage.
The question of whether sole proprietors are employees was discussed in Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988), but the issue involved here was not involved there. In that case, the issue was whether the appellee-employer was subject to the Workers’ Compensation Act and the issue turned on the question of whether the appellee’s motel had three or more employees regularly employed in the same business. The Commission held the appellee was not subject to the act because he did not have the requisite number of employees. We affirmed the decision of the Commission because the appellee had not filed an election with the Commission to be included in the definition of employee. Therefore, that case is different from the instant case where the appellee wants to be an “employee” covered by workers’ compensation insurance, and the policy so provides.
Thus, the question here is whether the appellee, who wanted to be covered by workers’ compensation insurance and obtained a policy for that purpose, necessarily had to file an A-18 form in order to be a covered employee. The appellants contend the filing of the A-18 form is mandatory. Under the circumstances of this case, we do not agree. As our supreme court said in Gilbert, supra, Larson does not agree. The section of his treatise referred to in Gilbert concludes with a discussion of the case of Carter v. Associated Petroleum Carriers, 235 S.C. 80, 110 S.E.2d 8 (1959), where Larson, in agreeing with the dissent in that case, states:
The dissent stressed that the compensation system, including election provisions, is for the benefit of employer and employee — and here both intended coverage. This coverage, in the dissent’s view, should therefore not be thwarted for the benefit of the carrier. The majority’s opinion seems to rest almost entirely on the assumption that the statute, by specifying one means of electing coverage, thereby rules out all other means. This seems to be an unnecessarily narrow interpretation. Suppose it were crystal clear, on the facts, that the employer and employee had chosen coverage, and suppose a policy of insurance had in fact been issued and had been in force for several years. Should the entire expectation of the parties be shattered and the purpose of the system thwarted merely because a method of election was not used which the statute says the employer “may” use? If the answer is “no,” the result should not in principle be different because the insurance was oral, or because the thirty-day period applicable to the statutory method of election had not expired.
4 Larson, The Law of Workmen’s Compensation, § 92.25 at 17-23 and 17-24 (1993).
We agree with Larson’s reasoning. In our case, the appellee wanted to be covered; Ms. Fuller knew appellee wanted to be covered; and appellee purchased a workers’ compensation insurance policy and paid the required premium based upon a total payroll that included the amount appellee received from the business. Under these circumstances, we cannot find that the Commission erred in determining the appellee had substantially complied with our statute.
Finally, on this point, we note that the policy as written lists Jenny Sigmon as the proprietor and states that the sole proprietor does not wish to elect coverage; however, the appellee would be covered if she were an employee, and appellee believed she was covered as an employee. But, the insurer argues “the truth” of the matter is that the appellee, not Jenny, was the “true owner” and therefore the appellee was not covered. If “the truth” of the matter is that appellee is the “true owner,” the truth of the matter also is that the “true owner” wished to elect coverage and did so by obtaining the policy of insurance which provides that she is covered as an employee. We also point out that the authority of Ms. Fuller to take the action taken by her is not questioned by the appellant. Indeed, the appellant relies upon Ms. Fuller’s knowledge that the appellee was the owner of the business.
On cross-appeal, the appellee argues the Commission erred in finding she was not entitled to wage loss-disability because she was earning more wages after her injury than she had before. The law judge’s opinion, which was adopted and affirmed by the full Commission, states:
In that regard, the claimant is unable to prove that she was paid a wage. The claimant is unable to show that she reported any income to the IRS as a result of her activities for Jenny’s Cleaning Service.
The record, however, contains appellee’s 1988 federal tax return. Although line 7 of appellee’s Form 1040 shows no wages, Schedule C of that return shows that Jenny’s Cleaning Service is the business of appellee and reports a net profit of $3,039.00; and the appellee’s Form 1040 shows payment of $396.00 self-employment tax. Under the authority of Soltz Machinery & Supply Co. v. McGehee, 208 Ark. 747, 187 S.W.2d 896 (1945), we think the profits from Jenny’s Cleaning Service should be considered as wages. The opinion of the Commission does not deal with this point and we cannot tell whether it was considered by the Commission.
We therefore reverse the Commission on this issue and remand for a new determination, in keeping with this opin ion, of appellee’s wage rate and any loss-of-earnings disability sustained by her.
Affirmed on appeal; reversed and remanded on cross-appeal.
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James R. Cooper, Judge.
The appellee in this probate case, one of the executors of the estate of Charles Tucker, filed a petition to establish the estate’s ownership of certain real property in Pope County. The appellant, who is the decedent’s sister, responded to the petition by arguing that the unrecorded deed upon which the estate’s claim was founded was never delivered. After a hearing, the probate court entered an order holding that title to the tract of land belonged to the decedent’s estate. From that decision, comes this appeal.
For reversal, the appellant contends that the probate court lacked jurisdiction; that the relief afforded was outside the scope of the pleadings; that there was insufficient evidence to support a finding that the decedent did not intend to convey ownership of the property to the appellant; and that the probate judge erred in refusing to allow the testimony of Mary Ann Creemer. We find no error, and we affirm.
The record shows that Charles Tucker, the decedent, gave a recorded deed to the disputed property to the appellant in March 1982. On the same day,, the appellant gave a deed to the same property to Charles. The latter deed was not recorded and, after Charles’ death, it was found in a safe deposit box to which the appellant and Charles had access.
Charles died in March 1992, and his 1991 holographic will was admitted to probate. In this will, Charles stated:
I would like for the home place and the Ted Martin place to be sold within a year, the money from these two places and the cattle and the money in the Bank is for a trust fund for Lucille. The interest from this money will pay for someone to take care of Lucy. . . . After Lucy [sic] death this trust fund is to be divided equal [sic] between my children June and her four children ten equal parts.
The appellee, Lyle Robert Titterington, one of the co-executors of the estate, filed a petition to establish the estate’s ownership of the property in the probate court. The appellant responded by arguing that the unrecorded deed was never delivered.
At trial, the appellee testified that in 1969 he came to live with his aunt, June Eubanks, who lived with the decedent. Without objection by the appellant, the appellee testified that there was no question that Charles believed the property was absolutely his; that Charles had paid the taxes on the property; had made improvements on it without anyone’s permission; and had lived there and treated the place as his own for years. The appellee also testified that the appellant never exhibited any conduct consistent with her claim of ownership. Also without objection by the appellant, the appellee testified that June had mentioned that, after Charles’ first heart attack, he had put all of the property into Lucy’s name and that he believed that Charles had created these deeds so that his V.A. benefits would not be disturbed. The appellee further testified that, in February 1992, he and Charles went through the provisions of Charles’ will together. He stated that Charles told him the property had been put into Lucy’s name but there was an unrecorded deed conveying the property to him in a lock box. The appellee testified that it was his belief that Charles did not want the appellant to have outright title to the property.
June Eubanks testified that the family regarded Charles as the owner of the property. She testified that Charles had a key to the safe deposit box and that, a day or two before he died, he told her that he needed to go there, get the deed out, and have it recorded. She stated that the appellant did give Charles a recorded deed to the southern forty acres of the tract of land for no consideration; this deed was recorded in 1984. She also testified that she believed the deeds had been created so that Charles would be able to continue to draw V.A. benefits. She testified that, before he died, Charles expressed a desire that his property should be sold; that the appellant should get the benefit of this property during her lifetime; and that the remainder should go to his other beneficiaries.
Mary Ann Creemer testified that Charles had told her that the home place was in Lucy’s name so that it would stay in the family and that he considered it to be Lucy’s property. At this point, the court sustained the appellee’s objection to Ms. Creemer’s testimony because the appellant had not listed her as a witness.
On May 14, 1993, after explaining in a letter decision that he believed Charles had never intended to convey the property to appellant, the probate judge entered an order finding that the property belonged to the estate.
For her first point on appeal, the appellant argues that the probate court was without subject matter jurisdiction to determine title to the real property because, even though the appellant was a beneficiary of Charles’ will,'she was not acting in that capacity by asserting her claim to this property. Therefore, she argues, she was a stranger to the estate and the appropriate jurisdiction for this action was in chancery.
The jurisdiction of the probate court is set forth in Ark. Code Ann. § 28-1-104 (1987), which states in part: “(a) The probate court shall have jurisdiction over: (1) The administration, settlement, and distribution of estates of decedents; (2) [t]he probate of wills....” Probate court is a court of limited jurisdiction and has only such jurisdiction and powers as are conferred on it by the constitution or by statute, or are necessarily incident thereto. Bratcher v. Bratcher, 36 Ark. App. 206, 209, 821 S.W.2d 481 (1991). The probate courts have no jurisdiction to resolve disputes as to property rights between a personal representative and third persons claiming adversely to the estate; persons who are neither heirs, devisees, distributees, nor beneficiaries of the estate are third persons and “strangers” within the meaning of this rule. Id. at 209. Accord Hilburn v. First State Bank, 259 Ark. 569, 572-73, 535 S.W.2d 810 (1976); Ellsworth v. Cornes, 204 Ark. 756, 764-65, 165 S.W.2d 57 (1942); Estate of Puddy v. Gillam, 30 Ark. App. 238, 242, 785 S.W.2d 254 (1990). See also Deal v. Huddleston, 288 Ark. 96, 100, 702 S.W.2d 404 (1986).
Subject matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can be raised by this Court. Hilburn v. First State Bank, 259 Ark. at 576. Accord Arkansas State Employees Ins. Advisory Comm. v. Estate of Manning, 316 Ark. 143, 146, 870 S.W.2d 748 (1994); see Pickens v. Black, 316 Ark. 499, 504, 872 S.W.2d 405 (1994); Arkansas Dep’t of Human Servs. v. Estate of Hogan, 314 Ark. 19, 22-23, 858 S.W.2d 105 (1993).
The appellant argues that Bratcher v. Bratcher, supra, supports her position. We do not agree. In Bratcher, we reversed an order of tibe probate court because it did not have jurisdiction to resolve all of the issues it had determined. There, Norma Jean Bratcher, the surviving spouse of the decedent, had entered into an antenuptial agreement with the decedent in which she had agreed to forego all of her rights as surviving spouse in exchange for a dower interest in the increase in value of the decedent’s ownership interest in two corporations. Before his death, the decedent had sold most of his interest in the two corporations and had transferred the bulk of his assets to a trust benefitting his children by a former marriage; no provision was made for Mrs. Bratcher in that trust. The decedent’s will also left his entire estate to his children and contained no provision for Mrs. Bratcher. She elected to take against the will, and the decedent’s children set up the antenuptial agreement as a bar. The probate court held that the agreement barred her right to take against the will, and she did not appeal from that ruling. Mrs. Bratcher also filed a motion asking the probate court to interpret the antenuptial agreement and that court did so. On appeal, this Court held that the provisions of the order with respect to the tracing of the decedent’s assets and the award to Mrs. Bratcher, calculated on the value of those assets, were wholly outside the jurisdiction of the probate court. This Court noted that the decedent’s will made no provision for Mrs. Bratcher; she had not appealed from the probate court’s holding that she was barred from taking against the will and could not participate in the distribution of the estate as surviving spouse. When Mrs. Bratcher sought interpretation of the antenuptial agreement by the probate court, it was clear that she had no rights as a surviving spouse and was not an heir, devisee, distributee, or beneficiary of the estate. Her action for interpretation of the antenuptial agreement was, therefore, one by a third person or stranger to the estate. Accordingly, this Court held that the probate court lacked jurisdiction to interpret and enforce that agreement.
However, the facts of Bratcher v. Bratcher are distinguishable from the situation presented in this case. Mrs. Bratcher did not appeal from the probate court’s decision that the antenuptial agreement barred her right to take against the will; therefore, she had no rights as a surviving spouse and was not an heir or devisee of the.estate when she sought interpretation of the antenuptial agreement. In the case at bar, however, the appellant is clearly a beneficiary of the will. Furthermore, the will in the case at bar directed that the property be sold in order to create a trust for the appellant’s benefit. Under these circumstances, we hold that the probate court had subject matter jurisdiction in the case at bar.
Without citation to authority, the appellant also argues that only a chancery court could effectuate the equitable remedy sought by appellee. An assignment of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent, without further research, that the assignment of error is well taken. General Elec. Supply Co. v. Downtown Church of Christ, 24 Ark. App. 1, 3, 746 S.W.2d 386 (1988). In any event, the cases discussed above clearly show that the probate court had the power to determine title to this property.
In her second point on appeal, the appellant argues that there are no pleadings to support the relief awarded the appellee. She contends that the delivery of the recorded deed from the decedent to the appellant was never pled as an issue. The appellant correctly states that, ordinarily, there must be pleadings in support of the relief awarded by the court. See Bachus v. Bachus, 216 Ark. 802, 804-05, 227 S.W.2d 439 (1950). Nevertheless, the appellee in the case at bar was permitted to introduce a substantial amount of testimony regarding the parties’ intentions about the actual ownership of this property and the circumstances surrounding the making of the deeds without objection by the appellant. We have held that, although pleadings are required so that each party will know the issues to be tried and be prepared to offer his proof, Rule 15(b) of the Arkansas Rules of Civil Procedure provides that issues not raised in the pleadings, but tried by express or implied consent of the parties, shall be treated in all respects as if they had been pled. Mitchell v. Mitchell, 28 Ark. App. 295, 299, 773 S.W.2d 853 (1989). Under the circumstances of the case at bar, we think that the issue was tried by the implied consent of the parties and that the pleadings should therefore be treated as amended to conform to the proof. See Brown v. Imboden, 28 Ark. App. 127, 129, 771 S.W.2d 312 (1989).
Next, the appellant argues that the evidence does not support the decision of the probate court. We do not agree. In attempting to discern the real character of the transaction evidenced by the deeds, the probate court correctly considered all of the oral and written evidence and properly focused on the intent of the parties in the light of all attendant circumstances. See Bright v. Gass, 38 Ark. App. 71, 78, 813 S.W.2d 149 (1992). In carrying out the true intent of the parties, the probate court properly looked beyond the mere form in which the transaction was clothed and considered all the facts and circumstances, the conduct of the parties, and their relations to one another and to the subject matter. Id. Conclusions regarding the true intent of the parties primarily involve issues of fact. Id. Although probate cases are reviewed de novo on the record, this Court will not reverse the findings of the probate judge unless clearly erroneous, giving due deference to the probate judge’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. O’Flarity v. O’Flarity, 42 Ark. App. 5, 12, 852 S.W.2d 150 (1993). See also In re Estate of Spears, 314 Ark. 54, 59, 858 S.W.2d 93 (1993).
The fact that the appellant’s deed to this property was recorded is not dispositive of this question. In Crowder v. Crowder, 303 Ark. 562, 564, 798 S.W.2d 425 (1990), the Arkansas Supreme Court stated that a presumption of valid delivery of a deed attaches when the deed is recorded. The Court also- stated that, while the recording of a duly executed and acknowledged deed, as well as its being found in the possession of the grantee, raises the presumption of delivery, this presumption is not conclusively established when there is proof of other factors pertaining to the deed which may rebut the presumption. Id. There, the Court stated that a party’s continuing to live in the home and pay taxes, insurance, and maintenance thereon are relevant considerations. Id. at 565-66. Ordinarily, the grantor’s continued use of the property and the payment of taxes on it are evidence that would tend to rebut a claim of delivery. Id. at 566. In light of these considerations, we cannot say that the probate court erred in finding that Charles did not intend to convey ownership of the property to the appellant.
In her fourth point on appeal, the appellant argues, without citation to authority, that the probate court erred in refusing to allow the testimony of Mary Ann Creemer. The essence of the appellant’s argument is that, by waiting to object until after Ms. Creemer had given some testimony, the appellee waived his right to object. We do not agree. It is true that a timely, specific objection at trial is essential in order to afford the trial court an opportunity to rule, Bohannan v. Underwood, 300 Ark. 110, 111, 776 S.W.2d 827 (1989), and that, if an objection is not timely made, it will be considered as waived when the case reaches this Court on appeal. Umberger v. Westmoreland, 218 Ark. 632, 644, 238 S.W.2d 495 (1951). It is likewise true that, for the trial court to have committed reversible error, it must be said that timely and accurate objection was made, so that the trial court was given the opportunity to correct such error. Gustafson v. State, 267 Ark. 830, 837, 593 S.W.2d 187 (Ark. App. 1979). Nevertheless, we think that the appellant in the case at bar has failed to recognize the distinction between waiving an issue for purposes of appeal by virtue of failure to object, and waiver of the right to object at trial. Here, the probate judge was apparently given an adequate chance to correct the error and, thus, no waiver of the right to object occurred. A trial court’s decision regarding whether a witness may give testimony rests largely within the sound discretion of the trial court, and its determination will not be reversed unless that discretion is abused. See Duncan v. State, 38 Ark. App. 47, 53-54, 828 S.W.2d 847 (1992). Under the circumstances, we cannot say that the probate judge abused his discretion in refusing to admit this testimony.
Affirmed.
Jennings, C.J., and Rogers, J„ agree. | [
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Per Curiam.
The appellee in this case has filed a motion to dismiss the appellant’s appeal, contending that the record was not timely filed with the clerk of this court. We agree and dismiss the appeal.
On December 28, 1993, the chancery court of Pulaski County entered its order denying and dismissing appellant’s complaint for specific performance of a contract and awarding appellee an attorney’s fee of $1,000.00. On January 6, 1994, appellant filed a timely notice of appeal from the December 28 order, see Ark. R. App. P. 4(a), and a motion to stay the order pending appeal. Appellant filed the record in this court on May 2, 1994.
Rule 5(a) of the Arkansas Rules of Appellate Procedure provides that the record on appeal shall be filed with the clerk of the appellate court within ninety days of the filing of the notice of appeal, unless the time is extended by timely order of the trial court. Here, the record was not tendered until 116 days after appellant’s notice of appeal. The record fails to disclose that any order to extend the time for filing was ever sought or obtained. Nor has appellant alleged that the late filing resulted from some unavoidable casualty. Under these circumstances, we grant appellee’s motion. See Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991).
Appeal dismissed.
We note that appellant filed a second notice of appeal from the December 28 order on January 31, 1994. Of course, the January 31 notice of appeal was ineffectual, as appellant’s motion for a stay is not one of the limited types of post-trial motions that, under Ark. R. App. P. 4, will extend the time for filing notice of appeal. See Ark. R. App. P. 4 (b); Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993). Moreover, even if the motion l'or a stay were, or were analogous to, one of the motions referred to in Rule 4(b), no written order denying the motion was ever entered. Therefore, a notice of appeal filed prior to the expiration of thirty days after the motion was filed, as appellant’s second notice was here, would be premature and have no effect. See Ark. R. App. 4(c); Phillips Construction Co. v. Cook, 34 Ark. App. 224, 808 S.W.2d 792 (1991); see also Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). | [
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Frank Holt, Associate Justice.
This is a Workmen’s Compensation case in which the claimant-appellee, Bill Steele, seeks total and permanent disability benefits as a result of silicosis. The Referee denied the claim and the Full Commission found the claimant became disabled on January 3, 1961 and awarded compensation for total and permanent disability. The Commission’s award was affirmed by the Circuit Court.
On appeal appellants, Arkansas Coal Company and Commercial Standard Insurance Company, first contend for reversal that “the Full Commission, sitting as a reviewing body, was without authority to pass upon the credibility of witnesses without having heard any witness, and consequently were without authority to reverse the findings of the Referee; that the Circuit Court was without authority to pass upon the credibility of witnesses.” In other words, it is appellants’ contention that the Full Commission is without authority to reverse the findings of the Referee where an appeal is presented to the Commission solely on the transcript of the record made before the Referee. We do not agree. The authority of the Commission to review an appeal from the findings and award made by the Referee is vested in the Commission by Ark. Stat. Ann. §. 81-1323 (b) (Repl. 1960). In pertinent part this statute reads:
* * the full Commission shall review the evidence or, if deemed advisable, hear the parties, their representatives and witnesses, and shall make awards, together with its rulings of law, ’ ’.
In the very recent case of Potlatch Forests, Inc., v. Smith, 237 Ark. 468, 374 S. W. 2d 166, we rejected the very argument the appellants advance in the case at bar. In that case we said:
“ * # * It is pointed ont that the referee, who originally tried this case, heard all of the witnesses in person, both for claimant and the company, and, on appeal, no additional testimony was presented to the Commission. Appellee states that the referee, therefore, ‘# * * was the sole and exclusive judge of the weight of the evidence and the credibility of the witnesses. ® * * He was in position to take into consideration all the surrounding circumstances of each witness, and of particular importance, the manner and demeanor of each witness on the witness stand. * * *’ This contention must be rejected. As recently as October 21 of this year, we had occasion, in Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 582, to comment upon this contention stating, ‘We take this occasion to point out that it is the duty of the Commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the finding of the Referee.’ ” Citing cases.
The function and duty of the Circuit Court upon an appeal from the Full Commission is explicitly prescribed by Ark. Stat. Ann. § 81-1325 (b). It provides, inter alia, that:
“ * * * Upon the appeal to the circuit court no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the Commission, within its powers, shall be conclusive and binding upon said court. The court shall review only questions of law * * '
See, also, J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82.
The appellants next contend that the findings of the Referee ‘ ‘ should be affirmed on the basis of the evidence and the finding of the Referee as to credibility. ” As we have said, the findings of the Referee are not binding upon the Commission and it is the duty of the Full Commission to consider the entire record and determine the merits of the claim upon the preponderance of the evidence.
Appellants next urge that appellee’s claim was not filed within the time prescribed by law. We find no merit in this contention. The claimant’s regular physician, Dr. Kolb, testified that he first became certain about claimant’s condition on January 3 or 4, 1961 when he determined that appellee was not suffering from a suspected lung cancer but was suffering from silicosis, complicated by emphysema, and that his condition was severe, permanently disabling and progressive. Notice to the appellant, Arkansas Coal Company, was given February 2, 1961 and the claim was filed on March 22, 1961. Thus, it must be said that the claimant complied with the statutory requirements upon being definitely advised as to his condition.
Appellants contend, however, that the claimant had knowledge of his condition beginning in 1959 and should be barred from now asserting his claim. In Hixson Coal Co., v. Furstenberg, Adm’x, 225 Ark. 568, 284 S. W. 2d 120, we said:
“In silicosis, the injury may occur many years before the disease becomes manifest, as the accumulated effects of the deleterious substance are of a slow, insidious nature.”-
In silicosis cases the statute commences' to run at the time of disablement and not from the time the claimant learns that he is suffering from the disease and disablement does not occur until the employee is unable to work and earn his usual wages. Quality Excelsior Coal Co. v. Smith, 233 Ark. 67, 342 S. W. 2d 480. The appellant-employer and appellee stipulated in the case at bar that the appellee continued to work at his usual occupation until March 26, 1960. Thus, it is clear the claim is not barred by the statute of limitations. Ark. Stat. Ann. § 81-1318.
The appellants next argue that “aside from the matter of credibility of witnesses, there is not sufficient substantial evidence in the record to support the award in favor of the claimant.” The appellant-employer was engaged in the strip mining of coal. The appellee was employed as a driller for the appellant from 1944 until March 26, 1960 when appellant ceased operations. Appellee testified that for a period of seven hours a day, five days a week during his entire employment at times he worked in dust so heavy it was necessary to rinse his mouth before he could take a drink of water and sometimes it was impossible to see a man from a distance of ten feet. No safety devices, such as dust masks, were furnished. A geologist testified that the sandstone formations where appellee worked were composed of 95-98% silica. The testimony of appellee and the geologist was uncontradicted. 'Appellee’s disablement was corroborated by his regular physician who testified that appellee was totally and permanently disabled by reason of silicosis, complicated by emphysema. A physician, on behalf of appellants, examined the claimant and according to. his report appellee has “some pulmonary fibrosis and emphysema which is probably related to chronic silica inhalation” and he “would clinically estimate his [appellee’s] disability at 40%, perhaps as high as 60%,”.
It is a familiar rule that the findings of the Workmen’s Compensation Commission are entitled to the same verity as a jury verdict and if there is any substantial evidence to support the Commission’s finding it is the duty of the Circuit Court and this court to affirm. This is one of the strongest rules recognized in our compensation cases. Reynolds Metals Co., v. Robbins, 231 Ark. 158, 328 S. W. 2d 489; White v. First Electric Cooperative, 230 Ark. 925, 327 S. W. 2d 720. It cannot be said in the case at bar that there is no substantial evidence to support the findings of the Full Commission.
Appellants argue that there is no evidence in the record to support the award of maximum compensation benefits to appellee. We cannot consider this contention when, as here, it is raised for the first time on appeal. According to the Full Commission, the appellants and appellee stipulated “that the claimant’s average weekly wage was sufficient to entitle him to maximum Workman’s Compensation benefits.”
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Sam Robinson, Associate Justice.
This is a personal injury case in which the trial court directed a verdict for the defendant. Later, the appellant, Nichols, filed a motion for a new trial and, among other assignments of error, alleged newly discovered evidence. The trial court overruled the motion for new trial. Appellant then filed a notice of appeal stating that he appealed from the order overruling the motion for new trial. After appellant lodged his appeal in this court the appellee filed a motion to dismiss the appeal on the grounds that appellant had not appealed from the origi nal judgment, and that the order overruling the motion for a new trial on the ground of newly discovered evidence was not an appealable order.
In response to the motion to dismiss, the appellant stated, in effect, that he was only appealing from the order overruling the motion for a new trial. This is an appealable order. Moore v. Henderson, 74 Ark. 181, 85 S. W. 237. We, therefore, overruled the motion to dismiss, but limited the issue to be considered to the sole question of whether the trial court was in error in overruling the motion for new trial which alleged newly discovered evidence. The only issue now before the court is the action of the trial court in overruling the motion for new trial which alleged newly discovered evidence.
At the time appellant was injured he and appellee were on a fishing trip. They were riding in appellee’s pickup truck; the appellee was driving and appellant was sitting next to the right-hand door, As they rounded a curve the door came open, appellant fell out and was injured. In his complaint appellant alleged that appellee was negligent in the following manner: “ (a) Defendant carelessly and negligently permitted the screws in the striker plate to become loose and drop down causing the right-hand door to swing open, throwing this plaintiff out onto the highway, (b) In carelessly and negligently failing to inform this plaintiff of said defect.”
During the trial of the case it developed that the door did come open, but appellee denied that he knew the striker plate was loose. As an exhibit to his motion for a new trial, appellant filed an affidavit made subsequent to the trial in which appellee stated, in effect, that he was confused in the trial court when he testified that he did not know the striker plate was loose; that he was referring to the truck owned at the time of the trial; that he had traded the truck from which appellant had fallen; that, in fact, he did know that the striker plate was loose on the truck in which he and appellant were riding when the door came open and appellant fell out; that he had previously had trouble with the striker plate coming loose on that truck, and on one occasion the door liad come open and his son had fallen out, and on another occasion due to the same trouble, his wife had fallen from the truck. Also subsequent to the trial, appellee’s wife made an affidavit to the same effect in support of the motion. After fully considering the motion, the trial court overruled it. In a written opinion the trial court said: “Now on this 2nd day of August, 1963, is submitted to the Court the Motion of the Plaintiff for a new trial of this cause, upon the ground of alleged newly discovered evidence. Said motion for new trial is supported by the Affidavits of the defendant, Earnest Freeman and his wife, Mrs. Ethel Freeman, in which they state in substance that the defendant had had some prior trouble with the latch on the truck involved in the accident, and had had two previous accidents as a result of a defective latch on the door. The defendant further states in his affidavit that he was mistaken in the identity of the truck being referred to in his testimony at the trial; that he thought the attorney was referring to the truck he now has, instead of the one involved in the accident. The defendant was called by the Plaintiff as his witness at the trial, and according to the Court Reporter’s notes the plaintiff’s attorney asked the defendant the following question: “Had you had any difficulty with the doors on this truck in which you and he were riding that morning?” and the defendant’s answer was ‘I don’t recall on this one, but I have had a lot of striker plate trouble. I have bought several sets and put them on trucks ’. On Cross Examination, the defendant witness was asked by defense attorney the following questions, and responded as follows: ‘ Q. Mr. Freeman, this door had never come open before, had it? A. Well, I don’t recall on that truck, that it had ever come open before. Q. Well, had the door ever come open before this? A. No sir, I don’t recall it had. Q. If it had, you would have recalled it, would you, Mr. Freeman? A. Well, possibly, I would.’ It is difficult to understand how the defendant could have been mistaken as to the identity of the truck referred to.
“Section 27-1901 of the Ark. Stats, provides that a new trial may be granted upon newly discovered evidence material for tlie party applying, which ho could not, with reasonable diligence, have discovered and produced at the trial. The primary issue before the Court is whether or not the evidence the plaintiff seeks to offer could have with reasonable diligence been produced at the trial. Our Supreme Court has held in innumerable cases that a new trial will not be granted for newly discovered evidence, unless the applicant has shown reasonable diligence. In this case, the proposed newly discovered evidence could have been procured through discovery depositions, or interrogatories, or even by further interrogatories propounded to the defendant in the trial of the case. The testimony of the witness seems to be clear enough that the witness understood that reference was being made to the truck involved in the accident, but if there was any doubt on that question, the facts could have been elicited by further questioning.
‘It is the opinion of the Court that plaintiff has failed to measure up to the requirements of the law to be entitled to a new trial on the ground of newly discovered evidence, and that the Motion should be and the same is hereby overruled . . . .”
TVe have said many times that the granting of a now trial on the grounds of newly discovered evidence is largely in the discretion of the trial court. Here, we cannot say that the court abused its discretion. Missouri Pacific Transportation Co. v. Simon, 200 Ark. 430, 140 S. W. 2d 129; Missouri Pacific Transportation Co. v. George, 200 Ark. 560, 140 S. W. 2d 680; Ark. Amusement Corp. v. Ward, 204 Ark. 130, 161 S. W. 2d 178; Beatty v. Pilcher, 218 Ark. 152, 235 S. W. 2d 40.
Affirmed. | [
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Paul Ward, Associate Justice.
This litigation has to do Avith the interpretation of tAvo sections in the will of Miss Lela OAvens. The material facts, which are undisputed, are set out hereafter.
At the time the avíII Avas executed on June 3, 1960 Miss OAvens owned and lived in a house located at 1311 Izard Street in Little Rock—more definitely described in the will. In the THIRD paragraph of her Avill she devised and bequeathed “my home place at 1311 Izard St. . . .’’to the Worthen Bank and Trust Company, in trust, for the use and benefit of her two nephews James and Johnny Ryles (to he turned over to them Avhen the youngest reached 21 years of age). In the FIFTH paragraph of the will the testatrix provided that
“All of the rest and residue of my estate which I may own at my death, including the real estate owned by me ... I direct to be converted into cash as quickly as can safely be done by my Executrix and delivered by her to the board of trustees of PHILANDER SMITH COLLEGE of Little Rock, Arkansas, for the specific purpose of creating a revolving loan fund to be known as the Lela Owens Student Loan Fund.” -
Other property was disposed of in the will but it is not involved in this litigation. The last paragraph appointed Lottie Beavers Green, who is the appellee herein, as executrix.
On August 17, 1961 Miss Owens purchased a house and lot located at 2200 Rice Street in Little Rock (more particularly described in the pleadings). On September 28, 1961 she sold her home at 1311 Izard Street to the City Housing Authority, receiving the full sales price therefor. At about the same time she moved to 2200 Rice Street where she lived and maintained her home until her death on July 21, 1962. The will was duly admitted to probate on July 24, 1962.
Due to the developments above mentioned the executrix filed a petition asking the probate court to interpret the will and to “direct her whether or not the property at 2200 Rice Street should be sold and the proceeds delivered to the Trustees of Philander Smith College, or whether said property passed to Worthen Bank & Trust Company in trust for the use and benefit of James Ryles and Johnny Lee Ryles.” ■
The trial court, after finding the facts previously set out, found that the property located at 2200 Rice Street passed under the FIFTH paragraph of the will to the Board of Trustees of Philander Smith College. Thereupon the court directed the executrix to' dispose of said property in accordance with the provisions of the will. From this order the bank has appealed, seeking a reversal on the two grounds hereafter discussed.
One. It is the contention of appellant that the words “nay honae place”, used in the THIRD paragraph of the will, were sufficient to convey the property at 2200 Rice Street to the bank (in trust for James and Johnny Ryles). To sustain this contention appellant relies on the case of Milton v. Milton, 193 Miss. 563, 10 So. 2d 175. There the testator devised to his wife “my home place”. After the will was executed but before the testator died he sold his (then) home place and bought another home to which he moved. The court there held that the words “my home place” applied to and conveyed the home where the testator lived at the time of his death. We think, however, the language used by the court in reaching its conclusion shows the cited case is not applicable or controlling when applied to the facts of the case under consideration. In part the court said:
“If, when a will is made, the testator owned property embraced therein which he afterwards disposes of, and acquires other property embraced -within the same description, and owns it at his death, the will must be applied thereto, unless something therein indicates that the testator does not so intend.”
In the cited case it is readily apparent that the words “my home place” described equally well both pieces of property. This is not true in the case under consideration here. In the will Miss Owens described the property as ‘ ‘ my home place at 1311 Izard Street in Little Rock legally described as North 33 feet of West 110 feet of Lot 4, Block 233, City of Little Rock, Pulaski County, Arkansas ...” This description patently does not describe the property at 2200 Rice Street.
The material facts in the case under consideration are very similar to those considered in Dunlap v. Hart, 274 Mo. 600, 204 S. W. 525, where the Court held, in effect, that where a testatrix devises specific real estate but sells the same and buys other real estate before the will takes effect the later acquired property passes by inheritance to her heirs. The above rule is applicable to the facts in this case, and we think it is sound and reasonable. Tbe testatrix here had an opportunity to change her will to apply to the property at 2200 Rice if she had wanted to do so.
Two. A second ground (related to the one above) relied on by appellant is that the court should not have applied the rule of ademption in this case. The meaning of the word “adeem” is to revoke. The word “ademption” means the act of revoking such as-here, the revoking of a devise. It is ably contended by appellant that the rule of ademption should not be used to defeat the evident intention of the testatrix—that is (in this case) to put the home place in trust to support and educate her two nephews. Appellant cites cases from other jurisdictions in support of its position, but we find them unconvincing. In our opinion the issue here presented is controlled and must be resolved against appellant by our own decision in the case of Mee v. Cusineau, Executrix, 213 Ark. 61, 209 S. W. 2d 445. In that case we said:
“At § 341, 28 R.O.L. 345, appears statements of the law to the following effect. The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the cootator’s estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee’s rights are gone. ’ ’
The Court then set out the basis for the above rule of law:
‘ ‘ The reason for this rule as stated in the numerous cases cited in the note to § 543, 68 C.J. 844, is that as the testator no longer owns the property specifically devised, there is no property for the devisee to take, and also that subsequent conveyance of the property by testator after having made a specific devise of it indicates conclusively a change of testimentary intent as to that property.”
It is our opinion that the above reasoning is logical and practical, and that it should be followed for the sake of clarity and uniformity. It is applicable to the facts of this ease because the description of the Izard Street property is definite and could not be confused with the description of the Rice Street property. The Izard Street property was sold by Miss Owens almost a year before she died without having made any change in her will.
Accordingly, the order of the trial court is affirmed.
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Carretón Harris, Chief Justice.
This is a child custody case. Billy D. Thompson and Prances Juanita Thompson were married in October, 1951. Two children were born of the marriage, Billie Juanita Thompson (born in 1952), and Jimmy D. Thompson (born in 1955). Billy Thompson has served in the Air Force for a long number of years, and both children, except for a period of about five months, have lived with their maternal grandparents, Mr. and Mrs. Sam Blake, residents of Birdeye. Prances obtained a divorce from Billy in April, 1960, and was awarded custody of the children, the husband being directed to pay $100.00 per month for child support. This order has been complied with. Just prior to the divorce, Prances and Billy had entered into a sepa ration agreement (March, 1960) under which the father agreed to pay the $100.00 per month, and the agreement further provided that should Frances die before the children reached their majority, Agnes Thompson (now Bornhoft) mother of Billy, would have the custody of the children. After the divorce, Frances obtained a job in "Wynne, and continued to live with her parents, together with the children.
In May, 1962, Billy D. Thompson, who is still in military service, and his mother, Agnes Bornhoft, instituted suit, asking that the custody of the children be taken from Frances and awarded to Agnes Bornhoft. Appellee moved to dismiss the cause in so far as Mrs. Bornhoft was concerned, contending that the suit must be brought in the name of the father. In response, appellant contended that the suit was a new action, independent of the original divorce decree, and that Mrs. Bornhoft had a right to bring the action. Counsel for appellant then withdrew the father, Billy D. Thompson as a plaintiff, and the complaint was dismissed as to him. The court proceeded to hear the custody matter with Mrs. Bornhoft as the plaintiff. After hearing a number of witnesses, the court rendered its opinion, finding that Mrs. Bornhoft was not a fit person to have custody of the children; further, that the mother, Frances Juanita Thompson, was likewise unfit to have the custody of the children. The court further found “that for almost the entire life of both children they have lived in the home of their maternal grandparents and that both the grandmother and the grandfather indicated a willingness from the stand to take the children and maintain them in their home and under the facts and circumstances as developed by the testimony the children in the opinion of the Chancellor will be much better cared for by these two elderly people. The father will continue to make payment of $100.00 per month which will be paid to the maternal grandparents and they shall have the exclusive custody of said children pending the further orders of this court. ’ ’ The court then entered its decree, dismissing the petition of Mrs. Bornhoft for custody, and placed the children in the custody of the Blakes. From the de cree so entered, appellant brings this appeal. It might first be mentioned that appellee contends that, though the suit was filed as a separate action, it actually is an effort to modify the original decree, and that Mrs. Bornhoft, the grandmother, is not a proper party to bring the action; that the effort to modify the decree can only be properly brought by the father. It is not necessary that this question be discussed in order to reach a determination in this litigation.
The court found that Mrs. Bornhoft “is not such a person with whom the two children should be permanently placed,” and likewise found that the mother was not a fit and proper person to have the custody of her children. No good point would be served in detailing the testimony upon which the Chancellor based these conclusions. Each side called several witnesses, and the good qualities, as well as the bad, were presented to the court during the evidence. Mrs. Bornhoft vigorously contends that the evidence does not support the court’s finding relative to her unfitness to have custody of the children, but there was evidence which supported this conclusion, and we have said that we will not reverse the finding of the Chancellor unless such finding is against the preponderance of the evidence. Dierks Lumber and Coal Co. v. Horne, 216 Ark. 155, 224 S. W. 2d 540; Rogers v. Moss, 216 Ark. 838, 227 S. W. 2d 630. The parties and the witnesses were all observed by the Chancellor, who thus had the opportunity to note their demeanor on the stand, their manner of answering the questions, and he was, accordingly, in much better position to judge the truthfulness or untruthfulness of the statements made by the parties and witnesses. We are unable to say that his finding that Mrs. Bornhoft was not a proper person to have custody of the children, is against the preponderance of the evidence. Having made this finding, it is doubtful that Mrs. Bornlioft actually has the right to question the disposition of the children as ordered by the court. This is not a matter wherein the father of the children is dead, mentally incompetent, an inmate of the penitentiary, or for any other reason unable to seek the relief of the courts. Nor is it a matter where the father has abandoned the children, and thus created the necessity for other close relatives to interest themselves on behalf of the minors. Here, the father voluntarily withdrew as a party to this litigation, though he testified in behalf of his mother. He has not questioned this decree, nor has the mother of the children questioned it.
However, assuming, without deciding, that Mrs. Bornhoft is a proper party to question the court’s order in placing the children with the maternal grandparents, we proceed to discuss appellant’s contention that this 'order was erroneous. This contention is largely based upon the fact that Mr. and Mrs. Blake were not parties to the action. Appellant relies upon language appearing in the case of West v. Griffin, 207 Ark. 367, 180 S. W. 2d 839. There, custody of the minor child was vested in the paternal grandparents, who were not parties to the action (the father of the children being the party), by the trial court. This court, on appeal by the mother, reversed the trial court and awarded the custody to the mother, finding that she was a proper person to have the custody. The language appearing in the opinion relied upon by appellant is as follows:
“It will be remembered that this is not a case in which the court reaffirmed its order awarding custody of the child. That order was modified in the decree from which is this appeal and the child’s custody was awarded to persons who were not parties to the original proceeding and are not parties to this proceeding. We think this was error.”
This statement was dictum since the opinion makes clear that this was not the basis of our determination. Rather, we found that there was no evidence which indicated that the mother had abandoned the child, or that she had, at any time, ceased to be interested in its welfare. We likewise stated in West:
‘ ‘ This is not a case where a child has been permitted to remain in certain surroundings for a period of time long enough to become so accustomed to its surroundings as to make it unwise to remove it. We do not have here the situation that was shown in the case of French v. Graves, 205 Ark. 409, 168 S. W. 2d 1108, because this child had been with the grandparents only two or three weeks at the time of the rendition of the decree from which is this appeal.”
As previously pointed out, in the case presently before us, the children have lived with the Blakes, with the exception of a few months, for the entire period of their lives. In Powell v. Woolfolk, 233 Ark. 893, 349 S. W. 2d 657, we awarded the physical custody of the children to paternal grandparents, who were not parties to the case, the actual order entered by the trial court reciting that the father was given custody; however, the father was not in a position to take care of the children, and they were actually placed in the possession of the grandparents. In the opinion we pointed out that these grandparents were present in person before the court, and subjected themselves to the jurisdiction thereof. Here, also, the grandparents were present in court, agreed to take the children, and subjected themselves to any further orders that the trial court might see fit to enter.
Of course, in matters relating to the custody of minor children, we have said many times, so many, in fact, as to require no citation of authority, that the welfare of the children is the primary consideration. In the South Carolina case of Koon v. Koon, 28 S. E. 2d 89, the same contention was made by appellant, but rejected by the South Carolina Supreme Court. From the opinion:
“Claude Koon raises the legal point that the judgment appealed from was beyond the scope of the issues raised by the pleadings. It is urged that the real contro versy was and is between bina and bis wife with reference to tbe custody of tbe child; that tbe maternal grandparents were not even parties to tbe proceeding; that tbe paternal grandparents defaulted; and that tbe court erred in not awarding custody to him.
‘ ‘ Tbe controlling reason for committing tbe custody of tbe child to tbe grandparents, as shown by tbe order, was because this was in accord with tbe child’s highest good. This was entirely within the power and discretion of tbe County Judge under tbe facts in this case.”
It follows, from what has been said, that we are unable to conclude that tbe Chancellor’s findings were against tbe preponderance of tbe evidence, or that be exceeded bis authority or power in granting custody to tbe Biabes. Of course, tbe father can always petition the court for a modification of the present decree if circumstances indicate that a change should be made.
Affirmed.
During this period, Billy was stationed at Bossier City, La., and Prances and the eldest child lived with him during this time.
Mrs. Bornhoft also points to the separation agreement (mentioned in Paragraph 1 of this opinion), wherein Billy and Frances agreed that if Frances should die before the children reached their majority, Mrs. Bornhoft “would have custody of the children.” Of course, Frances has not died, but irrespective of that fact, the agreement is meaningless. We have held that agreements between litigants as to the custody of children are not binding upon the court. Bishop v. Lucas, 220 Ark. 871, 251 S. W. 2d 126.
As of the time of this trial, Billy Thompson had consistently complied with the order of the court to pay the $100.00 per month for the support of the children. | [
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] |
Carleton Harris, Chief Justice.
This appeal involves a judgment entered by the Union County Circuit Court against appellant, Pyramid Life Insurance Company, and in favor of Ralph L. Hamilton, appellee, in the amount of $110.75. The sole question on direct appeal is whether the company was liable for sick benefits under a policy that it had issued to Hamilton. The trial court, sitting as a jury, held against appellant, and from the judgment so entered comes this appeal. Appellee cross appeals, contending that the attorney’s fee awarded counsel for Hamilton was insufficient.
We are unable to consider this appeal on its merits since Rule 9 (d) has not been complied with. On numerous occasions, this court has stated that we are not required to explore the transcript, but rather, that the duty rests upon an appellant to furnish this court such an abridgment of the record as will enable us to understand the matters presented. See Vire v. Vire. 236 Ark. 740, 368 S. W. 2d 265, and cases cited therein.
In the present case, there is no abstract of the judgment, pleadings, or testimony, and only one section of the policy is mentioned, this appearing in appellant’s statement of. the case. The transcript covers over 80 pages, and in situations of this kind, we have heretofore uniformly affirmed the trial court’s decree or judgment.
Appellee, on cross-appeal, asserts that the fee allowed appellee’s attorney in trial court ($100.00) was inadequate. Considering the amount of the judgment rendered, we cannot say that the trial court was in error in reaching this figure. For services rendered on this appeal, we feel that an additional $100.00 should be allowed.
It is so ordered.
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Beth Gladden Coulson, Judge.
This appeal is from a deficiency judgment for $9,006.67, plus costs, in favor of the appellee, Associates Commercial Corporation. The appellant asserts four points for reversal. We find merit in only one and modify the judgment accordingly.
In connection with the purchase of a 1980 Kenworth tractor, the appellant, Garrell L. White, signed a conditional sales contract and security agreement in which he promised to pay a balance of $49,126.68 in monthly installments of $1,364.63. The seller assigned the contract and security interest to the appellee. The appellant defaulted after having made eight monthly payments. The appellee filed an action in replevin seeking possession of the tractor and asked that a deficiency judgment be entered should sale of the tractor fail to provide sufficient funds to satisfy the indebtedness. The court ordered the tractor seized and subsequently awarded possession to the appellee. The appellant immediately entered into negotiations with the appellee in an attempt to redeem the tractor. These negotiations failed, and the appellant was given notice of a public sale. The tractor eventually sold for $28,000.00.
The appellee then sought a judgment for the deficiency. The appellant counterclaimed seeking damages as a result of the appellee’s alleged failure to allow redemption of the tractor. The trial court found that the appellee had sold the tractor in a commercially reasonable manner and that the appellant had failed to prove that the appellee refused to allow redemption. A deficiency judgment in the amount of $9,006.67 was entered in favor of the appellee. In arriving at that figure, the trial court permitted recovery by the appellee of $ 1,700.00 in attorney’s fees incurred in obtaining possession of the tractor.
On appeal, it is argued that the appellee did not proceed in a commercially reasonable manner and that the appellant was entitled to damages. The appellant contends that the court erred in admitting into evidence a proof of publication form, in finding that the appellant failed to tender the amount necessary to redeem the tractor, and in allowing recovery of attorney’s fees. Because we find recovery of attorney’s fees improper under the facts of this case, the judgment of the trial court is reduced accordingly.
At trial, one of the appellee’s employees testified as to the time and place of the public sale of the tractor. He also testified that notice had been given by publication in a certain newspaper on two successive days. The appellee sought to introduce a copy of the advertisement and a proof of publication form completed by the publisher of the newspaper. The appellant objected to the evidence arguing that the appellee had failed to furnish a copy of the document despite prior interrogatories requesting copies of all documentation to be used at trial. These interrogatories were to have been supplemented upon receipt of additional information by the appellee. Counsel for the appellee responded that the document was first received on the night before trial. The court admitted the proof of publication “in the interest of justice” but noted that such evidence should normally be furnished to opposing counsel.
The admissibility of evidence is within the sound discretion of the trial judge. The trial judge’s rulings will not be disturbed on appeal absent an abuse of that discretion. Smith v. Chicot-Lipe Ins. Agency, 11 Ark. App. 49, 665 S.W.2d 907 (1984). Although the appellant directs our attention to Rule 26(e)(2) of the Arkansas Rules of Civil Procedure — which deals with the duty to seasonably amend prior responses — he fails to point out how either of the subsections in that rule apply to the facts of this case. Also, the record reveals that a foreclosure report furnished in response to the interrogatories specified that publica tion had been in the newspaper at issue on the dates indicated. As such, we fail to see how the appellant was prejudiced. Furthermore, the proof of publication form was merely corroborative of the testimony supplied by the appellee’s employee. The Arkansas Supreme Court was faced with a similar issue in Smith v. State, 256 Ark. 321, 507 S.W.2d 110 (1974).We find the following language from the Court’s opinion persuasive:
Complaint is made of the . . . failure to include the name of [a witness] upon the original list of witnesses furnished to defense counsel. No bad faith is attributed to the prosecuting attorney, who did not learn of this witness until the night before the trial began. He immediately informed the defense of the identity of the new witness. . . There was no plea of surprise, and [the] testimony was merely cumulative. No prejudicial error is shown. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959). [Emphasis ours.]
Similarly, upon the facts of this case, we cannot say that the trial judge abused his discretion in admitting the evidence.
It is also argued that the trial court erred in finding that the appellant failed to tender the amount necessary to redeem the tractor. The right of redemption is set forth in Ark. Stat. Ann. § 85-9-506 (Supp. 1985), which basically provides that: “[a]t any time before the secured party has disposed of collateral... the debtor [may]. . . redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party . . . .” (Emphasis ours.)
The record shows that the appellee provided the appellant with figures for the payoff amount and with the dates through which those figures would remain good. The amount due would increase at the expiration of each time period as another month’s interest was added. The appellant failed to tender the payoff amount until after the second expiration date. At that time, the tendered amount was no longer correct. There is additional evidence that the appellee later agreed to accept the lesser amount, but the appellant decided not to tender payment. The judge specifically found that the appellant’s tender of payment had been insufficient to fulfill all of the obligations secured by the collateral, as well as the expenses reasonably incurred by the secured party. Because we cannot say that the trial judge’s finding was clearly against a preponderance of the evidence, we affirm this portion of the decision.
Having determined that the trial court did not err in admitting the proof of publication and in finding that the appellant failed to tender the amount necessary to redeem the tractor, we need not address the appellant’s contention that he was entitled to damages. The right to damages was dependent upon a finding that the appellee had not proceeded in a commercially reasonable manner. To support such a finding, it was incumbent upon the appellant to succeed on his other points. As was stated previously, we find no merit in those arguments. The trial judge specifically found that the appellee had acted in a commercially reasonable manner as required by Ark. Stat. Ann. § 85-9-504(3) (Supp. 1985). We agree.
The appellant’s final argument is that the trial court erred in allowing recovery of $ 1,700.00 in attorney’s fees incurred by the appellee in obtaining possession of the tractor. The instrument upon which suit was brought in this case is a conditional sales contract and security agreement. It provides for the recovery of “the reasonable fees of any attorneys retained by Seller (20% of all sums then owing hereunder if permitted by law).” Notwithstanding that the parties have contracted for the recovery of attorney’s fees, the Arkansas Supreme Court has consistently held that a party cannot recover attorney’s fees unless such fees are expressly provided for by statute. Harper v. Wheatley Implement Co., 278 Ark. 27, 643 S.W.2d 537 (1982).
Harper involved facts quite similar to those before this court. The supreme court reversed the trial court’s award of attorney’s fees and noted that the governing statutory provision, Ark. Stat. Ann. § 68-910 (Repl. 1979), provides for attorney’s fees only where the underlying instrument is a promissory note. In light of the holding in Harper, supra, and because this case does not involve a promissory note, the award of attorney’s fees was improper.
The appellee argues that Ark. Stat. Ann. § 85-9-504 (Supp. 1985) is an authorization statute which by itself would allow for the recovery of attorney’s fees in cases such as this. That section provides:
(1) A secured party after default may sell, lease, or otherwise dispose of any or all of the collateral . . . following any commercially reasonable preparation . . . The proceeds of disposition shall be applied in the order following to
(a) the reasonable expenses of retaking, holding, preparing for sale or lease . . . and to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party .... [Emphasis ours.]
Prior to the Arkansas Supreme Court’s opinion in Harper, supra, the federal courts had predicted that Arkansas might adopt the position now advanced by the appellee. In re Morris, 602 F.2d 826 (8th Cir. 1979). However, in an opinion not cited by the federal court, the Arkansas Supreme Court had determined that adoption of a similar provision in the Negotiable Instruments Act, Act 81 of 1913, did not constitute the enactment of an authorization statute for attorney’s fees. Bank of Holly Grove v. Sudbury, 121 Ark. 59, 180 S.W. 470 (1915).
We feel that the issue was resolved in Harper, supra. In explaining the effect of the Uniform Commercial Code’s provision for attorney’s fees, the court emphasized that the Code provided for payment of reasonable attorney’s fees in cases “ ‘not prohibited by law.’ ” 278 Ark. at 36. The opinion intimates that “not prohibited by law” means those cases in which such fees are authorized by statute and that the only statutory authority is Ark. Stat. Ann. § 68-910 (Repl. 1979) which requires that the underlying instrument be a promissory note. As was discussed earlier, this case does not involve a promissory note. Therefore, we find no merit in the appellee’s argument that section 85-9-504(1) (a) supports the trial court’s award of attorney’s fees.
The appellee also directs our attention to the fact that we are dealing with attorney’s fees awarded for services rendered by an attorney in obtaining possession of the collateral. The appellee points out that in Svestka v. First Nat’l Bank of Stuttgart, 269 Ark. 237, 602 S.W.2d 604 (1980), the supreme court stated that a secured creditor was entitled to recover reasonable attorney’s fees for services rendered in obtaining possession of collateral. 269 Ark. at 240. We note, however, that Svestka involved a suit against an accommodation maker on a note. The subsequent decision in Harper, supra, similarly involved attorney’s fees as a cost of reducing the collateral to possession, and the court found that there was no authority for an award of such fees. We feel that Svestka is distinguishable and that the case before us is governed by the holding in Harper, supra. For the foregoing reasons, the judgment of the trial court is reduced by $1,700.00. The decision is otherwise affirmed.
Affirmed as modified.
Mayfield and Cooper, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
Appellants, Terri Howard and her minor daughter, appeal the Arkansas Workers’ Compensation Commission’s denial of funeral and dependency benefits for the accidental death of Michael Howard, an employee of appellee, Arkansas Power & Light Company. We affirm.
Michael Howard was killed at 6:30 a.m. on July 29, 1983, when his vehicle crossed the center line on U.S. Highway 49 and collided head-on with an oncoming vehicle. The site of the accident was approximately 2.02 miles south of the Jonesboro city limits. Mr. Howard was employed as an inspector by appellee and his employment required that he reside during the week in Jonesboro at the Jamie B. Motel on East Nettleton. The motel was located approximately 7 miles from the scene of the accident. His work assignment on the date of the accident was in Black Oak, Arkansas, approximately 17 miles east of Jonesboro.
On the evening of July 28, 1983, Mr. Howard drove from Jonesboro to Newport, Arkansas, which is approximately 47 miles southwest of Jonesboro, to participate in an anniversary celebration. It was attended by several of his friends who were also employed by appellee. His friends lived at a Newport motel while assigned to a work project unrelated to the project Mr. Howard was assigned to. Mr. Howard arrived at the Newport motel where his friends were staying between 6:00 and 7:00 p.m., and stayed there for approximately forty to forty-five minutes. He was not seen again by his friends until around 10:30 or 11:00 p.m., when they all met at a night club in the Newport area. Mr. Howard’s friends departed the night club around midnight, leaving Mr. Howard behind. There was no evidence of Mr. Howard’s activities until shortly before his accident, when he was seen by employees of Commonwealth Electric Company who passed Mr. Howard as he was proceeding toward Jonesboro. Mr. Howard was driving a vehicle leased by appellee at the time of his fatal collision. Evidence indicated that Mr. Howard would have arrived at his job site at 7:00 a.m. for an appointment with contractors if he had not been involved in the accident. He was dressed in his work clothes at the time of the accident but had been attired in different clothing in Newport the previous evening. Appellee had a company passenger car policy in effect at the time of Mr. Howard’s accident which provided that “. . . [ujnder no circumstances will the company vehicle be used for personal trips away from the employee’s assigned town or place of duty or for pleasure driving of any kind.”
The going and coming rule ordinarily denies compensation to an employee while he is traveling from his home to his job. Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971). The basic premise of the going and coming rule is that employees having fixed hours and places of work are generally not considered to be in the course of their employment while traveling to and from work. See 1 Larson, Workmen’s Compensation Law § 15.00 et seq. (1985).
Our cases define “course of employment” as relating to the time, place and circumstances under which the injury occurred. Owens v. National Health Laboratories, Inc., 8 Ark. App. 92, 648 S.W.2d 829 (1983). Professor Larson’s formulation of the test for course of employment 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 Larson, Workmen’s Compensation Law § 14.00 (1985); 1A Larson, Workmen’s Compensation Law § 20.00 (1985).
Various exceptions have been adopted to the coming and going rule which are recognized in City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). They are as follows:
(1) where an employee is injured while in close proximity to the employer’s premises;
(2) where the employer furnishes the transportation to or from work;
(3) where the employee is a traveling salesman;
(4) where the employee is injured on a special mission or errand; and
(5) when the employer compensates the employee for his time from the moment he leaves home until he returns home.
Id. at 163-164.
In Arkansas Department of Health v. Huntley, 12 Ark. App. 287, 675 S.W.2d 845 (1984), the traveling salesman exception to the coming and going rule was at issue. We recognized there that employees whose work entails travel away from the employer’s premises are within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown.
In the case at bar, the Commission denied appellants’ request for funeral and dependency benefits on the basis appellants had failed to meet their burden of proof in establishing Michael Howard’s death arose in the course of his employment. Appellants argue for reversal that there is no substantial evidence to support the Commission’s conclusion that Mr. Howard’s fatal accident occurred during a distinct personal deviation from his employment. In their second assignment of error, appellants contend the Commission erroneously concluded the going and coming rule barred their claim for benefits.
It is well settled that the burden rests upon the party seeking benefits to prove the injury sustained was the result of an accident arising out of and in the course of the employment. We have recognized that there is a rule of liberal construction which requires the Commission to draw all reasonable inferences favorably to the claimant, Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984), but that case also holds that this rule is not a substitute for the claimant’s burden of establishing his claim by a preponderance of the evidence. 10 Ark. App. at 260-261. Before we may reverse a decision of the Commission, we must be convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).
In concluding that Mr. Howard was not pursuing his employment duties at the time of his death, the Commission found the fact that the fatal accident occurred about two miles south of Jonesboro at a location which was not on a direct route between the motel and the Black Oak construction site was of crucial significance. It noted further that Mr. Howard’s trip to Newport the night before his death was a personal deviation from the reasonably expected duties of his employment, but that fact did not preclude appellants from receiving dependency and funeral benefits if other facts established that Mr. Howard’s death arose in the course of his employment.
We conclude that there was substantial evidence to support the Commission’s finding that Mr. Howard’s death did not arise in the course of his employment. We cannot say that fair-minded persons would not have reached the same conclusion as did the Commission.
Appellants’ second assignment of error is without merit inasmuch as the Commission’s denial of benefits clearly was not based upon a conclusion that the going and coming rule barred appellants’ claim for benefits. We find substantial evidence to support the Commission’s decision.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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John E. Jennings, Judge.
Appellant, Tracy Duane Stultz, was convicted by a jury of burglary and sentenced to 20 years. He argues two points on appeal. We affirm.
At trial, Stultz admitted that he had broken into the office of Dr. Phipps in North Little Rock for the purpose of stealing drugs to ease his pain. He was addicted to Demerol, and because he had repeatedly injected his left arm, he developed gangrene in the fingers of his left hand. His testimony that he was in severe pain at the time of the offense is borne out by the fact that shortly after his arrest it became necessary to amputate his fingers.
The first argument is that the court erred in refusing to give an instruction on the lesser included offense of breaking or entering. One element of the offense of burglary is that the building broken into be an “occupiable structure.” An occupiable structure is defined by Ark. Stat. Ann. § 41-2001 (l)(a) (Repl. 1977) as a building where any person lives, or carries on a business or other calling. A person may be convicted of the lesser offense of breaking or entering, whether the building is “occupiable” or not. In essence appellant argues that the jury could have found that the doctor’s office was not an occupiable structure.
Where there is no evidence tending to disprove one of the elements of the larger offense, the trial court is not required to give an instruction on a lesser included offense. Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982). If, after viewing the facts in the light most favorable to appellant, no rational basis for a verdict acquitting him of the greater offense and convicting him of the lesser one can be found, it is not error for the trial court to refuse to give an instruction on the lesser included offense. Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978).
Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977) is in point. There the defendant had broken into a student union building on a college campus and was convicted of burglary. His only argument on appeal was that the trial court erred in refusing to give an instruction on breaking or entering. The supreme court held that the fact the building was used for social activities, religious sessions, and classroom meetings clearly demonstrated that the building was an occupiable structure, and that therefore there was no issue on this point to go to the jury.
In the case at bar, the doctor’s office manager, Theresa McCullough, testified that the burglary had occurred at Dr. Phipps’ main clinic, where he carried on his business. The appellant testified that he knew that was where Dr. Phipps conducted his business. There is not the least suggestion in the record that the building was not “occupiable” within the meaning of the law. The trial court did not err in refusing to give an instruction on breaking or entering.
Appellant’s second argument is that the court erred in refusing to give the jury an instruction on the defense of justification. Ark. Stat. Ann. § 41-504(1) (Repl. 1977) provides:
Conduct which would otherwise constitute an offense is justifiable when:
(a) The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
(b) The desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct.
Appellant’s argument is that, because of the extreme pain in his hand, he was justified in breaking into the doctor’s office to steal drugs. His testimony was that on the day of the break-in, he had seen three or four doctors, and all but one had refused to treat him. At trial, he said:
Every one of them refused, but one. There was one doctor, she was a lady doctor and I don’t know her name, but she was going to treat it, give me a prescription for some pain medicine.
He testified that he did not go to a hospital emergency room because he didn’t know anything about North Little Rock, where he was staying at the time.
The supreme court in Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980), held that § 41-504 is to be narrowly construed and applied. The court in Koonce examined not only the examples provided in the commentary to our statute, but also additional examples provided by the commentary to a tentative draft of the Model Penal Code, which was the basis for our criminal code. The examples given in the commentary to our statute are: the destruction of buildings or other structures to keep fire from spreading; breaking levees to prevent the flooding of a city, causing in the process, flooding of an individual’s property; and temporary appropriation of another person’s vehicle to remove a seriously injured person to a hospital. One of the examples given in the commentary to the Model Penal Code is that of a druggist dispensing a drug without the requisite prescription to alleviate distress in an emergency.
The facts in the case at bar, taken in the light most favorable to the appellant, do not compare favorably with the illustrative examples. Appellant’s conduct does not meet either requirement of § 41-504. He was not entitled to the requested instruction on justification.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
On this appeal from a decision of the Workers’ Compensation Commission, the only issue is whether the Commission correctly decided that the claim was barred by the statute of limitations. We find that the Commission erred and we reverse and remand.
The appellant received a compensable injury on July 6, 1982. His medical bills were paid, but because he only missed one day of work no other benefits were paid. The injury occurred when the appellant was lifting some table tops and he was diagnosed as having lumbar strain syndrome. At the hearing, the appellant testified that he has suffered back pain continuously since the accident, but that it was manageable with aspirin and pain pills. However, in March, 1984, the pain became more severe and moved into his legs. He was initially treated by Dr. Phil Peters, who believed that the pain the appellant was suffering was peripheral neuropathy associated with the appellant’s diabetic condition. Dr. Peters referred the appellant to Dr. David Reding. After a myelogram, it was discovered that the appellant had a herniated disc and surgery was performed on August 20, 1984.
The administrative law judge found that the appellant’s ruptured disc was latent prior to July 25,1984, and that the claim was not barred by the statute of limitations .On de novo review the Commission found that the appellant’s disc problem was not latent, but patent, and that the claim was barred by the statute of limitations. The Commission found that the claimant knew, or should have known, the serious nature of his back injury and that the duty was upon him to file a claim within the statutory period of time.
Although the appellant raises two points for reversal, both points actually question the sufficiency of the evidence to support the Commission’s finding that the injury was patent and not latent. On appeal, we must review the evidence in the light most favorable to the Commission’s decision and uphold that decision if it is supported by substantial evidence. Thus, before we may reverse a decision by the Commission, we must be convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983).
The statute involved in this case, Ark. Stat. Ann. § 81-1318 (b) (Repl. 1976), provides in pertinent part:
In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of the injury, whichever is the greater.
The word injury, as used in this statute, has been interpreted to mean the state of facts which first entitled the claimant to compensation, so that even if the injury does not develop until sometime after the accident, the cause of action does not arise until the injury develops or becomes apparent. Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983).
Disability is defined as incapacity because of injury to earn, in the same or any other employment, the wages the employee was receiving at the time of his injury. Shepard v. Easterling Construction Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983). The statute of limitations does not begin to run until the employee knows or should reasonably be expected to be aware of the extent or nature of the injury. Woodard v. ITT Higbie Manufacturing Co., 271 Ark. 498, 609 S.W.2d 115 (1980).
In our review of this case, we are convinced that fairminded persons could not find that the appellánt knew or should reasonably have been expected to be aware of the extent of his injury. The appellant was first diagnosed as having lumbar strain. He also testified that he continued to suffer pain from that date on. However, it is clear that the severity of the injury was not revealed until March, 1984. The record indicates that the appellant was able to work during this period of time and that the pain became more severe only after he was transferred to a position which required an increase in lifting, stooping and bending. Although the appellant admitted that he occasionally complained of back pain to his supervisors he also stated that “he didn’t go into no deep discussion about it.” Aside from temporary layoffs, the appellant did not suffer any wage losses as a result of his injury until June 23, 1984. Even the doctor who had been treating the appellant for diabetes since 1970 at first believed that the pain was caused by his diabetic condition.
Dr. Reding testified that although persons with sedentary jobs can sometimes suffer from disc problems, in his opinion the appellant’s herniated disc was caused by the 1982 injury combined with the repeated wear and tear, lifting, pulling and pushing required by his job. Furthermore, there is nothing in the record to indicate that the appellant suffered any other injury which could be the cause of the herniated disc.
We hold that the evidence in this case shows that the appellant did not know, or could reasonably be expected to know, the extent or nature of his injury until March, 1984. Since the appellant timely filed his claim, this case must be reversed and remanded for a determination on the merits of the appellant’s claim.
Reversed and remanded.
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George K. Cracraft, Judge.
Jack Van Daley appeals from his conviction of being a felon in possession of a firearm in violation of Ark. Stat. Ann. § 41-3103 (Repl. 1977). We find no merit in any of the four points for reversal advanced on appeal and afiirm his conviction.
On March 19,1985, police officers received a telephone call informing them that a man armed with a double-barreled shotgun had robbed the Sugar Shack Restaurant in Dermott, Arkansas. The police were also furnished the license number and a description of the vehicle in which the robber had fled, and the direction of his flight. This information was broadcast to officers throughout the area who were later informed that the license number reflected that the vehicle was owned by Jack Van Daley. Desha County Deputy Sheriffs Roy Fryer and Ed Gilbert were proceeding on Highway 159 when the appellant passed them going in the opposite direction. Both officers knew the appellant by sight and were familiar with the vehicle, which matched that described in the broadcast. They turned around and followed the vehicle. Because they had been informed that the occupant was armed with a shotgun, they approached the vehicle with guns drawn and handcuffed the appellant before doing anything else. One of the officers observed on the backseat of the car, in plain view, a double-barreled shotgun lying on top of a bicycle. He stated that he did not look for anything else in the car but did determine that the firearm was not loaded and took it into his possession.
The appellant was arrested and transported to the county jail but never charged or tried for the offense of armed robbery. As the appellant had been convicted of more than one prior felony, he was charged and then convicted of the offense of being a felon in possession of a firearm and this appeal followed.
Appellant first contends that the trial court erred in not suppressing evidence of the shotgun found in his possession. He argues that he had been arrested on suspicion of having committed the crime of armed robbery and, although conceding that the officers had probable cause to arrest him without a warrant for that offense, that they had no authority to search his person or property to obtain evidence of offenses other than the one for which he was arrested. Relying upon A.R.Cr.P. Rule 12.1(d), he argues that officers impermissibly searched for and seized the shotgun from his vehicle. We find no merit in this contention for several reasons.
In the first place, there was no “search” of the appellant’s vehicle such as falls within the fourth amendment prohibition. Appellant does not argue on appeal that probable cause was lacking for the stopping of his vehicle or his subsequent arrest for armed robbery, thus conceding that those actions on the part of the officers were not unlawful. Deputy Fryer testified that he noticed the shotgun lying in plain view on top of a bicycle in the back seat as he approached the appellant’s vehicle. It is well settled that, where contraband articles are identified without a trespass on the part of the officer, there is no “search” that is prohibited by the constitution. State v. Storey, 272 Ark. 191, 613 S.W.2d 382 (1981); Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977); Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968), cert. denied, 393 U.S. 1063 (1969); Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966).
Secondly, even if it could be said that the appellant’s vehicle was searched, his argument would fail because of the plain terms of A.R.Cr.P. Rules 12.1 (d) and 12.4(a). Rule 12.1 (d) provides that an officer making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused “to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the crime.” Rule 12.4(a), which is even more on point, provides:
If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
Having had probable cause to arrest the appellant for having committed robbery while armed with a double-barreled shotgun, the officer had every right to seize the shotgun found in the appellant’s car as being evidence of the commission of the offense and an item used in conjunction with that offense.
Furthermore, contrary to the appellant’s contention, it was not error to refuse to suppress the shotgun in his trial for being a felon in possession of a firearm, despite the fact that the shotgun was originally seized as being evidence of an armed robbery. While Rules 12.1(d) and 12.4(a) limit the scope of a search to that for evidence connected with the offense for which one has been arrested, they do not so limit the items that can properly be seized. Those rules specifically provide that the arresting officer can seize contraband, the fruits of crime, and any other things criminally possessed which are discovered in the course of a proper search incident to arrest. Once such items are discovered, they may be seized and used as evidence without regard to whether they are connected with the offense for which the accused was initially arrested. See also Holmes v. State, 262 Ark. 683, 561 S.W.2d 56 (1978).
The sheriffs office, later determining that the reported armed robbery at the restaurant was the result of a domestic problem, did not charge appellant with the crime of armed robbery and released him from custody. However, an information charging him with being a felon in possession of a firearm was filed on March 22, 1985, and a bench warrant for his arrest issued. The warrant was not executed until April 26, 1985. The appellant contends that the delay between the time in which the warrant was issued and the arrest was made was deliberately intended to prejudice him.
The issue of prosecutorial delay in execution of a warrant issued on probable cause was addressed by this court in Forgy v. State, 16 Ark. App. 76, 697 S.W.2d 126 (1985). There, we stated that due process considerations involved in the delay in obtaining an indictment and those involved in the execution of an arrest warrant require the application of the same principles. From those cases discussed in Forgy, it is clear that due process considerations do not arise until prejudice resulting from the delay is proven and it further appears that the State intentionally delayed in the proceedings to obtain some tactical advantage over the accused. We have declared that mere delay is not sufficient grounds for aborting a criminal prosecution. The accused has the burden of first showing prejudice resulting from a loss of witnesses or physical evidence, or dimming memory. If the defendant establishes such prejudice, the burden then falls upon the State to satisfactorily explain the delay. The appellant argued that he possessed the gun because his wife, during a domestic quarrel at the restaurant, had threatened to kill him with it, and that the restaurant where the disturbance occurred was one in which people came and went. He argues that, if the authorities had arrested him on March 19, he could have contacted persons who witnessed the disturbance between he and his wife.
Although the appellant contends that the delay caused him to lose witnesses, and that this loss was prejudicial to his defense, he did not point out to the trial court, nor to us, any person he desired, but was unable, to call as a witness. From our examination of the record, we find nothing to indicate that there were any persons present at the time the disturbance took place other than the appellant, his wife, and his mother-in-law, Geneva Chance. All three of those persons testified during the trial, and none of them seemed to have had any loss of memory of the events that day. The five-week delay in executing the warrant did not violate the statute of limitations or violate the appellant’s right to a speedy trial under A.R.Cr.P. Rule 28.1(a) and he has not demonstrated from the record that the delay was intentionally caused in order to gain a tactical advantage over him or that he was prejudiced in any way by it. We find no error.
The appellant next contends that the trial court erred in denying his motion for a mistrial. Glenda Van Daley, the appellant’s wife, testified as a witness for the defense. She stated that she was the owner of the Sugar Shack Restaurant, and had borrowed the shotgun and taken it to the restaurant because “people got rowdy.” On cross-examination, she was asked if there were other guns at that place on March 19. She indicated that her mother owned a .38 caliber revolver that was there at that time. She was asked:
Q. On that date, on March 19, did she [the witness’s mother, Geneva Chance] have a .38 caliber revolver?
A. Yeah.
Q. And where was it?
A. It was at the Shack too.
Q. Okay. And where was it?
A. I think Jack [appellant] had it.
The trial court sustained appellant’s objection to this testimony and admonished the jury not to consider it, but denied his motion for a mistrial. As the appellant renewed his motion on the ground that the jury could not remove the remark from their memory, the court admonished them again and asked if they understood. There was no response from the jurors indicating that they did not understand the admonition.
A mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial and there is no other method by which the prejudice can be removed. When an objection is made by counsel and that objection is sustained and followed by an admonition by the presiding judge to the jury, the prejudicial statement is ordinarily cured. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). The trial judge is vested with considerable discretion in acting on motions for mistrial and his exercise of that discretion will not be reversed in the absence of manifest abuse. This broad discretion is vested in the trial court because of his superior position to judge the possibility of prejudice. Drew v. State, 8 Ark. App. 120, 648 S.W.2d 836 (1983). Here, the trial judge admonished the jury three times. He instructed them to disregard the statement at the time the initial motion for mistrial was made, and again after the appellant renewed his motion following the admonishment. At the conclusion of the testimony, the judge again instructed the jury that they must not question his rulings on the admissibility of evidence. Giving due deference to the superior position of the trial court to judge the possibility of prejudicial effect of the statement, we cannot conclude that the trial judge abused his discretion in denying the motion for mistrial.
The appellant finally contends that the trial court erred in refusing to quash the information or dismiss the charge against him because the information which served as the basis for the arrest warrant was defective. In support of this contention, he makes two arguments: (1) the information which served as the basis for the issuance of the arrest warrant was not properly verified; and (2) the arrest warrant was not issued or approved by a judicial officer as required by Rule 7.1 (c) of the Arkansas Rules of Criminal Procedure. We find no merit in either of these arguments.
Evidence was introduced showing that the information charging the appellant with the offense of possession of a firearm was mailed by the prosecuting attorney to the clerk’s office. Although it was signed by him, it bore a verification of the clerk. It was shown that the prosecuting attorney was not in the presence of the clerk at the time the attestation was affixed. The appellant concedes that there is no statutory or constitutional requirement that an information be filed under oath and the fact that it is not sworn to does not render it insufficient. Ryan v. State, 260 Ark. 270, 538 S.W.2d 702 (1976); Bazzel v. State, 222 Ark. 473, 261 S.W.2d 541 (1953). As best we can determine, he argues that, even though it is not required that the information be sworn to, the fact that it was sworn to erroneously somehow affected its validity. We do not agree. Ark. Stat. Ann. § 43-1012 (Repl. 1977) provides that an information will not be affected by a defect which does not tend to prejudice the substantial rights of the defendant on the merits. The appellant does not point out any other defect in the information which would require that it be quashed or any way in which he was prejudiced by the action of the prosecuting attorney or clerk regarding the information.
We likewise find no merit in the appellant’s argument that the charge against him should have been dismissed because a judicial officer did not issue or authorize the circuit clerk’s issuance of the arrest warrant. The warrant for the appellant’s arrest was issued by the Desha County Circuit Clerk’s office upon receiving the information in the mail. The clerk of that court testified that it was the normal procedure for his office to automatically issue a bench warrant whenever it received an information. While A.R.Cr.P. Rule 7.1(c) contemplates that a judicial officer issue an arrest warrant, or that the circuit clerk do so if authorized by a judicial officer, it is not necessary to our decision to reach the question of whether the procedure followed here renders such a warrant unlawful. Even were we to assume that this warrant was improperly issued, and the appellant’s subsequent arrest unlawful, that would not preclude the appellant’s trial for the oifense charged.
The only purpose of an arrest warrant is to have an accused arrested and brought before the justice or other officer issuing the warrant so that he may be dealt with according to law. When that has been done, the warrant has performed its function and has no operation whatever on the subsequent proceedings. Dudney v. State, 136 Ark. 453, 206 S.W. 898 (1918); Watson v. State, 29 Ark. 299 (1874). The appellant cannot challenge his own presence at trial or claim immunity to prosecution simply because his appearance was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or a defense to a valid conviction. United States v. Crews, 445 U.S. 463 (1980); 5 Am. Jur. 2d Arrest § 116 (1962). In Crews, 445 U.S. at 474, the Supreme Court stated:
The exclusionary principle of Wongsun and Silverthorne Lumber Company delimits that proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. Respondent is not himself a suppressible “fruit,” and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by police misconduct.
The appellant’s reliance upon Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980), is misplaced. In that case, the court held that, where an arrest warrant is defective and invalid due to the fact that the clerk was not authorized to issue it, any evidence discovered as a result of a search incident to the arrest be suppressed as fruit of the poisonous tree. Here, there was no evidence disclosed or sought to be introduced which was discovered as a result of the execution of the warrant. The police and prosecutor had already obtained the evidence in a manner which is conceded to have been lawful.
Moreover, regardless of whether the information or warrant were defective, a warrant was not required for the appellant’s arrest on charges of being a felon in possession of a firearm, a class D felony under Ark. Stat. Ann. § 41-3103 (Repl. 1977). Rule 4.1 (a) of the Arkansas Rules of Criminal Procedure provides that a law enforcement officer may arrest a person without a warrant if he has reasonable cause to believe that that person has committed a felony. Rule 4.1(d) provides:
A warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause.
Here, when the appellant was initially arrested for armed robbery, the shotgun in his possession was properly seized by Deputy Sheriff Roy Fryer. Deputy Fryer testified at the appellant’s trial for being a felon in possession of a firearm that he knew the appellant and knew he was a convicted felon even before arresting him for armed robbery. Thus, considering the collective information of the sheriff's department at the time of the appellant’s second arrest, it is clear that there was sufficient reasonable cause to believe he had committed a felony to support a warrantless arrest. Any possible defect in either the information or warrant would therefore not render his arrest unlawful.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from the Workers’ Compensation Commission. The claimant was injured in an automobile accident on his way to work while employed by appellant, John Dale Fisher, who was in the business of hanging and finishing sheetrock, under the name of Dale’s Dry Wall and Paint Company. Appellant’s principal place of business and the claimant’s home were in Ashdown, Arkansas, but at the time of the accident the job site was Mt. Pleasant, Texas, some eighty to ninety miles from Ashdown. The appellant testified that his payroll on this job began at 7:30 a.m., even though the men did not usually get to the job site until around 10:00 a.m. Customarily the claimant and a co-worker rode to Mt. Pleasant in a van driven by Fisher’s son, Harold D. (Buddy) Fisher.
On the date of the accident, Buddy had asked the claimant to drive the van so that Buddy could take his newly purchased truck to a repair shop in New Boston, Texas, which was on the direct route to Mt. Pleasant. They left Buddy’s home about 7:00 a.m. with Buddy driving his truck and the claimant following him driving the van. Approximately fifteen minutes later, an oncoming car struck the left side of the van causing personal injuries to claimant.
At the hearing before the administrative law judge, the appellant testified he had sold the van to his son Buddy two days before the accident, but neither the law judge nor the Commission made a specific finding with respect to the ownership of the vehicle. Buddy testified that at the time of the accident there was a fifty-gallon barrel half full of texture, dry wall mud used in sheetrocking, in the van. Both appellant and his son testified that their hand tools, and those of the claimant, were also in the van at that time.
The law judge held that the claimant fell within the “dual purpose” exception to the “going and coming” rule and therefore his injuries were compensable. The full Commission affirmed and adopted the opinion of the administrative law judge as its own.
It was the Commission’s duty to follow a liberal approach in determining whether the claimant received a compensable injury, Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984), and, on appeal, we must review the evidence in the light most favorable to the decision of the Commission and affirm if the decision is supported by substantial evidence, Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). Even though a preponderance of the evidence might indicate a contrary result, we must affirm if reasonable minds could reach the Commission’s conclusion. Young v. Heekin Canning Co., 13 Ark. App. 199, 681 S.W.2d 419 (1985).
The going and coming rule provides that, since all persons are subject to the same street hazards while traveling, injuries sustained by employees going to and coming from work cannot ordinarily be said to arise out of and in the course of the employment within the meaning of the workers’ compensation law. Chicot Memorial Hospital v. Veazey, 9 Ark. App. 18, 652 S.W.2d 631 (1983). However, our courts have recognized a number of exceptions to this rule. See City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). Another rule, whether or not regarded as an exception, has been described in 1 Larson, Workmen’s Compensation Law § 18.00 (1985) as follows:
Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey.
This rule was adopted by Arkansas in Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (1957), where the court relied upon the case of Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), in which Judge Cardozo stated:
What concerns us here is whether the risks of travel are also risks of the employment. In that view, the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils.
. . . We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . . The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. . . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.
167 N.E. at 182-83.
This rule has been approved in later cases. See Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967); Willis v. City of Dumas, 250 Ark. 496, 466 S.W.2d 268 (1971); Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971); and Rankin v. Rankin Construction Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984). In the case at bar, the law judge relied upon Rankin v. Rankin Construction Co., supra, and concluded:
Assuming, arguendo, that the claimant was indeed involved in a personal errand which consisted of doing a favor for Harold Fisher on the morning of his accident, the fact remains that he was driving a van which contained tools and work materials indigenous to the respondent’s business, and vital to him in the performance of his business.
The appellant argues that the finding that the tools and work materials transported in the van were “vital” to the appellant’s business is not supported by the record. It is contended that this was a relatively insignificant matter, done mostly for the employees’ convenience, and should not be a sufficient basis for the application of the dual purpose rule. However, the claimant testified that the van contained “all of our tools and materials and everything that we carry to work.” The appellant’s son testified that there was a fifty-gallon barrel in the van that was “half full of texture, dry wall mud.” The employer himself testified that the van was transporting some hand pumps that were used on the job and some knives, pans, and stuff that “you don’t dare” leave on the job. And when asked if the van contained hand tools “other than just the ones that belonged to Buddy,” the appellant said, “we more or less put all of our tools together.”
Obviously, the claimant was serving his own purpose, as well as doing the appellant’s son a favor, in driving the van to the job site; however, we think there is substantial evidence to support the finding that the claimant was also serving his employer by transporting “tools and work materials” that were “vital” to the performance of the employer’s business. Even if the claimant had not gone to work on the day involved, there is substantial evidence to support a finding that the tools and materials would have been carried to the job site by someone for use by the appellant and his son.
So, there is substantial evidence to support the facts as found by the Commission and we believe the Commission is correct in its application of the dual purpose rule to those facts.
Affirmed.
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John E. Jennings, Judge.
The appellant, Jerry Tharp, was charged with sexual abuse in the first degree. At trial, there was substantial evidence that on August 6, 1985, appellant sexually abused his ten-year-old stepnephew. He was found guilty by a jury and sentenced to five years in prison.
On appeal he argues three points. Because we agree with his first argument, that the trial court erred in admitting evidence of other crimes, we do not reach the other issues appellant raises. We must reverse and remand for a new trial.
After the victim in this case had testified about the abuse for which the appellant was charged, the state was permitted to introduce evidence of another incident of sexual misconduct involving the appellant, the victim, and another child which occurred a week later. At trial, the state argued that the second incident was admissible as part of the res gestae. On appeal, the state candidly concedes that the evidence was not admissible on that basis.
The state also introduced into evidence, over objection, the appellant’s confession in which he admitted to sexual misconduct with the victim and also admitted to various acts of sexual misconduct with three other boys. The record does not reflect whether the latter acts occurred before or after the offense charged. At trial, the prosecutor argued that if part of a confession is admissible, all of it is admissible. Again, on appeal, the state concedes that this is not the law.
The appellant’s argument is that under A.R.E. Rule 404(b), this evidence was inadmissible. That rule provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The state counters with the argument that, although the evidence was inadmissible for the purposes offered, it may have been admissible to prove intent, motive, or plan.
In 1954, the supreme court put an end to its prior practice of saying loosely that proof of recent, similar crimes is admissible to show intent. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954); Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986). Alford was a rape case in which the state had introduced evidence of a recent prior rape attempt to prove intent. Justice George Rose Smith, speaking for the court, pointed out that the issue of intent is theoretically present in every case. The holding in Alford is that unless there is independent relevance, proof of other offenses is inadmissible. The court characterized the issue as one going “to the very heart of fairness and justice in criminal trials.” Alford at 339, 266 S.W.2d at 809.
We have recognized that Rule 404(b) was virtually a codification of Alford and the cases following it. Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark. App. 1980).
Turning first to the evidence of sexual abuse by the appellant of this victim and another child which occurred one week after the offense for which the appellant was charged, we recognize the rule that proof of prior incestuous acts with the same person is admissible. Johnson, supra; Free v. State, 19 Ark. App. 84, 717 S.W.2d 215 (1986); Collins v. State, 11 Ark. App. 282, 669 S.W.2d 505 (1984). The reason it is admissible is that the prior acts show “the relation and intimacy of the parties, their disposition and antecedent conduct toward each other,” Williams v. State, 156 Ark. 205, 246 S.W. 503 (1922) (emphasis added). The problem in the case at bar is that the evidence concerned an offense committed after the one for which the appellant was charged. This evidence is not logically relevant to some independent issue in the case and does not fall within the rule established in Williams. See also Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977).
Regarding that portion of appellant’s confession in which he admitted to sexual misconduct with other persons, we note first that the rule in Williams applies only to prior acts between the same parties. Johnson, supra. The state concedes that evidence of other offenses is not automatically admissible simply because it is contained in a confession. See 29 Am. Jur. 2d Evidence §§ 536 and 538 (1967); Alvarez v. State, 511 S.W.2d 493 (Tex. Crim. App. 1973). The state argues that the evidence may be admissible under the holding of White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). In White, the defendant was charged with the beating death of his wife. The court held that it was not improper to introduce evidence concerning a prior beating several weeks before. The court said the situation was analogous to child abuse and incest cases and cited the rule in Williams. The court also cited Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978) and Van Sickle v. State, 16 Ark. App. 143, 698 S.W.2d 308 (1985). Limber and Van Sickle were physical child abuse cases in which evidence of physical abuse of other children in the same household was allowed. In Limber, Van Sickle, and White the evidence appears to have been independently relevant to show absence of mistake or accident.
Because the case must be remanded for retrial we need not decide whether the evidence of other offenses contained in the appellant’s confession should have been excluded. This is particularly true as the evidence was not offered under Rule 404(b). If, on retrial, those portions of the confession relating to the commission of extraneous offenses are offered under Rule 404(b), it is for the trial court to determine first whether the evidence is genuinely relevant to some independent issue in the case, as opposed to proving only that the appellant is a bad man. Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). If the independent relevancy of this evidence is established, the trial court is then obliged to scrutinize the evidence under A.R.E. Rule 403. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980); Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981). Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Here, the trial court has not yet had an opportunity to apply the balancing test of Rule 403.
Reversed and remanded.
Mayfield and Cracraft, JJ., agree. | [
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