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George Bose Smith, J.
In this case the question which has given us the greatest concern is whether a chancery court, after having taken jurisdiction of a suit to restrain a tort defendant from denuding himself of Ms property, must then, as a matter of giving complete relief, retain jurisdiction and hear the common-law tort action on its merits.
On April 29, 1963, a collision occurred near Corning, assertedly as a result of drunken driving on the part of the appellee Boy C. Barnhill. The appellant was seriously injured, her husband was killed, and others in the car were also injured. As a result of the accident civil actions for damages totaling $217,000 were later filed against Barnhill. He was also charged with manslaughter and other criminal offenses.
At the time of the collision either Barnhill alone or he and his wife owned a combined restaurant and service station north of Corning. Within a few days Barnhill, while still in the hospital, sent for Clifford Cole, a gasoline and oil dealer, and began negotiating a sale of the property. On May 10, eleven days after the collision, the Barnhills and the Coles entered into a contract by which the Coles bought the property for $30,000.
When the appellant learned that Barnhill ivas apparently disposing of his assets she filed the present suit to enjoin him from transferring his property except in the normal course of business. At the inception of the case the chancellor issued a temporary restraining order in accordance with the prayer of the complaint. Later on the appellant ammended her complaint to assert also her cause of action in tort for her husband’s death and for her own injuries.
A preliminary hearing ivas held on the question-whether the restraining order should be continued in force. The chancellor decided that the order ought to be dissolved, though he permitted it to remain in effect pending this appeal under Ark. Stat. Ann. 27-2102 (Repl. 1962).
The first issue is whether the chancellor ivas right in holding that the proof failed to show that Barnhill ivas insolvent and had made conveyances in fraud of his creditors. We think the chancellor abused his discretion in directing that the restraining order be dissolved.
It appears that of the original $30,000 purchase price Barnhill at fix’st received $18,000 in cash and a note and mortgage for $10,500. The other $1,500, which was to be payment for the personal property and fixtures, was put in escrow in a bank pending compliance with the Bulk Sales Law. On May 25, the same day that Barnhill ivas served with a summons in the present case, he converted the $10,500 note into cash by means of a $2,000 discount agreement with the Coles.
Barnhill at once denuded himself of all the proceeds of sale. He paid a number of outstanding debts. He used $2,400 in prepaying for several years the premiums upon a life insurance policy in which, his wife was named as beneficiary. He paid off a $6,000 mortgage to his father. He made prepayments totaling $860 upon the mortgage on his house. He spent more than $1,500 upon hospital and medical bills owed by his mother-in-law. When, after all his disbursements, he still had some $12,000 in cash, he gave it to his wife. He admits that since then he has obtained money from her when he needs it. In our opinion the decided weight of the proof shows that, at the time of the hearing upon the matter of continuing the restraining order in force, Barnhill’s financial condition had already deteriorated beyond the point of insolvency. The chancellor’s decision to dissolve the restraining order was an abuse of discretion that must be set aside.
The remaining issue is the serious one in the case. Upon terminating the preliminary restraining order the chancellor directed that the cause be transferred to the circuit court for trial of the tort action. The appellant, citing Horstmann v. LaFargue, 140 Ark. 558, 215 S. W. 729, maintains that we should now require the chancellor to retain jurisdiction of the tort claim and hear the case upon its merits in equity.
The opinion in the Horstmann case undeniably supports the appellant’s position. There the plaintiff brought suit in the chancery court to set aside fraudulent conveyances and to recover damages for personal injuries. The defendants challenged the jurisdiction of equity. In upholding the chancellor’s action in hearing and determining the tort claim we relied upon this statute: “In suits to set aside fraudulent conveyances and to obtain equitable garnishments, it shall not be necessary for the plaintiff to obtain judgment at law in order to prove insolvency, but in such cases insolvency may be proved by any competent testimony, so that only one suit shall be necessary in order to obtain the proper relief.” Ark. Stat. Ann. § 68-1308 (Repl. 1957). We reasoned that under this statute it was the duty of the chancellor to hear the tort action in order to afford complete relief in one proceeding.
Upon reconsidering the matter we are convinced that our conclusion in the Horstmcmn case was wrong. Before the adoption of the statute in question it was necessary for a plaintiff to obtain a judgment at law before he could bring suit in equity to avoid a fraudulent conveyance. We think it clear that the statute was concerned only with the avoidance of fraudulent conveyances and was intended only to permit the plaintiff to obtain that relief (described in the act as “the proper relief”) in a single suit. If the legislature had intended to bring about such a drastic change in our law as that of permitting personal injury actions to be tried in equity as a matter of right, we think that intention would have been stated in language too plain to be misunderstood. It certainly was not so stated.
This question was considered in Jones v. Jones, 79 Miss. 261, 30 So. 651. There the plaintiff attempted to maintain in equity a suit for personal injuries, relying upon statutes that permitted a creditor to attack a fraudulent conveyance without having first obtained a judgment at law. In summarily rejecting this novel contention the court said: “It was never the contemplation of the statutes invoked by appellant to authorize chancery courts to take cognizance of a suit for unliquidated damages arising out of a tort before there has been any judgment at law ascertaining the damages, the defendant being within the jurisdiction of the court.” See also Dowling v. Garner, 195 Ala. 493, 70 So. 150. It is our conclusion that upon this point the holding in the Horstmann case must be disapproved.
The decree is reversed and the cause remanded with directions that the restraining order be reinstated and that the tort action be transferred to law.
McFaddin, J., dissents. | [
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Carleton Harris, Chief Justice.
Gruy T. Freeland, Louise Freeland, his wife, and Mike Freeland, a minor, by his father as next friend, appellees herein, instituted suit against Freddie Lee Howe, appellant herein, for alleged personal injuries and property damage sustained jn a wreck on November 27,1962. Howe answered, denying negligence, and filed his counter-claim, seeking damages for personal injuries and property damage. Appellees then answered, denying all allegations. On trial, the jury rendered judgment against appellant, fixing damages to Freeland in the amount of $1,700, to Mrs. Freeland in the sum of $1,000, and to the minor son in the amount of $300, and found against appellant on his counter-claim. From the judgment so entered, comes this appeal.
For reversal, it is first asserted that the court erred in refusing to grant appellant’s motion for a new trial because the jurors, while separated, were exposed to improper influence. The case was tried on April 19, and both appellees and appellant concluded all of their evidence on that date. Argument in the ease was to be heard the following morning.
On the night of the 19th, three boys were killed, and two others injured, in an automobile accident on Illinois Bayou Bridge, near Dover. The automobile in which they had been riding was practically demolished. According to the evidence, which was presented on the motion for a new trial, this wreckage was picked up by Cogswell Motors, and, at the direction of the Sheriff, placed in front of the courthouse. The Sheriff stated that he wanted people to see it, thinking it would have a salutory influence upon drivers who viewed it. The officer testified that he knew court was in session, but did not know what case was being tried. In his motion for new trial, appellant asserted that excessive damages were awarded to appellees because of passion and prejudice, occasioned by the members of the jury having viewed the wreckage in front of the courthouse (as they individually entered the building to complete the trial of the instant cause), and because of inflammatory statements made by appellees’ counsel (hereinafter discussed).
We find no merit in this contention. In the first place, the record reflects no objection by appellant prior to argument before the jury, nor was there any request for the court to do anything at all. It must be remembered that appellant had likewise filed a complaint against appellees, and the jury, at that time, had not found appellant guilty of negligence. As far as counsel knew, a verdict might be returned for Howe. At any rate, under these circumstances, the court could have committed no error, because it was not asked to take any action.
Point No. Two for reversal is closely related to the aforementioned argument. Appellant asserts that, before the opening of court, counsel for each side met with the judge in his chambers, and the latter admonished the attorneys to stay in the record, and not make any improper statements during the argument; that during the argument of appellees’ counsel to the jury, he asserted that the defendant (appellant) “should be taught a lesson as shown by the wreck now in front of the courthouse.” Counsel for Howe set out in his motion that he objected to the statement as inflammatory, and opposing counsel was admonished by the court to stay within the record. Subsequently, according to appellant, appellees’ counsel, in closing, again stated “that we did not want to have any more wrecks like the wreckage in front of the courthouse.” Appellant contends that these statements inflamed the minds of the jurors, causing them to bring in an excessive verdict.
The Deputy Prosecuting Attorney for Pope County testified that he “dropped in” the courtroom, and heard part of the closing argument of appellees’ counsel:
‘ ‘ The only thing I heard, Mr. Parker, was Mr. White made reference to prohibiting the terrible wrecks like we had had last night, that was the only statement I heard, that was the only time I was here approximately 5 minutes. I dropped in to hear what was going on.”
The court reporter testified that he did not take down the closing arguments, but, as he recalled, counsel for appellees made some reference to the wrecked automobile. The court stated that appellees’ counsel twice referred to the wreck, that each time the attorney for appellant objected, and that it (the court) admonished the jury to consider only the record in the case being tried. Appellant’s counsel also testified, and admitted that the jury was admonished by the court both times. The court did not recall warning the attorneys, while in chambers, that they should “stay in the record.”
We find no reversible error. Admittedly, the court admonished the jury to consider only evidence in the record each time that counsel for appellant objected. This apparently satisfied counsel, since he did not complain that the court’s admonition was insufficient, nor did he move for a mistrial. It was only after an adverse judgment had been rendered that the assertion was made that the court’s admonition was insufficient. In Adams v. Summers, 222 Ark. 924, 263 S. W. 2d 711, a witness made a statement relative to insurance. Appellant objected, and the court promptly sustained the objection, and admonished the jury to disregard the remark. Subsequently, the court, a second time, had occasion to admonish the jury not to consider any statements with reference to insurance coverage. On appeal, the appellants contended that a mistrial should have been declared, but we pointed out that no request for a mistrial was made after the jury was admonished not to consider the matter. In Ocker v. Nix, 202 Ark. 1064, 155 S. W. 2d 58, we said:
“It is next said that the court erred in permitting one of counsel for appellee to make a prejudicial argument to the jury, and in not declaring a mistrial because thereof. We cannot agree. The court sustained appellant’s objections to the remarks when made and instructed the jury not to consider them.”
Numerous cases could be cited to the same effect.
Appellant next contends that the jury’s verdict for $3,000 was excessive. We find no merit in this argument. Mr. Freeland testified that his left knee struck the dash at the time of the collision, and that he had been troubled with the knee since that time, periodically wearing an elastic bandage. Freeland, who is serving with the United States Army, stated that he is an instructor, and is required to stand on the “platform” six hours per day. He testified that his automobile had a value of $1,200 before the collision, and that the fair market value of the car was about $200 after the collision. The witness stated that he had expended $144 for doctor bills, and $71.60 for drugs.
Dr. Douglas Lowrey testified that an examination and x-ray revealed a diagnosis of ligamentous sprain of the left knee, and that Freeland would have had pain and tenderness for a couple of weeks; that the injury would cause at least a moderate amount of discomfort if Freeland had to stand on his feet for a long time. The doctor stated that any type of prolonged activity which required Freeland to be on his feet would produce pain. Of course, the amount awarded to this appellee included damages for both personal injuries and damage to the automobile, and we do not know the amount given for each. Appellant asserts that Freeland received $800 from his (Freeland’s) insurance company in payment of damage to the automobile, and that the appellee stated that the value of the car, after the wreck, was $200, leaving the actual damage to the automobile at $600. This argument was based upon an intervention purportedly filed by the Southwestern Insurance Company, stating that the company had paid Freeland $800 for damage to the ear and was entitled to subrogation in that amount. However, this intervention was stricken by the court before the trial got under way, the court holding that the intervention had not been properly filed. For that matter, the mere fact that Freeland had received $800 from his insurance company, even if that fact properly appeared in the record, would not be adequate grounds to reduce the judgment. As stated, we do not know how the jury prorated the $1,700 awarded to Freeland for personal injuries and damage to the car. It is entirely possible that only $800 was awarded for property damage. In addition, the alleged amount could have been paid by the company to Freeland as a compromise figure.
Mrs. Freeland testified that she received an injured back, a whiplash injury to the neck, and that both knees were bruised; in fact, she “was bruised all over.” The witness stated that she had not been able to perform her ordinary household activities, and that her neck and back still bothered her (at the time of the trial); that she was still taking “pain pills” and nerve medicine. She said that she used the heating pad on her neck at night, and had pain in the left hip when walking.
Dr. Lowrey testified that he took x-rays of the chest, left shoulder, four separate views of the neck or cervical spine, and x-rays of both knees and of the lumbosacral spine (lower back). The doctor stated that Mrs. Free-land had received an acute cervical sprain, a sprain of the muscles of the left shoulder and back, and contusions on both knees, and that these injuries were painful. When asked how long the pain could reasonably be expected to continue, he replied:
‘ ‘ To continue with—without any letting up, I would say over a period of approximately three to six months time, but as far as continuously moderately severe pain, probably only two weeks to a month, and Mrs. Freeland did continue to have a moderately severe amount of pain, particularly in the neck and back for, in fact, about two or three months.
“Q. Now, you say that you expect her to have that pain for that length of time and then additional pain for six months or longer.
“A. Yes, sir, three to six months, I would say.”
Dr. Lowrey further stated that complete recovery would occur, but he did not know how long it would take.
“I would estimate in Mrs. Freeland’s case that within one to two years, there should be recovery to the point that she would not expect flare ups.”
The testimony reflected that the child, Mike, five years of age, was bruised on the head, legs, and back, and complained of pain for about a month and a half.
We agree with the remarks of the trial judge when he overruled the motion to vacate the judgment and grant a new trial. After noting that it was considered that the admonition of the court to the jury was sufficient, that no record was made of the incident, and no mistrial asked for, he stated:
“As an additional reason for refusing to vacate the judgment, it is not my opinion that the amount awarded by the jury, that is the $300.00 to the minor child, $1,-700.00 to Mr. Freeland and $1,000.00 to Mrs. Freeland, show the result of any passion or prejudice or excitement on the part of the jury. In my opinion the judgment was extremely reasonable. ’ ’
Certainly we are unable to say that the amounts awarded were excessive.
Finally, appellant asserts that the court erred in refusing to give his Requested Instruction No. 1, as follows :
“The Jury is instructed that the driver of a motor vehicle shall not follow another vehicle [closer] than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the Highway and one following another vehicle too closely is evidence of negligence.”
We find no evidence that would justify the giving of the instruction. Appellant, at one point, stated that the Freeland automobile was back of the truck about 228 feet; at another point in his testimony, he stated that appellees’ automobile was following about 150 feet back of the truck. Freeland stated positively that he was never closer to the rear of the truck than 150 feet, and there is no testimony to the contrary. Under that proof, we do not think that the instruction sought by appellant was justified.
No reversible error appearing, the judgment is affirmed.
The accident occurred at approximately 8:00 P.M., November 27, 1962, at New Blaine, Arkansas. According to the evidence, appellant was traveling west, and as he rounded the curve at New Blaine, he was “run off” the road by a truck, traveling east, that had just traversed a 255-foot bridge, straddling the center line. Appellant pulled off the highway about two feet, and traveled for approximately 147 feet. Howe stated that in pulling back onto the highway, he was blinded by the lights from Freeland’s car, which was just coming over the bridge. The collision occurred 17 feet from the end of the bridge. | [
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Judith Rogers, Judge.
Obert M. Undem appeals from a summary judgment for appellee, First National Bank of Spring-dale, in an action on a promissory note. We agree with appellant that genuine issues of material fact remained to be tried, and reverse and remand.
On May 22, 1989, Joe B. Morris, Sr., C. Thomas Pearson, Jr., Floyd Harris, George Williams, Marjorie Niblock, Vincent Morris, and appellant signed a promissory note in the amount of $250,000.00 to appellee. This note stated that the loan’s purpose was to benefit the holding company of Northwest National Bank and had a maturity date of August 22, 1990. On May 31, 1989, Madelyn Harris, Walter Niblock, Marjorie Niblock, Susan Morris, and Delores Williams signed guaranties for this debt.
On August 22, 1990, George Williams, Marjorie Niblock, C. Thomas Pearson, Jr., Floyd Harris, Vincent Morris, and Joe Morris signed extension agreements for the unpaid balance on the note. Appellant did not sign an extension agreement.
On February 28, 1992, appellee sued the parties to the note, guaranties, and extension agreements for the remaining balance due on the note. In his answer to the complaint, appellant admitted signing the note but stated that he had done so in reliance on the representations of Virginia T. Morris, whom he characterized as appellee’s agent. He stated that he had signed the note on Virginia Morris’ assurances and representations that appellant’s liability on the note would be totally eliminated upon the termination of his membership on the board of directors of Northwest National Bank and its holding company, Northwest Bancorporation of Arkansas, Inc. He alleged that Virginia Morris had agreed to provide documentation of this agreement but did not do so. Appellant stated that he had not been re-elected as a director of Northwest National Bank or Northwest Bancorporation at their respective annual meetings in March 1990. Appellant argued that the renewal of the note on August 22, 1990, without his signature released him from liability on the note. Appellant also claimed fraud and argued that appellee should be estopped from asserting its claim against him.
Appellee moved for summary judgment and, in support, filed the affidavit of Jack Erisman, appellee’s vice president, who had handled the transaction involved in this lawsuit. In his affidavit, Mr. Erisman stated that appellee had not given appellant any written or oral release of liability on the note. In response, appellant argued that genuine issues of material fact regarding release, waiver, estoppel, and agency remained for trial. Appellant also filed an affidavit in which he stated:
3. That on or about May 22, 1989, and specifically prior to my execution of the promissory note that is the subject of this cause of action, Virginia Morris stated to me that the plaintiff, First National Bank, had engaged her personally to obtain the signatures of each defendant on the promissory note, and that the various documents presented to me by Virginia Morris contained both the name and logo of the First National Bank, and appeared to have been prepared by the plaintiff.
4. That prior to my execution of the promissory note and after having stated to me that she had been engaged by the plaintiff, to obtain my signature on the promissory note, Virginia Morris, as an agent of the plaintiff, First National Bank, represented directly to me that my liability on the promissory note would be nominal only, that I would be relieved from any liability on the promissory note in the event my membership on the Board of Directors of Northwest National Bank and its holding company, Northwest Bancorporation of Arkansas, Inc., was terminated; and that the plaintiff, First National Bank, would not hold me liable on the promissory note thereafter.
5. That in January of 1990, I was not nominated for re-election as a member of the Board of Directors of First National Bank, and its holding company, Northwest Ban-corporation of Arkansas, Inc. at the request of Virginia T. Morris since I had not agreed to increase my small investment in stock of either of these corporations.
On February 3, 1993, appellee filed a satisfaction of judgment, stating that it had received $275,977.80. On February 11, 1993, the circuit court granted summary judgment to appellee in the amount of $275,977.80 against the defendants, jointly and severally. The court also found that the total amount of the judgment had been paid to appellee by fewer than all of the defendants and that those defendants who had contributed toward satisfaction of the judgment desired an order of contribution against those who had not contributed a pro rata share. The court held that, contribution being a matter cognizable in equity, the action would be transferred to the Washington County Chancery Court for the purpose of determining the rights of contribution among the defendants. It is from the entry of this summary judgment for appellee that appellant has appealed.
Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Watts v. Life Ins. Co. of Ark., 30 Ark. App. 39, 41, 782 S.W.2d 47 (1990). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 551, 868 S.W.2d 505 (1994). In appeals from the granting of summary judgment, we review facts in a light most favorable to the appellant and resolve any doubt against the moving party. Wilson v. Gen. Elec. Capital Auto Lease, Inc., 311 Ark. 84, 86-87, 841 S.W.2d 619 (1992); Thomas v. Sessions, 307 Ark. 203, 205, 818 S.W.2d 940 (1991).
Appellant argues that a genuine is.sue of material fact remained in regard to fraud, misrepresentation, agency, and estop-pel. In short, appellant argues that the bank’s purported agent, Virginia Morris, fraudulently induced appellant to sign the promissory note. Appellant also argues that appellee should be estopped because it had made it possible for Mrs. Morris to perpetrate fraud against appellant.
Appellant’s fraudulent inducement argument regarding the execution of the note rests upon Mrs. Morris’ status as an agent for appellee. The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents to so act. First Commercial Bank v. McGaughey Bros., Inc., 30 Ark. App. 174, 177, 785 S.W.2d 236 (1990). Ordinarily, agency is a question of fact to be determined by the jury; but where the facts are undisputed, and only one inference can be reasonably drawn from them, it becomes a question of law. Id.
Additionally, whether an agent is acting within the scope of his actual or apparent authority is a question of fact for the jury to determine. Henry v. Gaines-Derden Enters., Inc., 314 Ark. 542, 551, 863 S.W.2d 828 (1993). In Hawthorne v. Davis, 268 Ark. 131, 133, 594 S.W.2d 844 (1980), the supreme court stated that circumstantial evidence may be sufficient to establish agency, and the declarations of the purported agent may be used to corroborate other evidence of agency.
The dissent argues that appellant has produced insufficient facts of agency to withstand summary judgment and bases this argument on the rule of law that apparent agency cannot be founded solely on assertions made by the alleged agent; there must be some form of holding out or representation by the alleged principal. See Arkansas Poultry Fed’n Ins. Trust v. Lawrence, 34 Ark. App. 45, 805 S.W.2d 653 (1991). The dissent analogizes this case to First Commercial Bank v. McGaughey Brothers, Inc., 30 Ark. App. 174, 785 S.W.2d 236 (1990). In that case, we held that the trial court had erred in submitting the issue of agency to the jury. At trial, in First Commercial Bank, the guarantor presented no evidence of agency; he only testified to his assumption that the representations of the borrower seeking his signature were acting as agents of the bank. We held that that issue should have been determined as a matter of law because the evidence was insufficient to create a question of fact. Id. at 186. We noted that courts have held that, when a bank directs a borrower to obtain the signature of another on a personal guaranty as a condition of making a loan, the act of the borrower in obtaining the signature is one for his own benefit, and the borrower is not the agent of the bank. Id. at 177.
First Commercial Bank v. McGaughey Brothers is distinguishable from this case, however. First, the question on appeal is not whether sufficient evidence was presented at trial to go to the jury; instead, we are asked to decide whether the appellant will even have the opportunity to present his defenses at a trial. Second, the parties seeking the guarantor’s signature in First Commercial Bank v. McGaughey Brothers were commissioners of the debtor improvement district. Here, we do not know who Virginia Morris is or the precise nature of her relationship to appellant or the bank. Appellant has, however, stated in his affidavit that she acted as the bank’s agent in obtaining his signature.
We hold that, in his affidavit, appellant adequately demonstrated the existence of a genuine issue of material fact regarding Mrs. Morris’ status as an agent of appellee. As explained below, we also believe appellant sufficiently demonstrated that issues of fact regarding fraudulent inducement and estoppel should be tried.
In order to avoid a contract on the basis of fraudulent misrepresentation, the party asserting this defense must prove that false representations were made and that these representations were material to the contract. Wilson v. Allen, 305 Ark. 582, 583-84, 810 S.W.2d 42 (1991).
Appellee argues that the parol evidence rule should apply. We disagree. It has often been held that the rule forbidding the addition, alteration, or contradiction of a written instrument by parol testimony of antecedent and contemporaneous negotiations does not apply where there is an issue of fraud in the procurement of the writing. Hamburg Bank v. Jones, 202 Ark. 622, 624, 151 S.W.2d 990 (1941).
Appellee also argues that representations relating solely to future events, or which are promissory in nature, do not afford a basis for actionable fraud. Appellee argues that fraud must relate to a present or pre-existing fact and cannot ordinarily be predicated on promises or statements as to what will be done in the future. In Anthony v. First National Bank of Magnolia, 244 Ark. 1015, 1028, 431 S.W.2d 267 (1968), the supreme court stated that representations that are promissory in nature or of facts that will exist in the future, though false, do not support an action for fraud. The court went on to state, however, that this rule would not apply if the party making the false promise knew at the time that it would not be kept. Id. See also Pierce v. Sicard, 176 Ark. 511, 3 S.W.2d 337 (1928). It has often been held that the issue of intent is a question of fact. See Elkins v. Arkla, Inc., 312 Ark. 280, 281, 849 S.W.2d 489 (1993).
With regard to appellant’s estoppel argument, appellant states in his brief that, by providing the promissory note to Virginia Morris with instructions to obtain appellant’s and the other debtors’ signatures, appellee made it possible for Mrs. Morris to perpetrate fraud. Appellant argues that, where one of two innocent persons must suffer because of the fraud of a third, the one who, by his own conduct and neglect, made the fraud possible or facilitated its perpetration is the one who must bear the loss.
Estoppel is a doctrine which involves both, not just one, of the parties; the party claiming estoppel must prove he relied in good faith on some act or failure to act by the other party and that, in reliance on that act, he changed his position to his detriment. Worth v. Civil Serv. Comm’n, 294 Ark. 643, 646, 746 S.W.2d 364 (1988). A party who by his acts, declarations, or admissions, or by his failure to act or speak under circumstances where he should do so, either with design or willful disregard of others, induces or misleads another to conduct or dealings which he would not have entered upon, but for such misleading influence, will not be allowed, because of estoppel, afterward to assert his right to the detriment of the person so misled. Beard v. Ford Motor Credit Co., 41 Ark. App. 174, 185, 850 S.W.2d 23 (1993). Estoppel in pais is the doctrine by which a person may be precluded by his acts or conduct, or by failure to act or speak under circumstances where he should do So, from asserting a right which he otherwise would have had. Daves v. Hartford Accident and Indem. Co., 302 Ark. 242, 247, 788 S.W.2d 733 (1990). Estoppel in pais or equitable estoppel may be pled in both courts of equity and courts of law. Northwestern Nat’l Life Ins. Co. v. Heslip, 302 Ark. 310, 312, 790 S.W.2d 152 (1990). In Dickson v. Delhi Seed Co., 26 Ark. App. 83, 93, 760 S.W.2d 382 (1988), this Court stated: “It is well settled that whether estoppel is applicable is an issue of fact to be decided by the trier of fact.”
Based upon the facts set forth in appellant’s affidavit and the legal principles discussed above, we believe that appellant adequately demonstrated the existence of genuine issues of material fact regarding agency, fraudulent inducement, and estoppel. Accordingly, we hold that the circuit court erred in awarding summary judgment to appellee.
Reversed and remanded.
Cooper, J., dissents.
Jennings, C.J., not participating. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission. We affirm.
At the hearing before the administrative law judge, it was stipulated that on September 5, 1991, the claimant, an employee of the Arkansas Department of Correction, was bitten by an inmate known to be HIV positive. It was also stipulated that the claimant missed no time from work, the injury was accepted as compensable, and payment had been made for treatment of the bite wohnd. It was further stipulated that the claimant’s treating physician at the hospital emergency room recommended that the claimant be tested for, and receive treatment to prevent the development of, tetanus, hepatitis, HIV, AIDS, and AIDS related complex (ARC) and that the appellant declined to pay for these tests and prophylactic measures. The stipulation stated that the only issue before the Commission was the compensability of the medical procedures for which the respondent had declined to pay.
The administrative law judge held that the injury was com-pensable; that the exposure to the AIDS virus arose directly from the claimant’s work-related injury; and that the testing, treatment, and prevention of the development, or spread, of the dis ease would be “reasonably necessary for the treatment of the injury” pursuant to Ark. Code Ann. § 11-9-508 (1987). The full Commission affirmed and adopted the opinion of the law judge.
The appellant argues that: “The Commission erred in holding that the diagnostic and preventive measures prescribed for detection, diagnosis and/or prevention of AIDS, ARC, HIV, tetanus, and hepatitis or other infectious diseases were reasonably necessary for treatment of the claimant’s compensable injury, in that such a holding is not supported by substantial evidence and is contrary to applicable law.”
Arkansas Code Annotated section 11-9-508 (1987) provides:
(a) The employer shall promptly provide for an injured employee such medical, surgical, hospital, and nursing service, and medicine, crutches, artificial limbs, and other apparatus as may be reasonably necessary for the treatment of the injury received by the employee.
What constitutes reasonable and necessary treatment under this section is a fact question for the Commission. Wright Contracting Co., v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). Also, whether the medical treatment actually provided is reasonable and necessary is a question of fact for the Commission. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings, and we must affirm if there is any substantial evidence to support them. We may reverse the Commission’s decision only when we are convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Id.
Appellant contends that the medical care reasonable and necessary to “treat” the claimant’s injury was merely cleansing the bite wound, suturing, and bandaging it. Appellant cites City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976), in support of its argument. In that case the Colorado Workers’ Compensation Commission declined to allow a fireman, exposed to infectious hepatitis, preventative treatment because it did not meet the criteria for occupational disease under the state statute; because mere exposure to a disease does not warrant an award of benefits; and because there was no statutory authority for requiring employers to provide preventive measures. The appellee/claimant distinguishes that case from this one by pointing out that Colorado had a specific statute quite different from that of Arkansas; the claimant in the Colorado case said he could have been exposed to hepatitis at work or outside work; and the disease was one to which the employee might have been equally exposed outside of his employment.
However, in Jackson Township Volunteer Fire Company v. Workmen’s Compensation Appeal Board (Wallet), 594 A.2d 826 (Pa. Commw. Ct. 1991), Wallet was a volunteer with the Ambulance Association, a division of the fire department, when he assisted with transporting the body of a person killed in an automobile accident and in the process got the victim’s blood and body fluids on his hands and shirt. The victim was' found to have had AIDS and was actively infected with the hepatitis B virus. The coroner immediately summoned Wallet to the hospital where he was tested for AIDS and hepatitis and received a series of injections to kill the hepatitis virus. The fire department and its insurer refused to pay for the tests and immunizations. The issue was whether the statutory definition of “injury” could apply to exposure to AIDS and hepatitis under these circumstances. It was held that Wallet’s “injury” was “the risk of infection,” and that “persons exposed to a serious risk of contracting a disease which is commonly known to be highly contagious/infectious and potentially deadly, have been ‘injured’ for the purpose of receiving compensation under the Act.” 594 A.2d at 828.
The focus of our decision in the instant case is the Commission’s decision that the appellee “is entitled to the medical treatment prescribed for the purposes of detecting and/or preventing tetanus, HIV, hepatitis, all of which arise out of his admittedly compensable injuries.” We affirm that decision based on the Commission’s specific finding that “the prescribed regimen of treatment is ‘reasonably necessary for the treatment of the injury.’”
Affirmed.
Pittman and Rogers, JJ., agree. | [
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John B. Robbins, Judge.
Appellants Jimmy Myers, Cathy Owen, and Kenneth Owen were charged with possession of methamphetamine and marijuana with intent to deliver, and possession of drug paraphernalia. Motions to suppress were filed in which appellants asserted that all items seized should be suppressed because there was no valid basis for the issuance of a warrant which authorized a nighttime search. Following a hearing, the motions to suppress were denied. Thereafter, all three appellants entered a guilty plea pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, which provides;
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
The appellants now appeal, arguing that the trial court erred in overruling their motions to suppress because the nighttime search was not justified by the affidavit for the warrant and was in violation of the Fourth and Fourteenth Amendments to the United States Constitution, article 2, section 15 of the Arkansas Constitution, and Rule 13.2 of the Arkansas Rules of Criminal Procedure. In addition, appellants Cathy Owen and Kenneth Owen contend that the court erred in allowing testimony of a police officer at the motion hearing because it was outside the scope of the affidavit. We find no error and affirm.
The evidence shows that, at about 8 p.m. on the evening of December 31, 1992, a confidential informant entered Mr. Myers’ residence for the purpose of purchasing controlled substances. The informant purchased a substance represented to be methamphetamine and, while making the purchase, he observed an additional quantity of methamphetamine, as well as marijuana and drug paraphernalia.
Based on the information provided by the informant, Officer Dennis Alexander of the Fort Smith Police Department prepared an affidavit with the assistance of a Deputy Prosecutor and proceeded to the home of Circuit Judge John Holland. In reliance on the affidavit, Judge Holland signed a warrant for the search of Mr. Myers’ residence. The warrant was executed at 4:00 a.m. on January 1, 1993, during which methamphetamine, marijuana, currency and drug paraphernalia were seized.
The affidavit signed by Officer Alexander stated that an informant purchased illegal drugs from Mr. Myers during the nighttime hours, that the informant saw additional methamphetamine, marijuana and drug paraphernalia in Myers’ house, and that “since sales are being made in the nighttime hours it is respectfully requested that a nighttime search be authorized.” The warrant signed by Judge Holland authorized a nighttime search. He represented in the warrant that he was satisfied that reasonable cause existed to believe that “the objects to be seized are in danger of imminent removal” and that “the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.”
We need not address the merits of the arguments presented by appellants Mr. Owen and Ms. Owen because neither has standing to challenge the search of Mr. Myers’ residence. The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights have been violated by the challenged search or seizure. State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986). A person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured in the search of a third person’s premises or property. Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990). In Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), the Arkansas Supreme Court held that an individual had no standing to contest a warrantless search and seizure because there was no showing that the person owned or leased the searched premises or maintained any control over the premises. Mr. Owen and Ms. Owen failed to make any showing that either of them had any right of control over Mr. Myers’ home. Because their arguments amount to an attack on the nighttime search and no control or legitimate expectation of privacy was established, we affirm the convictions of Mr. Owen and Ms. Owen.
We next address the merits of the argument presented by Mr. Myers. Arkansas Rule of Criminal Procedure 13.2(c) addresses a person’s right against an unreasonable nighttime search and provides:
(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m. and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(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;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
An affidavit for a search warrant must set forth facts establishing reasonable cause to believe that circumstances exist which justify a nighttime search. Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993). Conclusory statements do not provide the requisite factual basis to establish reasonable cause. Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). In reviewing a trial court’s decision to deny an appellant’s motion to suppress evidence, this court makes an independent determination based on the totality of the circumstances and reverses the decision only if it is clearly against the preponderance of the evidence. Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993).
After a careful review of the affidavit presented in this case, we find that the trial judge’s decision to deny the motion to suppress evidence seized in the nighttime search was not clearly against the preponderance of the evidence. The instant case presents a fact pattern similar to that of Holmes v. State, 39 Ark. App. 94, 839 S.W.2d 226 (1992), a case in which we upheld the trial court’s finding that a nighttime search warrant had been validly issued. In Holmes, as in the case at bar, the affidavit set forth information that the residence in question contained illegal drugs and paraphernalia in addition to that purchased by a reliable informant; that the informant had purchased drugs with recorded currency; and that appellant was believed to be active in the sale of illegal drugs. Furthermore, the informant in this case, operating under police surveillance, purchased methamphetamine on the same night that the search was executed. Based on the facts set out in the affidavit, the issuing judge was satisfied that there was reasonable cause to believe that the contraband and recorded currency at issue were in danger of imminent removal and authorized a nighttime search. Based on the precedent of Holmes, we cannot say the trial court erred in its denial of Mr. Myers’ motion to suppress. See also Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992).
This case is distinguishable from Zeiler v. State, 46 Ark. 182, 878 S.W.2d 417 (1994),'a case in which we held an affidavit to be insufficient to justify a nighttime search. In that case, the affidavit did not indicate whether the informant who purchased marijuana observed more marijuana or other controlled substances at the appellant’s residence, nor did it indicate whether any drug paraphernalia was present at the appellant’s home. In addition, the affidavit gave no indication that any other drug activity was occurring on the premises. By contrast, the affidavit in the instant case provided information regarding additional drugs and paraphernalia at appellant’s home along with a statement, based on the informant’s knowledge, that Mr. Myers was active in drug dealing. These additional factors supply the reasonable cause to justify the trial judge’s refusal to suppress the fruits of the nighttime search.
Affirmed.
Pittman and Mayfield, JJ., agree. | [
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Ed. F. McFaddin, Associate Justice.
On March 15, 1962 the plaintiffs filed suit in th.e Union Chancery Court against the defendants, who number more than a score of persons. The plaintiffs (appellants here) are Mrs. Betty Joe Sample Anderson, Mrs. Josephine Sample, and Mrs. Pattie Jane Purifoy Peek. Some of the defendants filed motions to quash service, and others of the defendants filed demurrers. The Trial Court sustained all of the motions and demurrers and dismissed the plaintiffs’ complaint when they refused to plead further. From such final decree dismissing the complaint there is this appeal. The demurrer issue is determinative, because if no cause of action was stated, then the complaint was properly dismissed, even if service had been valid (a matter we need not consider in view of the conclusions that we reach.)
The complaint alleged that J. F. Sample died intestate in Union County, Arkansas, on September 1, 1904, survived by a widow and ten children as his heirs at law; that one of the heirs at law was a son, Claude Sample, who inherited an undivided one tenth interest in the estate of J. F. Sample; that Claude Sample died intestate on September 24, 1923, survived by the plaintiff, Mrs. Josephine Sample, as his widow, and by the plaintiff, Mrs. Betty Joe Sample Anderson, as an heir at law; that another child and heir at law of J. F. Sample was Mrs. Grace Sample Purifoy, who also inherited one tenth of the estate of J. F. Sample; that Mrs. Purifoy also died intestate; that the plaintiff, Mrs. Pattie Jane Purifoy Peek is a daughter and one of the heirs at law of her mother, Mrs. Grace Sample Purifoy and, as such, is entitled to a portion of the J. F. Sample estate. The plaintiffs sought to recover their claimed interests in the J. F. Sample estate and to hold certain defendants liable. Since there are three plaintiffs, we consider separately the ¿negations of each as contained in- all of the pleadings of the plaintiffs.
I. The Allegations Of Mrs. Betty Joe Sample Anderson. This plaintiff claimed that upon the death of J. F. Sample in 1904, his widow, Mrs. Fannie E. Sample became administratrix of his estate; that Claude Sample (being one of the ten heirs of J. F. Sample and being the father of the plaintiff) died intestate in 1923; that a guardian was duly appointed for this plaintiff; that on one of the bonds executed by the said guardian, Clark Sample and C. H. Murphy were sureties; that this plaintiff is entitled to an accounting in this chancery action and is entitled to a judgment against Claude Sample and the heirs of C. H. Murphy, the said sureties on the said guardianship bond. In the complaint there is this positive allegation: "One of the plaintiffs, Betty Joe Sample, now Anderson, would show the court that there has been no final settlement filed in the matter of guardianship of Betty Joe Sample, minor.”
Because of the above quoted allegation the complaint fails to state a cause of action in equity against the sureties on the guardianship bond. In Waldrop v. Cooper, 192 Ark. 1017, 96 S. W. 2d 19, we held that until the guardian’s liability has been established by an order of the probate court, an action could not be maintained against the sureties on the bond. Here is the language:
"We agree with the trial court that the complaint failed to state a cause of action cognizable in equity. The guardianship is still pending in the probate court,' with no final settlement and no discharge of the guardian. No liability of the guardian has ever been established by an order of the probate court, and no order to pay over money found to be due on any final settlement has been alleged to be in default. Until this is done there is no liability against the bond. It was so held in Vance, Guardian v. Beattie, 35 Ark. 93, where it was said: ‘Before final settlement of the accounts of Malone as guardian, and an order of the probate court for him, or his administrator, to pay over to appellant as his successor in the guardianship, some balance found due his Avards on such settlement, appellant has.no legal cause of action on the bond of Malone. ’ Citing Sebastian v. Bryan, 21 Ark. 447; Norton v. Miller, 25 Ark. 108. See also Smith v. Smithson, 48 Ark. 261, 3 S. W. 49. As said in State v. Buck, 63 Ark. 218, 37 S. W. 881: ‘Until this settlement was made, and the balance due from the guardian ascertained by the court, the appellant had no cause of action that she could enforce, either at laAv or in equity against the sureties on her guardian’s bond.’ See, also, Wallace v. Swepston, 74 Ark. 520, 86 S. W. 398, 109 Am. St. Rep. 94.”
Mrs. Betty Joe Sample Anderson also alleged that in 1961 she executed a deed to certain property which is now owned by the First Baptist Church of El Dorado; and that the Church took the deed Avith full knowledge of the claim of these plaintiffs as to their legal interest in the property. There is no allegation that the Church, or anyone connected with it, defrauded the plaintiff in any Avay, or Avas guilty of any unfair practice. There are no specific allegations of any facts showing fraud by anyone in connection with the deed that the plaintiff executed. In McIlroy v. Buckner, 35 Ark. 555, Mr. Justice Eakin, speaking for this Court, said:
“It is not sufficient to plead fraud generally, or merely to characterize actions as fraudulent. The facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation, craft, finesse, or abuse of confidence, by Avhich another is misled, to his detriment; and these or some of them, must be alleged and proved. Mere epithets, or adverbs characterizing conduct, which, in itself, may be innocent, amount to nothing. This has been repeatedly ruled by this court. ’ ’
To the same effect, see also: Burns v. Burns, 199 Ark. 673, 135 S. W. 2d 670; Ledwidge v. Taylor, 200 Ark. 447, 139 S. W. 2d 238; and Jansen v. Blissenbach, 210 Ark. 22, 193 S. W. 2d 814.
The complaint failed to state a cause of action as regards the conveyance of the property now held by the Church: so as to Mrs. Betty Joe Sample Anderson, the Trial Court was correct in sustaining the demurrers to her complaint.
II. The Allegations Of Mrs. Josephine Sample. This plaintiff claimed that Claude Sample inherited an undivided one tenth interest in the estate of J. F. Sample; that Claude Sample died intestate on September 24, 1923; that this plaintiff is entitled to her dower interest in the estate of Claude Sample and is entitled to an accounting against various defendants who might have received some part of the estate of J. F. Sample. But the complaint further alleged that there appears of record in Book 61 at page 486 in the Deed Records of Union County, Arkansas, a warranty deed with relinquishment of dower, dated April 9,1918, whereby Claude R. Sample and Josephine Sample, his wife, for the consideration of $1,000.00, conveyed to Mrs. F. E. Sample all the grantors’ interest in the estate of J. F. Sample in Union County, Arkansas. The only allegations seeking to void this deed are these: that the acknowledgment appears to be defective in that it fails to comply with statutory requirements; that “The plaintiffs would show the court that this purported deed is void; . . .”; and “The plaintiffs would show the court that there is no evidence of any money having been paid to Claud R. Sample or Josephine Sample for this alleged deed.”
As to the defective acknowledgment: we have had many curative acts since 1918 curing defective acknowl edgments. In Ark. Stat. Ann. §49-213 (1947), there is the Act No. 422 of 1941; and prior curative acts are listed in the annotation to such statute. So the vague allegation of “defective acknowledgment” was subject to demurrer. As to the allegation, “. . . that this purported deed is void . . . ”: this allegation was a mere conclusion; and was subject to demurrer. See Wood v. Drainage Dist., 110 Ark. 416, 161 S. W. 1057. As to the allegation that the deed was without consideration: in the absence of any sufficient allegation of facts as to mental incapacity, fraud, duress, etc. (and no sufficient allegations of such a nature were contained in the pleadings), then evidence could not have been introduced to show a total absence of consideration. See Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; Mewes v. Mewes, 116 Ark. 155, 172 S. W. 853; and Mo. Pac. Rd. Co. v. Swafford, 186 Ark. 631, 55 S. W. 2d 85.
The Chancery Court was correct in ruling that the complaint of Mrs. Josephine Sample failed to state a cause of action.
III. The Allegations Of Mrs. Pattie Jane Purifoy Peek. This plaintiff claimed that her mother, Mrs. Grace Sample Purifoy, inherited a one-tenth interest in the estate of J. F. Sample; that Mrs. Purifoy also died intestate, and that this plaintiff as one of the heirs at law of her mother was entitled to an interest in the estate of J. P. Sample. This plaintiff further alleged that her father, L. L. Purifoy, was in 1924 duly appointed her guardian by the Probate Court of Union County, Arkansas, and on January 5, 1924, made the regular statutory guardian’s bond with C. H. Murphy as surety thereon; that the said guardian executed various oil and gas leases, and various other conveyances, with special bonds in each instance, as required by statute, and with various sureties; and that this plaintiff was entitled to an accounting in this chancery action against the estate of her said guardian and the estate of each and all of the sureties on the various bonds, as well as against the heirs of any of the sureties that may be dead.
The complaint had this specific allegation: “The record shows that there was no settlement made of the Purifoy guardianship ...” This allegation in the complaint is fatal to the alleged cause of action of Mrs. Pat-tie Jane Purifoy Peek because, as we have already shown in considering the allegations made by Mrs. Betty Joe Sample Anderson, until there has been a settlement of the guardianship proceedings in the Probate Court, there can be no suit in law or in equity to charge the guardian or the sureties on his bond. It is therefore clear that the allegations made by Mrs. Pattie Jane Purifoy Peek fail to state a cause of action; and the Chancery Court was correct in sustaining the demurrer to her pleadings.
CONCLUSION. After considering every angle of the case we reach the conclusion that the Chancellor was correct in sustaining the demurrers and dismissing the complaint; and it therefore becomes unnecessary for us to consider the matter of the quashing of service. The decree is in all things affirmed.
Later an amended and substituted complaint was filed and an amendment thereto. We consider all of the plaintiffs’ pleading under the generic word, “complaint.” The amended and substituted complaint consists of 136 pages in the transcript. | [
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Paul "Ward, Associate Justice.
This appeal challenges the right of the Arkansas State Board of Pharmacy to deny Maurice Harvey (appellant) a 1963 Pharmacy Permit to operate a drug store in Waldron. The action of the board was sustained by the Pulaski County Circuit Court, and this appeal follows.
Appellant is the owner of said drug store which has been in continuous operation for more than fifty years. Since 1955 he has been a “Licensed Practical Druggist” but he is not now and never has been a “Licensed Registered Pharmacist”. However, until recently appellant has employed a registered pharmacist in his store.
Appellant’s permit to operate his drug store was refused by the board because of his failure to comply with Ark. Stat. Ann. § 72-1017.1 (Repl. 1957). This section, in material part, reads as follows:
“Hereafter no person shall operate a drug store or pharmacy or be issued a Registered Pharmacy Permit unless an Arkansas registered pharmacist is on duty in such drug store or pharmacy a minimum of forty (40) hours per week.”
The facts are not in dispute, and the only issue involved (as stated by appellant) is the constitutionality of the above mentioned section.
Summarily stated, it is contended by appellant that § 72-1017.1 (§ 14 of Act 57 of 1955) is arbitrary and bears no .relation to the public welfare, that it grants a monopoly to. a select few, that it is unfair and discriminatory, and that it therefore violates the due process clauses of the United States and the State Constitutions. In support of the above it is ably and forcefully argued that appellant has had years of experience in running a drug store and filling prescriptions, that he is competent to do so without endangering the public welfare, and that the income from a small town drug store will not justify the expense of a licensed registered pharma cist. However, for reasons hereafter set out, we are unable to agree with appellant and must, therefore, affirm the judgment of the trial court.
Police Power. It has been universally and uniformly held that the legislature has the power, in the exercise of its police powers, to regulate the practice of Pharmacy for the health and general welfare of the public. 28 C.J.S. Druggists % 2 at page 500; 17A Am. Jur. Drugs and Druggists § 13 at page 517; and 54 A.L.R. 719. It is just as well established that such regulations must not be arbitrary, but must be reasonably necessary to protect the public health and welfare.
Legislative History. To properly appraise the issue here presented it will be helpful, we believe, to set out briefly what our own legislature has done to regulate the practice of Pharmacy, including its stated reasons therefor.
The first attempt by the legislature was Act 50 of 1891. The reason for regulation, as expressed in the first two paragraphs, is worthy of note:
“WHEREAS, In all civilized countries it has been found necessary to regulate the traffic in medicines and poisons, and to provide by law for the regulation of the delicate and responsible business of compounding and dispensing the powerful agents used in medicines and
“WHEREAS, The safety and welfare of the public are endangered by the sale of poisons by unqualified and ignorant persons. ...”
Section 1 of the above act, Ark. Stats. Ann. § 72-1014 (Repl. 1957), made it “unlawful for any person not a registered pharmacist ... to conduct any drug store, pharmacy or apothecary shop. ...” Said Section 1 was amended by Act 72 of 1929 (See § 72-1014) to pi’ovide “that, any person or persons not registered pharmacists may own or conduct such a store if he or they keep constantly in their store a registered pharmacist”. Although the legislature revised certain portions of the original Pharmacy Act by Act 535 of 1921, by Act 120 of 1939, and by Act 336 of 1949, it did not see fit to relax the requirement of a licensed registered pharmacist to operate a drug store until the passage of Act 57 of 1955, § 14 of which was hereinbefore quoted — § 72-1017.1. Neither did the legislature in 1959 by Act 92 see fit to modify § 14 of Act 57 of 1955.
Appellant is not a licensed registered pharmacist nor could he be under the terms of said Act 57 because he is not a graduate of “an accredited school or college of pharmacy . . .” as required by § 1 of said Act 57 (§ 72-1007.1).
Thus it appears that for sixty-four years (from 1891 to 1955) drugs could only be dispensed by a licensed registered pharmacist or by someone under his constant supervision. Since appellant does not question the constitutionality (the reasonableness) of the Acts of 1891 and 1929 which required the attendance of a registered pharmacist at all times, it is difficult to understand 'the logic of the contention that it is unreasonable and arbitrary to require his attendance only forty hours each week.
The argument is advanced that since appellant (a practical druggist) is qualified to fill prescriptions when the registered pharmacist (whose presence is required only forty hours each week) is not on duty, then he (appellant) is qualified to fill prescriptions at all times, and so does not need a registered pharmacist at any time. For several reasons we are not convinced by that argument. One, some amount of protection, of the public welfare is better than no protection. Two, it is common knowledge that there is a greater variety of drugs on the market, today than there was in 1891, and more skill and knowledge now are required to dispense them with safety. Three, although a registered pharmacist is not actually present in the store at all times, he could be accessible at all times. Fourth, the result of appellant’s contention, if accepted by us, bodes evil for both him and the public welfare. The legislature would be left with two alternatives. One, it could require the presence of a registered pharmacist (in a drug store) at all times, and this certainly would give appellant no relief. Two, it could allow all drugs to be compounded and dispensed by people with no technical training in a school or college of pharmacy. We do not believe this alternative would be in the best interest of the public welfare. Certainly, there is nothing in the record here to convince us otherwise. It is our conclusion, therefore, that the judgment of the trial court should be, and it is hereby affirmed.
Affirmed.
McFaddin, J., dissents. | [
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Jim Johnson, Associate Justice.
This is a tort action for damages resulting from automobile collisions. On December 13, 1960, between 6:00 and 6:30 P.M., appellee J. Kathryn Elliott was driving a Ford car east on Page Avenue in Malvern, and turned north (left) into Olive Street. At the same time appellants were driving west. Appellant Marvin Holst, driving a Hudson car, was followed by appellant Rebecca Fitzhugh, driving a Buick. In the intersection appellee’s car collided with appellant Holst’s car, which, being knocked back, collided with appellant Fitzhugh’s car. Suit was filed February 15, 1961, and after answer, cross-complaint and amendments, the matter came to trial before the Hot Spring Circuit Court on August 20, 1962. After deliberation, the jury returned the following verdicts:
“We the jury, find the damages of the parties as being:
J. Kathryn Elliott $1,500.00
Kebecca Fitzhugh 300.00
E. D. Yates, Foreman
“We the jury, find that the negligence which was a proximate cause of Mrs. Elliott’s damages to be:
20% J. Kathryn Elliott
40% Marvin Holst
40% Kebecca Fitzhugh
100% Total
E. D. Yates, Foreman.
“We the jury, find that the negligence which was a proximate cause of Mrs. Fitzhugh’s damages to be:
J. Kathryn Elliott 20%
Marvin Holst 40%
Kebecca Fitzhugh 40%
Total 100%
E. D. Yates, Foreman”
Appellant Fitzhugh moved the court to set aside the verdict against her, alleging that there was no evidence in the record to support a finding of negligence on her part, and the court reserved judgment on that verdict. On November 20, 1962, another motion to set aside the verdict and motion for new trial was filed on behalf of both appellants. After oral argument November 23,1962, the court set aside the verdict against appellant Fitzhugh on appellee’s cross-complaint, finding that there was no evidence in the record to support a finding that the in juries complained of in the cross-complaint were proximately caused by any negligence on the part of appellant Fitzhugh. The motion to set aside the verdict against appellant Holst was denied, as was the motion for new trial. The court gave appellee judgment against appellant Holst for $1,200.00, and gave appellant Fitzhugh judgment against appellee for $180.00. From the judgment comes this appeal. There is no cross-appeal from the directed verdict eliminating appellant Fitzhugh’s liability.
For reversal appellants rely upon three points, two of which question the correctness of certain instructions and urge that the trial court erred as to the manner of submission and the verdict forms used. While it is true that the instructions could have been better worded and the verdict forms more detailed, we cannot under the peculiar facts in this case say that the action of the court with respect to these two points constituted reversible error. Appellant’s third point urged for reversal causes us considerable concern. This point questions the correctness of the trial court’s refusal to grant a new trial after having directed a verdict in favor of Mrs. Fitzhugh on Mrs. Elliott’s cross-complaint.
The jury determined negligence of the parties to this action, apportioning the negligence among them so that it totaled 100%, which was proper. The trial court in its judgment reduced Mrs. Elliott’s recovery on her cross-complaint by 20%, her negligence as determined by the jury, and reduced Mrs. Fitzhugh’s recovery on her complaint by 40%, her negligence as determined by the jury. This is the proper procedure [under Ark. Stat. Ann. §27-1730.2 (Repl. 1962), Peugh v. Oliger, 233 Ark. 283, 345 S. W. 2d 610; Walton v. Tull, 234 Ark. 882, 356 S. W. 2d 20] in a case where negligence has been apportioned on the basis of 100%. In the case at bar, after the jury apportioned the negligence of Mrs. Elliott at 20%, Holst at 40% and Mrs. Fitzhugh at 40%, the court by directed verdict eliminated Mrs. Fitzhugh’s liability of 40% in the cross-action of Mrs. Elliott. The court then reduced Mrs. Elliott’s damages of $1,500.00, as determined by tbe jury, by 20%, her own negligence, and rendered judgment against Holst for tbe entire $1,200.00. Tbe practical result is that although tbe jury bad found Holst to be only 40% negligent, tbe court granted judgment against him for 80% of tbe damages.
Tbe general principle applicable here is set out in 53 Am. Jur., Trial, §1094, p. 758:
“While tbe practice of amending verdicts in matters of form is one of long standing, based on principles of tbe soundest public policy in the furtherance of justice, it is strictly limited to cases where tbe jury have expressed their meaning in an informal manner. Tbe court has no power to supply substantial omissions, and tbe amendment in all cases must be such as to make tbe verdict conform to tbe real intent of tbe jury. Tbe judge cannot, under tbe guise of amending tbe verdict, invade tbe province of tbe jury or substitute bis verdict for theirs. After tbe amendment tbe verdict must be not what the judge thinks it ought to have been, but what tbe jury intended it to be. Their actual intent, and not bis notion of what they ought to have intended, is tbe thing to be expressed and worked out by tbe amendment. ’ ’
In tbe present case, tbe jury made no informal expression whatever. It returned a formal verdict which the court, some months after tbe jury bad been discharged, set aside in part. Tbe setting aside of one part of tbe jury’s finding of a single fact, i.e., apportionment of negligence of tbe parties, leaves us with no clue as to what tbe jury’s actual intent would have been bad Mrs. Fitzhugh’s negligence not been considered by them. Further, as we have seen, tbe court’s action bad tbe effect of doubling tbe liability of appellant Holst. Tbe trial court’s authority to set aside tbe jury verdict rendered against Mrs. Fitzhugh is manifest. However, we know of no authority, nor have we been shown authority, which would permit a court to modify a jury verdict on a question of liability and substitute its own. It is our view that the additur in the present case increasing the verdict of the jury without the consent of the party prejudiced, if permitted to stand, would effectively deny that party the constitutional guaranty of trial by jury. It follows, therefore, that the judgment is reversed and the cause is remanded for a new trial. | [
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Jtm Johnson, Associate Justice.
This is a workmen’s compensation case. Appellant Vernon Holland has sought medical and compensation benefits for a lung .disease which he contended was either caused or aggravated by breathing rock dust during the time that he worked for appellee Malvern Sand & Gravel Company.
Appellant worked for Malvern Sand & Gravel Company on two separate occasions. His first employment covered a period of nine months from April 21, 1957 through December 20, 1957. He was unemployed for six months and then returned to work for appellee on May 30, 1958 and worked until July 7, 1959, a period of thirteen months. After July 7, 1959, appellant worked for other employers for a period of eighteen months until he became disabled in December of 1960.
Two hearings were held before referees, at the conclusion of which appellant’s claim was denied on the grounds that the evidence failed to show a causal connection between the claimant’s lung disease and his employment with appellee, as to the origination of appellant’s condition or as to aggravation of an existing condition. It was also found that appellant’s claim was barred because of the statute of limitations and late notice to the employer. No new evidence was presented when the case was appealed to the full commission and the full commission sustained the findings and conclusions of the referee. The circuit court affirmed the commission’s holding, whereupon an appeal was taken to this court.
Appellant contends that there is no substantial evidence to support the findings of the commission.
The general principles applicable to the workmen’s compensation law, its remedial nature requiring liberal construction, the function of the commission and the scope of review by this court have been repeatedly announced by the numerous decisions of this court in this field. And, the effective administration of this law to accomplish the intended purposes depends to a large extent upon a consistent adherence to these principles. The most important rule, carrying out the humane purpose of the act, is that the commission must follow a liberal approach and in a situation where one inference would support an award and another would defeat it, the inference supporting the award must be adopted. See Stout Construction Company v. Wells, 214 Ark. 741, 217 S. W. 2d 841. There are other established rules which have been held to he necessary for the proper administration of the act, including the rule that a claimant has the burden of proving a causal connection between his condition and his employment, and the rule that this court must give the testimony its strongest probative force in favor of the action of the full commission. Auto Salvage Co. v. Rogers, 232 Ark. 1013, 342 S. W. 2d 85. To recover a claimant must either prove that his employment aggravated a pre-existing condition.
There is no question about the seriousness of this claimant’s physical ailment.
The proof showed that during appellant’s first nine month period of employment with appellee, his duties required him to work near a large conveyor belt system which fed into a rock crusher. Conditions were such that the fine rock dust would frequentH cover his body and clothing. Dust conditions varied with wind direction and the type rock that was being crushed. Wet rock taken from the river, as compared to dry rock, creates little dust and it was estimated that half of the rock being crushed during appellant’s employment was wet.
During the second period of appellant’s employment his basic duties were changed. He was assigned to a different foreman and his primary responsibility called for him to work as a clean-up man around the railroad yard. Although he was required on occasions to woiit .on the conveyor where the rock dust was heavy, the great majority of his working time was spent in other areas.
When appellant became disabled in December of 1960, Dr. Clyde Tracy felt that a diagnosis of silicosis was the most consistent with the claimant’s symptoms. However, appellant admits that as a matter of law, he has no claim for an occupational disease grounded on silicosis, due to his limited exposure. See Ark. Stat. Ami. § 81-1314 (b) (2) (Repl. 1960).
Dr. Grimsley Graham stated that, in his opinion, appellant suffered from an advanced pulmonary disease which was more consistent with Boeck’s Sarcoid. While Dr. Tracy agreed that appellant’s symptoms were compatible with a diagnosis of sarcoidosis, neither doctor was able to say with any degree of certainty exactly what was wrong with the claimant except that he suffered from some kind of lung disease.
Dr. Tracy testfied that if appellant had sarcoidosis, it -would not be possible to determine what caused the disease or when its onset began. It might develop over a period of years before manifesting itself but might develop in a matter of a few weeks. He stated that there was no doubt that appellant had a lung disease now and that breathing rock dust would aggravate an existing lung' condition. However, this testimony was offered in answer to an abstract question directed to Dr. Tracy. When, bn cross-examination, he was asked the direct question as to whether appellant had a lung disease at the time he was employed by appellee he stated, “I do not know.” Appellant, testifying in his own behalf, stated that he had experienced a shortness of breath before leaving his job with appellee. Neither doctor related this symptom to appellant’s present disability. Although two competent physicians apparently contributed all of the knowledge available to them through medical science, the questions as to what disease the claimant had, what caused it, when it began, and whether it existed during or was aggravated by his employment with appellee remain unanswered in the evidence. This being true, it necessarily follows that, based upon the firmly established principles applicable to the workmen’s compensation law, and based upon our thorough review of all of the evidence in this record, we have no choice but to conclude that the commission’s finding's are supported by the record and must be sustained.
Having readied the above conclusion, we find it unnecessary to consider whether appellant’s claim -was barred by the statute of limitations.
Affirmed.
Robinson, J., dissents. | [
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Sam Robinson, Associate Justice.
The City of Eureka Springs, by Resolution No. 58, authorized the issuance of $85,000 in revenue bonds to finance the improvement of the water and sewer systems. Appellants herein circulated and filed a petition asking that a referendum election be held on the question. The City Com mission refused to call an election, contending that the petition had not been legally circulated. Appellants then filed an action in chancery court asking that the City Commission be compelled to call the election. The court granted the petition and ordered that an election be held.
Pursuant to the order of the chancery court, the City Commission held the election. There were 446 votes in favor of Resolution No. 58, and 310 votes against it. Appellants then filed a petition in chancery court attacking the validity of the election. The city, appellee herein, demurred to the petition on the ground that the chancery court did not have jurisdiction of the subject matter. The chancellor sustained the demurrer and gave petitioners 15 days to plead further; petitioners failed to file any additional plea; appellees then filed a motion to dismiss the petition. The motion was granted, the petition was dismissed, and petitioners have appealed to this court.
The real issue in this case is whether the action filed by appellants is a suit to prevent an illegal exaction, or is it an election contest. Chancery courts have jurisdiction to enjoin an illegal exaction, even though such exaction is brought about by an election. Phillips v. Rothrock, 194 Ark. 945, 110 S. W. 2d 26; Ark-Mo. Power Corp. v. City of Rector, 214 Ark. 649, 217 S. W. 2d 335. See also Starnes v. Sadler, 237 Ark. 325, 372 S. W. 2d 585, on the power of chancery courts to enjoin an illegal exaction.
Amendment No. 7 to the Constitution of Arkansas, regarding local petitions' such as the one in the case at bar, gives the chancery court jurisdiction only to review the action of the county or city clerk in determining the sufficiency of the petitions. But chancery courts do not have jurisdiction to decide an election contest. Hutto v. Rogers, 191 Ark. 787, 88 S. W. 2d 68; Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Davis v. Wilson, 183 Ark. 271, 35 S. W. 2d 1020.
This is ail election contest. True, appellants contend that there was an insufficient ballot title, and an insufficient ballot title was held to render the election void in the Arkansas-Missouri Power Corp. case. But here, the ballot title was made a part of the petition and it shows on its face that the title was sufficient; that it fully informed the voters of the issue involved. Hence, the Arkansas-Missouri Power Corp. case is not applicable. The ballot title in the case at bar is as follows: "Resolution No. 58 authorizes the refunding of the outstanding balance of the City’s water and sewer revenue bonds issued under date of January 1, 1954, in order to enable the City to issue parity bonds for the purpose of improving and extending the water and sewer systems and to increase the service mains of both systems, at an estimated cost to the City of $85,000, which will make the City eligible for a grant of a like amount from the Federal Public Works Acceleration Administration.”
Appellants also argue that the election judges were improperly selected, but no facts are alleged which, if true, would sustain such allegation. A demurrer admits as true only those allegations that are well pleaded. United Interchange, Inc. v. Rowe, 230 Ark. 905, 327 S. W. 2d 547; Jeffery, County Judge v. Trevathan, 215 Ark. 311, 220 S. W. 2d 412.
Moreover, appellants made no contention prior to the election that the ballot title was insufficient or that the election judges had been illegally selected. The complaint also alleges that people, not naming such people, were allowed to vote who were not qualified electors; that the ballots were miscounted, but did not state in what manner they were miscounted; and that the defendants intimidated the voting public and misrepresented the facts to the people of the city, and deliberately destroyed the integrity of the hallots and the election. These allegations are in the nature of an election contest, although not specific enough to amount to more than conclusions of law. Other allegations, such as the defendants "did other things to destroy the integrity of the ballot” are also merely conclusions of law and are not good against a demurrer. City of Marianna v. Gray, 220 Ark. 468, 248 S. W. 2d 379; Seubold v. Ft. Smith Special School District, 218 Ark. 560, 237 S. W. 2d 884; Main v. Drainage District No. 2 of Monroe County, 204 Ark. 506, 162 S. W. 2d 901.
In Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280, this court reaffirmed the following principle stated in Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257. There the court said: “ ‘It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in full and fair expression of the public will, and, from the current of authority, the following may he stated as the approved rule: All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; hut after election all should be held directory only, in support of the result, unless of a character to affect an obstruction of the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provision affects an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission shall render it void.’ ”
Appellants also contend that if the allegations of the complaint amount to an election contest and state a cause of action at law, the cause should have been transferred to circuit court on authority of Ark. Stat. Auno. § 22-405 (Repl. 1962). It is true that ordinarily when the chancery court sustains a demurrer to the jurisdiction of the court the cause should he transferred to circuit court if the complaint states an action at law. But here, the chancery court, upon sustaining the demurrer, gave the appellants 15 days to plead further; no additional plea was filed, nor did appellants move for a transfer to the circuit court; and further, a demurrer would have been good in circuit court on account of the allegations of the complaint being merely conclusions of law.
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Ed. F. McFaddin, Associate Justice.
This is a will contest. The facts are stipulated, and the only question to be decided is whether this case is ruled by Green v. Smith, 236 Ark. 829, 368 S. W. 2d 280.
Oil May 23, 1961 Mrs. Nancy Priola undertook to execute a will. She could not write and she signed by mark. She had two living sons (Mark and Jack Priola) and also had the descendants of some of her deceased children. By her attempted will she left $5.00 to each of the descendants of her deceased children and left the entire remaining estate to her two living sons, Mark and Jack Priola. Mrs. Nancy Priola departed this life on March 10, 1963, and in due time her purported will was offered for probate, which was supported by Mark and Jack Priola, the appellants here, and resisted by the appellees, Joseph Priola et al., who are the descendants of the deceased children of Mrs. Nancy Priola. The Probate Court rejected the will for probate, holding:
‘ ‘ The instrument proffered for probate in this cause, having been witnessed by only two persons who signed both as witnesses to the mark and as attesting witnesses to the Will, does not meet the requirements of Arkansas Statutes Annotated § 60-403, that a minimum of three subscribing witnesses is required to make the Will in question valid.”
Jack and Mark Priola have appealed; and they state their point as follows:
“I. The Probate Court erred in holding that the will of Nancy Priola, deceased, was not executed in compliance with the provisions of Ark. Stat. § 60-403, and in rejecting said will for probate, (a) Green v. Smith, 236 Ark. 829, does not construe subsections (a) (3) and (a) (5) of § 60-403, Arkansas Statutes, as in the construction placed upon them by the trial court.
(b) Whether there be two or more witnesses to the execution of a will is optional.
(c) There is no disqualification in the statute of one who signs as a witness to the testator’s mark, as one of the required attesting witnesses.”
As aforesaid, Mrs. Priola was unable to write her name and she signed by mark. There were two witnesses to the mark; and the same two persons who witnessed the mark also acted as attesting witnesses to the will. There were no other persons who signed as witnesses to the mark or the will. In short, each of the two persons acted in a dual capacity; that is, a witness to the mark and an attesting witness to the will; and such acting in dual capacity is exactly what we held could not be done in Green v. Smith, supra. There, in discussing the requirements of Ark. Stat. Ann. § 60-403 (Supp. 1963), we said:
“Appellee contends that either or both of the attesting witnesses can, in addition to executing the Proof of Will, serve the purpose of being a witness to the testator’s mark since they observed him make his mark. We cannot agree. Sub-section (3) plainly provides that a testator’s signature by mark must be witnessed by a person who writes his own name as a witness to that signature. Sub-section (5) which follows, and is in addition to the requirement of (3), provides significantly that in case sub-section (3) is followed, such act ‘must be done in the presence of two or more attesting witnesses.’ In other words, there are four methods for a testator to sign his will and, as we construe this statute, when we consider it as a whole and sub-section (5) in particular, there must be at least two attesting witnesses in addition to the requirements of either of these four methods. We interpret the provisions of sub-sections (3) and (!5) of this statute to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid.”
Appellants cite and earnestly rely on Bocquin v. Theurer, 133 Ark. 488, 202 S. W. 845, wherein we held that a witness to the mark could also be an attesting witness to the will. But that case was decided in 1918 when the governing statutes were § 8012 and § 8013 Kirby’s Digest of 1904, which sections later became § 14512 and § 14513 of Pope’s Digest of 1937. The pres ent governing statute is Art. Stat. Ann. § 60-403 (Supp. 1963), which is § 19 of Act No. 140 of 1949. It will be recalled that Act No. 140 of 1949 is the Probate Code.
When we compare § 14512 and § 14513 of Pope’s Digest1 (the previous statutes on the mode of executing a will) with § 19 of Act No. 140 of 1949 as found in Ark. Stat. Ann. § 60-403 (Supp. 1963) (the present statutes on the requirements for executing a will), the correctness of our holding in Green v. Smith, supra, becomes readily apparent. The old statute said in § 14513 Pope’s Digest that the person who wrote the testator’s name “shall write his own name as a witness to such will”; thus recognizing that the same person could write the testator’s name and also be a ivitness to such ivill. But the new statute (§ 19 of Act No. 140 of 1949) says in Paragraph (5) that the person who writes the testator’s name must do so “in the presence of two or more attesting witnesses ’ ’; and certainly such person who writes the testator’s name cannot be an attesting witness to his own signature. In short, the attesting witness to the testator’s mark cannot also act in the dual capacity of an attesting witness to the will. We affirm our holding in Green v. Smith, supra.
The Probate Judgment is affirmed.
Holt, J., not participating.
Sections 14512 and 14513 of Pope’s Digest read: “§14512. Mode. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner,
“First. It must be subscribed by the testator at the end of the will, or by some person for him, at his request.
Second. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
“Third. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his will and testament.
“Fourth. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.
“Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in this act.
“§ 14513. Signature of witness. Every person who shall sign the testator’s name to any will, by his direction, shall write his own name as a witness to such will, and state that he signed the testator’s name at his request.” | [
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Ed. F. McFaddin, Associate Justice.
This appeal involves the property settlement of a divorced couple. Mr. and Mrs. Foit married in 1939 and separated in 1957. After the separation they agreed on a property settlement, and Mrs. Foit obtained an uncontested divorce on August 8, 1862. The property settlement of the parties, as contained in the divorce decree, recited:
"It is further ordered, adjudged and decreed, that defendant pay to Plaintiff, Evelyn Buth Foit, Twenty Five Hundred Dollars for her interest in the real estate owned by the parties hereto, when said real estate is sold. It is further ordered, adjudged and decreed that plaintiff have all the furniture which is in the house now occupied by plaintiff.”
Mrs. Foit received the furniture, but refused to execute a deed to the real estate. Thereupon, in 1963, Mr. Foit deposited $2,500.00 in the Begistry of the Court and petitioned that Mrs. Foit be required to execute the deed covering the real estate. After hearing the evidence, the Court, on August 5, 1963, ordered Mrs. Foit to execute the said deed; and from that order Mrs. Foit prosecutes the present appeal, claiming that she was entitled to more than the $2,500.00 and the furniture.
She admitted that she made the property settlement agreement as contained in the decree; and she did not offer any evidence to show that she was misled, defrauded, or under duress; she simply asserted that she Avas entitled to more than $2,500.00. In other words, she has changed her mind, just as she has changed her attorneys. One attorney represented her in the divorce case in 1962; another represented her in the 1963 proceedings ; and now she has the present counsel.
We find no merit to Mrs. Foit’s appeal. She was the one who wanted the divorce. Her 1962 attorney told her that she could get more than $2,500.00 and the furniture ; but that Avas what she Avanted in the way of a property settlement. Noav she wants to retain the divorce, but to reopen the property settlement in the absence of any proof of fraud, duress, or- overreaching of any kind. This case has many aspects similar to that of Faulkner v. Mowry, 228 Ark. 285, 307 S. W. 2d 860; and the holding in that case is ruling here.
Affirmed.
Johnson, J., not participating. | [
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Boyd Tackett, Special Justice.
In a petition for rehearing the appellant insists that we were in error in holding that the provisions of Act 399 are severable to such an extent that Sections 1 and 2 can stand even though Section 3 is held to be unconstitutional. In the brief submitted in support of the petition .for rehearing much stress is laid upon the fact that Act 399 does not have a separability clause. Hence, it is suggested, the entire act must fall.
We adhere to our original opinion. It goes almost without saying that there has never been any requirement that an act must have a severability clause before an invalid section can be found to be separable from the rest of the act. In fact, the law has always been just the other way. “The separability clause is a comparatively modern legislative device, the courts having separated statutes long before its innovation.” Sutherland, Statutory Construction (3d Ed.), § 2408. “If the part which remains after the defective portion is severed is capable of carrying out the purpose of the legislature, the courts will have little difficulty in finding the legislative intent to make separable, even if no separability clause has been included. ’ ’ Anderson, Drafting a Legislative Act in Arkansas, 2 Ark. L. Rev. 382, 399. Both before and since the use of the severability clause became commonplace we have frequently held statutes to be separable even though no such provision was embodied in the act. Among our many cases to this effect are State v. Marsh, 37 Ark. 356; Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183; State ex rel. Norwood, v. N. Y. Life Ins. Co., 119 Ark. 314, 171 S. W. 871, 173 S. W. 1099; Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W. 2d 1004. We are aware of no decision to the contrary.
Section 1 of Act 399 declared the legislative purpose to reimburse designated state officers for their public relations expense. Section 2 of the act made the necessary appropriation to carry the law into effect. These two sections, standing together, constitute a complete and workable law. The vice in Section 3 was that it would have permitted the funds to be paid out even though the expense had not actually been incurred; so it was in substance a salary increase going beyond the limits set by the constitution. Section 3 is clearly severable, for there is no sound reason to think that the General Assembly would not have wanted to reimburse these officers for expenses actually incurred even if it had realized that an appropriation in the nature of a salary increase could not be sustained.
A second contention is that we were mistaken in holding that the opinion of the Attorney General relieved the officers in question from the duty to account for the funds they had received. Counsel point out that in the cases that were cited in our first opinion the fact that the Attorney General had approved an unauthorized expenditure of public money was held to protect the disbursing officer from having to repay the funds. In none of the cases did the court hold that the Attorney General’s opinion was also a protection to the person who received the irregular outlay.
Even if counsel are correct in their position there is still an unassailable reason why the appellant cannot prevail upon this point. In a suit to compel a public officer to account for funds alleged to have been wrongfully received the plaintiff has the burden of proof. White v. Williams, 192 Ark. 41, 89 S. W. 2d 927. Here the plaintiff offered no proof upon this issue, electing instead to move for a summary judgment. The chancellor took occasion to observe in his written opinion that the plaintiff “declines to present any evidence whatever that the amounts paid to the defendants are not actual official expenses incurred by them.”
In our original opinion we stated unequivocally that “the officials are not entitled to reimbursement of expenditures not expended.” The clear implication of that statement is that upon a proper showing by the plaintiff there might be a recovery of funds to which the recipient was not entitled. At the trial the appellant had the opportunity to prove that the appellees had received public money in excess of their actual public relations expense. The appellant chose not to take advantage of the opportunity that was presented. He is therefore not in a position to insist that he be given a second chance to prove his case.
The appellant also suggests that Act 399 is a special act of the type forbidden by Amendment 14 to the state constitution. We could answer this contention by pointing out that it is raised for the first time on rehearing and is thus not properly before us. Midland Valley R. Co. v. Lemoyne, 104 Ark. 327, 148 S. W. 654; Bost v. Masters, 235 Ark. 393, 361 S. W. 2d 272. Nevertheless, inasmuch as the matter is one of public interest, we have thought it best to consider this contention upon its merits.
(Original opinion delivered January 20, 1964, p. 548.)
An act is special when it arbitrarily separates some person, place, or thing from those others upon which, but for the separation, it would operate. Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617. In other words, classification is permissible if it bears a reasonable relation to the purpose of the statute. Jacks v. State, 219 Ark. 392, 242 S. W. 2d 704. Needless to say, it is not our place to pass upon the wisdom of legislation.
We are not prepared to say that the classification in Act 399 is demonstrably arbitrary. The General Assembly expressly found that inadequate salaries were being paid to the Speaker of the House, the President of the Senate (the Lieutenant Governor), and to the constitutional officers in the executive branch, omitting only the Governor. Had these officers been state employees the legislature could have met the difficulty by increasing their salaries. But that course was not open with respect to these elected officers, for the constitution places a ceiling upon their salaries. In this situation it cannot fairly be said that the legislature was unreasonable and arbitrary in its decision to provide reimbursement for expenses actually incurred.
The appellant insists that the omission of the Governor from the benefits of the act makes the classification discriminatory. A complete answer to this contention is that the General Assembly also adopted Act 369 of 1961, which appropriated funds for the maintenance and operation of the Governor’s mansion. Inasmuch as this appropriation may be regarded as an adequate provision for the chief executive’s public relations expense, there was a sound reason for his being omitted from Act 399.
The petition for rehearing is denied. | [
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Sam Robinson, Associate Justice.
Appellant, A1 Hardaway, -was convicted of possessing untaxed alcohol and resisting an officer. Appellant, Victor Hardaway, was convicted of assaulting an officer and interfering with an officer. The alleged offenses grew out of the action of peace officers in searching the home of A1 Hardaway on authority of a purported search warrant. Untaxed alcohol was found in the house and later was introduced as evidence at the trial.
The issues appellants raise on appeal are the validity of . the search and the correctness of an instruction given by the court telling the jury that the search warrant was valid. Prior to the trial no motion was made to suppress the evidence, and during the trial no objection was made to the introduction of the evidence; but after both the State and the defense had rested, appellants filed a motion to suppress the untaxecl alcohol as evidence, alleging that the purported search warrant was invalid. The court overruled the motion; appellants made no objection and saved no exceptions. Likewise, appellants made no objection and saved no exceptions to the action of the court in giving the instruction to the effect that the search warrant ivas valid.
Under the provisions of Act 555 of 1953, the saving of formal exceptions to orders and rulings of the court is unnecessary; hut this Act does not apply in criminal cases. McConnell v. State, 227 Ark. 988, 302 S. W. 2d 805. Objections and exceptions are necessary in a criminal case of this kind to preserve the point for review on appeal. Hicks v. State, 225 Ark. 916, 287 S. W. 2d 12; Powell v. State, 231 Ark. 737, 332 S. W. 2d 483.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is a workmen’s compensation case, and necessitates a review of the holdings on the matter of “horse-play” or “skylarking. ’ ’
Mrs. Minnie Lee Childress seeks recovery for herself and children because of the death of her husband, George Childress, while in the employ of the appellant, Southern Cotton Oil. The facts are without substantial dispute. For many years the appellant, Southern Cotton Oil has had a cottonseed oil mill at Newport. George Childress worked for the appellant for about seven years. On August 15, 1957, he reported for work about 7:00 A.M. and was assigned the job of using a compressed air hose for blowing out the vent pipes in the soybean storage shed.
Alfred Ballentine, a fellow-employee, was working that day in another room of the plant. About 2:00 o’clock in the afternoon Ballentine needed an 18" pipe wrench and went to the soybean shed to see about getting the wrench. George Childress was then using a high-pressure air hose with a nozzle on the end of it, blowing out the vents in the storage room. As Ballentine went by Childress, one or the other made a friendly and challenging gesture. After Ballentine investigated the matter of the pipe wrench, he started out of the bean shed and passed by Childress; and they engaged in friendly scuffling and in the process of the scuffle Ballentine got hold of the nozzle of the air hose that was blowing in a continuous stream and in some way the end of the air hose was forced against the. anus of the deceased and air forced into his body and as a result George Childress died. A portion of this scuffle was witnessed by Mr. Jerry Jeffrey, manager of the Company, who immediately went to the men and, finding that Childress had been injured, he made arrangements for Childress to be taken to the hospital. The company paid the medical and hospital bills that resulted from the injury. Childress died on August 18, 1957, of internal injuries, the result of the air being forced into his body.
Alfred Ballentine testified that he and George Childress had been friends for seven years; that they had scuffled there at the Southern Cotton Oil plant five or six times before that day; that there was no anger or ill feelings between them; and that it was just friendly playing. Ballentine said that when he passed by Childress enroute to see about the pipe wrench, Childress was seated in the door at work and Childress reached for him; that as Ballentine came back, Childress jumped up and went running around Ballentine with the air hose, as though to wrap it around him; that they started scuffling and Ballentine tried to get loose and Childress was trying to tie the hose around him; that they were not mad, they were just playing, and that they scuffled for a few minutes and some way in the process the air was forced into Childress’ body through his anus.
Ballentine also testified that during the entire time he worked at the plant no one gave him any instructions or warning regarding the use of the air hose; that he did not know that an air hose could injure a man seriously or kill him; that he did not know that placing the air hose near a man’s rectum might kill him. Ballentine said some other employees had used the air hose to clean the lint off their clothes; and that he had never played with an air hose before. A number of other witnesses testified, but all the evidence was about to the same general effect as that heretofore mentioned. The fact remains that Childress and Ballentine, while on the job, engaged -in a friendly scuffle, and as a result Childress was killed.
The Workmen’s Compensation Commission refused to allow compensation. On appeal the Circuit Court reversed the Commission and held that Mrs. Childress and her children were entitled to recover compensation. The Circuit Court was of the view that our case of Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545, changed the holding in Hughes v. Tapley, relied on by the Commission. From the Circuit Court judgment, Southern Cotton Oil prosecutes this appeal; and we are thus presented with the problem of whether there may be a recovery in a case like this one wherein a worker is injured in what is called “horse-play” or “sky-larking.”
I. The Holdings Generally. Before considering our own cases, it is proper that we consider as background information the trend generally in “horse-play” cases. The earlier workmen’s compensation cases usually held that there could be no recovery in “horse-play” cases; but Justice Cardozo’s opinion in Leonbruno v. Champlain, 229 N. Y. 470, 128 N. E. 711, 13 A.L.R. 522 (1920), is generally credited with having ushered in the modern ruling. Justice Carduzo there said:
“Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service . . . The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risk of such associations and conditions were risks of the employment.”
The courts then began to allow recovery to the innocent victim of the horseplay, but a majority continued to refuse recovery to the instigator of the horseplay if he were injured. Larson4 states this rule:
“Injury to a non-participating victim of horseplay is compensable, but to the instigator is usually not. A few states permit recovery even by active participants in horseplay if such activity has become customary. A suggested rationalization of the rule on participants in horseplay is to treat the question, when an instigator is involved, as a primarily course of employment rather than ‘arising-orit-of-employment’ problem; thus, minor acts of horseplay would not automatically constitute departures from employment but might here, as in other fields, be found insubstantial. So, whether initiation of horseplay is a deviation from course of employment would depend on (1) the extent and seriousness of the deviation, (2) the completeness of the deviation {i.e., whether it was commingled with the performance of duty or involved an abandonment of duty), (3) the extent to which the practice of horseplay had become an accepted part of the employment, and (4) the extent to which the nature of the employment may be expected to include some such horseplay.”
The trend of the recent cases has been to eliminate the distinction between instigator and victim, and to examine the real facts as to: (a) whether there was a substantial deviation from employment; (b) the extent of the horseplay; (c) whether it should have been known to the employer so as to be stopped; and (d) other factors which might tend to allow recovery to the injured party. Larson4 has several pages devoted to these various matters. In 99 C.J.S. p. 753, “Workmen’s Compensation” § 225,. after stating the general rule, the text states:
“An injury to an employee as a result of horseplay, skylarking, or practical joking is ordinarily compensable where the injured employee did not participate in the fun or where such activities were customary in the particular employment. ’ ’ The text then adds this:
‘ ‘ Other authorities go further and hold that the test of coverage by the compensation statute is whether or not the horseplay, skylarking, and practical joking that caused the injury may reasonably be regarded as an incident of the particular employment, and where it may be so regarded, an injured employee is entitled to compensation even though he was a participant.” Schneider says:
“Since a majority of the jurisdictions now award compensation to innocent or non-participating employees, and to employees whose participation is but momentary and not ‘aggressive’, a rule, under the broader conception of the law, may be said to be that injuries sustained by an employee while in the course of his employment as a result of another’s horseplay, are compensable as arising out of and in the course of his employment.
“The question of whether the aggressor should be entitled to compensation for injuries resulting from his own aggressiveness is one which must be left for future determination. The general trend, however, appears to be in that direction.”
Hon. Samuel B. Horovitz, writing in 3 NACCA Law Journal 57, in 1949, said:
“Clearly, fooling at work is incidental to it, and a hazard of men working together. The more recent and better rule is to allow an award for an injury resulting from horseplay, even to aggressors, where the injury is a by-product of associating men in close contacts, thus realistically recognizing the ‘strains and fatigue from human and mechanical impacts.’ ”
To list all the cases and Law Review articles on this matter would be a work of supererogation. To sum up: the recent cases are in accord with the words of the Supreme Court of Michigan in Crilly v. Ballou (1958), 91 N. W. 2d 403, in which the Michigan Court reviewed its own earlier case denying recovery, overruled it, and said:
“We need not undertake to define the outer limits of compensability. We rule on the case before us . . . So much for the present and the future. As for the past, we specifically overrule the Tarpper case, supra, and subsequent cases of like character, and hold that injuries received in assaults, either sportive or malicious, are not, by reason of such fact alone, beyond the realm of compensability. If arising out of the employment and received in the course thereof they are compensable.”
II. Our Own Cases. Turning from the holdings elsewhere, we come to our own cases. There are four of these:
(1) Birchett v. Tuf-Nut Garment Mfg. Co. (1943), 205 Ark. 483, 169 S. W. 2d 574. We denied compensation to an employee, saying:
“The question here presented is a new one in this state. Decisions from other jurisdictions, while persuasive, are not conclusive. Claimant’s injuries arose out of a personal difficulty which she provoked herself. The cause of the ill-feeling is immateiral. During a rest period, she entered the work room and saw a group of employees reading a document. They were not near her place of work, were not talking to her and were not molesting her in any way whatever. She went up to this group and snatched the paper, which was not hers and which she had never seen before, from her fellow employees, stuffed it in the bosom of her dress and ran away with it. She does not claim she was acting in a playful spirit. In the ensuing struggle for its recovery by the employees from whom she snatched the paper, she claims she got hurt. ’ ’
(2) Hughes v. Tapley, (1944), 206 Ark. 739, 177 S. W. 2d 429. Work had temporarily stopped and Hughes intended to throw a lighted fuse near a deaf and dumb fellow employee named Turley, which would have caused the man to be frightened and jump. Hughes got a carbide light, apparently to be used in lighting the fuse; and when he placed the carbide lamp on a box of powder the lamp toppled over and Hughes was injured. He claimed compensation from Tapley, his employer. The Commission denied recovery to Hughes, and we affirmed, saying:
“This case simply and clearly presents a situation where appellant, Hughes, voluntarily stepped aside from his employment to engage in a sportive act, horseplay or prank, or in order to frighten the unfortunate deaf and dumb Negro, Turley, and in his preparation to carry his plans into effect, he was injured, solely by his own acts. The injuries thus received did not arise out of appellant’s employment.”
We then quoted from an annotation as follows:
“ ‘It is generally held that no compensation is recoverable under the Workmen’s Compensation Acts for injuries sustained through horseplay or fooling which was done independently of and disconnected from the performance of any duty of the employment, since such injuries do not arise out of the employment within the meaning of the acts.’ ”
(3) Barrentine v. Dierks (1944), 207 Ark. 527, 181 S. W. 2d 485. Barrentine and a fellow employee (Parker) had a fight before lunch regarding something Barrentine might have said about Parker. After lunch, while Barrentine was getting a drink of water, Parker slipped up behind him and hit Barrentine on the head. The Commission denied recovery to Barrentine, finding that the “assault was caused by feeling engendered from purely personal causes and had no connection with the work of the master and did not arise out of employment.” We affirmed the Commission’s findings and refusal of an award of compensation to Barrentine.
(4) The foregoing three cases all indicate denial of compensation; but then ten years later came the fourth case, Johnson v. Safreed (1954), 224 Ark. 397, 273 S. W. 2d 545. Johnson and his fellow employee, Deloney, engaged in an affray and bitter words in the course of the work; and since Deloney was senior in point of service, the master, Safreed, discharged Johnson, who left the place of work and started to a truck to be transported to town. Deloney pursued Johnson and struck him on the head with a pick, inflicting injuries for which Johnson sought compensation from Safreed, the master. The Workmen’s Compensation Commission denied recovery to Johnson, finding: (1) that Johnson was the original aggressor in the affray; ancl (2) Johnson’s injury did not arise out of and in the course of his employment.
This Court, in an opinion by Justice Millwee, reversed the Commission and held that Johnson was entitled to compensation. Justice Millwee reviewed the earlier cases and the present ones, saying:
"Until recently a majority of jurisdictions that had passed on the question refused compensation to an aggressor even though the dispute was work-connected . . . However, commencing with the opinion by Judge Rutledge in Hartford Accident & Indemnity Co. v. Cardillo, 112 Fed. 2d 11, cert. denied, 310 U. S. 649, 84 L. Ed. 1415, 60 Sup. Ct. 1,100, various courts began to re-examine their position and adopt the view that aggression of the claimant, without more, would not bar recovery for an injury sustained in a work-connected dispute. During the past few years the trend of the cases in line with this holding is such that it may now be said that a majority of the jurisdictions which have examined the issue favor the proposition that aggression does not bar recovery . . .
"When the foregoing principles are considered in the case at bar, we are convinced that the framers of our statute did not intend to preclude recovery where the aggressive act amounted to nothing more than a light blow on the shoulder with the fist administered impulsively in a sudden altercation by one who was attempting to protect himself from serious bodily injury. We accordingly conclude that the acts of appellant under the undisputed facts were not of that serious or deliberate character necessary or essential to evince a wilful intention on his part to injure Deloney.”
Johnson v. Safreed was an assault case; and if a recovery can be allowed the original aggressor in an assault case, then likewise, recovery can be allowed the original instigator in a horseplay case. One cannot read the Opinion in Johnson v. Safreed without being convinced that in 1954 this Court departed from the older holdings (like Hughes v. Tapley) and took a positive step toward the award of compensation in a case like the one at bar. The holding in Johnson v. Safreed was so understood by the Bench and Bar contemporaneously with the Opinion. In an article in 1957 in 11 Ark. Review, p. 429, after reviewing the three earlier cases heretofore mentioned, the writer of the article said of Johnson v. Safred:
“In the Johnson case, compensation was awarded to a worker who had struck the first blow in a fight which culminated in his injury. The court quoted extensively from modern authority, relying particularly on the opinion of Justice Rutledge in the Hartford case, and pointed out that jurisdictions recently began following the view that the aggression of the claimant, without more, would not bar recovery. The instant fact situation was distinguished from those in the Birchett and Bárrenteme cases, but whatever the relation of the Johnson rule to its predecessors, the conclusion of the Arkansas court in the most recent altercation situation was: ‘ When the accumulated pressures of work-induced or work-aggravated strains and frictions finally erupt into an affray which results in injury to one of the participants, it is artificial to say that an injury to the one who struck the first blow did not arise out of the employment, but an injury to the recipient of that blow did arise out of the employment.’ . . . Similarly, the horseplay situation has been examined by the court only once, in a 1944 case, and in view of the apparent change made on controlling doctrines on altercations and assaults, a prediction of an allowance of an award under some horseplay circumstances does not seem unreasonable.
“The growing industrialization of the State of Arkansas is likely to focus increasing attention on the purposes and effects of the Workmen’s Compensation statute. The modern and liberal interpretation which the Arkansas court has given to the act underlines its duel purpose: protection of the employer from harrassing and unreasonable verdicts, and guaranty for the employee and his dependents of security of recovery for industrial accidents. ’ ’
The learned Circuit Judge in the case at bar rendered an Opinion which, after reviewing our earlier cases, concluded with these words:
“The important question which poses itself to this court appears to be whether or not the injury which caused the death of Childress arose out of the employment. In reading Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545 (1954), it is crystal clear that the Arkansas Supreme Court is no longer using as the test in Workmen’s Compensation cases, ‘whether the parties here ivere acting in the furtherance of the employer’s business,’ as stated in the Opinion of the Commission in the instant case. In the Johnson v. Safreed case the Arkansas Supreme Court declared that the more modern rule and the more humanitarian doctrine of ‘arising out of the employment’ would be the applicable yardstick . . .
“Therefore, it is the opinion of this court that Hughes v. Tapley, supra, is not now the law in this State; that in the instant case the question whether or not the decedent Avas the instigator is insignificant; that the conditions of employment did induce the horseplay; that the employer had knowledge of the fact that horseplay Avas engaged in by employees; and that the injury which caused the claiman’s death arose out of the employment. Therefore, this case is held to be compensable.”
We agree with the Circuit Court; conclude that the clamaints are entitled to compensation in the case at bar; and the judgment of the Circuit Court is affirmed.
Harris, C.J. dissents.
Most of the American cases use the word, “horse-play;” and most of the English cases use the word, “sky-larking.” We make no distinction in terminology.
At the time of the death of George Childress, Southern Cotton Oil appears to have been a division of Wesson Oil and Snowdrift Company. Later Southern Cotton Oil appears to have become a division of Hunt Food & Industries, Inc., and is so styled in the briefs in this Court. For brevity, we merely call the appellant “Southern Cotton Oil.”
The opinion of the Commission reads in part: “Briefly, the facts are these. On August 15, 1957, the deceased, George Childress, and a fellow employee, Alfred Ballentine, during work hours became engaged in friendly ‘horseplay’ which resulted in a high pressure air hose causing serious injury to George Childress, resulting in his death on August 18, 1957. The positions of the claimants and respondent are clear, the question being whether said accidental injury comes within the purview of the Act. The case of Hughes v. Tapley, 206 Ark. 739, 177 S. W. 2d 429 (1944), involved horseplay and the court said: ‘While it is true that appellant, in the instant case, has received most serious and painful injuries, he was, on the evidence presented, the unfortunate victim of his own acts, and his injuries resulting therefrom did not arise out of his employment and therefore he is not entitled to compensation.’ The Commission holds that this is still the law in this State; and in the instant case, we find that the deceased was' the instigator of the horseplay; that the parties here were not acting in the furtherance of the employer’s business; and that the conditions of employment did not induce the horseplay.”
Larson comments on page 343: “The modern observer may find it hard to believe that such claims were uniformly denied in early compensation law; . . .” The Law of Workmen’s Compensation by Prof. Arthur Larson, Vol. I, page 343, § 23.10.
In Vol. 13 of A.L.R. there are reported several of the leading cases on horseplay, being: Socha v. Cudahy Packing Co. (Nebr. 1921), 13 A.L.R. p. 513 (an air hose fatality, like the case at bar); Payne v. Industrial Comm. (Ill. 1920), 13 A.L.R. p. 518 (also an air hose case); Leonbruno v. Champlin Silk Mills (N. Y. 1920), 13 A.L.R. p. 522; and Hollenbach v. Hollenbach (Ky. 1918), 13 A.L.R. p. 524; and the annotation in 13 A.L.R. p. 540 et seq., “Workmen’s Compensation: right to compensation in case of injuries sustained through horseplay, or fooling.” This annotation is supplemented in 20 A.L.R. 882, 36 A.L.R. 1469, 43 A.L.R. 492, 46 A.L.R. 1150, and 159 A.L.R. 319.
Schneider’s Workmen’s Compensation, 3rd or Permanent Edition, Text Vol. 6, page 560, § 1609.
We do mention these few in each of which recovery was allowed the injured claimant, although he might have been the instigator of the horseplay: Diaz v. Newark Industrial Co. (N. J. 1960), 159 A. 2d 462, affirmed 167 A. 2d 662; Petro v. Martin Baking Co. (Minn. 1953), 58 N. W. 2d 731; Cunning v. City of Hopkins, (Minn. 1960), 103 N. W. 2d 876; and Ransom v. Hill Co. (Tenn. 1959), 326 S. W. 2d 659. See also 65 Harvard Law Review p. 360; 37 Virginia Law Review p. 766; 34 Cornell Law Quar. p. 460; 54 Harvard Law Review p. 154; 41 Illinois Law Review p. 311; 26-27 NACCA Law Journal p. 248; and 29 NACCA Law Journal p. 239. | [
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Frank Holt, Associate Justice.
This case results from a railroad crossing accident. It occurred when a Missouri Pacific freight train and a tractor-trailer truck collided where the railroad tracks cross the “new Montieello by-pass” portion of State Highway No. 81 at a right angle. The driver of the tractor-trailer, Ben Edward Bussell, was killed, the truck was practically demolished and part of its cargo destroyed. The train engine, two freight cars and a portion of the railroad track were damaged. The appellant, Mrs. Helen Louise Bussell, widow of the deceased truck driver and administratrix of his estate, and the appellant, Burks Motor Freight Line, Inc., owner of the truck, brought suit against the appellees, Missouri Pacific Railroad Company and "W. B. Iveahey, the engineer of the train, for the recovery of damages. The appellees responded by a general denial and appellee Railroad Company by counterclaim sought to recover its property damages from appellant Burks only. Appellant Burks and appellee Railroad Company stipulated as to the amount of the actual property damages sustained by each of them.
Upon trial the jury denied any recovery to the appellants upon their joint complaint. It awarded $10,-828.59 to the appellee Railroad Company upon its coun terclaim. Oil appeal the appellants do not question the sufficiency of the evidence nor assert any error in the presentation and reception of the evidence. The appellants rely for reversal upon alleged errors by the trial court in the giving of certain instructions on behalf of the appellees.
Appellants first contend that the court erred in giving appellees’ Instruction No. 7 which defined “unavoidable accident”. There is no contention that it is an incorrect statement of the law. The specific objection made is that there was no evidence presented in the case to justify giving such an instruction. Appellants argue the instruction was abstract and had the effect of misleading the jury. The jury was not misled inasmuch as it returned a verdict which, in effect, found the appellees were free from negligence and the appellants were guilty of 100% negligence. The giving of an erroneous instruction is harmless error where the jury was not misled or the jury rejects the theory of the instruction. National Life & Accident Ins. Co., v. Sherod, 155 Ark. 381, 244 S. W. 436; Wright v. Covey, 233 Ark. 798, 349 S. W. 2d 344; 5A C.J.S., Appeal & Error, § 1773 (1) p. 1245. In Sutton v. Nowlin & Sons, 232 Ark. 223, 335 S. W. 2d 292, we said:
“ * * * the verdict cancelled anj* error in the matter of the Comparative Negligence Instruction and rendered harmless the giving of the wrong Comparative Negligence Instruction ’ ’.
It cannot he said that the appellants were prejudiced by the court giving this instruction, if erroneous, since the verdict rendered it harmless.
The appellants next contend that it was error to give appellees’ requested Instruction No. 8. This instruction pertains to the duty of travelers approaching a known railroad crossing. The appellants specifically objected to this instruction as being a comment on the weight of the evidence and that it is incoherent, confusing, and misleading. A careful reading of this instruction convinces us that it is not susceptible to such objection. This instruction merely recites the duty of a motorist approaching a railroad crossing, as we have so often defined. St. Louis, I M & S R Co., v. Coleman, 97 Ark. 438, 135 S. W. 338; Missouri Pacific R Co., v. King, 200 Ark. 1066, 143 S. W. 2d 55; Missouri Pacific R Co., v. Carruthers, 204 Ark. 419, 162 S. W. 2d 912. The instruction generally was a correct statement of the law. In fairness to the trial court the appellants should have specifically pointed out in what manner they considered the instruction confusing and misleading. Thus, the court would have had an opportunity to make any correction if necessary. Phoenix Insurance Co., v. Flemming, 65 Ark. 54, 44 S. W. 464; 53 Am. Jur., Trial, § 828, p. 608; Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889; Lemm v. Sparks, 230 Ark. 105, 321 S. W. 2d 388.
The appellants argue that the words “position of peril” form an inappropriate term in Instruction No. 8. No such specific objection was made to the use of these words in Instruction No. 8. Furthermore, no objection whatsoever was made to the giving of appellees’ Instruction No. 18 which defined “position of peril”. We find no merit in any of appellants’ arguments attacking this instruction.
Appellants next urge that it was error to give appellees’ Instruction No. 9. This instruction, according' to appellants, ‘ ‘ attempts to state the general proposition that travelers approaching a railroad crossing may he assumed to act in response to the dictates of ordinary prudence and will stop before endangering themselves on the track in the path of the oncoming train”. The objections appellants made to this instruction were the same as to Instruction No. 8, i.e., it tended to comment on the evidence and was incoherent, confusing and misleading. We do not agree. Again the appellants do not specifically point out just how this instruction comments on the weight of the evidence or is misleading. The appellants do not specify how the instruction inaccurately defines the law in respect to the duty of a motorist. This instruction is a cogent statement of the permissible scope of the presumption trainmen can make in the operation of a train and is consistent with repeated declarations of this court. Blytheville, L & A S R Co., v. Gessell, 158 Ark. 569, 250 S. W. 881; Missouri Pacific R Co., v. Davis, 197 Ark. 830, 125 S. W. 2d 785; Missouri Pacific R Co., v. Merrell, 200 Ark. 1061, 143 S. W. 2d 51. The instruction is a correct statement of the law. The contention by appellants that it is abstract comes too late as such objection was first raised on appeal. Further, there was evidence bearing on the issue as to when the engineer first saw the deceased approaching the crossing and when he first applied the train’s brakes to avoid the collision.
Appellants next contend that it was reversible error for the court to give appellees’ Instruction No. 12. This instruction advised the jury that the purpose of the statute which requires railroads to maintain signs at crossings is to provide a notice or warning to travelers using the highway that a railroad crossing exists and that if the warning boards at this crossing ‘ ‘ gave notice of the existence of the crossing to travelers at a time when they could avoid entering a position of peril by the exercise of due care”, then “a difference between the stautory specifications and the specifications to which these signs were built would not be evidence of negligence that was a proximate cause of this accident.” Appellants object on the basis that the instruction is an incorrect statement of the law in the instant case; that the evidence shows these signs did not perform the purpose of warning travelers of the existence of the crossing; and that this instruction ignores Ark. Stat. Ann. § 73-717 (Repl. 1957) relating to warning boards required at railroad crossings. It is undisputed that a crossarm sign existed at a distance of approximately thirty-nine feet from either side of this crossing. These signs were lettered “RAILROAD CROSSING-” in letters six inches high. However, the statute mentioned above provides the letters shall be at least nine inches high with the legend: RAILROAD CROSSING —LOOK OUT FOR THE CARS WHILE THE BELL RINGS OR THE WHISTLE SOUNDS.
It is well settled law that the violation of a safety statute is- evidence of negligence. However, it is required that such negligence be a proximate cause of the injuries before the rule is applicable in a particular case, Missouri Pacific R Co., v. Price, 182 Ark. 801, 33 S. W. 2d 366; 65 C.J.S. Negligence, § 105, p. 654. Furthermore, when we review this instruction together with appellants’ Instruction No. 3 which is predicated upon Ark. Stat. Ann. § 73-717, we do not find them in conflict. Appellants’ Instruction No. 3 told the jury that violation of this statute, “although not necessarily negligent, is evidence of negligence to be considered by you along with all the other facts and circumstances in the case.” The sole purpose of these crossarm signs was to give notice of the crossing. The evidence is undisputed that the decedent had traveled this - road and crossing almost every week for some eighteen months preceding this collision. Also, there existed five hundred twenty-eight feet from this crossing an oval sign warning of the railroad crossing.
Appellants also argue that this instruction is defective in that it is a comment upon the evidence, the word “travelers” is vague, the term “position of peril” is misleading. None of these objections were raised at the time of the trial and we cannot first'consider them here on appeal. Appellants further argue that the instruction fails to take into account other signs and lighting conditions in the vicinity of the crossing. No such objection was made. If the appellants considered they were entitled to an instruction relating to the effect, if any, other signs and lighting conditions along the highway and at the railroad crossing might have had upon motorists, or the deceased in particular, they should have offered such an instruction and they did not do so.
The appellants also contend that the giving of appellees’ Instruction No. 13 was reversible error. We do not agree. This instruction enunciated the burden of proof required of the appellants. The appellants specifically object on the basis that it is “repetitive and redundant” which “tends to give unnecessary and undue emphasis” upon appellants’ burden of proof and “tends to amount to a comment by the court upon the evidence required” of the appellants. We do not agree. This instruction, inter alia, advises the jury not to guess, speculate or surmise in arriving at their verdict. This is a proper limitation upon the jury. In the case at bar all of appellants’ instructions,' twenty-one in number, were given covering appellants’ theory of the case. The appellees offered twenty-one instructions and the court excluded four of them in giving the jury appellees’ theory of the case. It cannot be said that repetition in the giving of some instructions can always be avoided. It is consistent repetition with undue emphasis that should be avoided. Goodin v. Boyd-Sicard Coal Co., 197 Ark. 175, 122 S. W. 2d 548; Furlow v. United Oil Mills, 104 Ark. 489, 149 S. W. 69; Hutcheson v. Clapp, 216 Ark. 517, 226 S. W. 2d 546. Upon a review of the instructions as a whole, in the instant case, we do not find undue stress or emphasis to exist. We have reviewed the other arguments advanced by appellants under this point and find them without merit.
We next consider appellants’ objection to appellees’ Instruction No. 21 as modified and given by the court. This instruction pertains to a safety regulation promulgated by the Interstate Commerce Commission pursuant to its authority to make such regulations as provided in 49 U.S.C.A. § 304. Appellants’ main objection to this instruction is that the “violation of an ICC safety regulation cannot be evidence of negligence, since such regulation is, by its very nature, nonlegislative in character.” Appellants contend that the giving of this instruction was reversible error. We cannot agree. In the very recent case of Ratton v. Busby, supra, we recognized that a regulation promulgated by an appropriate agency of the federal government effectively establishes a standard of conduct, the violation of which would be evidence of negligence. It is well settled that the rules and regulations of the Interstate Commerce Commission have the force and effect of law as though prescribed in terms by the statute. Atchison, T. and S.F.R. Co., v. Scarlett, 300 U.S. 471; Interstate Motor Lines, Inc., v. Great Western Ry. Co., 161 F. 2d 968 (10 Cir., 1947); New Amsterdam Cas. Co., v. Novick Transfer Co., 274 F. 2d 916 (4 Cir., 1960); Restatement, Torts, § 285. Furthermore, the duty imposed by this regulation is less rigorous than that required by Ark. Stat. Ann. § 75-637 (a) 4. (Supp. 1963) which appears applicable in the instant case. The appellants also contend that this instruction was improper because of the absence of evidence that the deceased truck driver was aware of the existence of such a safety regulation. The president of the truck line testified, however, that preceding this collision booklets containing safety regulations, including this particular one,'.'were distributed to each of the drivers employed by Burks for the drivers’ information and compliance. We find no merit in any of the objections to this instruction as argued by the appellants.
Appellants further contend that the giving of appellees’ Instructions Nos. 15,19 and 20 was reversible error. Instruction No. 15 relates to the statutory duty of appellee Railroad Company concerning the blowing of its whistle or ringing its bell. Instruction No. 19 was a general observation on the duty of drivers of vehicles to exercise ordinary care for their safety and the safety of others. Instruction No. 20 related to the duty of the appellee Railroad Company to erect automatic warning devices at a grade crossing under abnormally dangerous circumstances. We have carefully examined appellants’ general and specific objections to these instructions, as well as the others discussed, and find them without merit.
It becomes unnecessary for us to consider the appellees’ contention that the evidence adduced in this case did not make a submissible issue for the jury inasmuch as we find no reversible error in the questioned instructions.
The judgment is affirmed. | [
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Sam Robinson, Associate Justice.
The Arkansas State Highway Commission condemned for highway purposes 15.9 acres of appellees’ dairy farm consisting of about 210 acres. The strip for the highway was taken diagonally across the farm, leaving about 133 acres on the north with no improvements, and about 62 acres on the south with all the improvements, consisting of a nice brick home, a grade A dairy barn, and other buildings necessary for the operation of a grade A dairy. It will be wholly impractical to regularly move cattle from one side of the highway to the other for milking purposes. The facilities on either side are not sufficient in themselves to successfully operate a dairy farm. The usefulness of the farm as a grade A dairy has, therefore, been destroyed.
Appellees have lived on the property and have operated a dairy thereon for about 35 years; they have reared a family and have sent several of the children through college on the proceeds from the dairy. Appellees contend, and introduced evidence to the effect that they have been damaged in an amount ranging from an estimated low of $26,570 to over $88,000. The Highway Commission introduced evidence to the effect that appellees had boon damaged in a sum not exceeding $14,500. The jury returned a verdict in the sum of $30,000.
First, appellant contends that the court erred in not striking the testimony of Mr. Jackson Ross, an expert on real estate values, who testified for appellees. Mr. Ross first fixed a valuation of $94,205.70 on the farm before the taking by computing the profits over a seven year period. He testified to an after the taking value of $40,770, thus showing damages in the sum of $53,435.70; but on motion of appellant, Ross’ testimony on this method of showing damages was stricken.
But be that as it may, Mr. Ross further testified that the farm was worth $320 per acre for the 210 acres, or $67,200 before the taking’, and $40,770 after the taking, thus showing a difference in the before and after value of $26,130. The only testimony, admitted in evidence, showing damages equalling or exceeding the judgment of $30,000 is the testimony of appellees, who claim damages of $82,685. Appellant contends that the uncorroborated testimony of the owners is not sufficient to sustain the judgment, and as authority cites Hot Spring County v. Prickett, 229 Ark. 941, 319 S. W. 2d 213. But that case does not stand for the proposition that, as a matter of law, the .uncorroborated testimony of a landowner is not sufficient to sustain an award for damages. In the Prickett case it was pointed, out that the amount of damages claimed by the landowner, in that case, was a conclusion not supported by facts. It was also pointed out that because the landowner was an interested party, his testimony was not to be considered as being undisputed. Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316. This well known rule simply means that the courts do not have to accept as true the undisputed testimony of a party to the action. It does not mean that the courts must disregard the uncorroborated testimony of a party.
Here, the landowners testified in detail as to how they arrived at the amount of damages they claimed to have suffered—the long, successful operation of the farm as a grade A dairy, along with other details of the improvements, etc. According to that part of Mr. Ross’ testimony admitted in evidence by the court, the landowners had been damaged something over $26,000, and the jury returned a verdict for only $30,000 although the landowners had testified to a great deal larger sum as the damages sustained.
Mr. Ross’ testimony was competent; it is not absolutely necessary that the landowners’ testimony be corroborated; and the evidence is sufficient to sustain the judgment.
Affirmed. | [
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Frank Holt, Associate Justice.
The appellant, Moody C. Hooten, brought suit against the appellee, J. W. DeJarnatt, for personal injuries and property damages sustained by him as a result of the appellee driving his automobile into the rear of a tractor which appellant was driving upon a highway. The appellee responded by appropriate pleadings and sought recovery for personal injuries and property damage sustained by him. The issues were submitted to a jury which denied any recovery to either litigant. From a judgment on this verdict appellant brings this appeal. There is no cross-appeal.
The appellant first contends that the trial court erred by admitting in evidence the deposition of Mrs. Thigpen as to her near collision with the appellant preceding the collision between appellant and appellee. The appellant argues that this near collision is a collateral issue to the actual collision. After making certain deletions, the trial court admitted the deposition in evidence over the objection of appellant that none of the balance of her testimony was relevant. It appears that the near collision between Mrs. Thigpen and the appellant occurred approximately one-fourth mile from and one minute before the collision between the appellant and appellee. Mrs. Thigpen testified that as she topped an incline she suddenly saw appellant, proceeding in the same direction, driving his tractor on the paved portion of the highway, and that she was able to avoid a collision by coming to almost a complete stop before the oncoming traffic permitted passage; that no part of appellant’s tractor was on the shoulder of the road; and that since it was dark she had her headlights on as did oncoming traffic. However, appellant testified that at all times he had the right front and right rear wheels of his tractor off the pavement riding the gravel shoulder of the road; and that it was not dark enough at the time of the actual collision to require the use of headlights.
We have held that where the sequence of events is not too remote in distance and time, then the preceding-act or occurrence is admissible for the purpose of showing one continuing act or the probability that the circumstances of the preceding occurrencé continued to exist at the time of the subsequent occurrence. Therefore, such preceding occurrence has some relation to the actual mishap. Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S. W. 2d 242; Wagnon v. Porchia, 235 Ark. 731, 361 S. W. 2d 749; Jelks v. Rogers, 204 Ark. 877, 165 S. W. 2d 258; Brooks v. Bale Chevrolet Co., 198 Ark. 17, 127 S. W. 2d 135. We think Mrs. Thigpen’s testimony was clearly admissible for the purpose of showing one continuing act or as a circumstance which tended to show the probability of the conditions existing at the time of the collision.
Furthermore, another witness, Mrs. Kurkendall, was permitted to testify without objection that she had a near collision with appellant as she came upon him from the rear; that she didn’t see any lighting on the tractor although it was dark enough to require the use of her lights and that all she was able to discern as she passed him was a form which appeared to be a man on a tractor. Since no objection was made to her testimony, the Thigpen incident being closer in time and distance to the actual collision, we perceive no prejudicial error could result from the admission in evidence of the. Thigpen deposition.
The appellant next contends that the trial court erred in giving appellee’s Instruction No. 4. This instruction related to the statutory requirement, Ark. Stat. Ann. § 75-702 (a) and § 75-709 (d) (Supp. 1963), that farm tractors mint be equipped with headlights. It is undisputed that the appellant .had no headlights on his tractor. Appellant argues that there was no evidence that the absence of these headlights was the proximate cause of the collision. We cannot agree. The collision occurred at approximately seven P.M. on March 29, 1962. There was evidence that it was misting rain and dark, that appellee and the drivers of other vehicles were using their headlights. Appellee testified he did not see a red light on the rear of appellant’s tractor at the time of the collision, although appellant presented evidence that the red light was in use. The diffusion of light from head lamps undoubtedly aids overtaking as well as approaching motorists and certainly would assist motorists under such driving conditions as existed at the time of this collision. There was a sixteen-foot shoulder at the site of the collision which head lamps could have made more readily discernible. This instruction was responsive to the evidence in this case and properly permitted the jury to determine if the absence of headlights was a proximate cause of the collision.
The appellant also questions the clarity of this instruction. We do not think it is susceptible to this objection. Further, the court gave appellant’s Instruction No. 10 to the clear effect that the jury could not consider the violation of this statute or the absence of headlights as evidence of negligence unless the jury found by a preponderance of the evidence that such was. a proximate cause of the collision.
Appellant next argues that the trial court erred in giving appellee’s Instruction No. 5A which reads:
“No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.”
This instruction is based upon Ark. Stat. Ann. § 75-604 (a) (Supp. 1963) entitled “Minimum Speed Regulation”. The appellant urges that this is an abstract statement of the law or is not responsive to any evidence since the collision involved only one tractor and one automobile with no other vehicles being involved. Appellant testified he was traveling approximately fourteen miles per hour. Appellee testified that his speed was approximately fifty miles per hour at the time he first observed appellant about twenty-five steps ahead of him. Appellant admitted that he was familiar with this road and knew it was heavily traveled. The appellee testified that there was oncoming traffic at the time of the collision which made it impossible for him to go around the appellant. It is admitted by appellant that appellee would have had to cross the center line to pass him. There was evidence by two witnesses, Mrs. Thigpen and Mrs. Kurkendall, that preceding the collision they almost drove into the rear of appellant’s tractor. As stated, the shoulder was sixteen feet wide at the scene of the accident. We think the instruction was proper.
The appellant next contends for reversal that the trial court erred in refusing to amend appellee’s Instruction No. 7 as requested by appellant. This instruction defined the duty of a driver of a vehicle when confronted with an emergency not created by his negligence. Appellant requested the court to include in this instruction the duty of care when the emergency is created by the driver’s own negligence. Appellant argues he “was entitled to have it made clear that this emergency rule would not apply if [appellee] was negligent in creating the emergency.” This instruction clearly tells the jury in two places that the emergency rule is only available to a driver who is confronted with an emergency “not the result of his own negligence”. It was unnecessary to reiterate by separate paragraph or additional words that the emergency rule is not available when the emergency is created by the driver’s own negligence.
Finding no reversible error, the judgment is affirmed. | [
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George Rose Smith, J.
This is an original petition filed by Marion Burton, a practicing attorney, for a writ of certiorari to quash two orders entered by the Honorable Wiley W. Bean. The first order committed Burton to jail for an asserted contempt of court. The second order suspended Burton’s license to practice law in the Fifth Judicial District until he should exculpate himself from certain supposed wrongdoing.
Although this proceeding is in form ex parte, a copy of Burton’s petition was served upon Judge Bean, who has filed a response defending the validity of his orders. Thus the proceeding is not uncontested. The parties have filed, as exhibits to their pleadings, such parts of the record made at the trial level as they have thought necessary for an understanding of the case.
In October of 1963 there was pending in the Conway Circuit Court, presided over by Judge Bean, a libel suit brought by C. C. Brewer, the county clerk, against Gene Wirges, the editor of a newspaper at Morrilton. Apparently one of the issues concerned the manner in which the paper had reported the details of an election contest filed by Harding Byrd, an unsuccessful candidate for the office of school director.
At the trial of the libel suit Burton, who was not an attorney of record in the case, was called as a witness for the defendant Wirges. Burton had represented Byrd in the election contest. Burton testified at some length about his investigation of the case, the preparation and filing of the complaint, and the alleged irregularities in the election procedure. In the course of his testimony Burton indicated that Byrd was expected to pay the court costs in the case, but it was not anticipated that he would pay an attorney’s fee to Burton, who was employed by the Republican party and looked to that organization for his compensation.
Judge Bean seems to have concluded that Burton’s conduct in the election case may have amounted to champerty or maintenance. After the libel suit was submitted to the jury Judge Bean went to his chambers and sent for Burton. Also present were the attorneys for Brewer, the county sheriff, a deputy prosecuting attorney, and a few others not identified in the record before us. Burton was given no notice of any kind about the nature or purpose of the proceeding. At first he was wholly without counsel. Later on his present attorney, who had represented Wirges, was invited to come into the room, but Judge Bean refused to allow this lawyer to take part in the hearing, directing him ‘£ to sit there and listen.”
At the beginning of the interrogation Burton was sworn, without protest. Judge Bean stated that he wanted to ask a few questions to clarify his understanding of Burton’s testimony in the libel case.. After answering-some preliminary questions Burton requested that he be told the purpose of the proceeding. This request was repeated two or three times in the course of the hearing, but the only answer given by Judge Bean was that he was attempting to see- if his notes were accurate. Burton pointed out that his testimony was a matter of record and spoke for itself. At one point Judge Bean indicated that the deputy prosecuting attorney was present in an official capacity. Finally Burton, after his protests had proved to be unavailing, stated that in view of the nature of the proceeding he thought he should refuse to answer any further questions. The examination then closed in this manner:
“The Court: All right. For .the record, then, Mr. Sheriff, take him to jail and keep him there until, the Court orders you to release him or until he makes up his mind that he will answer the questions. Now, would you like to go further with the proceeding?
“Mr. Burton: No, sir.
“The Court: G-o on to jail.”
Burton seems to have remained in the county jail for several hours. He was then recalled by Judge Bean, who said that he had decided to let Burton go home. The judge added, however, that he could not let Burton continue to practice in his district until the matter was cleared up. A day or so later an order was entered suspending Burton’s license to practice in the district until ‘ ‘ such time as a hearing may be had exculpating the said Marion B. Burton from wrongdoing as an attorney at the Bar.”
We declare without hesitation that both the order committing Burton to jail and the order suspending him from practice were void for want of jurisdiction.
It is not contended, and' could not reasonably be contended, that the pendency of the libel suit justified the attempt to catechize Burton. The two proceedings were completely separate. In no event could information elicited from Burton have been of use in the libel case.
What took place in Judge Bean’s chambers was not in fact a judicial proceeding. No permissible judicial inquiry was before the court. Under our constitution and laws a judge cannot,, by virtue of his office, resolve himself into a court of inquiry for the investigation of real or supposed misconduct that may have come to his attention in his courtroom or upon the street. Ketcham v. Commonwealth, 204 Ky. 168, 263 S. W. 725; Manning v. Ketcham, 6th Cir., 58 P. 2d 948. No one’s liberty would be secure if our people might abruptly be called before a judge, as Burton was here, with the alternative of answering questions or going to jail.
A court’s power to punish for contempt does not exist in a vacuum. It cannot be exercised simply because a judge is on the bench or in chambers. The power is merely incidental and auxiliary to the judicial authority conferred by law upon the court. When there is a total lack of jurisdiction, as there was here, there can be no punishment for a refusal to submit to interrogation. Joyce v. Hickey, 337 Mass. 118, 147 N. E. 2d 187. There is no hint that Burton, even in trying circumstances, dis played any disrespect toward Judge Bean; to the contrary, lie seems to have acted with commendable dignity and composure.
The purported disbarment order is similarly void. A lawyer’s right to practice his profession is a valuable privilege, conferred in the first instance by this court and not to be taken from him without notice and a hearing as provided by law. Even when, a century ago, the circuit courts had the authority to admit attorneys to practice, such a court could not disbar a lawyer summarily. Beene v. State, 22 Ark. 149. There is still less justification for that procedure today.
The writ of certiorari is granted; both the orders are declared to have been unauthorized and void. | [
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Sam Robinson, Associate Justice.
On November 2, 1960, appellants, Nellie Schindler Hillebrenner and R. T. Hillebrenner, entered into an agreement with appellees, W. M. and Gladys Odom, whereby appellants purchased from appellees Lots 16,17, 18, 19, 20, 21 and 22, Block 7, Riffel and Holders Addition to the City of Little Rock. The agreed purchase price was $65,000.00. As partial payment, appellants conveyed to appellees property in Dallas, Texas valued at $26,611.33. For the balance of $38,388.67, appellants executed and delivered their promissory note payable $150.00 per month, in addition to interest at the rate of 5 % per annum. Located on the property are rental units consisting of duplexes, cabins, and a business building. Some house trailers were also on the property at the time of the sale, but it was understood by all parties that they did not go with the property.
Among other things, the contract of purchase provides: “Upon payment of the entire debt with interest when due, together with all taxes, assessments and insurance premiums due hereafter, SELLER will convey to BUYER the above described property by Warranty Deed and will furnish an Abstract of Title certified to the date of this AGREEMENT showing merchantable title.’’
On June 28, 1962, appellants filed this action alleging that the appellees had misrepresented the amount of rent the property would produce and had also misrepresented the condition of the buildings. They alleged that the buildings were in a deplorable condition necessitating the expenditure of about $3,000.00 in making repairs, and further, that under the provisions of a city ordinance the house trailers could not be kept on the premises, and that appellees had moved them, thereby reducing the monthly income from rent.
Appellants further allege that the title was defective and stemmed from a State Tax Title, and that they have called upon the defendants to either correct said title and make it merchantable or to refund their money, which the defendants have failed and refused to do. Appellants prayed for judgment against appellees in the sum of $34,961.33.
The trial court held that the preponderance of the evidence did not show that appellees made any false representations in the sale of the property that called for a rescission of the contract. We agree with the chancellor on that point. The parties were dealing at arms length. Appellants had every opportunity to inspect the property and to make a determination of its value; they knew the house trailers did not go with the property, and, of course, they knew the trailers could be moved at any time. Further, one of the appellants, Mr. Hillebrenner, is a plumber by trade. He spent about two days at the property and was in just about as good a position as anyone to determine the condition of the property. It appears that appellants made a bad trade, but there was no fraud or deception practiced by appellees that would justify a rescission of the contract. The court said in Rose v. Moore, 196 Ark. 527, 118 S. W. 2d 870: “With the opportunity afforded Lange to investigate and inspect the farm, it must be presumed that he exercised and relied upon his own judgment in making the contract.” And the court said in Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458: “This is a suit to cancel a deed upon the grounds that its execution was procured by fraud; which is never presumed, but must be affirmatively proved.”
Appellants further contend that although the contract of purchase provides that when the purchase price is paid in full appellees will furnish an abstract showing a merchantable title, the appellees do not have a merchantable title, and, therefore, cannot furnish an abstract showing title. Appellee offered to furnish title insurance; the trial court thought this would be a sufficient compliance with the purchase agreement, and therefore rendered a decree for appellees.
Apparently, the only defect in the abstract of title to Lot 22 is that the patent from the U. S. Government is not shown. It appears, however, that appellees must depend on adverse possession to establish their title to the other lots. Their adverse possession does not show in the abstract of title that they propose to furnish appellants when the purchase price is paid in full. In all probability, a successful suit to quiet title will be necessary to cause the abstract to show a merchantable title.
In this case there is a contract to convey the property by warranty deed and to furnish an abstract show-, ing- a merchantable title, not a contract to convey a merchantable title. There is a distinction, as pointed out in Lucas v. Meek, 227 Ark. 677, 300 S. W. 2d 593. Perhaps it can be said that in at least two cases it has been held that adverse possession is sufficient to support a contract to furnish an abstract showing a merchantable title. Smith v. Biddle, 171 Ark. 644, 286 S. W. 801; McWilliams v. Toups, 202 Ark. 159, 150 S. W. 2d 34. But the decided weight of authority, with which we agree, is that a contract to furnish an abstract showing a merchantable title means just what it says, and the seller must furnish that kind of abstract.
In Meek v. Green, 166 Ark. 436, 266 S. W. 451, Judge Hart said: "This court has held that, where a contract for the purchase and sale of land calls for an abstract showing good title, the covenant will be construed to mean a good record title, and not such a title as may be shown to be good by oral proof, or affidavits and other writings not subject to registration. In short, it is not sufficient in such cases that the title is good in fact, that is, capable of being made good by the production of affidavits or other oral testimony, but it must be good of record. Hinton v. Martin, 151 Ark. 343; Dalton v. Lybarger, 152 Ark. 193; and Bennett v. Farabough, 154 Ark. 193.” In 46 A.L.R. 2d 561 there is a long annotation on the effect of a contract calling for an abstract showing a merchantable title. It is clearly shown by the cases cited in'this annotation, as well as our own cases, that the great weight of authority is that such a provision in a contract of purchase will be enforced.
Since the institution of this suit, the monthly payments due under the terms of the purchase contract have been paid into the registry of the trial court. The purchase contract provides that the. abstract shall be furnished after the purchase price has been paid. Here, where it is shown that the seller must take affirmative action in order to be able to furnish an abstract showing a merchantable title, equity will not enforce the monthly payments to the seller, but appellants shall continue to make such payments into the registry of the trial court, and appellees are given a reasonable time in which to furnish to appellants, for examination, an abstract showing a merchantable title. If and when such abstract is furnished, the money which has accumulated in the registry of the court, and the future monthly payments, shall be paid to appellees. Lucas v. Meek, 227 Ark. 677, 300 S. W. 2d 593.
The judgment is modified and remanded with directions to enter an order not inconsistent therewith.
Holt, J., not participating. | [
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Jim Johnson, Associate Justice.
This is an appeal from order revoking a license to practice medicine. On June 11, 1962, appellant Orin Joseph Hake was sent a letter by appellee’s secretary advising appellant that a complaint had been filed Avith appellee, the Arkansas State Medical Board, relative to an alleged malpractice and requesting appellant to appear before that board on June 14th. The letter stated in part that, “no formal action Avill be taken against you at this meeting. The Board simply Avishes to discuss this complaint Avitli Arou and determine if there is sufficient evidence for proceedings to be instituted against you for revocation of your license.” Appellant appeared at this meeting. Thereafter a formal complaint Avas filed against appellant and an order'to show cause and an order of suspension Avere issued, with hearing set for July 26, 1962, before the appellee board. Appellant appeared at this reported hearing Avith counsel and at a later hearing on November 15, 1962. On November 21, 1962, an order revoking appellant’s license to practice medicine and surgery in the State of Arkansas Avas served upon appellant. Appellant then petitioned Pulaski Circuit Court for a Avrit of certiorari, Avkich was granted. Upon review, the Circuit Court on April 12, 1963, affirmed the action of the board, from which appellant has prosecuted this appeal.
For reversal appellant urges that the circuit court erred in affirming the Medical Board’s action in revoking appellant’s license to practice medicine in the State of Arkansas.
The Medical Practice Act, at Ark. Stat. Ann. § 72-613 (JEtepl. 1957), sets out fifteen grounds for revocation, suspension or refusal to issue licenses. More than one of these grounds were included in the serious and somewhat sensational charges against appellant. Section 72-614 provides for the filing of complaints, hearing and appeal. The last of this section reads as follows:
“All evidence considered by the Board shall be reduced to Avriting and available for the purpose of appeal or certiorari to any of the parties of said hearing. Nothing herein shall be construed so as to deprive any person of his rights without full, fair and impartial hearing.”
The Order of Revocation recites:
“As a result of the observation of the respondent, conversations with him, and oral examination of him, as well as the evidence adduced at the hearing, the Board is unanimously of the opinion that Orin Joseph Hake is mentally and emotionally incompetent to practice medicine; that the safety of the people of the communitj7' in which he practices will be endangered by his continuing to practice medicine. The Board further finds that said Orin Joseph Hake has been guilty of grossly negligent and incompetent malpractice and that his license to practice medicine in the State of Arkansas should be cancelled and revoked.”
The concensus of appellant’s argument is that there is absolutely no evidence in the record to substantiate the findings and rulings of the board. Appellee urges that the board, as an administrative body, and as is also provided in the Medical Practice Act in § 75-615, “. . . shall not be bound by strict or technical rules of evidence . . that the board’s finding of mental and emotional incompetency is the medical opinion of the nine doctor-members which they are competent, as doctors, to make. "We cannot say that either argument as such is completely without merit. We fully understand the justice of informal hearings on complaints to determine whether a formal complaint should be filed, and that the power to suspend a doctor’s license pending hearing on a formal complaint is necessary for the safety of the community where a doctor practices. However, we are equally cognizant that the right to practice medicine is a valuable property right not to be treated lightly.
In Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S. W. 2d 826, this court stated:
“The appellant contends that the board’s findings of fact are not sustained by any substantial competence evidence. Upon this point it is our rule in proceedings like this one that the board’s action will not be set aside on certiorari unless there is an entire absence of evidence to sustain the findings, in which case the board’s action will be deemed arbitrary. Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; Eclectic State Med. Bd. v. Beatty, 203 Ark. 294, 156 S. W. 2d 246.”
In Kuhl v. Ark. Bd. of Chiropractic Examiners, 236 Ark. 58, 364 S. W. 2d 790, after quoting the above language of the Bookman case, the court added:
“But even so, we would send this case back to the Board of Chiropractic Examiners for a new trial if it appeared that appellants did not receive a fair trial, 5 ?
In McKay v. State Board, 103 Colo. 305, 86 P. 2d 232, a similar case, the Colorado Supreme Court said:
“. . . the law which the board acted contemplates a review of the board’s action by a court presumably not expert in medical matters, with authority in the court to determine whether the board regularly pursued its authority or abused its discretion. Without testimony by an expert the court cannot determine the limits of proper treatment in good faith of one possessing ordinary skill nor can it assume that the board members out of their own individual knowledge and skill correctly fixed the limits within which one might prescribe in these particular cases and be within the bounds of ordinary care and skill so that good faith might be presumed, and beyond which good faith and ordinary skill could not both be successfully asserted. Such matters being only within the knowledge of experts must be shown by testimony of experts appearing in the record.”
“. . . It does not appear in the evidence that such treatment for a patient in her condition was not proper, judged by sound and recognized medical standards. The board says that in its opinion it was not, but until there was competent evidence to support it, the board was not authorized to form such an opinion and exceeded its authority in so doing.”
In the case at bar, the record furnished no factual standard for the board’s conclusions and no standard for this court to determine wheher the acts charged amounted to malpractice and no standard for the board’s opinion as to appellant’s mental and emotional incompetency to practice medicine. From the record before us, it seems that the findings and opinion of the board are based on testimony or conversation or other matters which arose or were presented at the first informal and unreported hearing. (A minute scraping of the record might yield some scintilla of evidence to substantiate some of the findings of the board, but this would hardly be compatible with the provisions of the Medical Practice Act which assures that no person will be deprived of his rights without full, fair and impartial hearing.) We have uniformly held that while administrative tribunals are not bound by strict or technical rules of evidence, there must be evidence in the record to sustain the finding's of the administrative board. In addition, the Medical Practice Act specifically provides that “[a] 11 evidence considered by the Board shall be reduced to writing and available for the purpose of appeal or certiorari to any of the parties of said hearing.” There is a virtual absence of evidence in the record to sustain the board’s findings, as well as no expert testimony to provide a standard for the board’s medical opinions. The valuable property rights here involved cannot be taken from appellant upon such questionable compliance with due process. Accordingly the case must be reversed. However, the health and welfare of an entire community demands that the cause be remanded. Therefore this cause will be remanded, through the circuit court, to the board, to the end that the board may have a new hearing upon evidence competent before such an administrative body consistent with this opinion, pending which appellant’s license to practice medicine in the State of Arkansas shall remain suspended pursuant to the board’s original order of suspension of June 25, 1962.
McFaddin, J., concurs. | [
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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 decision. The ALJ found that appellant had proven that she had sustained a compensable occupational disease which resulted in a period of temporary, total disability commencing on October 15, 1991, and extending until July 29, 1992; that appellant failed to prove that a violation of an Arkansas statute or official regulation caused in substantial part her occupational disease; and that appellant is not entitled to any permanent disability benefits. On appeal, appellant contends that she is entitled to permanent impairment benefits and wage loss disability benefits and that the Commission erred in failing to award benefits for violation of an Arkansas statute or official regulation. We reverse and remand in part, and affirm in part.
The record reflects that appellant had worked for appellee from September of 1975 until October of 1991, soldering computer component boards with the aid of a magnifying glass or microscope. The performance of this task produced fumes and smoke which were inhaled by appellant. Appellant began experiencing respiratory problems approximately six months prior to the time she quit work in October 1991. She sought medical treatment in August of 1991, and was diagnosed with obstructive pulmonary disease and hypertensive vascular disease. The Commission found that her condition was causally connected with her employment, and awarded appellant temporary total benefits. The Commission found, however, that appellant was not entitled to an award of permanent disability benefits. Appellant argues that there is no substantial evidence to support the Commission’s denial of permanent disability benefits. The Commission found that appellant was not entitled to permanent anatom ical impairment benefits because the record did not contain a rating of permanent impairment. The Commission also concluded that appellant had suffered no wage loss disability as a result of her condition.
Appellant first argues that the Commission erred in finding that she had suffered no permanent, anatomical impairment as a result of her occupational disease. We agree. The dissent points out that appellant argues that she is permanently, totally disabled and not that she has “some degree” of permanent partial disability. However, it stands to reason that if one argues total disability a partial disability can be found in the alternative. See Cite.
Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached. Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969). An injured employee is entitled to the payment of compensation for the permanent functional or anatomical loss of use of the body as a whole whether his earning capacity is diminished or not. Id. In the case of Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968), the supreme court stated that the Commission is “not limited, and never has been limited, to medical evidence only in arriving at its decision as to the amount or extent of permanent partial disability suffered by an injured employee as a result of injury.” In fact, it is the duty of the Workers’ Compensation Commission to translate the evidence on all issues before it into findings of fact. Gencorp Polymer Products v. Lander, 36 Ark. App. 190, 820 S.W.2d 475 (1991). It has also been said that nothing in our law does or should require precise evidence of the precise amount of disability. Bibler Bros. v. Ingram, 266 Ark. 969, 587 S.W.2d 841 (1979). It appears that the court in Bibler was referring to anatomical impairment and/or wage loss disability.
After reviewing the record it is clear that the Commission denied appellant benefits for permanent, partial, anatomical loss of the use of her body for the sole reason that there was no numerical rating assigned by a physician. However, the record contains evidence from which reasonable minds could conclude that appellant sustained some degree of permanent impairment.
Appellant testified that six months before she had to cease working, she had been very tired, and had experienced shortness of breath and constant pain in her chest. The record discloses that appellant visited Dr. Bill Dedman on August 21, 1991. Dr. Dedman performed a lung test and found that appellant had a decreased and abnormal lung capacity. Dr. Dedman testified that testing revealed that appellant had a decrease in lung capacity as much as 47 percent. He referred appellant to Dr. James Adamson. Appellant was seen by Dr. Adamson on September 26, 1991, at which time he expressed the view that appellant’s decrease in lung volume was largely caused by chronic obstructive pulmonary disease. Dr. Adamson felt that appellant’s condition was due from exposure to the smoke and fumes produced from her job.
The record further reveals that appellant was instructed to use inhalers to help her condition. Dr. Dedman stated that appellant’s exercise tolerance had increased, but he felt that this was brought about by the use of inhalers. He also testified that, as with any type of lung disease, there was a good chance that appellant’s condition would worsen over the progression of time. Dr. Dedman felt that appellant was permanently disabled as a result of her illness.
The record also discloses that appellant was unable to perform activities she once could because of her diminished breathing capacity. Dr. Dedman testified that appellant could not ambulate any significant distance without chest discomfort and shortness of breath. Dr. Dedman stated that he did not believe this condition would get any better. Appellant testified that she was able to garden, perform yard work, carpentry work, and farming before she had this condition. She stated that as a result of her illness she was not able to do her housework.
Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, 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. Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). We will reverse a decision of the Commission where convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 756 S.W.2d 923 (1988). Based on the facts in this case, we find that the opinion of the Commission fails to display a substantial basis for the denial of relief. We are not convinced that fair-minded persons with the same facts presented in this case could reach the same conclusion as the Commission. The Commission had before it cogent evidence presented by appellant which could support a finding of permanent, anatomical impairment, and we note that there was no evidence in the record to rebut this strong evidence. Therefore, we reverse and remand on this issue. On remand of this case, it will be the function of the Commission to translate the evidence presented them into findings of fact. The dissent mischaracterizes this holding as awarding the appellant “some degree” of permanent, partial disability. To the contrary, we are holding that appellant is entitled to some degree of permanent, partial, anatomical impairment disability. The determination of the precise degree of impairment is the Commission’s duty to determine under the law; therefore, we remand.
Appellant also argues that there is no substantial evidence to support the Commission’s denial of wage loss disability benefits. We disagree.
The wage loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). Arkansas Code Annotated § ll-9-522(b) (1987) provides in part that if an employee, subsequent to her injury, “has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the accident”, she shall not be entitled to wage loss disability benefits.
The Commission denied wage loss disability benefits based on evidence that the appellant had been offered employment within her restricted capacity.The Commission stated that a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time appellant last worked was tendered to her. Appellant contends that the work that was offered did not meet the work restrictions placed upon her by her doctors since she was still exposed to fumes at the plant.
Drs. Dedman and Adamson felt that appellant was able to return to work. The record discloses that work limitations were placed on appellant’s ability to perform a certain type of work. Dr. Dedman noted in a letter dated June 1, 1992, that appellant could continue to work in a sedentary position if the following conditions were met: 1. she is in a room where she is not exposed to solder fumes, 2. she should not be required to walk up stairs, 3. her maximum distance to walk at any time should not be more than 300 feet, 4. she should not be doing any significant repetitive lifting over 20 pounds, 5. she should not be in a position where she is having to do repetitive walking, bending or lifting, 6. she should not be in an area where she is required to wear a respiratory of any type. In a letter dated July 29, 1992, Mr. Norwood Phillips, stated that appellee had several positions open to appellant which comply with the restrictions placed upon her by Dr. Dedman. In that same letter, Mr. Phillips requested that appellant contact John McCroskey to get back to work. Appellant admitted that she was aware of the offer of employment, but she did not speak with Mr. McCroskey as requested. Mr. McCroskey testified that, had appellant reported back to work as scheduled, she would have earned the same wage that she was earning at the time of her departure.
After reviewing the evidence, we cannot say there is no substantial basis for the Commission’s denial of wage loss benefits.
For her last point, appellant argues that the Commission erred in refusing to award benefits for a violation of an Arkansas statute or official regulation.
Arkansas Code Annotated § 11-9-503 (1987) provides that:
Where established by clear and convincing evidence that an injury or a death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, compensation provided for by § 11-9-501 (a)-(d) shall be increased by 25 percent.
Appellant argues that under Ark. Code Ann. § 11-2-117 (1987) every employer is required to furnish employment which is safe for the employees and that every employer shall furnish safety devices and safeguards. According to appellant, the warehouse in which she worked was not ventilated and masks were not provided. Other co-workers also testified that they were not aware of any ventilation nor the availability of masks. However, the appellee’s safety director testified that there was ventilation and that the air in the plant was checked according to OSHA standards and was below the safety level required.
The Commission found that there was nothing in the record to indicate that the appellant’s occupational disease was caused by a violation of an Arkansas statute or official regulation. In making our 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). Therefore, we cannot say that there is no substantial evidence to support the Commission’s decision.
Reversed and remanded in part; affirmed in part.
Jennings, C.J., concurs in part, and dissents in part. | [
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John E. Jennings, Chief Judge.
Appellant, Billy Joe Cook, was charged in Arkansas County Circuit Court with the commission of rape, a class Y felony. After a non-jury trial Cook was found guilty and sentenced by the court to a term of twelve years with eight years suspended. The sole argument on appeal is that the evidence was insufficient to support the verdict. We affirm.
In determining the sufficiency of the evidence, we view it in the light most favorable to the State. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993). If the decision of the court or jury is supported by substantial evidence, we will affirm. Paige v. State, 45 Ark. App. 13, 870 S.W.2d 771 (1994). Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion. Edwards v. State, 40 Ark. App. 114, 842 S.W.2d 459 (1992).
At trial the victim testified, with sufficient clarity, that the appellant had raped her. Although the defendant testified to the contrary, decisions as to the credibility of the witnesses are to be made by the trier of fact. Smith v. State, 314 Ark. 448, 863 S.W.2d 563 (1993). Although there was other corroborating evidence here, the testimony of the victim, standing alone, may constitute substantial evidence. Fox v. State, 314 Ark. 523, 863 S.W.2d 568 (1993). We hold that the appellant’s conviction is supported by substantial evidence.
While the State neither appealed nor cross-appealed, it suggests in its brief that we correct an “illegal sentence” imposed by the trial court. The State says:
The trial court sentenced appellant to twelve years in prison, but suspended eight years of the sentence. This sentence is not authorized by law and, although not objected to below, may be raised on appeal. Jones v. State, 27 Ark. App. 24, 765 S.W.2d 15 (1989). The State respectfully requests that the case be remanded to the trial court only to correct this sentence in accordance with law and that the conviction be in all respects affirmed.
The State correctly notes that rape is a class Y felony, carrying a minimum sentence of ten years imprisonment. Ark. Code Ann. § 5-4-401(a)(1) (1987). Arkansas Code Annotated section 5-4-301(a)(l)(C) (Supp. 1991) provides that the court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for a class Y felony.
While we agree with the State at the outset that the sentence given was below the statutory minimum, and therefore was error, we do not agree that this is an issue the State may raise in the absence of an appeal.
We must begin with the rule that sentencing is entirely a matter of statute. Eberlein v. State, 315 Ark. 591, 869 S.W.2d 12 (1994); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993); State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993); Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992). The sentence the court imposed was clearly “illegal” in the sense that it was below the statutory minimum. The question for decision, however, is whether we should reverse the trial court, either on our own motion or on suggestion by the State, absent an appeal.
This is not truly an issue of subject matter jurisdiction. As Chief Judge Cracraft explained in Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987):
The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court’s jurisdiction to act upon the subject matter, that action is binding until reversed or set aside. This distinction has also been recognized and applied in our courts.
In Arkansas, a circuit court has subject matter jurisdiction to hear and determine cases involving violations of criminal statutes. It is also empowered .with authority to impose or suspend sentences, and to revoke those suspended sentences. The statutes conferring this authority prescribe the method the court should follow in exercising its assigned jurisdiction, but the failure of the court to properly pursue those statutesjs an entirely different matter from its jurisdiction to determine whether to exercise that power or not. Failure to follow the statutory procedure in the exercise of its power constitutes reversible error but does not oust the jurisdiction of the court. [Citations omitted.]
Nevertheless, allegations of “void or illegal sentences” may be treated by the appellate court as similar to problems of subject matter jurisdiction, in that the court will review the allegations even in the absence of an objection in the trial court. Jones v. State, 27 Ark. App. 24, 765 S.W.2d 15 (1989).
The supreme court has said that an illegal sentence may be corrected by the appellate courts sua sponte, see Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); and that an “illegal sentence” means “a sentence illegal on its face.” Lovelace v. State, 301 Ark. 519, 785 S.W.2d 212 (1990). The decision from which these statements are derived is Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). There the court said:
Abdullah contends that because the manner of imposing the suspended sentence was illegal, it is subject to being corrected at any time, citing Ark. Stat. Ann. § 43-2314 (Supp. 1985). That statute provides that a circuit court may, upon receipt of a petition by an aggrieved party, take certain corrective action. The statute refers to an “illegal sentence,” which may be corrected at any time, and to a sentence illegally imposed, which may be corrected within 120 days after it was imposed or within 120 days after specified action has been taken by an appellate court. The reference to an illegal sentence evidently means a sentence illegal on its face. [Emphasis ours.]
Arkansas Statute Annotated section 43-2314 is now Ark. Code Ann. § 16-90-111 entitled “Fixing punishment - Correction of illegal sentence - Reduction of sentence.” Its text remains unchanged. Subsection (a) provides:
Any circuit court, upon receipt of petition by the aggrieved party for relief and after notice of the relief has been served on the prosecuting attorney, may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this section for the reduction of sentence.
It is this statute that the supreme court referred to in Abdullah. The statute quite clearly provides for relief to a defendant when the sentence imposed has been excessive. In such cases, it makes good sense for the appellate court to decide the issue “sua sponte” in the interest of judicial economy, as the sentencing circuit court could do so “at any time.” The statute does not contemplate an application by the prosecuting attorney to increase the defendant’s sentence “at any time.”
We do not view the statute as unfair to the State. At time of sentencing the State presumably knows the range of punishment for the offense it charged. If the trial court sentences the defendant to less than the term authorized by statute, the State has a remedy by way of appeal. State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994); State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994); State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1993); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).
Neither Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985), nor Eberlein v. State, 315 Ark. 591, 869 S.W.2d 12 (1994), are in point. Lambert addressed whether the trial court had lost jurisdiction after erroneously suspending- the defendant’s sentences. While the court in Lambert characterized the issue as one of subject matter jurisdiction, later decisions of the supreme court recognize that this is not so. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). The court in Lambert relied in part on In Re Bonner, 151 U.S. 242 (1893). In Bonner the Court said:
If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess.
The law of our country takes care, or should take care, that not the weight of a judge’s finger shall fall upon any one except as specifically authorized. [Emphasis ours.]
Eberlein is also distinguishable. There the defendant-appellant, for reasons not clear, argued that the trial court lacked authority to suspend his sentence and the supreme court agreed. The issue was raised by the defendant on direct appeal.
The State’s argument must be that the inadequate sentence in the case at bar was “unauthorized,” therefore “illegal,” and thus can be corrected “at any time,” not only by the trial court but also by this court. Can it be possible that long after a defendant’s release from prison, having served his sentence for a crime, he can be brought back into court and resentenced to an additional term?
While we do not decide whether the State must object in the trial court to a sentence it regards as inadequate, we hold that the issue may not be raised absent an appeal or cross-appeal.
Rogers and Pittman, JJ., concur.
Cooper and Robbins, JJ., concur in part; dissent in part. | [
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Melvin Mayfield, Judge.
Appellant, Gregory Ledguies, was charged pursuant to Ark. Code Ann. § 5-3-201 (1987) with criminal attempt to commit capital felony murder by shooting at two police officers. He was found guilty by a jury of aggravated assault as to one officer and of criminal attempt to commit capital murder of the other officer, and he was sentenced to four years and eight years, respectively, in the Arkansas Department of Correction, to be served consecutively. Appellant’s only argument on appeal is directed against the conviction for attempt to commit capital murder and contends that the trial court erred in allowing the State to amend the information charging that offense after the State had rested its case in chief.
At trial Little Rock Police Officer Mark Smith testified that on September 4, 1991, he was called to a disturbance at 1524 College Street. While he was there he heard several gunshots. He walked south through the alley and located the person who was doing the shooting. As he neared a house at 1624 College a man, identified as appellant, came out of the house and started shooting at him. Officer Smith said he called for assistance and several units responded. The officer said he and the other officers were in uniform and identified themselves as policemen, but appellant refused to drop the weapon. Officer Smith testified that he saw one flash from the muzzle of a weapon directed at him. He said he did not see any other muzzle flashes because he was running to take cover, but he heard more than six shots directed toward him. According to the officer, appellant would come out on the porch, shoot several times, go back inside the house, come outside again and shoot some more; there were several different episodes of shooting and the entire incident lasted approximately one hour.
Officer Tommy Hudson testified that he responded to the call for back up and blocked off a nearby intersection with his patrol car. He identified appellant as the man who was doing the shooting. Officer Hudson said when appellant saw him, appellant pointed the gun in his direction and started firing. He said he saw one muzzle flash and when he heard two bullets “zing” right by his head, he hit the ground, got behind his patrol car and stayed there. Other officers converged on the scene, including the SWAT team, and Officer Hudson said he used that opportunity to run behind a building.
Officer Everette Davis testified that when he arrived on the scene appellant had gone out the back door and was firing toward the back. Appellant then went back into the house and came out on the front porch again. Officer Davis said appellant had a gun in his right hand and a bottle in his left; appellant sat down on the front porch with his feet on the ground and fired some shots toward a cemetery at the end of College Street; he then emptied the gun, threw the shells out in the yard and went back into the house, leaving his bottle on the porch. A few minutes later appellant came out again and reloaded the gun. According to Officer Davis, he heard a female in the house arguing with appellant, saying that if he didn’t quit acting stupid and quit shooting, she was going to leave the house. He said he then heard appellant tell her, “No. You’re not going to leave the house. If you try to leave the house, I’ll kill you. If the police try to take you, I’ll kill them, too.” Officer Davis said that when the patrol car arrived and blocked the intersection, appellant pointed the gun directly at the car and fired nine rounds. Davis also testified that, aside from threatening the female inside the house, appellant made several statements about killing police officers if they tried to do anything to take her away or tried to help her. The incident ended when the SWAT team took control of the situation and put gas in the house which forced appellant and the woman out.
When the State rested, counsel for appellant made a motion for dismissal of the two counts of attempt to commit capital felony murder. He argued there was absolutely nothing to show that appellant had any premeditated or deliberate purpose of harming the officers. The court explained that to commit capital felony murder the State had to prove appellant was in the process of committing or attempting to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary or escape in the first degree. The State argued that there was evidence that Mae Ellen Randall, the woman in the house, was being held against her will by the appellant. The judge held that there was inadequate proof from which the court could find beyond a reasonable doubt that there was a kidnapping.
The judge then read both counts of the information which charged appellant with purposely engaging in conduct that constituted a substantial step in the commission of the offense of “capital felony murder” of Officer Tommy Hudson and Officer Mark Smith. The judge then asked, “So, is the State moving to amend at this time on Counts I and II to delete the words felony?” The prosecutor replied that it was. Counsel for appellant said he did not understand the court allowing the State to amend the information after the defense had moved for dismissal. The judge replied that the information can be amended to conform to the proof and that there was no great surprise to counsel. He reasoned that the information, although stating the charge as attempted “capital felony murder,” actually described attempted “capital murder,” and that there was not any great variance between the charges and the proof. The trial judge held that there was no prejudice to the appellant and allowed the State to strike the word “felony” from each information. At this point counsel for appellant again made a motion for dismissal for lack of a showing of premeditation or deliberation. Again, the motion was denied.
Arkansas Code Annotated Section 5-10-101(a)(l)-(3) (Supp. 1991), in effect at the time the incident here involved occurred, provided in pertinent part that a person commits capital murder if:
(1) Acting alone or with one (1) or more persons, he commits or attempts to commit rape, kidnapping, vehicular piracy, robbery, burglary, a felony violation of the Uniform Controlled Substances Act, §§ 5-64-101 - 5-64-608, involving an actual delivery of a controlled substance, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(3) With the premeditated and deliberate purpose of causing death of any law enforcement officer, jailer, prison official, firefighter, judge or other court official, probation officer, parole officer, or any military personnel, when such person is acting in the line of duty, he causes the death of any personf.]
Appellant’s argument is that the trial judge should not have allowed the State to amend the information because it changed the nature of the underlying charge. In support of this argument he cites Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988), and Thomas v. State, 2 Ark. App. 238, 620 S.W.2d 300 (1981). In Bell the Arkansas Supreme Court held that it was error to allow the State to amend the information five days before the trial to charge capital murder in the perpetration of aggravated robbery instead of first degree murder. It said that capital murder and first degree murder are not crimes of the same degree; that although capital murder includes the lesser offense of first degree murder, first degree murder does not include capital murder. The conviction was not reversed, however, because the issue had not been preserved for appeal. And in Thomas this coúrt said that an amendment to an information adding a charge under the Habitual Offender Act did not change the nature or degree of the crime charged but simply allowed evidence on which the punishment could be enhanced in the event of a conviction on the basic charge.
In the present case, allowing the State to strike the word “felony” from each information did not cause any real change in the nature or degree of the charges against the appellant. Although, the term “capital felony murder” has been used in some reported cases, we are not aware of a statute which contains that specific phrase. Ark. Code Ann. § 5-10-101(a) (Supp. 1991) simply pro vides that “a person commits capital murder if’ and several subsections complete the definition. Subsection (1), as quoted above in this opinion, does provide that capital murder is committed when the death of a person is caused by one who commits, or attempts to commit, certain named felonies. However, capital murder is also committed when death is caused under the circumstances set out in subsection (3). As the only effect of the amendment made in this case was to remove the word “felony” from the information, it is obvious that the amendment did not inject anything new into the case. The amendment did not even change the penalty as all capital murders are Class Y felonies. See Ark. Code Ann. § 5-10-101(c).
The State may amend an information to conform to the proof so long as the amendment does not change the nature or degree of the offense charged. Mitchell v. State, 306 Ark. 464, 470, 816 S.W.2d 566, 569 (1991). If the defendant is not surprised, an information may be amended after the jury has been sworn, but before the case has been submitted to the jury, so long as the amendment does not change the nature or degree of the crime charged. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985).
Here, the amendment occurred before the case was submitted to the jury, and it did not change the nature or degree of the crime charged. The only change made by the amendment was to eliminate the allegation that the appellant had committed, or attempted to commit, another felony in addition to the attempt to kill the two law enforcement officers. The appellant was not prejudiced or surprised by the amendment as shown by the fact that, before the amendment was made, defense counsel made a motion for dismissal of the charges and, using the exact language of Ark. Code Ann. § 5-10-101(a)(3), stated that there was no evidence that appellant “had any premeditated or deliberate purpose of doing anything towards these officers.” Clearly, appellant knew the basis of the charges for which he was being tried, and he did not move for a continuance. Under these circumstances, the trial court did not err in allowing the amendment.
Because the appellant was convicted of a lesser included offense on Count I, his argument here can only refer to his conviction on Count II.
Affirmed.
Cooper and Robbins, JJ., agree. | [
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Frank Holt, Associate Justice.
The principal issue presented in this case is whether the appellee should have a reformation of the deed she received from the appellant. This deed was part of a property settlement between them preceding their divorce. Following the divorce appellant instituted this suit alleging that he and the appellee owned twenty-six acres as tenants by the entirety. He asked for partition thereof and for his.proper share of the rents collected by the appellee. In her answer appellee denied his assertions. By cross-complaint she contends that she is the sole owner of the disputed property by the terms of their property agreement and that this tract of land was omitted through mutual mistake or fraud from appellant’s deed to her, therefore, the deed should be reformed to include this land. The appellant denied the allegations in the cross-complaint and then pleaded as a defense the statute of frauds and res judicata. Upon a trial of the issues the Chancellor decreed reformation of the deed so as to convey to appellee the disputed lands. From that decree appellant brings this appeal.
For reversal appellant contends that the decision of the trial court is not sustained by sufficient evidence.
At the time of their separation in November, 1959, the appellant and appellee owned as tenants by the entirety: (1) A twenty-six acre farm, or the land in controversy, (2) a lot approximately one hundred thirty-eight feet square on which their home was located, and (3) personal property. The real and personal property were both encumbered by mortgages. Following their separation there is evidence the appellant Avas anxious for a divorce. Appellant’s and appellee’s daughter and son-in-laAv, Mr. and Mrs. McCanless, visited him and his paramour several times. The appellant importuned the daughter and son-in-laAV to act as an intermediary concerning his desire for a divorce. According to appellee, the daughter and son-in-laAAf represented to her that if she AAmuld secure a divorce appellant would be Avilling to give her everything except the truck to Avhich she agreed. Her daughter and son-in-laAv corroborate appellee’s testimony.
There was never any direct contact between appellant and appellee during the negotiations. Pursuant to this understanding Mrs. Fisher, AAdio is unlettered, claimed she took deeds and other papers to her attorney and asked him to draAV up the necessary papers conveying all property to her except the truck. She also employed him to secure her divorce. The laAAryer drafted a deed and bill of sale which were forwarded to the appellant AAdio returned them with his signature. There upon the appellee secured her divorce. Appellee did not know the contents of the deed until some two or three months later when she discovered the twenty-six acres were omitted in the metes and bounds description. The appellant then refused to sign a quitclaim deed to this property and testified that when he had the deed read to him, since he was also unlettered, he noticed that the twenty-six acres were not included and otherwise he would not have signed it.
The lawyer testified that he thought he had included everything in the deed according to the papers presented to him. The deed which appellant signed, containing only the homestead, recited as part of the consideration:
“Her [appellee’s] assumption of any mortgage or Deed of Trust which may be outstanding against this property on this date. ’ ’
This property and the twenty-six acres were encumbered by the same mortgage. The bill of sale signed by appellant lists several implements of machinery which could only be used by the appellee in farming operations. The decree of divorce provides: “There are no property rights to be determined herein. ’ ’
From the record in this case it appears that the appellant was on good parental terms with his daughter and his son-in-law, Mr. and Mrs. McCanless, who acted as intermediaries. As stated, appellee’s version of the agreement was corroborated by them.
On appeal we do not disturb the findings of the Chancellor unless they are against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517. It is well settled that a court of equity has power to correct mistakes in a deed and conform it to the intentions of the parties based upon parol evidence of a clear, decisive and unequivocal nature. Beneaux v. Sparks, 144 Ark. 23, 221 S. W. 465; Welch v. Welch, 132 Ark. 227, 200 S. W. 139; Foster v. Richey, 192 Ark. 683, 93 S. W. 2d 1258; Gray v. Gray, 233 Ark. 310, 344 S. W. 2d 329; Crawford v. Vinyard, 234 Ark. 1003, 356 S. W. 2d 8. We think there was ample evidence of a clear, cogent and decisive nature to sustain the Chancellor’s decree.
The only other contention advanced by the appellant for reversal is that the court erred in refusing to sustain his plea of res judicata to appellee’s cross-complaint. It is true that a judgment upon a question directly involved in litigation is conclusive as to that issue in another suit by the same party or parties. It must appear, however, on the face of the record or by extrinsic evidence that the precise question was raised and determined in the former suit. Carrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579; Smith v. Smith, (Minn. 1952) 51 N. W. 2d 276; Orr v. Orr, 206 Ark. 844, 177 S. W. 2d 915; Fullerton v. Fullerton, 230 Ark. 539, 323 S. W. 2d 926; 32 A.L.R. 2d 1135.
In the case at bar the divorce decree specifically recites: “There are no property rights to be determined herein.” The appellant and the appellee are in agreement that there was a property settlement between them before the divorce. They disagree only as to the inclusion of the twenty-six acres. The daughter and son-in-law corroborated the appellee’s version of this agreement which was perfected before the granting of the divorce as is indicated by the very terms of the decree. It cannot be said that upon the face of the record or by extrinsic evidence the property rights between appellant and appellee were raised and determined in the divorce action. The property rights between them were withheld from the court’s consideration and were not adjudicated by the court.
We agree with the Chancellor in rejecting the appellant’s plea of res judicata.
Affirmed. | [
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Jim Johnson, Associate Justice.
This is an appeal from a judgment for damages sustained as a result of floodwater inundating land. The judgment is against appellants Hubert H. Souter and The First National Bank in Little Rock, co-executors of the estate of H. Avery Souter, deceased, who during his lifetime was engaged in the contracting business. Appellees are owners of certain farm lands near Morrilton which are part of the Point Remove Levee and Drainage District of Conway County.
A levee was constructed several years ago pursuant to an agreement with the U. S. Corps of Engineers along Point Remove Creek and near the Arkansas River. A drainage ditch was also constructed by the Engineers and thus the flood protection and drainage sought by the District was accomplished.
A levee box consisting of two 66-inch drainage pipes or culverts and a flood control gate was built into the levee. The culverts are located at the base of the levee and are utilized to control drainage from the lands involved. In 1961 it was determined that the culverts were defective and should he repaired. The Engineers agreed to perform the work and the necessary plans and specifications were prepared by that agency. Thereafter the Engineers awarded a contract to H. Avery Souter which was executed on October 25, 1960. Souter moved his equipment onto the job site and started the work immediately. The work was under the direct supervision and control of the Engineers.
The plans specified that the levee should be cut initially down to the culverts. The elevation of the levee is 310 feet above sea level and the culverts are at 282 feet. This excavation Avas completed and Souter then constructed two coffer dams, one on the river side of the levee, and the other on the land side. Due to continued rainfall Souter requested and received permission from the Engineers to discontinue the work. Before being alloAAred to do so he Avas directed by the Engineers to construct a temporary dam between the flood gate and the levee.
The cessation of work Avas in the spring of 1961 and thereafter íavo floods occurred, both of AArhich involved Point Remove Creek and the Arkansas River. The first occurred in April and caused no damage other than to the temporary dam and this was soon repaired. The second flood in May washed over the dam, flooded appellees’ land, and damaged certain growing crops. The water also caused a delay in planting soybean and cotton crops resulting in a below average yield.
Appellees filed their complaint alleging that Souter was negligent in leaving the levee in the above condition with no protection against overflow and in failing to refill the levee after receiving repeated warnings to do so.
Shortly after the complaint Avas filed, Souter died and the action was revived in the name of the co-executors of his estate.
This cause was tried before a jury and a verdict was returned for appellee Dr. H. C. Carruthers in the sum of $5,000.00, and for appellee Roy Carruthers in the sum of $3,000.00. Judgment was entered in accordance therewith, from which appellants prosecute this appeal.
For reversal, appellants, rely principally upon two points, which are: (1) that the contractor at all times followed the plans and specifications contained in the contract, received his instructions from the Engineers, and was under their direct supervision; and (2) Souter did not commit any independent acts of negligence.
This court has very recently decided cases involving this same problem. In Southeast Construction Co., Inc. v. Eilis, 233 Ark. 72, 342 S. W. 2d 485, we held that a contractor who performs in accordance with the terms of his contract with the governmental agency involved, and under the direct supervision of that agency, and is guilty of neither a negligent or wilful tort, is not liable for damages resulting from his performance. This proposition was reaffirmed in Ben M. Hogan & Co. v. Fletcher, 236 Ark. 951, 370 S. W. 2d 801.
Appellees seek to distinguish these cases by urging that the temporary dam was not a necessary part of the construction contract but was built solely for the convenience of the contractor. On this assumption they contend that the contractor did not build the dam of sufficient height and was negligent.
Under the circumstances hero presented, we are unable to agree with appellees’ position and assumption. There is no evidence that Souter failed to follow the plans and specifications contained in the contract. The contract required him to take necessary precautions to protect the entire structure at all times. The evidence is uncontradicted that the temporary dam was built not only for what flood protection it would afford during the necessary shutdown but also was essential to protect the work that had already been performed. Also, the dam was built on instructions from the Engineers and under that agency’s direct supervision. Moreover, the Engineers specified the height to which the temporary dam was built.
The facts in the instant case are similar to the facts in the Ben M. Hogan & Co. case, supra, decided subsequent to the judgment here appealed from. In that case a big ditch, usually full of water, lay between appellees’ property and the highway. When Ben M. Hogan Co. started construction of the bridge or reconstruction of the road involved, the ditch was filled in. When this occurred, appellees’ pasture would not drain and water began to stand there. We held that appellees were damaged Avhen the big ditch Avas filled in accordance Avith the State Highway Department’s plans and specifications, but the contractor Avas only doing Avhat the Highway Department required of him. In the instant case, appellees’ lands Avere damaged because a cut in the leAme Avas made, but here again, the contractor Avas only doing Avhat the Engineers required of him.
Several witnesses testified on behalf of appellees that they had on numerous occasions in past years seen the Avater of Point Remove Creek and the Arkansas River rise substantially higher than the coffer dams and temporary dam. Since the structures Avere built to the maximum height possible under the conditions existing, it is apparent that flooding could not have absolutely been avoided by dams constructed-to any elevation short of the original height of the levee.
Prom all the evidence adduced, Ave are impelled to the conclusion that the real cause of the damage sustained by the land OAvners was the cut in the levee which A\ras necessary to repair the defective culverts. This cut was made pursuant to the conditions and requirements of the contract, and the other work on the job was performed under the direct supervision and control of the U. S. Corps of Engineers. In the absence of proof of negligence on the part of the contractor in such performance, the judgment must be reversed and the cause dismissed. | [
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George Bose Smith, J.
This is an appeal from a judgment upon a verdict finding the appellant guilty of second degree murder and fixing his punishment at imprisonment for eighteen years. Counsel for the accused present a number of contentions for reversal.
Audie Brock, the appellant, and John Morgan O’Neal, Jr., the deceased, lived about half a mile apart on the same road. On September 5, 1962, Brock and a helper were attempting to clean out a culvert in front of O’Neal’s property. When a dispute arose about the disposal of the trash Brock went home and returned with a loaded shotgun. Upon a renewal of the argument Brock shot and killed O’Neal while the latter was standing in his front door. O’Neal also had a weapon, but whether Brock acted in self-defense was a disputed question of fact for the jury.
According to the testimony Brock fired one time only. There was some proof, however, that as many as a dozen buckshot were found in O’Neal’s body and in the door facing. One of the jurors, W. C. Storey, worked in a hardware store. Counsel for the accused, in a supplemental motion for a new trial, offered to prove by Storey himself that during a recess in the trial Storey had obtained and taken to the jury room a printed card indicating that shotgun shells of a certain brand contain only nine buckshot. It is argued that the jury may have concluded, to Brock’s prejudice, that Brock testified falsely when he said he fired only once.
The application for a new trial was properly denied, because the only testimony offered—that of Storey—was incompetent. In a criminal case a juror cannot be examined to establish a ground for a new trial except to show that the verdict was reached by lot. Ark. Stat. Ann. § 43-2204 (1947); Post v. State, 182 Ark. 66, 30 S. W. 2d 838. The policy of the statute, which affords the jurors the protection of secrecy in their deliberations and also gives stability to verdicts, needs no defense.
Counsel seek to avoid the effect of the statute by urging us to follow certain cases from other' jurisdictions, holding that it is permissible to impeach a verdict by proving misconduct that occurred outside the jury room. In the first place, the cited cases were decided at common law and did not involve a prohibitory statute like ours. Secondly, the important point is not that Storey obtained the card at his place of business but that the matter was discussed by the jurors. Hence whatever misconduct there may have been occurred in the jury room; so even under the cases cited Storey’s testimony was not admissible.
Both a regular panel and a special panel of veniremen had been prepared by the jury commissioners. In supplementing the regular panel the trial judge had the special list opened and selected seven of the twenty-five veniremen. These seven were not the first seven on the list; they were numbers 6, 8,10,15,17, 19, and 24. When this method of selection was later questioned by counsel for Brock the court explained that he had chosen the ones who in his opinion would most likely be available for service. Later on, when it became necessary to supplement the panel again, the court passed over the names of two men, one because he lived in a remote section of the county and the other because he was over sixty-five and had twice claimed his exemption. It is now insisted that the court’s failure to have the veniremen summoned in strict numerical order entitles the accused to a new trial.
We find no prejudicial error. The statute does not affirmatively direct that the special panel be summoned in exact numerical order. Ark. Stat. Ann. § 39-221 (Repl. 1962). In Sullivan v. State, 163 Ark. 11, 258 S. W. 643, we recognized the trial judge’s wide discretion in the matter and pointed out that he may properly avoid unnecessary delay or unnecessary expense. Hence it is often proper for the trial judge, for good cause, to pass over the name of a particular venireman. On the other hand, we do not approve the procedure, followed below, by which the trial judge selected seven veniremen without regard to numerical order and for reasons known only to the judge himself. It does not appear, however, that the accused was compelled to accept any juror who was not qualified and impartial. Inasmuch as it is not shown that Brock’s right of peremptory challenge was exhausted he is not in a position to complain of the method that was used. Rogers v. State, 133 Ark. 85, 201 S. W. 845.
The court’s instructions are attacked upon a number of grounds, but we think they correctly stated the law. The jury were properly told that if the killing had been proved beyond a reasonable doubt the burden of proving circumstances of mitigation devolved upon the accused. Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11. The case at bar is unlike Mode v. State, 231 Ark. 477, 330 S. W. 2d 88, for here the court did not require that the defense be proved by a preponderance of the evidence. The concluding portion of the court’s charge on self-defense is challenged, but its language was substantially similar to that approved in McKinney v. State, 140 Ark. 529, 215 S. W. 723. The other attacks upon the instructions are not sufficiently meritorious to require discussion.
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Carleton Harris, Chief Justice.
The question in this litigation is whether laundry and dry cleaning machinery and equipment are manufacturing or processing equipment and machinery within the meaning of the Arkansas Compensating (Use) Tax Act as set out in Ark. Stat. Ann. § 84-3106(d) (Eepl. I960) as amended by Act 140 of 1961 [Ark. Stat. Ann. § 84-3106 (d) (Suppl. 1961)].
Appellant, Pellerin Laundry Machinery Sales Company, Inc., of Louisiana, contends that the heavy machinery it sold to Arkansas customers prior to April 1, 1961, is exempt under the following language from Subsection (d) of Section 84-3106:
“There are hereby specifically exempted from the taxes levied in this act: * * * Tangible personal property used by manufacturers or processors or distributors, including ginners of cotton, and including the artificial drying of rice, for further processing, compounding or manufacturing; * ® *”
The contention is then made that sales subsequent to April 1, 1961, are exempt from the tax under the following exemptions sot out in Act 140 of 1961:
“(D) MANUFACTURERS AND PROCESSORS. Tangible personal property in the form of raw materials or component parts for further processing, manufacturing, or assembling when such goods, Avares and merchandise goes into and becomes a recognizable, integral or component part of a manufactured or processed part of a manufactured or processed article or end-product for sale either Avithin or AAÚthout the State of Arkansas.
“Manufacturing or processing machinery, replacement parts, materials, and supplies used directly in the manufacturing or processing operation provided; such materials, machinery, supplies, and equipment are not available within this State by reason of not being manufactured or produced Avithin Arkansas; or are not available from instate sellers’ or suppliers’ stocks in trade within this State. It is the intent of this subsection to exempt only such equipment, machinery, materials, or supplies that constitute the primary facility engaged in the direct production, processing or manufacturing of articles of commerce at industrial and processing plants in Arkansas and AAdiich are not aAmilable from the seller’s regularly maintained stock in this State.
“The terms ‘manufacturing’ and ‘processing’ as used herein, refer to and include those operations commonly understood Avithin their ordinary meaning and shall include mining, quarrying, refining, and the production of natural resources, cotton ginning, and rice drying. ’ ’
Willis Pellerin of NeAV Orleans, President of the aforementioned company, which has its principal place of business in NeAV Orleans, testified that his company had been in the business of selling laundry machinery since around the first of May, 1956. 34An exhibit was offered depicting the washing machines, which are not suitable for home use, but are designed for commercial type laundry operations. The machines weigh from 567 to 1,450 pounds. Mr. Pellerin described the advantages of the machines and stated that they were suitable for chemical procedures that would produce sterile washing. He described bacteriological tests made and stated that “■washing is more than simply rubbing clothes together. It is a processing procedure that has the objective of going beyond cleaning clothes only.” Pictures of other machines were exhibited which the witness stated could be used for several purposes in addition to the laundry business. Though he mentioned some other uses for the various machines, all are primarily used in laundry establishments, and appellant in this argument (that the equipment is exempt from the payment of the tax) makes no effort to distinguish, or separate, those machines used solely for laundry purposes, and those occasionally sold for other use. The contention that these machines are “processing” machinery is set forth in Mr. Pellerin’s testimony as follows:
“The process is actually one of taking a clean material-soiled material or shirt and making it clean through the process of washing, drying and ironing. The ironing is in fact a re-shaping of the garment to return it to the original condition that it was when it was completed by the manufacturer. * “ *
“The principle of ironing is nothing more than shaping, a reshaping. Remember when you wash material you lose even the fibers, and the fibers go in all directions reflecting light in every direction. You get a very rough looking appearance. When you put the damp garment on a pressing machine, the first thing that occurs is stringing and in the process of restringing that garment, the fibers are all laid in one direction giving light reflection that gives you the flat finish that you like on your collars and cuffs for example. * * *”
Pellerin stated, “You get a much better, closer, tighter finish with a garment that has been processed commercially, a more acceptable, a more desirable product.” He testified that the principal customers of his company were “laundries, followed by the dry cleaners, followed by motels and hotels, institutions, and linen supply and diaper plants, etc.”
After the Commissioner of Revenues, following a hearing, held that the Pellerin Company was not entitled to the exemption claimed, appellant instituted suit in the Chancery Court, contending that all equipment it sold to Arkansas consumers was manufacturing or processing machinery and equipment, and that such machinery was exempt from the tax here in question. Prom an adverse decree by that court, appellant brings this appeal.
Appellant’s argument seems to be that the process of laundering a dirty shirt is actually a re-manufacturing process. In its brief, the company argues that it is not logical for the commissioner to exempt from the tax, equipment which is purchased for use in a shirt manufacturing plant, but refuse such exemption for machinery which is purchased by a laundry “to re-manufacture a soiled and wrinkled shirt into its former clean and wearable shape.”
Appellant states that “the laundry and dry cleaning plant transforms one form of garment, not ordinarily usable by the ordinary customer, into a clean, correctly shaped garment which can be worn and used by the ordi nary customer.” Since the soiled or dirty garment is given “new form,” appellant contends that the reshaped appearance is the result of a manufacturing operation. We completely disagree. In the first place, in determining whether a particular operation constitutes manufacturing or processing within the terms of an exemption statute, the courts of various jurisdictions have tended to follow the popular meaning of the words in question, and we also follow this rule. See Morley v. E. E. Barber Construction Company, 220 Ark. 485, 248 S. W. 2d 689 (1952). Neither do the three other Arkansas cases on the subject afford appellant’s argument any support. Certainly, the popular conception of manufacturing or processing does not come to mind when a shirt is laundered or a suit is cleaned. Eather, we view the manufacturer as one who produces or fabricates the shirt, or suit of clothes, such as the makers of Arrow shirts, or the Hart, Schaffner and Marx Company. These companies, and other clothing manufacturing concerns, sell a product; the laundry and dry cleaning establishment sells a service.
Appellant emphasizes the word, “processing,” but in interpreting the pertinent statutes, we do not consider “manufacturing” and “processing” as two distinct operations. It will he noted in reading a portion of the statute that the terms are defined together, and reference is made to the ordinary meaning of the words. From the statute:
“The terms ‘manufacturing’ and ‘processing’ as used herein, refer to and include those operations com mouly understood within their ordinary meaning and shall include mining, quarrying, refining, and the production of natural resources, cotton ginning, and rice drying. ’ ’
As stated in Scurlock, Comm. of Rev. v. Henderson, 223 Ark. 727, 268 S. W. 2d 619,
“ ‘Considering the meaning of the word “manufacturing” in connection with our consideration of the meaning of “processing,” it must be plain that the word “processing” has reference only to' some stage or process of manufacturing. ” * ”
In fact, this court held as far back as 1914, in State ex rel. v. Frank, 114 Ark. 47, 169 S. W. 333, that a laundry was not a manufacturing establishment. While the question in that litigation did not relate to tax exemptions, the court did have occasion to state whether a laundry was a manufacturing concern. In an opinion by the late beloved Justice Prank Smith, it was said:
“The question has several times been before the courts of various States as to whether a laundry was a manufacturing establishment or not, and so far as we are advised it has been uniformly held that it is not. In the case of Downing v. Lewis, et al., 76 N. W. 900, 56 Neb. 386, it was contended the sale of a laundry and an agreement entered into between the parties with reference thereto violated the anti-trust law of that State which prohibited any combinations or agreements where persons are engaged in the manufacture or sale of any article of commerce or consumption, or for any persons so engaged to enter into any combination or agreement relating to the price of any article or product of such manufacture, and the court there decided that a laundry was not a manufacturing establishment, and in so deciding that question it was there said: ‘It seems perfectly plain that a laundry, the business of which is to wash and iron linen, and other articles of wearing apparel and domestic use, which have become soiled in the service for which they were fabricated, is not a manufacturing establishment, within the meaning of the section quoted. In the common understanding, the function of a laundry is to make clothes clean, rather than to make clean clothes. ’
“In Commomvealth v. Keystone Laundry Co., 52 Atl. 326, where a law of the State of Pennsylvania which exempted from taxation so much of the capital stock of a manufacturing corporation as was invested in the carrying on of manufacturing was under construction, a laundry company claimed the exemption of that act. It was held that the laundry company was not a manufacturing company, even though it manufactured soaps and dyes as incidental to its business; the court there used the following language: ‘Its principal business, as properly stated by the court below, is washing and ironing, and in carrying on the business it needs soaps and dyes, and even if it does manufacture these two articles for its own use, instead of buying them, such manufacture does not make the “washing and ironing” concern a manufacturing plant and business as defined by statute, lexicon or judicial utterance.’ ”
In Muir v. Samuel (Ky.), 62 S. W. 481, the Kentucky Court of Appeals said:
“The validity of this claim depends upon the question as to whether the laundry is a manufacturing establishment under the statute. The only business of a laundry is to transform soiled into clean linen. It is true that this is done largely by means of machinery, and requires the use of an engine and boilers, and other appliances ordinarily used in manufacturing establishments; but, after all, nothing new is produced. ’ ’
It follows, from what has been said, that we find no merit in appellant’s contention that laundry and dry cleaning machinery are manufacturing or processing equipment within the meaning of the Arkansas statutes herein discussed.
Affirmed.
Act 487 of 1949.
Pellerin, Inc., manufactures nothing, but purchases such equipment for resale to industrial type plants. ■ Pellerin Milnor Corporation manufactures industrial type washing machines and is one of the suppliers of Pellerin Laundry. This type of machinery is not manufactured or sold in Arkansas.
Among others, extraction machines, and ironers, the latter weighing as much as 32,000 pounds, and selling for $26,000 to $30,000.
For instance, the witness mentioned that fifteen pressing machines are being used at the Jack Winters Manufacturing Co. in Marianna and ten at the garment plant in Lepanto. Also, Pellerin stated that extraction machines can be used by potato chip manufacturers for the purpose of removing “surplus water prior to frying after the potatoes have been cut.” Further, according to the witness, extractors have been sold to the sugar industry for the purpose of refining sugar. No Arkansas sales for the last two purposes were mentioned.
On January 23,1962, ¿n agreement was entered into to the effect that all assessments, as well as compensating (use) taxes on future sales would be paid under protest, and all of said sums would be refunded if Pellerin’s claim of an exemption should be sustained by the court.
In the same case, we held that a tax exemption must be strictly construed “and to doubt is to deny exemption.”
These cases are Morley v. Brown & Root, Inc., 219 Ark. 82, 239 S. W. 2d 1012 (1951) (relating to certain equipment which was purchased for the construction of Bull Shoals Dam, such as locomotives, tracks, conveyors, cranes, bull dozers, etc.) ; Teague v. Scurlock, 223 Ark. 271, 265 S. W. 2d 528 (1954), (wherein the court declined to hold that commercial poultry feed was used by growers in processing or manufacturing broilers); Scurlock v. Henderson, 223 Ark. 727, 268 S. W. 2d 619 (1954), (wherein it was argued that ginning machinery was’ used in the processing or manufacturing of cotton). The court held that cotton becomes a commercial commodity when it is ginned and is not ready for processing or manufacturing until after the ginning process. | [
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Paul Ward, Associate Justice.
The subject of this litigation is the constitutionality of Act 19 of the First Extraordinary Session of the Sixty-Fourth General Assembly. Said Act 19 purports to accomplish two major objectives: one is to establish a system of voter registration and the other is to abolish the poll tax as a prerequisite to vote in any election.
Shortly after Act 19 was passed (with an emergency clause) and signed by the governor, a citizen and taxpayer (representing the citizens and taxpayers of the state) brought suit against the governor as Ex Officio Chairman of the State Board of Election Commissioners, the Chairman of the State Democratic Committee, and the Chairman of the Pulaski County Democratic Central Committee (representing .all officials charged with the responsibility of conducting elections), for a declaratory judgment under the authority of Ark. Stat. Ann. § 34-2501, et seq. (Repl. 1962).
In the petition it was in essence alleged (among other things): Act 19 provides that a citizen, otherwise qualified, “may vote for candidates seeking nominations of a political party for state, district, county, township, and municipal offices in party primaries and seeking election to offices in general elections, ivithout paying for or possessing a poll tax”; that such provision is contrary to the constitution; that the defendants will permit said unconstitutional act to be put in operation in a short time; and, that the time in which to enjoin the de fendants is of the essence. Petitioner’s prayer was that the defendants be enjoined from:
“a. Permitting any person to qualify as a candidate in either a primary or general election for a State office or the office of any political subdivision of the State if such person has not paid his poll tax or does not exhibit a poll tax or evidence that he has paid his poll tax as required by the Constitution and statutes of the State of Arkansas.
“b. Permitting any person to cast a ballot in either a primary or general election for a candidate for a State office or the office of any political subdivision of the State if such person has not paid his poll tax or does not exhibit a poll tax receipt or other evidence that he has paid his poll tax as required by the Constitution and statutes of the State of Arkansas.
“c. Certifying as a nominee for any political party any candidate for a State office of any political subdivision thereof any person who has not paid a poll tax as required by the Constitution and statutes of the State of Arkansas.
“d. Placing on the official ballot for the general election a nominee or person unless he has paid the poll tax required by the Constitution and statutes of the State of Arkansas.
“e. Permitting any person to cast a ballot on any issue or proposition other than a candidate' if such person has not paid his poll tax or does not exhibit evidence of payment of his poll tax as required by the Constitution and statutes of Arkansas.”
In addition to the above, petitioner prayed that Act 19 be declared unconstitutional insofar as it seeks to permit a person (otherwise qualified as an elector) to be a candidate or to cast a ballot in any election other than for the positions or offices set out in Amendment 24 of the Constitution of the United States.
To the above complaint defendants demurred on the ground that it did not state allegations sufficient to con stitute a cause of action. Defendants also answered, denying Act 19 is unconstitutional in any part, but asserting it is authorized by Amendment 39 to the Constitution of Arkansas. The prayer was that the complaint be dismissed and that Act 19 be declared constitutional.
The issues posed by the foregoing pleadings were presented to the chancery court. Whereupon the court, after making certain findings of fact, entered a Declaratory Judgment (in essence and substance) as follows:
(1) The defendant’s demurrer is overruled.
(2) Act 19 is constitutional insofar as it provides for voter registration and voting for those officials enumerated in Amendment 24 to the U. S. Constitution, but it is unconstitutional in all respects insofar as it seeks tó permit a person to vote for a state,' district, county, township or municipal office or on a state or local issue without having paid for a poll tax.'
(3) The defendants (appellants here) are enjoined from doing any of the things mentioned in the prayer of the complaint as heretofore set out.
On appeal from the above Declaratory Judgment, appellants urge a reversal in part, relying on the grounds hereafter discussed. We acknowledge appreciation of the Amici Curiae brief presented by the Arkansas League of Women Voters and the Arkansas State AFL-CIO.
The Issue Defined. The basic issue presented for our decision, briefly státed, is whether Amendment 39 to the State Constitution gives the legislature the power to dispense with the payment of a poll tax as a prerequisite for voting. It is apparently conceded by all parties (as was held by the trial court) that a poll tax is no longer a prerequisite to voting in a primary or general election for persons running for federal offices (i.e., offices mentioned in Amendment 24 to the U. S. Constitution). The basic issue above mentioned is therefore limited in this opinion to the poll tax as a prerequisite to voting for persons running (in a primary, gener al, or special election) for a state, district, county, township or municipal office, or voting on a state or local issue, or in a school election. All such offices, officers, or issues shall hereafter (for brevity) be referred to as state (as opposed to federal) offices, officers, or issues.
It is our opinion that said Amendment 39 does not give the legislature the power to dispense with the poll tax as a prerequisite for voting in state elections (as previously limited and defined). In order to make clear the reasons for our opinion, we set out below a brief resume of the pertinent portions of our constitution.
(a) Section 1 of Article 3 of the Constitution (as amended in 1920 by Amendment 8) provides: that every' citizen 21 years old who has resided in the state 12 months, in the county 6 months, and in the voting precinct 1 month (with certain exceptions) and who has paid a poll tax, shall be allowed to vote. (Jones v. Floyd, 129 Ark. 185, 195 S. W. 360, interprets this amendment to mean a poll tax is a prerequisite to voting.)
(b) Amendment 11 (adopted in 1926) requires every male citizen over 21 years of age to pay an annual per capita tax of $1.00 for school purposes.
(c) Section 2, Article 3 of the Constitution provides that the right to vote shall not be made to “depend upon any previous registration of the elector’s name . . (Emphasis added.)
(d) Amendment 39 (adopted in 1948) which is being interpreted here, gives the legislature power to do two things: One is to “ enact laws providing for a registration of voters”; and the other is “to require that the right to vote . . . shall depend upon such previous registration”.
Three obvious conclusions are readily deducible from the above constitutional provisions. One, that previous to the adoption of Amendment 39 the legislature had no power to pass a “registration” law (due to Section 2, Article 3). T%uo, that the legislature did have the power (by virtue of Amendment 39) to pass a “registra tion” law. Three, that the legislature had the power (by virtue of Amendment 39) to make “registration” a prerequisite to voting in any election. We are therefore driven to the conclusion that insofar as Act 19 requires compliance with Two and Three just mentioned, it is constitutional.
We are convinced, however, that the people, in adopting Amendment 39, did not intend to do away with the necessity of paying a poll tax in order to vote. Perhaps the most obvious and the most forceful reason (why the people did not so intend) is that if they so meant, they would have so stated—it would have been easy to do so.
In addition to the above, there are other forceful reasons why we think Amendment 39 did not do away with the necessity of a poll tax in order to vote. The payment of a poll tax is only one of several qualifications of an elector required by Amendment 8 as heretofore pointed out. If Amendment 39 gives the legislature power to abolish the poll tax (as a prerequisite to voting then it would seem to follow also that the legislature could change or abolish the qualifications pertaining to age and residence. Such an interpretation amounts to holding Amendment 39 repeals Amendment 8 by implication. Repeal by implication is not favored, and the legal presumption is against such repeal. These rules of construction are well established and they apply with equal force to statutes and constitutional amendments. See: Polk v. Corning School District No. 8 of Clay County, 202 Ark. 1094, 155 S. W. 2d 342, and Shepherd v. Little Rock, 183 Ark. 244, 35 S. W. 2d 361.
We find no merit whatever in the argument advanced by appellants that Amendment 24 to the Constitution of the United States abolishes the poll tax as a prerequisite to voting in state elections (as previously herein defined). Said amendment, in material parts, reads:
“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative- in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” It is abundantly clear from the above quoted language that said Amendment 24 has nothing to do with state elections (as previously herein defined).
Section 14 of Act 19 sets up a temporary system of registration ‘4 applicable to all elections held in this State after the 1st day of June, 1964, and before the 1st day of July, 1965”. We reiterate that the legislature has the power to require a persons to “register” before he can vote (in any election) even though such person has paid for a poll tax in due time as provided by law. "We call attention, however, to certain provisions of the section which purport to substitute a “free” poll tax (for registration purposes) in lieu of a poll tax for which the voter has paid $1.00 (in due time as provided by law). It is our conclusion that the legislature has no power, in state elections (as heretofore defined), to substitute said “free” poll tax (for registration purposes) in lieu of a poll tax for which the voter has paid $1.00 (in due time as provided by law). It is our conclusion that the legislature has no power, in state elections (as heretofore defined), to substitute said “free” poll tax for the poll tax required by Amendment 8 which provides that the voters 4 4 shall exhibit a poll tax receipt oí other evidence that they have paid their poll tax ...” (Emphasis added.) To hold otherwise would be to approve a subterfuge for evading the letter and the spirit of a plain constitutional provision. The Constitution (Amendment 40) directs that the money raised from the payment of poll taxes shall go to support the public schools. This important source of revenue for a worthy purpose, in our opinion, is entitled to protection by the courts until the people (by amendment) direct otherwise.
With the elarificaions herein mentioned, the judgment of the trial court is affirmed.
Affirmed (as clarified).
Johnson, J., concurs. | [
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Carleton Harris, Chief Justice.
The question presented on this appeal is whether appellant, Arkansas Motor Club, Inc., is liable for Unemployment Compensation Tax. Appellant is engaged in selling motor club memberships to the general public within this state. These sales are made through salesmen.. On June 13, 1960, after a hearing, the Arkansas Commissioner of Labor held that the salesmen of appellant were employed under an oral contract for a one-year term, which could be terminated by either party; that the only source of revenue for appellant was the sale of membership certificates ; that these salesmen are ‘ ‘ outside salesmen of the company, performing an integral and imperative part of the corporative business and are not independent contractors and are employees of the Arkansas Motor Club within the meaning and pursuant to the statutory provisions of the Arkansas Employment Security Act.” The Commissioner further found that the salesmen were not insurance salesmen, but sold, only automobile club memberships and “the fact that an insurance policy is issued in connection with the automobile association membership does not make them insurance agents within the meaning of Section 2 (i) (6) (P) of the Arkansas Employment Security Act.”
The Commissioner held that appellant was the employer of the salesmen involved, and was liable for Unemployment Compensation Tax on the commission paid to these employees.
An appeal was taken to the Board of Review, and that body affirmed the Determination of Coverage as entered by the Labor Commissioner. On appeal to the Circuit Court of Pulaski County (Third Division), the ruling of the Board of Review was affirmed. Thereafter, appellant has perfected its appeal to this court.
For reversal, appellant argues first, that the salesmen of Arkansas Motor Club, Inc., are free and clear of the control and direction of appellant, and are therefore independent contractors and exempt from the operation of the act. It is also contended that memberships in the club are contracts of insurance, and the salesmen are insurance agents whose services are performed for remuneration solely by way of commissions; the act, therefore, is not applicable.
Since we have concluded that the salesmen for appellant are insurance agents or solicitors, a discussion of the first alleged ground for reversal is unnecessary, and we by-pass the question of whether these salesmen are independent contractors.
The record reflects that the motor club has an office in Little Rock, with an office manager, who is under the control and direction of the club’s officers who live in Atlanta, Georgia. The club enters into oral agreements with individuals whereby the latter agrees to sell club memberships. Some of these agents work on a full time basis, and others sell the memberships in addition to regular employment held elsewhere. Each agent is assigned a particular territory to work, though he is also privileged to sell memberships in territory not assigned to him. In that event, the seller of the membership receives the initial commission, but the commission on the renewal premium is turned over to the agent to whom the territory had been assigned. Agents receive no salary, no travel expenses, and are paid entirely on a commission basis, i.e.f they receive a certain percentage of the premium for each membership' sold. The benefits provided by the purchase of a membership to the holder will be subsequently discussed. ■
Chapter 16, Ark. Stat. Ann. (Eepl. 1957) relates to “Automobile Clubs or Associations.” Section 75-1601 defines an “Automobile Club or Association” as:
“(a) any person, firm, association, copartnership, corporation, company or other organization, which from and after the effective date of this act undertakes for consideration paid by or on behalf of its members to defray all or a part of the expenses of such member or members with reference to motor club service as defined in Section 2 [§ 75-1602] of this act, or which issued a certificate which provides for the payment of such benefits to such member or members in services, cash, by furnishing bail, or otherwise, and (b) every person, firm, association, copartnership, corporation or company which prior to the effective date of this act has undertaken for a consideration to pay money or render services to its members, or which has issued any form of contract or certificate or membership card which, under the terms thereof, provides for the payment in money, service, or otherwise for motor club service as defined in Section 2 [§ 75-1602] of this act.”
Section 75-1602 defines the various services which may be included in membership. Section 75-1603 gives the Insurance Commissioner complete authority to grant certificates of authorization to automobile clubs; to revoke certificates, and to prescribe rules and regulations reasonably necessary for the conduct of the business of the clubs. Section 75-1604 places all automobile clubs and associations operating in this state under the authority, supervision, and control of the Insurance Commissioner. Section 75-1605 requires, inter alia, the posting of a bond with the Commissioner, the payment of an annual license fee by the club or association, appointment of an agent for service of process, or, in lieu thereof, the Insurance Commissioner, and the club is required to file a copy of the proposed form of membership application, membership certificate, bylaws, contracts for service and advertising material. Section 75-1606 reads as follows:
“Before any agent or representative shall or may represent any automobile club or association in this state, he or she shall first apply to the Insurance Commissioner for a license and the Insurance Commissioner shall have full power and authority to issue such license upon proof satisfactory to him that such person is capable of soliciting automobile club or association memberships, and is of good moral character and recommended by the club or association in behalf 'of which such membership solicitations are to be made. Provided no such license shall be issued by the Insurance Commissioner until the applicant has paid to the Insurance Commissioner two dollars ($2.00) as annual license fee. The Insurance Commissioner may reject the application of any person who does not meet the requirements herein set out.”
Section 75-1608 sets out that,
““ ® * such clubs and associations shall not be subject to any other laws respecting insurance companies of any class, kind or character, except as to the conduct of hearings by the Insurance Commissioner and appeals therefrom. ’ ’
Thus, we see that these motor clubs are under the supervision and regulation of the Commissioner of Insur anee. Of course, this fact, within itself, is not determinative of the status of the salesmen, hut is a pertinent circumstance to be considered.
The purchaser of a membership receives a card which sets forth, inter alia, the following benefits: The club agrees to provide an appearance bond up to $200.00 in certain types of motor vehicle violations; a bail bond up to $5,000.00 in the event of an automobile accident (excepting particular charges); attorneys’ fees up to $25.00 when a member is charged with violation of any motor vehicle law; attorneys’ fees up to $150.00 if a member is charged with manslaughter, and an additional attorneys fee up to $250.00 if the judgment is appealed to a court of last resort. In addition, the member receives a certificate of accident insurance, issued by the Inter-Ocean Insurance Company, which provides benefits of $10,000.00 for loss of life in a railroad accident, $2,500.00 for loss of life in a bus, street car, steamship, or subway accident, and $1,000.00 for the loss of life in “Automobile, Pedestrian, Taxi, School Bus, Truck, Airplane Accidents.” Benefits are also provided for loss of sight, both hands, both feet, one hand and one foot, one hand and sight of one eye, one foot and sight of one eye, either hand, either foot, or sight of either eye. Section 3 of the insurance contract provides certain hospital benefits, including operating room, x-ray pictures, oxygen tent, and other benefits of a similar nature. Section 4 provides certain benefits for non-disabling injuries. Actually, it appears that the payments set out in the certificate are among the main benefits obtained through the purchase of memberships.
While there is no definition of the term “insurance” in several states, our Arkansas Insurance Code provides a concise definition of that term. Ark. Stat. Ann. § 66-2002 (Supp. 1961) defines the term as follows:
‘ ‘ ‘ Insurance ’ is a contract whereby one undertakes to indemnify another or pay a specified amount or provide a designated benefit upon determinable contingencies.”
It is obvious that the benefits heretofore mentioned come clearly within this definition of insurance. Certainly, there is a contract, in which the Arkansas Motor Club, for a pecuniary consideration, promises to provide specific benefits previously set forth to the holder of the membership. Both the card and the certificate contain provisions wherein the club undertakes to indemnify the member, “or pay a specified amount,” or “provide a designated benefit upon determinable contingencies. ’ ’ Of course, the certificate is actually “straight-out” insurance, but even the services mentioned on the membership card, vie, bail bond service, legal service, etc., are benefits provided under the contract which accrue upon the happening of a determinable contingency, and are therefore insurance benefits. Other courts have so held. In National Auto Service Corp. v. State, 55 S. W. 2d 209, the Court of Civil Appeals of Texas held that a membership certificate which provided that, for annual dues, the corporation would repair accidental damage to a member’s automobile in a specified amount, was an insurance contract, even though the certificate contained the following clause:
“It must be clearly understood that this is not insurance, as the corporation never pays its members any money, as indemnity, except to repair any damage to member’s automobile at the corporation’s authorized repair shop as hereinabove provided.”
The court then said:
“What constitutes insurance has been defined by statute in many states, and has been frequently defined by the courts. Its essential elements as relate to property are that it provides, for a consideration, indemnity against loss or damage to property in which the assured has an interest which may result from some uncertain or unforeseen contingency. ’ ’
In Texas Association of Qualified Drivers, Inc. v. State, 361 S. W. 2d 580, the proof reflected that appellant was organized as an association of automobile drivers, and association memberships were solicited and sold. The benefit received by members was a reimburse ment (up to specified amounts) for attorneys’ fees incurred by members when involved in certain moving traffic violations. The court said:
‘ ‘ The sole question for decision is whether the reimbursement to members for attorneys’ fees incurred by them as above set forth constitutes insurance. * * *
“There is no statutory general definition of the word ‘insurance’ in Texas. However, insurance has been defined by the Appellate Courts of Texas as ‘ “An undertaking by one party to protect the other party from loss arising from named risks, for the consideration and upon the terms and under the conditions recited. ’ ’ Whether or not a contract is one of insurance is to be determined by its purpose, effect, contents, and import, and not necessarily by the terminology used, and even though it contains declarations to the contrary.’ (Citing National Auto Service Corporation v. State, supra,.) It has also been defined as ‘a contract by which one party for a consideration assumes particular risks of the other party and promises to pay him or someone named by him a certain or ascertainable sum of money on a specified contingency. ’ (Citing case.)
“Here the purpose of the contract made by appellant with its members for a stated consideration was to indemnify or reimburse the holder of a membership certificate for payments incurred by the member for attorneys’ fees in the defense of a moving traffic violation in which the member was involved under certain conditions and within the limitations set forth in the certificate. Under the above definitions of insurance it is clear that the contract between appellant and its members constitutes an insurance contract. ’ ’
In Continental Auto Club, Inc. v. Navarre, Commissioner of Insurance 60 N. W. 2d 180, membership in an automobile club entitled members to attorneys’ services to the extent of dollar limitation designated for various types of service, and bail for club members under certain conditions was also provided. The Supreme Court of Michigan, though there was no statutory definition of insurance in that state, held “that by engaging in the business of furnishing its members under its contract, the benefits hereinbefore recited, the plaintiff club was and is in fact engaging in the business of insurance.” Other cases could be cited, but actually, our own statutory definition of “insurance” is sufficient to determine the matter.
In accordance with the views herein expressed, the judgment is reversed and the cause remanded to the Circuit Court with directions to enter an order which will result in the Commissioner of Labor setting aside his Determination of Coverage, and entering, in lieu thereof, an order not inconsistent with this opinion.
Ark. Stat. Anno. § 81-1103 (Repl. 1960) (i) (2) (A) and (5) (C) éxempt independent contractors, (C) providing that independent contractors shall be deemed employers and not employees.
Sub-section (i) (6) (P) exempts insurance agents or insurance solicitors “if all such services performed by such individual for such person, or employing unit, is performed for remuneration solely by way of commission.”
The sole exception relates to special meetings, usually held twice a year, which are called for the purpose of explaining new matters, changes in contracts, etc. The agents are not required to attend, hut in case of attendance, are reimbursed for travel expense, including hotel and meals while attending the meetings.
Act 377 of 1955.
Towing service and emergency road service, not provided in the regular membership, are available if additional premium is paid.'
Act 148 of 1959. | [
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Carleton Harris, Chief Justice.
This is a condemnation case. Pursuant to filing its Declaration of Taking, the Arkansas Highway Commission condemned and took possession of 0.09 acres of land belonging to C. D. Byrd and wife. On September 10, 1963, a jury was impanelled for the purpose of hearing evidence and determining the amount of compensation to which Mr. Byrd and his wife were entitled because of the taking and damage to their land. The jury returned a verdict in the amount of $7,000, and from such judgment comes, this appeal.
For reversal, the Highway Commission relies upon two points, but it is only .necessary that we discuss the first point, since we are of the view that the court committed error in permitting certain testimony. The evidence offered by appellees consisted of the testimony of Mr. and Mrs. Byrd. The Byrds had operated a restau rant for several years before the condemnation proceedings. Tliey operated in one building for about four years, and then built a new building back of the old one, tearing down the older structure in order to have space for a parking lot. In testifying, Mr. Byrd stated that a little better than half of his parking area was condemned. In mentioning various factors which were taken into consideration in reaching his determination of the before (condemnation) and after (condemnation) value, Mr. Byrd’s testimony reveals the following:
“Q. Ted, how many years did you operate out there in this old building?
A. Oh, I would say approximately four years or better.
Q. Did you include that forty-two hundred dollars in expenses that you were out when you tore down the old building in your estimate of before and after value?
A. Well, I estimated the building of the building and the tearing down and disposing of it—of what it cost to build it and dispose of it.
Mr. Stanley: At this time we move to strike the testimony of this witness with reference to the before and afer value for the reason he stated he included forty-two hundred dollars it cost him to destroy an old building prior to the time he constructed the building now in question.
The Court: Will you read back the question and answer ?
Mr. Stanley: I’ll restate the question.
The Court: If you would.
Q. Ted, in arriving at the before and after value —there’s been some testimony that it cost forty-two hundred dollars to tear down the old building and build your new building—I believe -it was forty-two hundred dollars—■
A. Yes, sir.
Q. Now, my question was did you include that in arriving at your before and after value in your claim for just compensation here today?
A. I don’t know if I get that exactly or not.
Q. Did you consider that forty-two hundred dollars when you were arriving at what you felt was the difference in the fair market value of your property before and after the taking?
A. No, sir, that was valued in on the value of the property before the taking. In other words, that’s what it cost me to dispose of the building in order to have that parking area.
Mr. Stanley: We move to strike.
The Court: Motion denied.”
Mrs. Byrd also testified that it cost around $4,200.00 to construct, and tear down, the old building. The Highway Department attorney objected to this testimony.
Highway attorney: “Your honor, we’re going to have to object to this line of questioning because it has nothing to do with the value of the premises as of 16 March 1962.”
Appellee’s attorney: “I don’t know whether it does or not, it’s a fact.”
Highway attorney: “He’s questioning now if there is evidence as to—”
Appellee’s attorney: “That they tore down a building that cost them about forty-two hundred dollars, including the cost of tearing it down, in building a new one. I mean that’s all I’m doing,”
The objection was overruled.
Of course, in arriving at a before and after value, appellees were entitled to show the value of the land, together with the improvements thereon at the time of the taking, and the value of the propei’ty after the taking—but not the cost of an improvement- that had formerly been placed on the land but which had been removed prior to the condemnation, for after the building had been removed, that portion of the land was in its original condition, and its value was neither greater nor .less because- of the fact that' a building had been located thereon for about four years.
. Appellees state that the motion of appellant was not proper because it moved to strike all of Mr. Byrd’s'testimony. We have held on several occasions that this is not a proper motion if any of the witnesses’ testimony is admissible. Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802. Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535. Appellees are mistaken as to the motion made in the instant case. It will be noted .that the motion, set out above, only seeks to strike the testimony of Byrd with reference to the before and after value. This motion was proper and should have been granted. It is clear that in reaching his evaluation of the- fair market value of the entire premises before the taking, Byrd was permitted to include the cost .of constructing, and tearing down, the ,old building in’order to enlarge his parking lot, and this occurred quite a period of time before the taking by the Highway Department. Under the facts in this case, either of these costs was inadmissible.
From what has been said, it is apparent that the court erred in overruling the objection made to the portion of Mrs. Byrd’s testimony dealing with the expense of constructing and tearing down the old building, and likewise erred in refusing- to strike the testimony of Mr. Byrd in regard to the before and after value because of the fact that Byrd, in reaching his before value figure, considered the $4,200.00 which he stated was the cost of erecting and tearing down the old building.
Reversed.
The Byrds also had their home located on the premises, a little back and north of the new building.
A strip, approximately 38 feet wide across the front was taken. | [
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Ed. F. McFaddin, Associate Justice.
Appellant Bay Holland was charged, tried, and convicted of the offense of carnal abuse (Ark. Stat. Ann. § 41-3406 [1947]), and brings this appeal. The motion for new trial contains fourteen assignments, which we group and discuss in suitable topics.
I. Grouping Of Counts. On March 4, 1963, there were two informations filed against the appellant, both charging him with carnal abuse of Linda Kay Holland, a female under the age of 16 years. Information No. 1 contained two counts: one count charged that the offense of carnal abuse was committed by the defendant against the named prosecutrix “on or about the 15th day of November, A.D. 1962”; and the other count charged that the crime of carnal abuse was committed by the defendant against the named prosecutrix ‘ ‘ on or about the 18th day of November, 1962.” Information No. 2 contained one count and charged that the offense of carnal abuse was committed by the defendant against the named prosecutrix “on or about December 24, 1962.” On May 29, 1963, the defendant was brought to trial, and the record reflects, “. . . both sides having agreed that the three counts could be consolidated for trial in one proceeding.” At the beginning of the trial the defendant moved that the three acts charged be considered as one offense, “. . . since they all charge the commission of the same felony, to-wit, carnal abuse- against the same person, to-wit, Linda Kay Holland, and the time element being from the 15th of November, 1962, through December 24, 1962. Therefore, there could only be one trial and one conviction upon them.” The Trial Court overruled the said motion and held that each count charged a separate offense. When the prosecuting witness was asked the dates of the acts she could not give the calendar dates, and then the defendant’s counsel again insisted that there was only one offense.
We find no injury done to the appellant in the Court’s ruling on this point. The fact that a 14-year-old girl could not remember the calendar dates when she was abused does not destroy the fact that she was abused on three separate occasions. She fixed the dates by reference to other matters and clearly testified that there were three separate offenses. The jury found the defendant guilty on each count and fixed his punishment at eight years imprisonment on each count; and the Court directed that the sentences should run concurrently; so the defendant will only have to serve the length of one sentence.
II. Sufficiency Of The Evidence. The prosecuting witness was 14 years of age at the time of the trial. Before she was permitted to testify the Court examined her to see if she understood the nature and effect of an oath, and ruled that she was a competent witness. We find no error committed by the Court in such ruling. Crosby v. State, 93 Ark. 156, 124 S. W. 781, 137 A.S.R. 80; DeVoe v. State, 193 Ark. 3, 97 S. W. 2d 75; Reynolds v. State, 220 Ark. 188, 246 S. W. 2d 724.
The prosecuting witness testified that on the three occasions the defendant came to her room at night while she was in bed, reached his hand under the cover, rubbed her breasts and private parts, and inserted his finger in her vagina; and on one such occasion he attempted to use his male organ. A doctor examined the little girl and testified that her hymen was ruptured, and that the insertion of a finger into her vagina could have caused the rupture. We have repeatedly held that in carnal abuse cases the prosecuting witness is not an accomplice and her testimony does not have to be corroborated; and her testimony, standing alone, is sufficient to support a conviction. See Hawkins v. State, 223 Ark. 519, 267 S. W. 2d 1, and eases therein cited.
If the defendant did what the little girl testified that he did, then he was guilty of carnal abuse. Such was directly held in Watt v. State, 222 Ark. 483, 261 S. W. 2d 544. The testimony of the little girl was stoutly disputed by appellant, and he was corroborated on many points by other witnesses; but it was for the jury to decide the factual issues. Our duty is to ascertain whether there was sufficient substantial evidence to support the verdict; and the testimony of the little girl constituted such evidence.
III. Errors Claimed To Have Been Committed By The Trial Court. In his brief the appellant quotes, in extenso, some of the proceedings in the Trial Court, and claims error; but the appellant’s motion for new trial is not sufficiently definite to present such matters to us. Here are some of the assignments in the motion for new trial:
“6. Because of improper examination of the prosecuting witness.
“9. Because the Court erred in permitting hearsay evidence.
“12. Because of improper statements made by the Prosecuting Attorney.
“13. Because the record herein reflects and shows that the defendant did not receive a fair and impartial trial as provided by the Constitution of the United States and by the Constitution of the State of Arkansas. ’ ’
These assignments-—and they are typical of some others in the motion for new trial—are not sufficiently definite to present any matter to us. Payne v. State, 224 Ark. 309, 272 S. W. 2d 829. In Lomax v. State, 165 Ark. 386, 264 S. W. 823, in discussing the indefinite nature of the assignments in the motion for new trial, we said:
“This court has frequently held that a motion for a new trial on the ground that the court erred in admitting evidence on the part of the defendant, without naming the witnesses or pointing out the evidence, is too general, and does not present any question for review on appeal. Edmonds v. State, 34 Ark. 720; Western Union Tel. Co. v. Duke, 108 Ark. 8, and cases cited; and Black v. Hogsett, 145 Ark. 178.”
In Armstrong v. State, 171 Ark. 1136, 287 S. W. 590, we said of indefinite motions for new trial:
“These assignments are too general to properly raise the question as to the admissibility of the testimony pointed out in the exceptions made during the progress of the trial. Lomax v. State, 165 Ark. 386. It is not essential that the assignments in a motion for new trial be specific as to the grounds upon which the exceptions were based, but they must be sufficient to identify the particular witness and the testimony to which the assignment is directed. An assignment as general in its nature as those set forth in the motion for a new trial now before us does not apprise the trial court of the errors sought to be reviewed, and gives the court no opportunity to correct its errors, hence there can be no review here.”
IY. Other Assignments. We have carefully examined all the other assignments contained in the motion for new trial and we find no reversible error committed by the Trial Court and assigned in the motion for new trial.
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Paul Ward, Associate Justice.
This appeal comes from an order dismissing appellant’s petition to set aside a divorce decree on the ground that it was procured by fraud practiced on the court. The proceeding is unusual in that the divorce decree was granted to appellant on her own petition. The only record we have before us on appeal is appellant’s petition (to set aside the divorce decree) and the order of dismissal.
On August 28, 1962 appellant (Cyntlia Hardin) filed in chancery court her four page petition. In substance and in all essential parts the complaint contains the allegations set out below.
Appellant (Cyntha Hardin) was married to appellee (Claud Hardin) January 2, 1934; to this union five children were born; there were frequent quarrels and on September 25, 1945 appellee drove her away from home; she went to the home of her daughter (by a former marriage) to live; on October 6, 1945 the chancery court, on her own petition, granted her a divorce, giving custody of their children to appellee; during the latter part of October, 1945 she returned to appellee’s home, with appellee’s consent, to live and to look after the children; and she there lived with appellee as man and wife until February 15, 1960 when he ran her away from his home. In the petition appellant further states she did not learn, until January 1, 1962, that appellee perpetrated a fraud upon her and the court—which fraud (she alleges) caused her to secure the divorce. The perpetration of the fraud, she says, consisted of the following: With knowledge and the connivance of appellee a certain man came by where she was living on October 4, 1945, at about 7:30 p.m., for the alleged purpose of taking her to Rector to see her husband; that on the way this man stopped the ear and forced her to get out to make love; that while they were “scuffling or wrestling” her husband (with his son-in-law) came by and saw them; that the}'- took her to a lawyer in Rector where she signed a paper; that she thought the paper was to give a divorce to her husband but it was in fact a petition for her to secure a divorce from him. In the petition appellant sa3's she is uneducated and did not understand what she signed, and that everything mentioned above was prearranged by appellee for the purpose of getting rid of her without having to give her a portion of her property.
In our opinion the trial court was correct in sustaining appellee’s motion to dismiss the above petition. Appellant very properly admits that her petition was based on Ark. Stat. Ann. § 29-506 (Repl. 1962). This section, in all parts pertinent to the facts in this case, provides:
“The court in which a judgment or final order has been rendered or made, shall have power, after the expiration of the term, to vacate or modify such judgment or order.
# # #
“Fourth, For fraud practiced by the successful party in the obtaining of the judgment or order.”
Few of our statutes have better withstood the test of time or have been more uniformly interpreted than the section above quoted. Without any change in wording it appears in the Civil Code (as § 571), Gantt’s Digest (as § 3596), in Kirby’s Digest (as § 4431), in Crawford & Moses’ Digest (as § 6290), in Pope’s Digest (as § 8246), and, of course, in Ark. Stat. Ann. as § 29-506. The statute has been considered by this Court with reference to each of the above designations, and each interpretation has been consistent and harmonious. In no case has it been construed in language with more clarity than in an opinion written by Justice Butler in Hendrickson v. Farmers’ Bank & Trust Company, 189 Ark. 423, 73 S. W. 2d 725. It was there said:
“The fraud for which a decree will be cancelled must consist in its procurement and not merely in the original cause of action. It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence, or -without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, in issue in the proceeding before the court which resulted in the decree assailed. James v. Gibson, 73 Ark. 440, 84 S. W. 485; Johnson v. Johnson, 169 Ark. 1151, 277 S. W. 535; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20.”
The above quotation was adopted in an opinion written by the late Minor W. Millwee found in Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234. In the case of Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517, we said:
“The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. ’ ’
The above quotation was adopted in Jamieson v. Jamieson, 223 Ark. 845, 268 S. W. 2d 881, and also in Crosswell v. Linder, 226 Ark. 853, 294 S. W. 2d 493. In the case of Nevil C. Withrow Co., Inc. v. Heber Springs School District, 229 Ark. 939, 320 S. W. 2d 95, we quoted with approval from the Alexander case, supra, the following:
“ ‘The law is settled that the fraud which entitles a party to impeach a judgment must' be fraud extrinsic of the matter tried in the cause, ... It must be a fraud practiced upon the court in the procurement of the judgment itself.’ ”
We can find nothing in the petition in this case that could be construed under the above decision, as a fraud on the court. There is an allegation in the petition that “. . . the conduct of the defendant as above described constituted fraud practiced on this court in procuring the decree of divorce ...” This statement relative to what constitutes fraud is a conclusion of law. In the ease of Sibley v. Manufacturers Furniture Co., 220 Ark. 234, 247 S. W. 2d 20, we said:
“While the complaint alleges that the procurement of the default judgment was a fraud upon the court, that is a conclusion of law not admitted by the demurrer.”
As heretofore noted the alleged fraud (referred to in § 29-506) must be “extrinsic of [that is, apart from] the matter tried in the cause ...” We find no such fraud here. The fraud or deception which appellant complains of seems to be: (a) she was trapped into a compromising position with the man who took her riding, and (b) sbe thought she was signing a paper to give her husband a divorce when in fact it was to give her a divorce. Both situations were subject to explanation in a divorce proceeding and both were a part of the matter which was tried or could have been tried in the divorce suit. At no time does appellant say she did not know the divorce was granted when it was granted, and the petition clearly indicates she did know.
We are not free to give a liberal interpretation to the statute simply to try to correct what might be considered an injustice done appellant. One of the earliest cases to construe the statute which is now § 29-506 was Izard County v. Huddleston, 39 Ark. 107. In that ease we said:
“The statute to vacate judgments by this proceeding is in derogation not only of the common law, but of the very important policy of holding judgments final after the close of the term. Citizens must have some confidence in the judgments of our judicial tribunals, as settlements of their controversies, and there should be some end to them. Unless a case be clearly within the spirit and policy of the act, the judgment should not be disturbed. ’ ’
To the same effect see also Weller v. Studebaker Bros. Mfg. Co., 93 Ark. 462, 471, 125 S. W. 129.
It follows from the above that the order of the trial court must be and it is hereby affirmed.
Affirmed. | [
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George Rose Smith, J.
The appellant was found guilty of forgery and uttering and was sentenced by the jury to ten years imprisonment upon each of the two counts. The court directed that the sentences be served consecutively.
There is no real issue about the sufficiency of the evidence. It was shown that the accused had used a forged check, purportedly drawn by a Louisiana lumber company, to buy clothing and liquor at a place of business in West Memphis. After Osborne left the store the proprietor became suspicious and succeeded in having Osborne arrested within an hour. Osborne confessed not only to this offense but also to a number of other forgeries committed in neighboring states.
That portion of the confession relating to the other offenses was objected to, but it was admissible. In a charge of forgery and uttering the State has the burden of proving guilty knowledge on the part of the accused, for it is not an offense for a person to pass a forged check in the belief that it is genuine. Upon the issue of guilty knowledge the fact that the defendant has uttered other forged checks is directly relevant. It tends to show that he knew the particular instrument in question to have been forged, since it is unlikely that an innocent person would come into possession of a number of bogus checks. Wilson v. State, 184 Ark. 119, 41 S. W. 2d 764. Hence proof of the other forgeries was competent, and it makes no difference that the evidence was in the form of a confession rather than of testimony by third persons.
The State was allowed to show that on the day of the offense in question Osborne also passed a similar check in another West Memphis store, purchasing a pistol and making a down payment upon a shotgun. Counsel properly and candidly admits that such proof of a similar transaction was admissible, but it is argued that the jury may have been inflamed by the fact that Osborne used the check in the purchase of lethal weapons. This argument is without merit. The State, in showing a similar offense, was entitled to prove that the accused had received value for the forged instrument. That value happened to be in the form of firearms, but the record does not indicate that the witness referred to the weapons in other than a matter-of-fact way. Firearms are for sale throughout the state, for use in hunting, trapshooting, and other lawful pursuits. The State was properly permitted to prove all the details of what was actually a fairly commonplace transaction.
Counsel vigorously maintains that the punishment is so severe that it should be reduced by this court. It is true that in a number of the older cases, including one as recent as Carson v. State, 206 Ark. 80, 173 S. W. 2d 122, we have assumed the power to mitigate the punishment imposed by the trial courts. The right to exercise clemency is, however, vested not in the courts but in the chief executive. Ark. Const., Art. 6, § 18. Our latest cases have uniformly followed the rule, which we think to be sound, that the sentence is to be fixed by the jury rather than by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh. Miller v. State, 230 Ark. 352, 322 S. W. 2d 685; McCall v. State, 230 Ark. 425, 323 S. W. 2d 421.
It is contended that one of the court’s instructions was not as specific as it might have been. We need not examine this contention in detail, for the only supporting assignment of error in the motion for a new trial is a blanket assertion that the jury were misinstructed. This was an assignment in gross, specifying no particular instruction as being incorrect. Inasmuch as a number of the instructions were unquestionably correct the assignment was insufficient to present any question for review. Black v. Hogsett, 145 Ark. 178, 224 S. W. 439; Armstrong v. State, 171 Ark. 1136, 287 S. W. 590.
Affirmed.
(Supplemental opinion on rehearing delivered Nov. 4,1963, p. 170.) | [
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Carleton Harris, Chief Justice.
Appellant, George Morehead, on May 1, 1962, was operating a caterpillar motor grader along a portion of what is known as the Boyd Boad, located in Miller County. The grader was the property of appellant, McMillin-Burkett Construction Company, by whom Morehead was employed. The part of the Boyd Boad pertinent to this cause was approximately ten or eleven miles in length, and was being used by gravel trucks to haul gravel from a pit near Genoa to O’. S. Highway 71, where construction work was in progress. Accordingly, this portion of the Boyd Boad was being subjected to heavy traffic, and Morehead was operating the motor grader up and down the heavily traveled portion as a matter of keeping the road in as good condition as possible. Some thirty or thirty-five gravel trucks were being operated on the day in question.
At about 8:00 o’clock A.M., appellee, Henry Bearden, twenty years of age, was driving a loaded gravel truck, and proceeding on the Boyd Road toward its intersection with Highwaj7' .71. The truck was owned by his stepfather, Roy Byrd. Morehead, with his grader traveling toward the pit, was blading the road on his (Morehead’s) left-hand side. Bearden, traveling on his right side of the road, collided almost head-on with the motor grader, the truck striking the right front part of the grader. Suit was instituted by Morehead and McMillin-Burkett, seeking to recover damages for alleged personal injuries, and damage to the grader, respectively. Bearden and Byrd answered, denying liability, and both likewise filed a cross-complaint against appellants, seeking, respectively, damages for alleged personal injuries, and damage to the truck. The parties waived trial by jury, and the cause was tried before the court, sitting as a jury. Thereafter, the court filed a memorandum .opinion, finding, as follows :
“The Court finds without hesitation that there was an abundance of negligence on the part of both George M. Morehead and Henry Ellis Bearden. The evidence preponderantly shows the involved road to have been winding, rolling, rough and very dusty. On this stretch of approximately ten miles, thirty to thirty-five gravel trucks were operating back and forth from the pit. One can reasonably assume that there was also some public traffic on this road, it being of course open to the public and habitated. It is undisputed that when the road was di'3r this batteiy of trucks threw up dense clouds of dust which were bound to seriously hamper the vision of the drivers for some distance ahead. Under these conditions George M. Morehead was operating the grader on the wrong side of the road, in clear violation of a well-known rule of the road. An operator of his 3rears experience should certainty be aware of the probable danger to himself and to others. This fact is especially true in view of Ms operating the grader on the side of the road which belonged to traffic approaching him.
“Sheriff Birtcher estimated the road to be 18 feet wide at the point of impact, and Morehead estimated it to be approximately 20 feet in width. With the grader consuming a¡)proximately 10 feet of the traveled portion, at least the larger trucks would have fairly tight squeeze in passing him at points similar to the point of impact.
“When all of the above recited facts are considered as a whole, it is clearly convincing that Morehead was negligent and that his negligence was certainly a proximate cause of the involved impact.
“Henry Ellis Bearden, by his own testimony establishes his negligence. He was an experienced driver and had been on this particular haul for several weeks. Approaching him was a 10-yard trailer truck and which he says stirred up a terrific amount of dust. As an experienced driver he was bound to know that for some little distance after meeting and passing the other truck he would, for all practical purposes, be blinded to any reasonable vision ahead. In fact he stated that in situations of this kind a driver could tell he was in the road only by the feel of the wheel. In the face of this approaching hazard known to him he estimates his speed to have been approximately 40 miles per hour. Such speed in the face of blinding conditions violated not only the reasonable maximum speed law of the road, it furthermore violated the law requiring drivers to keep their vehicle under such control as to be able to check the speed or stop the vehicle when danger is reasonably to be expected. His approximation of speed is verified by the distance his truck traveled with the wheel assembly knocked out and by the severe damage done the heavy maintainer.
“It is the finding of the Court that both operators were culpably negligent and there is no difference in degree of negligence committed by the two drivers.
“George M. Morehead was the agent, servant and employee of McMillin-Burkett Construction Company and acting within the course of his employment at the time of the impact. The same status existed between Buy Byrd and Henry Ellis Bearden. Therefore the negligence of each driver is chargeable respectively to their employer. None of the parties are entitled to recover in this case. Each of the litigants are chargeable with the Court costs initiated by them.
“Allegations of negligence are based on the facts that (1) the road ivas not kept watered by McMillin-Burkett, and (2) that no warning signs—such as flags, placards or lights—were utilized by the contractor to protect others against the operation of the road maintainer. These contentions are not helpful to Byrd and/or Bear-den. Both had been on the haul several weeks and Avere aware (1) that sprinkling operations had been confined to stretches of road in front of houses and (2) that the maintainer was being used up and doAvn the road to facilitate the haul. They are not in the category of some member of the traveling public Avho might traverse the road AAdiolly unaAvare of the operations then being carried out. The actionable negligence in this case is shown to liaise been confined to Morehead and Bearden.”
Judgment was then entered, denying recoAmry to all parties. Prom the judgment, appellants bring this appeal, and appellees have cross-appealed. Appellants content that the court erred in finding Morehead guilty of negligence, or, if guilty.of negligence, to the same degree as Bearden, and like contentions are presented by appellees.
It is certain that, in holding Morehead guilty of negligence, the court reached one erroneous conclusion, hereafter italicized, namely, that appellant driller “Avas operating the grader on the Avrong side of the road, and in clear violation of a well-known rule of the road.” Ark. Stat. Ann. § 75-423, Sub-section (d), Repl. 1957, proAddes as follows:
‘ ‘ The proAdsions of this act [Act 300 of 1937, regulating traffic on highways, including the so-called ‘Bailes of the Road’] shall not apply to persons, teams, motor ATe- hides and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work. ’ ’
Apparently this provision, or one substantially the same, is contained in the motor vehicle statutes of a large number of the states, and several cases are found relative to some phase of the provision. In McNabb v. De-Launay, 354 P. 2d 290, the Oregon Supreme Court had occasion to comment upon an almost identical statute, as follows:
“ORS 483.032(2) provides that certain enumerated sections of the motor vehicle code, including those generally referred to as the rules of the road, do not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work above, below, or upon a street or highway, but that they shall apply to such persons and vehicles when traveling to or from such work.
‘ ‘ Plaintiff contends that the above-mentioned statute does not apply to Perkins because he was, at the time of the accident, traveling from such work, and was not actually engaged therein.
“The uncontradicted evidence showed that Perkins had dumped a load of hot asphalt about 100 feet away from the point where he was making the turning maneuver. He testified that he moved down the road 100 feet to allow the roller and grader space in which to work. Turning his truck around was a necessary part of his work. * * * Perkins was well within the contemplated protection of the statute.”
In Sturgeon v. Clark, 364 P. 2d 757 (New Mexico), the statute was mentioned, but the exemption not allowed, because the court found that the defendant was not actually engaged in work upon the surface of the highway at the time of the mishap, but was only driving from one point to another. The court said:
“We are clear that the legislature incorporated § 64-15-4(b), N.M.S.A. 1953, into the statute in recognition of the fact that in constructing, repairing and maintaining highways there are circumstances under which men and equipment must be present on the surface of the highway without being held to comply with the rules of the road generally binding. However, while providing for performing necessary work without being in violation of statutes otherwise applicable, they were careful to restrict the exemption to situations where actual work was being performed on the surface. It is not for us to extend the application beyond the clear language used.
“Defendant relies on a number of cases from other jurisdictions, all of which we find easily distinguishable by virtue of the fact that they involved actual work on the surface of the highway. We make mention of only one. Johnson v. Bergquist, 184 Minn. 576, 239 N. W. 772, is a ease where the equipment was standing on the highway with its motor running while the workmen were adjusting the grader blade preparatory to using it on the surface of the highway, when the accident occurred. The court held that under the facts, this constituted work on the surface so as to bring the case within an exemption like that in § 64-15-4(b), N.M.S.A. 1953. This case is as easily distinguished under its facts from the case sub judiee as the others cited by defendant.”
Of course, here, Morehead was admittedly working on the surface of the road. In view of our statute, we think it clear that the mere fact that Morehead was op erating his grader upon the left-hand side of the road, was not, in itself, sufficient to make this appellant guilty of negligence.
It is not entirety clear from the trial court’s opinion the extent to which Morehead’s operation of the grader on the left-hand side, in (as was held) violation of a rale of the road, influenced the court in its findings. Certainty, it would appear to have influenced the findings to some degree, for it is emphasized by being mentioned twice. Minus this erroneous conclusion, we do not know whether the court would have still found Morehead guilty of negligence, or whether, if such a finding had been made, appellant would have been found negligent to the same degree (equally negligent with Bearden).
It follows that the judgment on direct appeal must be reversed.
As to the cross-appeal, we think unquestionably that the trial court’s findings were supported by substantial evidence. Admittedly, in traveling toward Highway 71, Bearden, before striking the grader, met a trailer truck which threw up a big cloud of dust. Bearden stated:
“It throwed dust in my face, and the roads were dusty, and anyhow, I had to turn my windshield wipers on to clear the dust, and by the time the dust had cleared, I was right up on McMillin-Burkett’s road maintainor. And the only thing I could think of then was miss the maintainer, and my right rear caught his right front.”
Subsequently, he stated that he could not see to the front at all because ‘ ‘ the dust had blinded me. ” Bearden testified that he was operating his loaded gravel track at a speed of approximately 40 miles an hour when he met the other truck. From the testimonj7:
“Q. What did you do right after 3rou passed the truck!
“A. Well, I had slowed—I mean, in other words, I took my foot off the foot feed to let it slow down where I could see.
“Q. But you. didn’t touch the brake until you saw the maintainer, did you?
“A. I had my foot on the brake, sir, but I . . .
‘‘ Q. Did you apply the brakes—let’s put it this way. Did you apply your brakes before seeing the maintainer?
“A. No, sir, I did not.
“Q. I believe you testified here that it was so dusty that you couldn’t even tell which side of the road you were driving on?
“A. Well, that is true, sir.
“Q. Is that true?
“A. In other words, I mean—
“Q. Could you even see whether you were on the road or not?
“A. Well, there’s certain ways to tell by the feel of the wheel.
“Q. In other words, you were just as blind as though you were driving in the dark without lights, is that right?
“A. Yes, sir.
“Q. You couldn’t even see the shoulders of the road —the ditches?
“A. No sir, I couldn’t see them.
“Q. You took your foot off the gas and rested it on the brake pedal, but didn’t apply the brakes until you saw the maintainer, is that correct?
“A. That is correct.”
Of course, Bearden was familiar with the fact that the maintainer was being operated on the Boyd Road, and had earlier, on the morning of the collision, observed the grader somewhere between one and three miles from the scene of the collision.
As stated, we think there was substantial evidence to support the findings of the Circuit Court, and there is, accordingly, no merit in the cross-appeal.
The judgment is reversed, and the cause remanded for a new trial on all issues.
Among others, Colorado, Delaware, Florida, Georgia, Idaho, Illinois-, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Montana, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, and West Virginia.
Actually, some courts, even before the adoption of such a statute, held that the mere fact that a drag machine engaged in working the road was on the left-hand side, did not constitute negligence. The Georgia Court of Appeals, in the case of Mathis v. Nelson, 54 S.E. 2d 710 (1949), stated:
“It may often be necessary to work a road machine on the left side of the road, or even in such a position as to completely block the road and, if sufficient precautions were taken to warn approaching motorists, this act could not be deemed actionable. * * * While it might, as a necessary incident to the working of roads, be necessary to proceed otherwise than in the ordinary direction of traffic, there would be no such excuse for failing to have the tractor properly lighted at a time of day when it was still dark.”
Subsequently, Georgia passed a statute similar to the Arkansas statute. | [
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Carretón Harris, Chief Justice.
Van Burén, Arkansas, is a city of the first class. On August 7, 1962, Ordinance No. 6-1962, authorizing an issue of $702,200.00 in sewer revenue bonds, was approved by the voters of Van Burén, and on November 12, 1962, Ordinance No. 11-1962 was passed, which established the rates to be charged for sewer service. On January 3, 1963, appellants filed with the City Clerk of Van Burén a petition to initiate an ordinance (No. 2A) which would have the effect, inter alia, of repealing Ordinance No. 6-1962 and Ordinance No. 11-1962. This initiated petition was filed more than 90 days prior to the next general or regular election in the City of Van Burén (which will be held November 5, 1963). No action was taken by the City Clerk or the city officials on the petition, and on February 5, 1963, appellee, the City of Van Burén, filed, in the Crawford County Chancery Court, a petition for a declaratory judgment, praying that the Court enter a judgment holding the initiated petition invalid. Appellants filed a demurrer, which was overruled, and thereafter, an answer was filed. On hearing, the court entered its declaratory judgment in which it found that the City of Van Burén had never passed an ordinance fixing the time in which initiative petitions might be filed, and further finding that the initiated petition herein discussed, was “invalid, in that it was filed more than 90 days before the next general or regular election in said city, contrary to the Constitution of the State of Arkansas; and the Initiated Petition and the Initiated Ordinance it contains are therefore set aside and held for naught, * * "While the question of whether the city had the right to invoke the declaratory judgment procedure as a matter of determining the validity of the initiated petition is argued pro and con by the parties hereto, under the view that we take, it becomes unneces sary to dispose of this matter. Bather, our discussion will be limited to the main issue set forth in Item 5 of the stipulation, which reads as follows:
“It is hereby stipulated and agreed that the sole and only question to be presented to the Court herein, other than said demurrer, is the question of whether a Petition to Initiate a City Ordinance in the City of Van Burén, Arkansas, can be filed more than 90 days prior to the General Election at which it is to be voted upon, the Petition to Initiate City Ordinance herein to be determined having been filed January 3, 1963, and the next City General Election in the City of Van Burén, Arkansas, after said filing being November 5, 1963, and more than 90 days after the filing of said Initiated Petition.”
The Arkansas Constitution, Amendment 7, Section 1, under the heading, “Local Petitions,” provides:
“Municipalities may provide for the exercise of the initiative and referendum as to their local legislation.
“General laws shall be enacted providing for the exercise of the initiative and referendum as to counties * * * In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon; for a referendum petition at not less than thirty days nor more than ninety days after the passage of such measure by a municipal council; * * *.”
With the exception of one case, all cases herein cited by counsel deal with the question of whether petitions were filed “too late” rather than “too early,” and in some cases, the point here raised was not at issue. The exception referred to is Southern Cities Distributing Co. v. Carter, 184 Ark. 4, 41 S. W. 2d 1085. This case was relied on in large measure in our most recent opinion on the subject herein discussed, which, incidentally, is not cited in the briefs. That case, decided October 22, 1962, is Armstrong, County Clerk v. Sturch, 235 Ark. 571, 361 S. W. 2d 77. There, petitions were filed with the clerk on July 23, 1962, which was more than 90 days before the general election (November 6, 1962). Appellant strongly argued the same contention that is relied upon by appellees in the instant litigation. In deciding that the petitions were timely filed we called attention to Southern Cities Distributing Co., supra, stating:
“Our holding in Southern Cities Distributing Company v. Carter, 184 Ark. 4, 41 S. W. 2d 1085, bears some similarity to the issue at hand. There, a referendum petition was filed to refer a municipal ordinance, and was filed less than 30 days after the enactment of the ordinance. This court held that the latter fact did not invalidate the petition, under the provisions of Amendment No. 7 to the Constitution, stating:
‘The amendment provides the time for filing a referendum petition at “not less than thirty (30) days nor more than ninety (90) days after the passage of such measure by a municipal council.” .This does not mean, of course, that the petition for a referendum cannot be filed less than 30 days after the passage of the measure sought to be referred, but only that the city must allow at least 30 days after the passage of the measure for the filing of a referendum petition thereon, and cannot allow more than 90 days. * * * It is true the referendum petitions were filed * * * less than 30 days after the adoption of such measure, but they remained on file and were on file after 30 days after the passage of the gas rate resolution, and were passed upon and certified by the city clerk on the thirty-first day after the passage of the resolution as containing sufficient signatures of qualified electors to authorize the referendum petitioned for. The referendum petitions, although they could not have been required to be filed in less than 30 days after the passage of the measure sought to be re-referred, were in no wise invalidated by having been sooner filed. ’
“We think the same reasoning applies to the filing of an initiative petition under Amendment No. 7, and the language ‘In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty (60) days nor more than ninety (90) days before the election at which it is to be voted upon’ simply means that the legislature may not require that the petitions be filed earlier. It will be noted that the amendment itself does not definitely fix the time, but appears rather as a directive to the legislative body, circumscribing and limiting its authority in the matter.
“Of course, viewing the matter from a practical standpoint, appellants, or the general public, have not in any manner been misinformed or misled because the petitions were filed on July 23rd rather than August 8th. As stated in Southern Cities Distributing Company v. Carter, supra, the petitions remained on file with the proper officer.’ ”
We are committed to a liberal construction of this amendment, bearing in mind the purpose of its adoption and the object it sought to accomplish. Leigh and Thomas v. Hall, Secretary of State, 232 Ark. 558, 339 S. W. 2d 104. In other words, as held in that case (and cases cited therein), the acts of the electors “should not be thwarted by strict or technical construction.”
One other matter should be mentioned. In concluding their brief in this court, appellants pray that they “be permitted to correct typographical error in said initiative ordinance. ’ ’ This is the only mention made in appellant’s brief, and appellee does not mention it at all in its brief. The transcript reflects that, with their answers appellants filed Exhibit “A” which they stated “is a true and correct representation of the petitions herein filed, except that it is possible the date for final payment of said bond issue may show 1967 instead of 1987, but if so, this is a matter of clerical and typographical error correctable under the Constitution of the State of Arkansas, and deny that should said proposed initi ated ordinance become an ordinance of the City of Van Burén, Arkansas, that it would, in any wise, be invalid, but that should any provision thereof be considered invalid that the severability clause therein would protect the remainder thereof.” There is no prayer asking the trial court to make this correction; however, in its judgment, the court made the following finding:
“That the copy of the Initiated Ordinance attached to the answer of the defendants as Exhibit A is not like the original, in that Section 3 of said ordinance as copied recites that the bonds should mature serially from 1963 to 1987, whereas the original petition through typographical error recited the maturity dates to be 1963 to 1967. ’ ’
The basis for the court’s finding is not shown since no evidence was taken, and the matter (of the error) is not included in the stipulation.
We are without authority to grant relief which was not sought in the court below. Porter v. Morris, 131 Ark. 382, 199 S. W. 106.
It follows, from what has been said that the declaratory judgment rendered by the court is reversed, set aside, and held for naught, and this cause is remanded to the Crawford County Chancery Court with directions to dismiss the complaint, and, for good cause shown, an immediate mandate is ordered.
This ordinance was later approved at a referendum election.
This refers to the question of whether the declaratory judgment law can properly be invoked.
More properly, the city legislative authority. | [
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Jim Johnson, Associate Justice.
This is a suit for damages caused by a tortious burning of appellee’s land. On April 21, 1962, sparks and fire from a train operated over the railroad track of appellant, St. Louis-San Francisco Railway Company, burned through appellant’s right of way onto the land of appellee, J. A. Friddle. Approximately fifteen acres of appellee’s 200-acre farm were burned over.' Of the fifteen acres burned, six were on top of a mountain and fenced by appellee. The remaining nine acres were unfenced property on the side of the mountain. Appellee claimed damage to two acres of meadow, four acres of wooded pasture, four acres of pine seedlings and five acres of growing timber. In addition, appellee claimed that a portion of the fence burned and that he was forced to employ help to control and put out the fire. Suit was filed in Crawford Circuit-Court seeking to collect $6,000.00 damages. The parties having stipulated that the fire was caused by the negli gent operation of the train, the only issue before the jury was the amount of damages, if any, to which appellee was entitled. At trial on July 8, 1963, the jury returned a verdict for appellee in the sum of $2,000.00. From judgment on the verdict, appellant has perfected this appeal.
For reversal, appellant urges that (1) the trial court erred in submitting its instruction number five to the jury, and that (2) the verdict of $2,000.00 was grossly excessive and without support of substantial evidence.
The court’s instruction No. 5 reads as follows:
“You are instructed that the measure of damages in this case is the difference in the fair market value of the land immediately before and immediately after the burning. The burden is upon the property owner to establish the amount of his damages by a preponderance of the evidence.”
Appellant concedes that, “When real property is permanently injured, the proper measure of damages is the diminution in the fair market value of the property by reason of that injury or, in other words, the difference between the value of the property before and after the injury. Missouri Pacific R. Co., Thompson, Trustee v. Clements, 225 Ark. 268, 281 S. W. 2d 936; Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S. W. 2d 208; 15 Am. Jur., Damages § 109, p. 518; 25 C.J.S., Damages § 84, p. 603;” but contends here that before this rule is applied, the act complained of must effect a lasting change in the realty itself, urging that the permanency of the injury is the proper test to be applied, and that a temporary injury is not compensated on the basis of diminished market value, citing Ross & Ross v. St. Louis I.M. & S.R. Co., 120 Ark. 264, 179 S. W. 353; 87 A.L.R. 1392.
All of appellee’s testimony seemed to be directed toward showing the permanency of the injury, and his value testimony was directed toward proof of the market value of the property before and after the injury. Appellant made no objection to this testimony, nor did appellant request any instruction at all on the measure of damages, and admitted having only objected generally to instruction No. 5 as given.
The state of the record being thus, the appellant cannot be heard to complain in the Supreme Court for the first time that the measure of damages which was adopted was not the correct rule. See generally, Standard Oil Co. of Louisiana v. Goodwin, 174 Ark. 603, 299 S. W. 2. This court cannot consider the specific objection hero urged to the instruction by the appellant. If appellant desired that the instruction should cover the particular matters of which it now complains, it should have first drawn the attention of the trial court to these matters by specific objection. St. Louis I.M. & S.R. Co. v. Carter, 93 Ark. 589, 126 S. W. 99. Appellant having failed to offer any specific objection to the instruction in the trial court, under the general objection made to the instruction we can only consider such instruction to determine whether there are any inherent defects therein. St. Louis San Francisco R. Co. v. Cox, 171 Ark. 103, 283 S. W. 31. Since appellant permitted appellee to try this case upon the theory of the permanency of the damage without specific objection, we cannot say that instruction No. 5, which stated the rule conceded to be applicable to permanent'damage, was inherently wrong.
The second point urged by appellant for reversal is that the verdict of $2,000.00 was grossly excessive and without support of substantial evidence. After stating his opinion on the before and after value of his property, appellee and his son testified in careful detail on the damages occasioned by this fire, without objections from appellant. Appellant’s witnesses testified on their opinions of appellee’s damages, estimating the loss on a per acre basis. The jury’s function was to evaluate the witnesses and their testimony and arrive at a damage amount if they found that appellee was in fact damaged by the fire. Their verdict was less than appellee’s opinion testimony on damages, and more than appellant’s. After a careful review of the whole case, we find that the jury’s verdict was supported by substantial evidence, was not influenced by prejudice and the amount was not so grossly excessive as to shock the conscience of the court. Beggs v. Stalnaker, 237 Ark. 281, 372 S. W. 2d 600.
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Frank Holt, Associate Justice.
The appellant, Mrs. C. C: Wheeler, brought this action individually and as administratrix of her husband’s estate to recover damages resulting from his death in a traffic mishap. The issues were submitted to a jury which resolved them in favor of appellant and assessed damages at $2,500.00. From this judgment appellant brings this appeal.
For reversal appellant relies on three points. The first two points we discuss together since they relate to a hypothetical question. Appellant contends that the hypothetical question was improper in that it was not based on facts then nor later in evidence and not within the knowledge of the physician.
While appellee’s counsel was propounding the hypothetical question appellant’s counsel objected, stating: “Mr. Lindsey says there is no evidence of contusion to the chest area and I beg to differ there is evidence.” Thereupon appellee’s counsel stated: “Let me rephrase that and eliminate that . Since no objection was made to the hypothetical question when rephrased, we find no merit in this contention. We cannot consider an objection to a hypothetical question when raised for the first time on appeal. Southwestern Gas & Electric Co. v. Halter, 200 Ark. 244, 138 S. W. 2d 793; Chapman v. Finkbeiner, Inc., 230 Ark. 655, 324 S. W. 2d 348. A review of the testimony in this case convinces us that it fairly supports the content of the hypothetical question. Therefore, a renewal of the objection to the hypothetical question would be of no avail to the appellant in this case. Also, the remedy was available upon the cross-examination to supply any missing facts considered essential in the question. Shaver v. Parsons Feed & Farm Supply, Inc., 230 Ark. 357, 322 S. W. 2d 690.
The appellant next contends that it was error for the Court to permit the introduction of two photographs into evidence without the proper foundation being laid. One of these photographs purported to depict the damage to the front end of the vehicle driven by appellee and the other photograph represented the rear end of decedent’s vehicle following the collision. The appellant objects to the validity of these photographs because the witness did not take the pictures nor was he present when they were taken. He testified, however, that he observed the condition of the vehicle following the accident and that the pictures fairly represented the condition and damages following the accident. The driver of the third vehicle involved in the accident also verified the accuracy of the photograph of the damages to decedent’s vehicle. The test of whether photographs are admissible into evidence depends upon the fairness and correctness of the portrayal of the subject. Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79; Ark. State Highway Comm. v. Webster, 236 Ark. 491, 367 S. W. 2d 233. We think the test was met in this ease. Further, the admissibility of photographs addresses itself to the sound discretion of the Trial Judge. We do not disturb his ruling unless there is an abuse of discretion. McGeorge Contracting Company v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. Certainly there was no abuse of discretion in the case at bar.
We must affirm the judgment in this case for the further reason that the alleged errors were rendered harmless by the verdict of the jury. In Thomas Cox & Sons Machinery Company v. Forshee, 96 Ark. 156, 131 S. W. 454, we said: £ ‘ * * * It is the settled rule of this Court that a reversal will not be granted for errors which are not prejudicial to the rights of the complaining party.” Also, see Browne-Brun Wholesale Gro. Co. v. Hinton, 179 Ark. 831, 18 S. W. 2d 369; Sutton v. Nowlin & Sons Company, 232 Ark. 223, 335 S. W. 2d 292. In the case at bar the purpose of the hypothetical question was to establish that death resulted from natural causes rather than the accident. The pictures were also offered to bolster this contention. Since tbe jury rendered a verdict in favor of appellant on tbe issues on which recovery was sought, the errors argued by the appellant were eliminated and rendered harmless by its verdict.
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James R. Cooper, Judge.
In 1992, Arkansas Louisiana Gas Company (ALG) requested a $23 million rate increase from the Arkansas Public Service Commission (Commission). It also sought permission to reallocate its rates among its different classes of customers, including a 15.13% rate increase for its residential customers and a 53% rate decrease for its larger industrial customers. ALG claimed that the costs for providing residential services were being subsidized by its larger industrial customers and that, unless these subsidies were eliminated, ALG was in danger of losing its large industrial customers to bypass. Arkansas Gas Consumers (AGC), a group of industrial and agricultural companies, the Consumer Utilities Rate Advocacy Division of the Attorney General’s Office, and the general staff of the Arkansas Public Service Commission (Staff) were also parties to this proceeding.
Pursuant to a procedural schedule set by order of the Commission, the various parties filed direct, rebuttal, and surrebuttal testimony in support of their positions on various issues. The Staff conducted extensive discovery of ALG, including an on-premises audit, and afterwards, ALG reduced its requested rate increase to $17.4 million. Staff responded that its audit showed ALG was only entitled to an $11.1 million increase in rates.
A hearing on ALG’s rate application was scheduled for November 2, 1992. Approximately four days prior to the hearing, ALG and Staff began discussing settlement of the issues contained in ALG’s application. Although invited to participate, the Attorney General declined to participate in the negotiations but was kept informed of the parties’ progress. On November 2, the Commission convened for the hearing on ALG’s rate application, at which time ALG’s attorney notified the Commission that Staff and ALG had reached agreement on the issues involved and asked that the Commission recess the hearing so that a joint proposed stipulation could be filed with the Commission. Staff and AGC joined in ALG’s motion; AGC stated that it anticipated it would join in the stipulation. The Attorney General objected to both the Commission’s consideration of the stipulation and the granting of a recess. The Commission heard the parties’ opening statements, obtained public comments, and admitted the pre-filed testimony into evidence before it recessed. The Commission reconvened the following morning and announced it would hear testimony for and against the Joint Proposed Stipulation (JPS). The Attorney General again objected to the Commission’s consideration of the JPS but did not request a continuance. ALG, AGC, and Staff then presented testimony in support of the JPS. The Attorney General was allowed to cross-examine these witnesses as well as any other witnesses of the parties on the JPS or ALG’s application for a rate increase. The Attorney General also presented testimony in opposition to the adoption of the JPS. At the end of the hearing, the Commission allowed the parties to file briefs supporting or opposing the JPS.
In Order No. 13, entered on December 18, 1992, the Commission approved the JPS. The Commission, in a thirty-five-page order, found that the JPS produced “rates which were just and rea sonable for all classes of ALG’s customers” and therefore concluded that “the JPS is in the public interest. . . .” It noted that ALG had requested a rate increase of $17.4 million, that Staff had recommended an increase of $11.1 million, and that the $13.5 million increase included in the JPS represented a blending of the parties’ relative positions. The Commission also found that the Attorney General was given a full opportunity to be heard on the merits of both the JPS and ALG’s application and that the Commission had the authority to consider and adopt the JPS without the approval of the Attorney General. The Commission further found that the statutory requirements set forth in Ark. Code Ann. § 23-4-101 (1987) had been followed and there was no violation of the Attorney General’s due process rights. After making extensive findings of fact as to why the Commission found the JPS to be in the public interest and supported by substantial evidence, the Commission concluded:
Accordingly, the Commission finds and orders as follows:
1. The Commission has the jurisdiction and authority to consider the JPS as a reasonable resolution of all issues pending in this proceeding. The AG’s objection to the JPS does not bar the Commission from considering and approving the JPS within the context of this proceeding if the Commission finds that the JPS is supported by substantial evidence and is just and reasonable.
2. The JPS is supported by substantial evidence and produces rates that are just and reasonable for all classes of ALG’s customers. Therefore, the JPS is in the public interest and is hereby approved.
3. ALG is hereby authorized to prepare and file in this docket proposed tariffs designed to properly reflect the terms of the JPS.
On January 19, 1993, the Attorney General petitioned for rehearing of Order No. 13, and when its petition was deemed denied, the Attorney General filed his notice of appeal.
We first address the Attorney General’s argument that the Commission did not have the authority to approve the JPS over the objection of the Attorney General. Arkansas Code Annotated § 23-2-301 (1987) vests the Commission with the power and jurisdiction, and makes it the Commission’s duty, “to supervise and regulate every public utility defined in § 23-1-101 and to do all things, whether specifically designated in this act, that may be necessary or expedient in the exercise of such power and jurisdiction, or in the discharge of its duty.” The Commission was created to act for the General Assembly, and it has the same powers that body would have when acting within the powers conferred upon it by legislative act. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 557-59, 593 S.W.2d 434, 440 (1980).
The Attorney General contends that he is the sole party to the proceeding representing the interests of the Arkansas ratepayers and that no authority exists giving the Commission permission to approve a stipulation over the ratepayers’ objections. The fact that Ark. Code Ann. § 23-4-303 (1987) gives the Attorney General the power to represent all classes of utility ratepayers before the Commission does not mean that the Attorney General has veto power over the methodology employed by the Commission in setting rates. The Commission has broad discretion in choosing an approach to rate regulation and is free, within its statutory authority, to make any reasonable adjustments which may be called for under particular circumstances. Associated Natural Gas Co. v. Arkansas Pub. Serv. Comm’n, 25 Ark. App. 115, 118, 752 S.W.2d 766, 767 (1988). “Authority to advocate a position on behalf of small businesses and residential consumers is not equivalent to authority to decide what is in the public’s best interest.” City of El Paso v. Public Util. Comm’n, 839 S.W.2d 895, 905 (Tex. Ct. App. 1992).
The Attorney General also contends that the Commission is bound by the same limitations that courts of law are in accepting settlements of the parties. This argument, however, ignores the distinction between settlements in the administrative law setting from settlements in civil actions:
It is well to note at the outset that “settlement” carries a different connotation in administrative law and practice from the meaning usually ascribed to settlement of civil actions in a court. As we shall see later, in agency proceedings settlements are frequently suggested by some, but not necessarily all, of the parties; if on examination they are found equitable by the regulatory agency, then the terms of the settlement form the substance of an order binding on all the parties, even though not all are in accord as to the result. This is in effect a “summary judgment” granted on “motion” by the litigants where there is no issue of fact.
This difference in procedure between the courts.and regulatory agencies stems from the different roles each is empowered to play: the court must passively await the appearance of a litigant before it; once the court’s process has been invoked, the litigant is entitled to play out the contest, unless he and the other litigant reach' a mutually agreed settlement or one of several summary disposition procedures is successfully invoked by his adversary. On the other hand, the regulatory agency is charged with -a duty to move on its own initiative where and when it deems appropriate; it need await the appearance of no litigant nor the filing of any complaint; once the administrative process is begun it may responsibly exercise its initiative by terminating the proceedings at virtually any stage on such terms as its judgment on the evidence before it deems fair, just, and equitable, provided of course the procedural requirements of the statute are observed. Only by exercising such “summary judgment” or “administrative settlement” procedures when called for can the usual interminable length of regulatory agency proceedings be brought within the bounds of reason and the agencies’ competence to deal with them.
Whether the summary action of any agency in a particular case is fair, just, equitable, and in accord with the procedure required by law is a matter for judicial review, as in the case at bar.
Pennsylvania Gas and Water Co. v. Federal Power Comm’n, 463 F.2d 1242, 1246 (D.C. Cir. 1972).
The Attorney General also argues that Rule 3.10 of the Commission’s Rules of Practice and Procedure supports his argument that the Commission could not adopt a non-unanimous stipulation. This rule provides:
All parties to any proceeding or investigation before the Commission may, by written stipulation filed with the Commission or entered in the record, agree upon the facts or any portion thereof involved in the controversy, which stipulation shall be regarded and used as evidence at the hearing. It is desirable that the facts be thus agreed upon whenever practicable. The Commission may, in such cases, require and introduce such additional evidence as it may deem necessary.
The Attorney General construes this rule to require all parties to consent to a stipulation before it can be considered by the Commission. The Commission, however, interprets this rule to urge the Commission to consider a stipulation of the parties and not to mandate that all parties must consent to a stipulation before it can be considered. An agency’s or department’s interpretation of its own rules and regulations is not binding upon the courts but is nevertheless highly persuasive; the agency’s interpretations of its own rules is controlling unless plainly erroneous or inconsistent. General Tel. Co. of the Southwest v. Arkansas Pub. Serv. Comm’n, 23 Ark. App. 73, 87, 744 S.W.2d 392, 400 (1988), aff’d 295 Ark. 595, 751 S.W.2d 1 (1988). We cannot say the Commission’s interpretation is clearly erroneous.
Moreover, the situation here is not a first occurrence which may be regarded as unique. The Attorney General has participated in non-unanimous stipulations in past proceedings before the Commission. See Arkansas Electric Energy Consumers v. Arkansas Public Service Commission, 35 Ark. App. 47, 813 S.W.2d 263 (1991), where this Court affirmed the Commission’s approval of a stipulation which had been entered into by AP&L, the Attorney General, and Staff, but not by Arkansas Energy Consumers. Although the question of whether a stipulation required unanimous support of the parties was not raised on appeal in that case, the appellant, AEEC, did argue that the Attorney General, by supporting the settlement, failed to provide effective and aggressive representation for the people of Arkansas. This Court held, however, that throughout the agreement were recitations as to why the public interest would be served by its adoption and that the Attorney General was attempting to fulfill his mandate by signing it.
The adoption of non-unanimous stipulations has also been approved in other jurisdictions. In Mobil Oil Corporation v. Federal Power Commission, 417 U.S. 283, 312-14 (1974), the Supreme Court held that the Federal Power Commission has the authority to adopt as a rate order a settlement proposal which lacked unanimous agreement of the parties to the proceeding and that the choice of an appropriate structure for the rate order is a matter of Commission discretion, to be tested by its effects; the choice is not the less appropriate because the Commission did not conceive of the structure independently. See also Attorney General of New Mexico v. New Mexico Pub. Serv. Comm’n, 111 N.M. 636, 808 P.2d 606, 610-11 (1991). See also Cities of Abilene v. Public Util. Comm’n of Texas, 854 S.W.2d 932, 939 (Tex. Ct. App. 1993); City of El Paso v. Public Util. Comm’n, 839 S.W.2d at 903.
We hold that the Commission’s statutory authority is clearly broad enough to allow the Commission to consider stipulations entered into by some of the parties to a proceeding in approaching rate regulation. Of course, the Commission must afford a non-stipulating party adequate opportunity to be heard on the merits of the rate application and the stipulation agreed to by some of the parties, and the Commission must make an independent finding, supported by substantial evidence, that the stipulation resolves the issues in dispute in a way which is fair, just and reasonable, and in the public interest. See Mobil Oil Corp. v. Federal Power Comm’n, 417 U.S. at 312-14; Attorney General of New Mexico v. New Mexico Pub. Serv. Comm’n, 808 P.2d at 610; accord Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. at 65-73, 813 S.W.2d at 274.
The Attorney General also argues that, at the hearing held on November 2, the Commission erroneously shifted the burden of proof from ALG to the Attorney General. The burden of justifying any change in rates is on the party seeking the change. See General Tele. Co. of the Southwest v. Arkansas Pub. Serv. Comm’n, 23 Ark. App. at 82, 744 S.W.2d at 397. The Attorney General contends that, by considering the JPS before it considered whether ALG was entitled to a rate increase, the Commission shifted the burden to the Attorney General to prove that the JPS was not in the public interest rather than requiring ALG to justify its need for an increase in rates. In support of this contention, the Attorney General contends that the Commission only conducted a summary hearing for the sole purpose of considering the JPS; that neither ALG, Staff, nor AGC put on any witnesses on the rate case and instead relied on “unsworn, prefiled testimony,” and that, at the end of the hearing, the Commission only requested briefs on whether the stipulation was in the public interest and whether it could be approved over the objection of the Attorney General but did not request briefs on ALG’s rate increase.
The Attorney General’s argument, however, disregards over 1,500 pages of prepared testimony and 886 pages of accompanying exhibits which were introduced into evidence at the hearing before the Commission ever considered the JPS. The Attorney General does not argue that this “unsworn testimony,” which was admitted into evidence without objection, was not sufficient to meet ALG’s burden, nor has he cited any authority for his suggestion that it is not credible evidence. From this evidence alone, the Commission could have found that ALG had met its burden of proving it was entitled to a rate increase. Moreover, in addition to this substantial prefiled evidence, four witnesses testified at the hearing in support of the JPS which included increased rates for ALG. This testimony not only addressed the merits of the JPS but also ALG’s underlying request for a rate increase and reallocation.
The Attorney General complains that ALG did not carry its burden because it did not orally present the testimony of every witness who had submitted prefiled testimony in this docket, although these witnesses were present at the hearing. The Attorney General also complains that Staff did not choose to cross-examine any of ALG’s witnesses and therefore this burden then fell on the Attorney General. While the Attorney General may have been relying on Staff to carry the burden of disputing ALG’s evidence, Staff’s refusal to cross-examine does not mean that ALG did not carry its burden of proving it was entitled to a rate increase. Furthermore, contrary to the Attorney General’s allegation, Staff witness Donna Campbell testified at the hearing in support of ALG’s rate increase. From our review, we cannot say that the Commission shifted the burden of proof or that ALG failed to meet its burden of proof.
For his third point, the Attorney General argues that he was denied due process because his right to a hearing on ALG’s rate application was denied. The Attorney General contends that, because at the beginning of the hearing on ALG’s rate application the Commission announced that it would hear testimony in support of and opposition to the JPS, a hearing was not conducted on ALG’s rate application thereby denying him his right to a full and fair hearing.
A fundamental requirement of due process in matters of public utility regulation is a full and fair hearing, and the basic elements of a full and fair hearing are that all those whose rights are involved have the opportunity to be heard, to submit evidence and testimony, to examine witnesses and present evidence or testimony in rebuttal to adverse positions. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. at 64, 813 S.W.2d at 273. The Attorney General, in attacking the procedure before the Commission as a denial of due process, has the burden of proving its invalidity. Id. at 64-65, 813 S.W.2d at 273.
All the parties’ witnesses were present at the hearing. The Attorney General had the opportunity to cross-examine any witness with reference to their view on both the JPS and ALG’s rate request. In fact, the Commission, during the course of the hearing, advised the Attorney General that this was his opportunity to cross-examine any of the witnesses on any matters concerning ALG’s rate application and the JPS. The fact that the Commission chose to hear testimony regarding the JPS at the hearing on ALG’s rate application does not mean that the Commission proceedings were limited to consideration of the JPS.
The rates and proposals included in the JPS are clearly within the parameters of testimony filed by ALG and Staff and are equivalent to testimony in support of ALG’s need for a rate increase. As such, it was not improper for the Commission to consider it at the beginning of the hearing. The Commission is not bound to consider the evidence before it in any par ticular order. The Commission has wide discretion in choosing its approach to rate regulation, and it is not our function to advise the Commission as to how to make its findings or exercise its discretion. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 24 Ark. App. 142, 144, 751 S.W.2d 8, 9 (1988). As trier of fact in rate cases, it is within the province of the Commission to decide on the credibility of witnesses, the reliability of their opinions, and the weight to be given their evidence. Associated Natural Gas Co. v. Arkansas Pub. Serv. Comm’n, 25 Ark. App. at 124, 752 S.W.2d at 771. The Attorney General was afforded every opportunity to participate in the proceedings below, and we cannot agree that he was denied a full and fair hearing on ALG’s rate application or the JPS.
The Attorney General also contends that he was not provided proper notice of the rates established by the JPS or the hearing on the JPS. Although the Attorney General acknowledges that proper notice was given of the hearing on ALG’s application for a rate increase, he contends that separate notice was required for the Commission’s consideration of the JPS because it contains rates different than those requested in ALG’s original application. The Attorney General cites several statutes and Commission rules in support of this argument; however, we do not agree they would require separate notice in the situation at bar. The rates included in the JPS are lower than those sought by ALG in their application and prefiled testimony and higher than those recommended originally by Staff; therefore, the Attorney General and other interested parties had notice of the range of rates likely to be involved at the hearing. The Attorney General was also aware of the negotiations between the parties because he was invited to take part in them, although he declined to do so. Therefore, he cannot claim surprise. More importantly, although the Attorney General objected to the Commission’s consideration of the JPS, he failed to raise the issue of lack of proper notice at the hearing and, therefore, has not preserved this issue for appeal. Arguments raised for the first time on appeal are not considered. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. at 66, 813 S.W.2d at 274.
For his final point, the Attorney General challenges the sufficiency of the evidence supporting the rate increase granted to ALG, which is the amount suggested in the JPS. The Attorney General argues that the JPS is merely a summary of the blended positions of ALG, AGC, and Staff and that nowhere either in the “unsworn prefiled testimony” or the “summary” proceeding before the Commission is there substantial evidence to support the JPS. Specifically, the Attorney General contends that the $13.5 million revenue deficiency, the 9% pre-tax rate of return, the allocation of LUFG in rates, the customer charge, the method and numbers on the cost allocation, the class allocation methodology, and the pre-tax return on the Cast Iron Gas Main Replacement Program (CIGMRP) proposal are not supported by any evidence in the record.
Our review of appeals from the Public Service Commission is limited by the provisions of Ark. Code Ann. § 23-2-423(c)(3), (4), and (5) (Supp. 1993), which defines our standard of review as determining whether the Commission’s findings of fact are supported by substantial evidence, whether the Commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the Constitutions of the State of Arkansas or the United States. Associated Natural Gas Co. v. Arkansas Pub. Serv. Comm’n, 25 Ark. App. 115, 118, 752 S.W.2d 766, 767 (1988). If an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then the appellate court must affirm the Commission action. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 76, 813 S.W.2d 263, 277 (1991). The appellate court views only the evidence most favorable to the appellee in cases presenting questions of substantial evidence, id., and the burden is on the appellant to show a lack of substantial evidence to support an administrative agency’s decision. See City of El Paso v. Public Util. Comm’n of Texas, 839 S.W.2d 895, 906 (Tex. Ct. App. 1992).
In reviewing the sufficiency of the evidence to support Order No. 13, it is appropriate for this Court to consider the JPS; as it is the functional equivalent of testimony in support of the rates it establishes by the parties proposing it. The JPS is therefore evidence that the rates included in it are just and rea sonable. See Cities of Abilene v. Public Util. Comm’n of Texas, 854 S.W.2d 932, 938-39 (Tex. Ct. App. 1993).
The Attorney General argues that the Commission merely rubber-stamped the JPS and made no independent findings that the rates established by the JPS are just and reasonable. The Attorney General contends that Staff’s agreement to allow ALG an increase of $13.5 million in additional rates, which is a $2.5 million increase over the $11.1 million Staff recommended in its pre-filed testimony, is without evidentiary support. Although the Attorney General acknowledges that there is evidence in the record that supports rates higher and lower than those included in the JPS, he claims that, because there is no evidence in the record that supports the exact figures adopted by the JPS, it is not supported by substantial evidence. This argument is without merit.
The JPS represents a compromise of the parties’ relative positions on different issues. As the Commission correctly noted, it could have adjudicated a result similar to the JPS had there not been a proposed settlement. To hold that the Commission could not adopt the JPS because no party in the prefiled testimony testified in support of the exact same terms as those included in the JPS would effectively eliminate the Commission’s power to set rates which it finds are just and reasonable. The Commission is never compelled to accept the opinion of any witness on any issue before it, nor is it bound to accept one or the other of any conflicting views, opinions, or methodologies. General Tel. Co. v. Arkansas Pub. Serv. Comm’n, 23 Ark. App. at 83, 751 S.W.2d at 397-98.
We also note that, in arguing that the JPS is not supported by substantial evidence, the Attorney General challenges individual elements of the JPS rather than its effect as a whole. However, if the total effect of a rate order cannot be said to be unjust, unreasonable, unlawful, or discriminatory, judicial inquiry is concluded. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 568, 593 S.W.2d 434, 445 (1980).
The Commission had for its consideration the voluminous prefiled testimony and exhibits which were admitted into evidence at the beginning of the hearing without objection. Throughout Order No. 13, the Commission not only makes numerous fac tual findings but also refers to specific pages in the prefiled testimony of various witnesses in support of ALG’s entitlement to a rate increase and reallocation of its rates among its various classes of customers. It is evident from reading Order No. 13 that the Commission relied on the prefiled testimony to find that the result suggested by the JPS was in the public interest. Furthermore, Staff witness Donna Campbell testified at the hearing specifically in support of the rates included in the JPS. She testified that she addressed cost allocation and rate design in her direct and surrebuttal prefiled testimony and that, in the negotiation of these issues, Staff considered the cost of service, consumer impact, customer impact, and also potential bypass. She testified that the present revenue requirement charged residentials is $143,787,440.00 and that the revenue requirement under the JPS for residentials will be $160,924,311.00, which is an increase of 11.92% and that this increase would have resulted in approximately a $17.1 million increase, but that Staff and ALG settled on a revenue deficiency of approximately $13.5 million with the $4 million differential being made up by an increase for GS-1 and GS-2 customers. She also testified that the revenue requirement for residential customers which is suggested in the JPS is the same figure for that class which was developed in her surrebut-tal testimony and that this figure did not change during negotiations. Attorney General witness Basil Copeland, on being questioned by the Commission, admitted that results, similar to those reached in the JPS, could have been reached by the Commission from the parties’ prefiled testimony.
The evidence on which the Commission relied in finding the rates suggested in the JPS is supported by substantial evidence and that adoption of the JPS is in the public interest is reviewed in detail in Order No. 13, and for this Court to do so also is unnecessary and would unduly lengthen this opinion. Suffice it to say that we have reviewed the evidence and find that Order No. 13 is supported by substantial evidence and is not unjust, arbitrary, unreasonable, unlawful, or discriminatory, and therefore, we affirm.
Affirmed.
Mayfield, J„ concurs.
Bypass occurs when large customers arrange direct access to a pipeline supplier; in addition to diminished contribution to fixed costs, bypass can adversely affect remaining customers by reducing the economies of scale achieved by local distribution companies. Mary Nagelhout, Courts and Commissions, “Antibypass” Discounts: Load Preservation Without Rate Discrimination, PUBLIC UTILITIES FORTNIGHTLY, Feb. 1, 1991 at 45-47. “The bypass of a regulated utility may result in stranded investment, duplicative facilities, and higher rates for remaining customers.” Re Transportation, Bypass and Standby Service in the Natural Gas fndustrv, 84 PUR 4th 646 (Ark. P.S.C. 1987).
Nothing in this opinion, however, should be read to suggest that a settlement, even if it enjoys unanimous consent of the parties, can be approved by the Commission absent an independent finding by the Commission, supported by substantial evidence, in the record, that the settlement resolves the matters in dispute in a way that is fair, just and reasonable, and in the public interest.
LUFG is the difference between the total volume of gas purchased from all sources and the volume delivered and billed to customers. | [
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Judith Rogers, Judge.
The appellant, Benjamin Roark, was found guilty by a jury of possession of a controlled substance (marijuana) with intent to deliver for which he was sentenced to a term of four years in prison with a fine of $10,000. Appellant raises four issues for reversal, contending that: (1) the trial court erred in denying his motion to exclude the testimony of two state witnesses; (2) the trial court erred in denying his motion to suppress; (3) the trial court erred in denying his second motion to suppress; and (4) the trial court erred in failing to conduct hearings on his motion to dismiss for violation of the speedy trial rule and his motion for a continuance. We cannot disagree with the trial court’s rulings on these matters and thus we affirm.
Although appellant does not contest the sufficiency of the evidence to support his conviction, a short recitation of the underlying facts is necessary for an understanding of the issues raised on appeal. On April 8, 1992, law enforcement officers stopped a vehicle driven by Gary Falkenberg. Falkenberg was arrested when a half pound of marijuana was discovered in the vehicle. Falkenberg later identified appellant as his source for obtaining the contraband and he informed the officers that he was to meet appellant later on that day for the purchase of an additional quantity of marijuana. Falkenberg agreed to cooperate with the authorities, and plans were made for the police to monitor Falkenberg’s rendezvous with appellant. After a series of events, the police stopped appellant’s vehicle in which a quarter-pound of marijuana was found. Appellant was subsequently arrested, along with the passenger in appellant’s car, Jon Kevin Lindsey.
As his first issue on appeal, appellant argues that the trial court erred in denying his motion to exclude the testimony of Falkenberg and Lindsey. Relying on the federal decisions of United States v. Cervantes-Pacheco, 800 F.2d 452 (5th Cir. 1986), and United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984), appellant contends that, because these witnesses were afforded leniency, he was denied due process by the State’s use of their testimony. The leniency referred to by appellant was that Falkenberg pled guilty to the offense of possession of a controlled substance for which he was placed on probation and fined, while Lindsey was released without being charged. We find that the cases relied upon by appellant are distinguishable from the present case and that the credibility of these witnesses, who were subject to cross-examination, was for the jury to determine.
Generally speaking, in the decisions cited by appellant, it was deemed a violation of due process for the compensation of an informant-witness to be made contingent upon the success of the prosecution. The courts considered such arrangements as being an inducement to testify falsely and thus an invitation to perjury, thereby depriving the accused of a fundamentally fair trial. By contrast, absent in this case is the contingent nature of the arrangement. No reward was to be forthcoming dependent on the performance of these witnesses or the successful outcome of trial. In this respect, the instant case more closely resembles that of United States v. Dailey, 759 F.2d 192 (1st Cir. 1985), where the court declined to require the exclusion of witnesses whose plea agreements depended upon the value or benefit of the witnesses’ cooperation, but not the success of the prosecution. Although it was recognized that such plea agreements do entail some risk of perjury, the court determined that the risk did not render the witnesses’ testimony inadmissible, and that it was an adequate safeguard for the jury to be fully apprised of the existence of these agreements when performing its function of weighing the credibility of the witnesses.
Similarly, in Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990), the supreme court held that the appellant was not denied due process when the confidential informant was paid a flat fee at the time the drug transaction took place. In so holding, the court stated that it chose to follow the policy articulated in Hoffa v. United States, 385 U.S. 293 (1966), leaving the veracity of witnesses to be tested on cross-examination and the credibility of a witness’s testimony to be judged by a properly informed jury.
As his second point, appellant claims error in the denial of his motion to suppress evidence, the contraband, which was discovered in his vehicle. At the hearing on the motion to suppress, it was disclosed through the testimony of Drew County Sheriff Tommy Free and others that, based on the information provided by Falkenberg, surveillance was set up at appellant’s home and at a church parking lot where the meeting was to take place. Almost at the last moment, officers learned from Falkenberg that appellant had changed the delivery point to some trash dumpsters located on a nearby highway. Appellant was followed as he drove toward the new location, while other officers attempted to reach the area to again set up surveillance. By radio contact, Sheriff Free was advised by another officer that appellant had identified him as being a police officer and Free was asked to stop appellant’s vehicle. Sheriff Free said that he activated the strobe light on the dash and pulled into appellant’s lane of traffic in an attempt to make the stop. Free testified that appellant tried to get around him by pulling into the ditch. Nevertheless, Free was able to block appellant’s vehicle. Sheriff Free also testified, without objection, that another officer observed a marijuana bud lying on the console of appellant’s vehicle. In a subsequent search of the vehicle, officers found a McDonald’s bag which contained marijuana. Lindsey also testified that a bud of marijuana had been placed on the console.
On this point, appellant first argues that there was no justification for the stop of his vehicle. We disagree.
The Fourth Amendment protection against unreasonable searches and seizures extends to persons driving down the street. Consistent, however, with the Fourth Amendment, police may stop persons on the street or in their vehicle in the absence of either a warrant or probable cause under limited circumstances. One of those limited circumstances involves the investigatory stop. Bliss v. State, 33 Ark. App. 121, 802 S.W.2d 479 (1991). Rule 3.1 of the Arkansas Rules of Criminal Procedure permits an officer to stop and detain any person the officer reasonably suspects may be engaged in criminal activity to obtain identification or to determine that the person’s conduct is lawful. Rule 2.1 defines “reasonable suspicion” as a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. One factor that can be considered in determining whether reasonable suspicion exists is the apparent effort of a person to avoid identification or confrontation by the police. Coffman v. State, 26 Ark. App. 45, 759 S.W.2d 573 (1988). Also, reasonable cause can be based on the collective knowledge of the police officers. Haygood v. State, 34 Ark. App. 161, 807 S.W.2d 470 (1991).
In reviewing a trial court’s decision to deny an appellant’s motion to suppress evidence, the appellate court makes an independent determination based on the totality of the circumstances and reverses the decision only if it is clearly against the preponderance of the evidence. Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993).
Here, the officers had learned from Falkenberg that appellant was his supplier of the controlled substance and that another exchange was to occur later in the day. Falkenberg’s reliability was strengthened when he informed the officers that the exchange point had been changed, and his information was corroborated when appellant was observed leaving his home at around the appointed time and when appellant drove in the direction of the newly designated area. The record further reflects that appellant appeared to detect the presence of the police and that he took evasive measures to avoid the stop. Considering the totality of the circumstances, we cannot say that the officers were not justified in reasonably suspecting that appellant was involved in criminal activity, and thus we cannot say that the trial court’s ruling is clearly against the preponderance of the evidence.
Appellant further maintains that the subsequent search of his vehicle and the opening of the sack was unlawful. However, there was testimony that the search took place after a bud of marijuana had been sighted in plain view on the console in appellant’s vehicle, and thus the officers could properly conduct a search to determine whether the vehicle contained other contraband. See Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). And, if the officers had reasonable cause to search the vehicle, they could search every part of it and its contents that could conceal the object of the search. United States v. Ross, 456 U.S. 798 (1982); Haygood v. State, supra, Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641 (1989). In sum, we find no error in the denial of the motion to suppress.
Appellant next argues that the trial court erred in denying his motion to suppress evidence found in Falkenberg’s vehicle and any statements he made to the authorities as the “fruit of the poisonous tree.” In State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992), our supreme court observed that it had repeatedly held that a defendant has no standing to question the search of a vehicle owned by another person. It was on this basis that the trial court denied appellant’s motion. Although appellant recognizes this principle, he maintains that he had standing in that he was the “target” of the Falkenberg search and that he was a co-conspirator of Falkenberg. In essence, he asks us to overrule those cases requiring standing to challenge a search. We simply note that we are without authority to overrule decisions made by the supreme court. Leach v. State, 38 Ark. App. 117, 831 S.W.2d 615 (1992). And, even assuming for the moment that appellant could challenge the search, the record does not disclose any of the particulars surrounding the stop of the Falkenberg vehicle, and thus appellant has failed to show that the stop or the subsequent search, which was said to have been based on consent, was somehow illegal and that suppression was in order.
As his final contention, appellant argues that the trial court erred by not holding hearings on his motion to dismiss based on a speedy trial violation and his motion for a continuance. The record reveals that appellant was arrested on April 8, 1991. Trial was originally scheduled for December 19, 1991. The trial was not held until July 7, 1992, which was ninety days beyond the speedy trial limitation. See Ark. R. Crim. R 28.1(c). The record further reflects that the case was continued on numerous occasions. At each and every juncture, the trial court promptly entered orders continuing matters until a date certain and excluding the intervening period of time. The first such continuance was granted on appellant’s motion which was filed on December 3, 1991. The stated reason for the continuance was lack of preparation for trial, and it was asked that trial be continued until after February 28, 1992. In the motion, it was specifically acknowledged by appellant that any delay would be attributable to the defense. On December 6, 1991, the trial court entered an order granting appellant’s motion and excluding for speedy trial purposes the period of time from Décember 19, 1991 to March 31, 1991, the next available trial date.
The record also reflects further delays while hearings were held on appellant’s motions to suppress and to exclude the testimony of witnesses. Additionally, the record shows that continuances were granted due to illness of appellant’s counsel, counsel’s conflicts with other trials, and counsel’s family vacation.
By order of May 19, 1992, trial was finally set for July 7, 1992. Appellant filed his motion to dismiss on May 22, 1992. The trial court denied the motion on June 26, 1992, by the entry of an order setting out in precise detail the reasons for its decision. On July 1, appellant filed a motion to set aside this order in which a hearing on the motion to dismiss was also requested. The trial court summarily denied this motion the next day.
Under the facts of this case, we find no merit to the argument that the trial court erred by failing to hold a hearing on the motion to dismiss. In the first place, appellant does not complain in this appeal that he was denied a speedy trial. Secondly, the record in this case clearly supports the denial of the motion. With regard to the continuances alone, in commendable fashion the trial judge painstakingly complied with Rule 28.3(c) of the Rules of Criminal Procedure by entering orders continuing the trial to a date certain and providing for the exclusion of that period of time. Although the record reflects that appellant was afforded several continuances, the first such continuance, which we described above, sufficed to bring the trial within the limitations period. In his motion, appellant conceded that the resulting delay would be imputed to him. In making this argument, appellant does not question the order granting that continuance, and he has only vaguely alluded to matters which might have been presented at a hearing. Prejudice is not presumed and we do not reverse absent a showing of prejudice. Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). In light of this record, we cannot conclude that the trial court erred by not conducting a hearing.
With regard to the motion for continuance, this motion was filed six days before trial. Appellant maintained that a continuance was necessary in that the trial court had just denied several of his pre-trial motions and thus more time was needed to prepare for trial. The trial court denied the motion after noting that trial had been continued on several occasions and that appellant had been made fully aware of the evidence to be offered against him as disclosed during the various hearings which were held on appellant’s other motions. From our review of the record, we can discern no prejudice resulting from the denial of this motion; the record contains nothing to suggest any lack of preparation for trial. It is well settled that a motion for a continuance is addressed to the sound discretion of the trial judge, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993). We find no abuse of discretion here, and again, appellant has failed to demonstrate how he might have benefitted from a hearing on this matter.
Affirmed.
Pittman and Cooper, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Chemical Methods Leasco, Inc., appeals the dismissal of its petition to register a foreign judgment. Appellant, a California corporation, obtained a default judgment against appellees, Judith Ellison and Jessie Rowe, residents of Arkansas, in the Municipal Court of West Orange County, California. Appellant thereafter sought registration of the judgment in the Garland County Circuit Court. Appellees objected to registration on the ground that the California Court lacked personal jurisdiction over them. After a hearing, the trial court agreed with appellees’ position, and dismissed the petition. This appeal followed.
On appeal, appellant contends that the trial court erred in not affording the California judgment full faith and credit. We disagree and affirm.
The record discloses that the parties entered into a lease agreement in 1987, whereby appellees leased a commercial dishwasher for use in their restaurant. As pertinent here, the agreement provided that the lease would not be effective until countersigned by the authorized Leasco signatory, and that it would be governed by the laws of California. The lease did not contain a forum selection clause. Apparently, appellees defaulted in their payments after which appellant obtained the judgment in California for the principal sum of $4,208.79.
The Uniform Enforcement of Foreign Judgments Act, found at Ark. Code Ann. § 16-66-602 to -608 (Supp. 1991), provides a summary procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found, thereby enabling the judgment creditor to obtain relief in an expeditious manner. Butler Fence Co. v. Acme Fence & Iron, 42 Ark. App. 30, 852 S.W.2d 826 (1993). The Uniform Act requires only that the foreign judgment be regular on its face and duly authenticated to be subject to registration. Strick Lease, Inc. v. Juels, 30 Ark. App. 15, 780 S.W.2d 594 (1989). Under the Full Faith and Credit Clause of the United States Constitution, art. IV, § 1, a foreign judgment is as conclusive on collateral attack as a domestic judgment would be, except for the defenses of fraud in the procurement or want of jurisdiction in the rendering court. McDermott v. Great Plains Equipment Leasing Corp., 40 Ark. App. 8, 839 S.W.2d 547 (1992). These judgments are presumed valid; an answer asserting lack of jurisdiction is not evidence of the fact and the burden of proving it is on the one attacking the foreign judgment. Butler Fence Co. v. Acme Fence & Iron Co., supra.
California Code of Civil Procedure A. § 410.10 (1991) provides that “[a] court of [California] may exercise jurisdiction on any basis not inconsistent with the Constitution of [California] or of the United States.” In order for a valid judgment to be rendered against a non-resident not served within the forum state, due process requires that certain minimum contacts exist between the non-resident and the state, such that the maintenance of the suit does not offend traditional notions of fair play and-substantial justice. Akin v. First National Bank of Conway, 25 Ark. App. 341, 758 S.W.2d 14 (1988), citing Interna tional Shoe Co. v. Washington, 326 U.S. 310 (1945). For the exercise of jurisdiction to be proper, the contacts with the forum state must be such that the non-resident defendants should reasonably anticipate being “haled” into the foreign court. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). A single contract can provide the basis for the exercise of jurisdiction over a non-resident defendant, if there is a substantial connection between the contract and the forum state. McGee v. International Life Insurance Co., 355 U.S. 220 (1957). However, whether the “minimum contacts” requirement has been satisfied is a question of fact, which is to be decided on a case-by-case basis. Moran v. Bombardier Credit, Inc., 39 Ark. App. 122, 839 S.W.2d 538 (1992); Meachum v. Worthen Bank & Trust Co., 13 Ark. App. 229, 682 S.W.2d 763 (1985). There is no exact formula for what is reasonable and fair under the circumstances. Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 655 S.W.2d 468 (1983).
In her testimony, appellee Judith Ellison related the circumstances surrounding the lease of the dishwasher. She said that the dishwasher which was first used in the restaurant did not work properly, and that the salesperson for Sysco Food Services in Little Rock, which supplied food for the restaurant, suggested that “they” could lease a dishwasher to them. She testified that all conversations about leasing the equipment took place in the restaurant with the salesperson from Sysco, and that she never communicated with anyone from California. She said that the lease was signed in the restaurant. Ms. Ellison further testified that she gave the downpayment of $247 to the salesperson, but that she mailed thirteen payments to appellant at a California address. She stated that she was not told that the lease had to be approved by appellant, and she did not recall the provision in the agreement stating that the lease would not become effective until counter-signed by a Leasco signatory. When cross-examined on that point, she related that “we went through Sysco,” and she said that they bought chemical products from Sysco “to keep the dishwasher going.”
Appellee Jessie Rowe gave similar testimony as that of Ms. Ellison. She also maintained that she had no communications with anyone about the dishwasher outside of Garland County. Ms. Rowe added that the dishwasher was delivered by the sales person from Sysco and that the salesperson was required to fix it because it did not work.
In the case at bar, it is clear that the appellees had no direct communications with anyone from appellant-corporation in California. Instead, appellees dealt solely with a person from a concern out of Little Rock, and it was this person who presented them with the lease, which they signed in their local restaurant. Although the lease did require the counter-signature of someone from the appellant-corporation, and payments were forwarded to appellant in California, we cannot disagree with the trial court’s conclusion that the appellees could not have reasonably anticipated being subjected to a lawsuit in California on the basis of those contacts alone. Nor do we believe that the provision stating that California law would govern mandates a contrary conclusion when the circumstances surrounding the transaction are considered as a whole. We hold that, under these facts, the appellees’ contacts with California were of insufficient quantity and quality to satisfy the requirements of due process. Accordingly, we affirm the trial court’s dismissal of the petition.
The dissent would reverse this case on the basis of our decision in Meachum v. Worthen Bank & Trust Co., supra. There, we upheld the trial court’s exercise of personal jurisdiction over a non-resident defendant under our long-arm statute, based on entirely different circumstances than those present here. In Meachum, the non-resident defendant had guaranteed a debt in Arkansas and had sent his financial statement in support of the guaranty to the Arkansas lender. Further, the non-resident defendant was heavily involved with the corporation which had not only transacted business with the Arkansas debtor-corporation, but which was also responsible for the formation of the Arkansas corporation. The non-resident defendant had even personally drafted the Arkansas corporation’s articles of incorporation and had mailed them to Arkansas for filing. Under those circumstances, we concluded that the non-resident defendant had “transacted business” in the State of Arkansas, that the contract he was a party to had a substantial connection with the State of Arkansas and that the non-resident defendant could have reasonably anticipated being haled into the courts of Arkansas in light of those contacts with this State. In Meachum, we also recognized that cases of this kind are dependent on their own facts and that each case is to be decided on a case-by-case basis. The facts in this case are distinguishable from those in Meachum, and we are of the view that the decision in that case and its rationale, while illustrative, do not warrant the reversal of the case at hand.
Affirmed.
Pittman, J., concurs.
Mayfield, J., dissents.
Although appellees both testified that they were served with notice of the California lawsuit and that they forwarded some sort of response to the California court, the judgment recites that a default judgment was rendered, stating that the appellees "failed to appear and answer the complaint of Plaintiff within the time allowed by law." | [
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Paul Ward, Associate Justice.
Appellant, Clarence Stewart, Jr., was charged with the crime of murder in the first degree in the perpetration of burglary against William N. Caldwell on January 8, 1959. He was tried in Pulaski County, found guilty as charged, and sentenced to die by electrocution. On appeal to this Court the judgment was affirmed on April 17, 1961. See Stewart v. State, 233 Ark. 458, 345 S. W. 2d 472. Certiorari to the United States Supreme Court was denied on December 4, 1961. See Stewart v. State of Arkansas, 368 U. S. 935, 82 S. Ct. 371, 7 L. Ed. 2d 197. Following that, appellant, on February 5,1962, filed a petition in the United States District Court for the Eastern District of Arkansas, Western Division, for a writ of habeas corpus. On the same date an order was issued by that court to the Superintendent of the Arkansas State Penitentiary requiring him to show cause why the writ should not be granted.
The ensuing trial resultéd in the decision found in Clarence Stewart, Jr. v. Lee Henslee, Superintendent of Arkansas State Penitentiary, (decided June 12, 1962) 206 F. Supp. 137. In that opinion the court, after noting that the question of petitioner’s guilt was not an issue, said:
“We come, then to the question of whether members of petitioner’s race were deliberately and intentionally limited in the selection of petit jury panels.” [Meaning, of course, in the state court.]
The District Court then proceeded to compare nine separate sets of facts and circumstances to the same number of somewhat similar sets of facts set forth in the case of Luther Bailey v. Lee Henslee, Superintendent of the Arkansas State Penitentiary, 287 F. 2d 936. The Judge then concluded:
“I have come reluctantly to the conclusion, however, that the differences between this record and Bailey are not sufficient to avoid the same result reached in Bailey, that is, a determination that the procedure followed in Stewart’s trial in the method of jury selection does not measure up to the standards of the equal protection clause of the Fourteenth Amendment as interpreted by the United States Supreme Court.”
The above decision was appealed by Henslee to the United States Court of Appeals, Eighth Circuit, where it was affirmed on January 11, 1963. See: Lee Henslee, Superintendent of Arkansas State Penitentiary v. Clarence Stewart, Jr., 311 F. 2d 691 (1963). In affirming the District Court the Circuit Court of Appeals, in substance, found:
(a). There are four instances tending to show discrimination in this case and in the Bailey case. These are:
1. Absence of Negro names from the panel of alternates from 1952 to 1960.
2. During said period there were never more than 3 Negro names on any regular panel of 24.
3. Repetition of Negro names on the panels from 1953 to 1960.
4. Race identification on poll list from which jurors were selected.
(b). There are also four instances which indicate less discrimination in this case than was shown in the Bailey case. These related to the following:
1. Here there were 3 Negro names on the special panel of jurors.
2. Here there was no proof of discrimination in the Second and Third Divisions which try only civil cases.
3. Here there Avas no apparent partiality shoAAm in the composition of the special panel.
4. Here there Avas more helpful testimony from tAvo jury commissioners.
The Court then concluded (as in the Bailey case):
“ ‘The foregoing facts, taken in the aggregate, lead us to the conclusion that a prima facie case of limitation of members of the Negro race in the selection of this defendant’s petit jury panel was established, [and] that the State did not rebut it * * V ”
The Court then gave the State of Arkansas 120 days (Avitk the right to apply for additional time) to retry appellant.
In due time a trial was had in the Pulaski County Circuit Court, First Division, appellant Avas again found guilty, and again sentenced to die by electrocution.
On this the second appeal to this Court the sufficiency of the evidence is not questioned, so Ave proceed first to discuss the three principal points raised by appellant— One. Discrimination in selection of the jury; Two. Discrimination in selecting the jury commissioners; and/ Three. The Confession.
One. It is here once more insisted by appellant that “Members of petitioner’s race were intentionally, deliberately, and systematically limited in the selection of petit jury panels”. We have purposely set out in some detail the'method by which the Federal District and Circuit Courts concluded, by comparison with the Bailey case, that in the first trial there was evidence of discrimination to the extent that appellant was denied his rights under the Fourteenth Amendment to the United States Constitution. It is of course understandable why the District and Circuit Courts did not attempt to lay down any single, simple rule to guide us here. We • recognize, as did they, that the problem does not lend itself to a solution of this type. The result is that we are left to. consider the facts “taken in the aggregate’’’ and decide whether the Negro race has been discriminated against in the selection of the jury in this particular case. It is our conclusion that no such discrimination is revealed by the record before us.
The only testimony touching the question of discrimination was given by two jury commissioners who selected the names placed on the jury panel. Under oath they stated that race had nothing to do with selecting the jurors. In the absence of any attack on their credibility, we feel that we must take the position that they told the truth. It is in order then to examine the record to see if it contains any facts or circumstances which indicate the testimony of the jury commissioners should be discredited. Several such facts and circumstances were relied on in the Stewart opinion [311 F. 2d 691] and by appellant here to indicate discrimination.
We now examine some of them, for possible bearing on this case.
(a) From 1952 to 1960 there were no Negroes’ names on the alternate panels and only three names (at any one time) on the regular panel. It is our opinion that any implication or prejudice or discrimination dedueible from the above facts is overcome by the fact that here eleven Negroes were chosen. Otherwise it is hard to see how the implication can ever be overcome.
(b) Here, as in the first Steivart case, the poll tax books indicated race, but here the undisputed testimony shows race designation was not used for the purpose of discrimination, and the number of Negroes selected supports that testimony.
(c) It is argued by appellant that the jury commissioners made no.effort to acquaint themselves with members of the Negro race, which fact tends to indicate discrimination. Here, the jury commissioners said they knew “a large number of Negroes”. This, in our opinion, is sufficient to dispel any implication of discrimination.
(d) Although it was said in the Bailey case, supra, that proportional race representation on juries was not required, appellant argues that systematic and continued selection of less than a proportionate representation of the Negro race shows discrimination. The implication being, of course, that such discrimination has been shown in this case. We do not agree. Any such implication based on past history is overcome by the undisputed testimony here—that is, the Negro race was proportionally represented. Even though such representation is not required, it does show the Negro race was not discriminated against in this case.
The burden was on appellant to prove discrimination in selecting the jury. See Torrance v. Florida, 188 U. S. 519, 23 S. Ct. 402, 47 L. Ed. 572, and Akins v. Texas, 325 U. S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692. In view of all we have heretofore said we hold appellant has not discharged that burden in this case.
Tioo. We see no merit in appellant’s contention that his rights under the Fourteenth Amendment to the United States Constitution have been denied in that Negroes have been excluded from being jury conunis sioners for the past fifty years. The question presented here is whether the jury panels, and not the jury commissioners, have been properly chosen. We are unwilling to accept the fatalistic concept urged by appellant which leaves no room for change and improvement. If the present is wholly dependent on the past, then there is no hope for the future. In the case of Moore v. Henslee, 276 F. 2d 876, this contention was fully and ably explored and found to be without merit—the Court saying it was not supported by either “precedent or logic”.
Three. It is here contended appellant’s confession was made without benefit of counsel and that it was coerced and involuntary. We are likewise unable to see any merit in this contention under the undisputed testimony. Appellant’s confession was not made in open court, but was made to police officers soon after the crime was committed. The appropriate statute in this situation is Ark. Stat. Ann. § 43-2115 (1947), which reads:
“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.”
In Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, the above section was interpreted to mean an extrajudicial-confession of the defendant must be corroborated by proof of the corpus delicti. In Mouser v. State, 215 Ark. 131, 219 S. W. 2d 611, we held that a confession obtained outside of court along with further proof that the crime was actually committed will sustain a conviction. In the case before us there is abundant and uncontradicted proof to corroborate appellant’s confession of guilt. Appellant admitted possession of the knife which was found at the body of the victim, and he led the officers to the areas where they found numerous articles, located at different places, which wore taken from the victim. See: Boone v. State, 230 Ark. 821, 327 S. W. 2d 87, and Hargett v. State, 235 Ark. 189, 357 S. W. 2d 533.
The record, likewise, does not support appellant’s contention “that his alleged confession was coerced and involuntary. ...” There is no testimony that appellant was in any way abused or threatened. On the other hand, the officers positively stated no force or threats were used. It further appears that the prosecuting attorney advised appellant that what he said might be used against him, and also advised him of his rights to refuse to talk and to be represented by counsel.
Other Points Raised. In addition to the principal points relied on by appellant, other points and issues were raised in the motion for a new trial and discussed in the brief. We have carefully considered each and every one of the points and issues and find no reversible error in any of them. We deem it sufficient to make brief mention of some of them.
Appellant asked for a continuance because of lack of time to prepare for trial. On the showing made, we think the trial court was justified in refusing the continuance on the ground that the evidence would be similar to that of the former trial, that one defense attorney was in both trials, that the time allowed for trial was limited, and that appellant had been in the State Hospital thirty days (for observation) during which time his attorneys could have conferred with him. .We have consistently held that the matter of granting or denying a continuance in criminal cases rests in the sound discretion of the trial court. Thompson v. State, 26 Ark. 323; Jackson v. State, 54 Ark. 243, 15 S. W. 607; Sullivan v. State, 109 Ark. 407, 160 S. W. 239; and Leach v. State, 229 Ark. 802, 318 S. W. 2d 617.
We find no error in the trial court’s permitting the introduction of certain photographs since the court explained they were introduced only to show the surroundings of the scene of the murder. This, also, was a matter resting in the sound discretion of the court. Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17.
A police officer was permitted to state that a stain on the victim’s coat appeared to be blood, and the admittance of this testimony is assigned as reversible error. We do not agree, even though the witness was not an expert on such matters. See Richardson and Shoop v. State, 221 Ark. 567, 254 S. W. 2d 448.
Finding no reversible error, we conclude the judgment of the trial 'court should be, and it is hereby, affirmed.
Affirmed.
Holt, J., not participating. | [
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Carleton Harris, Chief Justice.
This litigation involves a further interpretation of certain provisions of the will of William Bowlin. Item Six of that will was construed in the case of Rowlin v. Vinsant, 186 Ark. 740, 55 S. W. 2d 927. Bowlin died testate in 1916. He was survived by his widow, Julia Bowlin, and five living children, vis, Noble Bowlin, Lizzie Lowery, Lillie Brownfield, Gertrude Vinsant, and John Bowlin; also, there were five grandchildren, the children of a daughter, Rebecca Clark, who predeceased her father. Appellees are the children of Paul Bowlin, deceased, Paul having been a son of John Bowlin, and accordingly a grandson of William Bowlin. In addition to Paul Bowlin, father of appellees, John Bowlin was survived by five other children, Marcus Bowlin, Othel Bowlin, Lillie Lewis, Maude Campbell and Virgie May Ray. Under Item Three of the will, Virgie May Ray and Lillie Bowlin Lewis were bequeathed the sum of $10.00 each, and their names do not otherwise appear in the will.
In 1916, Marcus Bowlin, Othel Bowlin, Maude Campbell, and Paul Bowlin (father of appellees) conveyed, by quitclaim deed, to their sister, Lillie Lewis, the lands involved in this appeal. In January, 1960, Lillie Lewi§ died intestate, leaving as her sole and only heir at law, Carl Lewis, appellant herein. Lillie and appellant had been in possession of the lands from the time of the conveyance (1916) to Lillie from her brothers and sister.
In May, 1962, appellees filed a complaint, alleging that they were part owners of the lands in question, and they sought their proportionate share of the rents for 1959, 1960 and 1961. After the overruling of a demurrer, an answer was filed wherein it was asserted that Carl Lewis was the owner of the lands by virtue of being the sole heir of Lillie Lewis, Lillie having obtained her title to the property by virtue of the quitclaim deed heretofore mentioned, and one of the grantors of that deed having been Paul Bowlin, father of appellees. The cause was tried by the court, sitting as a jury. After certain stipulations in open court, and the taking of oral testimony, the court held that under the provisions of the will of William Bowlin, appellees are the owners of 7/32 interest, or a 1/32 interest each, and judgment was entered for appellees in the sum of $122.40 each, or a total judgment of $856.80, together with interest from date, at the rate of 6% per annum. Prom the judgment so entered, appellant brings this appeal.
Bowlin v. Vinsant, supra, involved the construction of Item Six of the will of William Bowlin. The language at issue was as follows:
“I also further give and devise unto my said wife, Julia, for and during her natural life, the use, occupancy of my dwelling house and premises now occupied by us as a dwelling and home in Van Burén, Arkansas, with the lots and land enclosed and adjoining thereto, and at her death or should my wife not survive me, I give and bequeath the said personal property herein set forth or so much as may be undisposed of by my said wife, not in any manner intending to limit my wife in the disposition of said personal property, unto my daughter Gertrude Vinsant, and I give and devise the said dwelling house and premises devised unto my wife during her life, at her death or should my said wife not survive me, unto my daughter, Gertrude Vinsant and unto the heirs of her body.”
This court held that this language created a life estate in the wife, Julia, but that the daughter, Gertrude Vinsant, took the fee. Cited as authority for the holding was the case of Pletner v. Southern Lumber Company, 173 Ark. 277, 292 S. W. 370. To the same effect was the holding in Bell v. Gentry, 141 Ark. 484, 218 S. W. 194.
In the instant litigation, a certain provision of Item Nine of the will is at issue. This provision reads as follows: “I give and devise unto my grandchildren, children of John Bowlin, viz: Marcus L. Bowlin, Paul C. Bowlin, Othel Bowlin and Maude E. Campbell and unto the heirs of their bodies, the one seventh part or share of said real estate or the one twenty-eighth part or share each. ’ ’
The trial court, in effect, held that this language devised only a life estate to the named grandchildren of William Bowlin with the fee in “the heirs of their bodies,” some of these heirs being appellees herein. In other words, the dispute in this case relates to the interest acquired by Marcus L. Bowlin, Paul C. Bowlin, Othel Bowlin and Maude E. Campbell, grandchildren of William Bowlin. If the quoted language in Item Nine devised the fee to these grandchildren, then appellant should prevail, for his mother received a quitclaim deed' from these parties in 1916. If, on the other hand, the language only created a life estate in these grandchildren, then appellees, children of Paul Bowlin, are entitled to the interest contended for. The trial court held with appellees, and we think, unquestionably, held cor rectly. This holding was in accord with a line of cases following Horsley v. Hilburn, 44 Ark. 458, and is also in accord with our statute, Ark. Stat. Ann. § 50-405 (1947), which reads as follows:
“In cases when by common law any person may hereafter become seized in fee tail of any lands or tenements, by virtue of any devise, gift, grant or other conveyance, such person, instead of being or becoming seized thereof in fee tail, shall be adjudged to be and become seized thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law by virtue of such devise, gift, grant or conveyance.”
An interesting article, Branch, ‘ ‘ The Effect of Stare Decisis Upon Fee Tail in Arkansas,” is found in Volume 10, Arkansas Law Review (1955-56), Page 181. The article quotes Richard R. Powell, at that time Professor of Law at Columbia University, and Reporter on Property for the American Law Institute as follows:
“ ‘Arkansas, by decision, has injected a peculiar distinction between limitations “to B and the heirs of his body” (which are construed to be governed by the stat ute) and limitations to B for life, remainder to C and the heirs of his body.” In the latter situation the statute is not applied, and if C is alive at B’s death, C gets an estate in fee simple absolute, but if C is then dead, C’s descendants get the estate in fee simple absolute.’ ”
Professor Powell then criticizes the distinction made by the court between the two types of devises, and, in fact, several learned writers have questioned the soundness of the rule established in the Bell, Pletner and Bowlin cases. In Eubanks v. McDonald, 225 Ark. 470, 283 S. W. 2d 166, this court pointed out that to repudiate the rule by judicial decision would result in the invalidation of titles that had been acquired in reliance upon the rule in question.
Appellant recognizes the distinction between the two lines of cases, but argues that the will should be construed from its “four corners” in determining the intention of the testator, and that under such construction, he is due to prevail. In Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, we said, “The first and great rule in the exposition of wills (to which all other rules must bend) is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of la/io.” The italicized phrase precludes any speculation as to the intentions of William Bowlin, for we have several times stated the legal effect of the language employed.
In Crittenden v. Lytle, 221 Ark. 302, 253 S. W. 2d 361, this court said:
‘ ‘ Certainly there is nothing in the will which' indicates Mrs. Wilson did not understand the meaning of the words she used, and we must therefore presume that she did. In the early case of Moody v. Walker, 3 Ark. 147, this court said:
“ ‘When technical phrases or terms of art are used, it is fair to presume that the testator understood their meaning, and that they expressed the intention of his will, according to their import and signification. When certain terms or words have by repeated adjudication received a precise, definite and legal construction, if the testator in making his will use such terms or similar expressions, they shall be construed according to their legal effect . . .’ ”
Likewise, in Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546, we said:
“The function of a court in dealing with a will is purely judicial; and its sole duty and its only power in the premises is to construe and enforce the will, not to make for the testator another will which might appear to the court more equitable dr more in accordance with what the court might believe to have been the testator’s unexpressed intentions. ‘The appellants are correct in the statement that the purpose of construction is .to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed by the language of the will.’ ”
See also Howell v. Henry, 235 Ark. 1, 356 S. W. 2d 747.
Under our statute, heretofore quoted, and the numerous decisions of this court, a devise “unto A and unto the heirs of his body” would create a life estate in A and an estate in fee simple absolute in A’s bodily heirs. Here, the pertinent clause in Item Nine of the will created only a life estate in Marcus L. Bowlin, Paul C. Bowlin, Othel Bowlin and Maude E. Campbell, and their heirs, including appellees, took the fee.
Affirmed.
It was subsequently stipulated that Marcus Bowlin, Othel Bowlin, and Paul Bowlin are deceased.
See Bradley Lumber Co. of Ark. v. Burbridge, 213 Ark. 165, 210 S. W. 2d 284, and cases cited therein.
From the article: “In order to reduce these situations to a simple form, consider the following: ‘To A for life with remainder to B and the heirs of her body.’ This would certainly create a life estate in A, but there must be another estate in someone else in order to add up to fee simple absolute. There is, hy the will, a devise of the remainder to B and the heirs of her body. At common law a devise or conveyance to a person and the heirs of that person’s body created an estate in fee tail. This is a devise to a person and the heirs of that person’s body. By statute in Arkansas this would create a life estate in B and an estate in fee simple absolute in the bodily heirs of B.
“The above situation is the one with which the court was faced in the Pletner case. The court said that it is a well-established rule that a conveyance or devise to a person and the heirs of the body of such person creates an estate tail in the grantee or devisee, which, by statute, becomes an estate for life in the grantee or devisee and a fee simple absolute in the person to whom the estate tail would first pass by common law, citing Horsly v. Hilburn. But the court said this doctrine could not be applied since the estate is not devised to B and her bodily heirs, creating a life estate in B and fee simple absolute in her bodily heirs, but the life estate is given to A and the remainder to B and her bodily heirs.”
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Sam Bobinson, Associate Justice.
Appellant, J. N. McMurtry, a meat cutter, went to work for appellee, Marshall Model Market No. 48, on a trial basis. He was to work two weeks at a salary of $80.00 per week, and if at the expiration of that time his services were satisfactory to the appellee, and appellant wanted to continue on the job, the salary would be raised to $85.00 per week.
On Saturday, April 28, 1962, the last day of the two week period, appellant lifted a box containing about two dozen frying size chickens. He states that at that time he suffered a burning pain in his stomach, but that it never occurred to him that he was injured. He rubbed his side for a few minutes; the pain went away; he never gave it any more thought, and continued to work for about three hours, until closing time. He stated there was no bulge in his side and that he did not mention the incident to anyone. He further testified that the next day, Sunday, he just stayed around the house; when he would get up his side would hurt.
On Monday morning he did not return to work for appellee, but went to work for Mr. Blagg, who operates the Quality Meat House. He did, however, call appellee aud offer to go out and help that morning if he was needed. Mr. Marshall said that it was not necessary, that he had someone else coming. Appellant said nothing to appellee at that time about having received an injury.
Later in the day, at Mr. Blagg’s place of business, appellant attempted to lift a quarter of beef weighing between 100 and 120 pounds and felt a sharp pain in his side. He told Mr. Blagg about it and called his doctor; however, he could not get an appointment with the doctor until the following Thursday. When he did see the doctor the diagnosis was hernia. After the visit to the doctor’s office on Thursday, McMurtry went to Marshall’s place of business and claimed that he had been injured on the preceding Saturday afternoon while lifting the box of chickens.
Later appellant filed a claim with the Workmen’s Compensation Commission contending that he had received the rupture Saturday afternoon, April 28, 1962, while working for appellee. After a full hearing, the Commission denied compensation and McMurtry has appealed.
The Compensation Commission denied compensation on'tvio grounds. First, “The Commission is of the opinion that claimant has not sustained the burden of proof that-is upon him to establish that he was, in fact, injured while working fdr respondent employer.”
The Commission was also of the opinion that the claimant did not comply with the requirements of the statute regarding claims for disability due to hernia. The statute provides: “In all cases of claims for hernia it shall be shown to the satisfaction of the Commission: (1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall; (2) That there was severe pain in the hernial region; (3) That such pain caused the employee to cease work immediately; (4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter; (5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight (48) hours after such occurrence; . . .”.
According to the undisputed evidence, two of the requirements were not met. First, there was not such pain that caused the employee to cease work immediately. He continued to work for three hours—to the end of the working day. Second, notice was not given to the employer within forty-eight hours after the injury is alleged to have occurred. Of course, an employee might receive an injury causing a hernia and not actually know that he had received the hernia until more than 48 hours after having been injured. In this kind of situation, although he might be required to report the injury, he would not be required to report the hernia within the 48 hour period. Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929; Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380.
But since the Commission found as a fact that the appellant failed to prove by a preponderance of the evidence that he received any injury at all while working for Marshall, we need not dispose of the case on the question of whether appellant met the requirements of the statute regarding a claim for compensation due to hernia.
The only evidence that he received an injury while working for Marshall is the testimony of appellant himself. There is no corroborating testimony, direct or circumstantial. Since he is a party, the Commission is not bound to accept his uncorroborated testimony. Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316; Horn v. Horn, 232 Ark. 723, 339 S. W. 2d 852. Appellant appeared before the Compensation Commission and testified on direct and cross examination; the Commission had an opportunity to observe him and his demeanor. In addition, there is circumstantial evidence that goes to the merits of the case. In the first place, although appellant claims that he received an injury that caused a rupture on Saturday afternoon, three hours before closing time, he said not a word about it to anyone, made no complaint about suffering any pain, and finished out the days work. Furthermore, he called appellee the following Monday and offered to go out and help if he was needed. At that time he said nothing about having been injured, and, in fact, went to work at another place still claiming no injury until such time that he attempted to lift the heavy quarter of beef at Mr. Blagg’s place. Mr. Blagg had no workmen’s compensation insurance and appellee does have it.
We cannot say that the Commission’s finding is not supported by substantial evidence, and according to many decisions of this court, the judgment will, therefore, be affirmed. | [
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Frank Holt, Associate Justice.
The question presented in this case relates to the priorities of various liens. The appellant, United States of America, and the appellees, hereinafter named, were made defendants in a foreclosure proceeding whereupon each of them filed cross-complaints to enforce their claims as lienholders. Upon the foreclosure sale, after payment of costs and the indebtedness to the plaintiff-mortgagee, Frank E. McGehee and The First Pyramid Life Ins. Co. of America, there remained a surplus of $9,119.10 which was insufficient for the payment of all the competing liens. The Chancellor found and awarded priority and payment of the liens among the appellees and appellant as indicated by us in words and figures as follows:
Nature Date Date of Amount Amount Claimant_of Claim Assessed Priority of Claim of Award
Shelton Material & 8/25/60 $1,839.85 $1,839.85 _labor lien_(Date furnished)_
Houston Labor lien 3/10/61 218.03 218.03 _(Date performed)_
United States Tax lien 11/16/60 5/3/61 1,499.99 1,499.99 _# 10,744_(Date filed)_
Roberts Material & 6/19/61 755.54 755.54 _labor
Gibson Mortgage 6/21/61 9,293.33 3,911.56 _(Date recorded)___
State of Ark. Tax lien 6/23/61 885.97 885.97 _(Date filed)_
United States Tax lien 5/26/61 8/9/61 2,324.28 8.36 _# 11,824_(Date filed)_
United States Tax lien 10/25/62 10/25/62 1,296.42 # 62-10-137 (Stipulation)
Only the United States of America appeals from this decree. Appellant’s first contention for reversal is that its three tax liens are superior to the three state created material or labor liens (Shelton, Houston and Roberts) because they had not been reduced to a sum certain or judgment and, therefore, were not choate before the federal tax liens arose.
A federal lien is created by 26 U.S.C.A. § 6321. A federal tax lien arises “at the time the assessment is made”. 26 U.S.C.A. ^ 6322. As to when a state created lien arises, Ark. Stat. Ann. § 51-601 (1947) et seq, provides that upon the date of supplying material or labor one shall have a lien therefor; also, that an account of the amount due must be filed with the Circuit Clerk within ninety days; that an action for judgment must be commenced within fifteen months from the filing of the account and then the Circuit Court, upon a fair trial, must ascertain the amount of the indebtedness and render a judgment thereon.
The federal rule is that liens are choate when [1] the identity of the lienor, [2] the property subject to the lien, and [3] the amount of the lien are established. United States v. New Britain, 347 U.S. 81. Under Arkansas law the general rule is well settled that a materialman’s or laborer’s lien attaches as of the date of furnishing material or performing labor and, thus, is in effect before being reduced to a judgmeht. Ark. Stat. Ann. § 51-601, et seq, supra; Franks v. Wood, 217 Ark. 10, 228 S. W. 2d 480. It is, therefore, appellees’ contention that their liens take priority where they furnished material and labor before appellant filed its tax liens.
The collection of debts owing to the United States is a federal question and it is a matter of federal law when a state created lien has acquired sufficient substance and become so perfected as to defeat a federal tax lien. United States v. Security Trust & Savings Bank, 340 U. S. 47; Aquilino v. United States, 363 U. S. 509. The reasoning is that this is necessary in order to achieve uniformity in the treatment of federal tax. liens in relation to liens created by state law. As was stated in United States v. New Britain, supra:
‘ ‘ * * * Otherwise, a State could affect the standing of federal liens, contrary to the established doctrine, simply by causing an inchoate lien to attach at some arbitrary time even before the amount of the tax, assessment, etc., is determined.”
In the recent case of United States v. Pioneer Ins. Co., 235 Ark. 267, 357 S. W. 2d 653, we held that the mortgagee’s lien for an attorney’s fee, provided for in the mortgage, was choate when the federal tax liens were filed after the mortgage was recorded, the mortgagor had defaulted, the foreclosure suit was instituted, and the property sold. However, these tax liens were filed before a judicial determination of the amount of a reasonable attorney’s fee. On appeal, in United States v. Pioneer Ins. Co., 374 U.S. 84 (1963), the United States Supreme Court, in reversing our decision, said:
“Clearly the identity of the lien holder and the property subject to the lien are definite here, but it is equally apparent that the amount of the lien for attorney’s fees was undetermined and indefinite when the federal tax liens in question were filed. * * * the ‘reasonable attorney’s fee’—reasonable in relation to the service to be performed by the attorney—had not been reduced to a liquidated amount. The final amount was to be established by court decree and the Chancery Court set the fee considerably below the sum requested. * >:s * when a mortgagee has a lien for an attorney’s fee which is uncertain in amount and yet to be incurred and paid, such a lien is inchoate and is subordinate to the intervening federal tax lien filed before the mortgagee’s lieu for attorney’s fee matures.”
This case follows the rule enunciated in earlier decisions relative to when a state created lien is choate or inchoate when competing with a federal lien. See, also, W. T. Jones & Co. v. Foodco Realty, Inc., 318 F. 2d 881 (C. A. 4th Circuit, 1963).
In the case at bar two of the tests of choatcness have been fulfilled, namely, the identity of the lienors and the property subject to the liens. The third test, however, has not been fulfilled because the amounts of the material and labor liens have not been determined with sufficient certainty.- It is true that an amount for each lien was furnished when the accounts were filed, but Ark. Stat. Ann. § 51-621 provides that the amount of the lien is subject to a future judicial determination. See, also, United States v. Colotta, 350 U.S. 808; United States v. White Bear Brewing Co., 350 U. S. 1010; United States v. Vorreiter, 355 U. S. 15; United States v. Hulley, 358 U. S. 66. Therefore, we must hold that neither of the three federal tax liens can be subordinated to any of the material and labor liens since none of the latter wore choate by being reduced to a judgment or definitely established in amount at the time of the assessment of the federal liens. The status of these state created liens, before being reduced to a liquidated amount, serves “merely as a caveat of a more perfect lien to come”. New York v. Maclay, 288 U. S. 290.
The appellant also contends for reversal that the Chancellor erred in granting the state tax lien priority over federal tax lien No. 11,824 which arose before the state tax had been assessed. It is appellant’s contention that the Chancellor was in error in according to the state tax lien the status of a judgment-creditor under 26 U.S.C.A. § 6323 (a) and, therefore, priority over federal tax lien # 11,824. This federal tax lien was assessed on May 26, 1961 and filed on August 9, 1961. The state tax lien was assessed on June 23, 1961 pursuant to Ark. Stat. Ann. § 84-1912 (Repl. 1960) which provides that a certificate of indebtedness filed by the Commissioner of Revenue with the Circuit Clerk, when entered on the judgment docket of the Circuit Court, has “the same force and effect as an entry on such judgment docket of a judgment rendered by the Circuit Court”.
It is well settled that a state may make whatever provisions it desires for the internal administration of its own tax laws. United States v. Waddill Co., 323 U. S. 353. However, as stated previously, the interpretation of federal statutes is a federal question. United States v. Security Trust & Savings Bank, supra; United States v. Acri, 348 U.S. 211.
In United States v. Gilbert Associates, 345 U.S. 361, the town of Walpole, New Hampshire assessed an ad valorem tax and the state law provided that such an assessment had the same effect as a judgment. In holding that the assessment of this ad valorem tax did not make the city a “judgment creditor”, the court said:
“A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a ‘judgment creditor’ should have the same application in all the states. In this instance, we think Congress used the words ‘judgment creditor’ in § 3672 in the usual, conventional sense of a judgment of a court of record, since all states have such courts. We do not think Congress had in mind the action of taxing authorities who may be acting judicially as in New Hampshire and some other states, where the end result is something ‘in the nature of a judgment,’ while in other states the taxing authorities act quasi-judicially and are considered administrative bodies.”
Therefore, it is manifest that the State of Arkansas is not a “judgment creditor” within the meaning of 26 U.S.C.A. § 6323 (a) and it follows that its tax lien must be subordinated to federal tax lien # 11,824 which was assessed before the state tax lien was filed pursuant to Ark. Stat. Ann. § 84-1912 (Repl. 1960).
Applying the controlling principles we have discussed, the priority and payment of the federal liens from the $9,119.10 surplus should be as follows:
Date Amount Amount Claim_ Assessed_of Claim_of Award
Federal tax lien 11/16/60 $1,499.99 $1,499.99
# 10,744_._
Gibson mortgage _3,911.56_3,911,56
Federal tax lien 5/26/61 2,324.28 2,324.28
# 11,824_
Arkansas tax lien_6/23/61_885.97_885.97
Federal tax lien 1,296.42 497.30
# 62-10-137_
Material & labor liens 12/7/62 2,813.42 -
__(Reduced to judgment)__
Thus, after the payment of the appellant’s liens in this order, as contended, by appellant, there remains the sum of $3,911.56 allocated for the payment of the Gibson mortgage and $885.97 allocated for the payment of the state tax lien, or a total of $4,797.53. In conformity with our applicable state law as previously discussed [and in accord with the stipulations of the parties, except for the state] the distribution of this balance should be as follows:
Claim Amount Amount of Claim of Award
Shelton -8/25/60 $1,839.85 $1,839.85 Materials and labor furnished__
Houston 3/10/61 218.03 218.03 Labor performed_
Roberts 6/19/61 755.54 755.54 Materials and labor furnished_L_
Gibson mortgage 6/21/61 3,911.56 1,984.11 Date recorded_
Arkansas tax lien 6/23/61 885.97 - Date filed
Reversed and remanded with directions to render a decree not inconsistent with this opinion.
“Lien for taxes If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”
“Period of lien Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed is satisfied or becomes unenforceable by reason of lapse of time.”
“Invalidity of lien without notice..—Except as otherwise provided in subsection (c), the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate—”
The appellant takes no issue with the priority assigned to the mortgagee-lienholder, Gibson. 26 U.S.C.A. § 6323 (a) and (c).
No question is raised in this appeal regarding the Chancellor’s action in subordinating the third federal tax lien, # 62-10-137, to the state tax lien. The taxes for which this lien was asserted were assessed after the state taxes had been assessed. | [
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Carleton Harris, Chief Justice.
This action relates to contempt of court. The facts are as follows:
Harold Hall, an attorney of Pulaski County, represented one Early Tolbert, Jr., in certain cases before the court, and on July 17 of this year, Tolbert entered a plea of guilty to the crime of robbery, and was sentenced to 21 years of imprisonment by the Pulaski County Circuit Court (First Division). In open court, Mr. Hall asked the court if he (Hall) could deliver the defendant to the State Penitentiary. The court thereupon refused the request, and the commitment was turned over to the office of the Sheriff. Subsequently, Hall contacted Sam Hallum, a deputy sheriff, and obtained his permission to deliver the prisoner to the penitentiary. Hallum testified, “I did it without taking a second thought. I worked with Harold on the Police Department.” Upon learning of Hall’s action, the Circuit Court issued an attachment di reeling the Sheriff to take Hall into custody and have him appear before the Circuit Court of Pulaski County on the 19th day of July at 10:00 A.M. to answer to contempt of court. 3****At the appointed time, Hall appeared, with counsel in his behalf, was informed of the nature of the charge filed, entered his plea of not guilty, and the court then proceeded to make its statement, and hear witnesses. The court announced,
“In open court, Mr. Hall asked me if he could deliver this defendant to the State Penitentiary. I told him no, he could not, that I didn’t think the defendant was entitled to any consideration and that this Court did not want that done. ’ ’
Hall admitted that the court had used “Words to that effect. * * * I understood you denied my request. ” "When interrogated as to how he obtained the prisoner, Hall replied that he went to the Sheriff’s office, talked to.Deputy Sam Hallum, and advised the deputy that “I had asked the Court for permission to take him and the Court denied me permission. I asked if I could take him down the next morning.” With Hallum’s permission, Hall delivered the .prisoner to the penitentiary.
■ At the conclusion of the hearing, the court fined Hall $50.00 for contempt. Counsel requested time to prepare the record for certiorari, and the request was granted. Pursuant thereto, the record has been lodged here, and we are asked to review the proceedings of the trial court and to declare the judgment void.
Respondent, the State, first presents the question of. whether proper procedural steps have been followed to bring this matter to the court’s attention, but we by pass that proposition, and proceed to decide the matter on its merits.
Petitioner states,
“There is but one question presented in this case. Did the Court have jurisdiction to punish a person for an alleged contempt committed outside the presence and hearing of the Court without first being informed with reasonable certainty of the facts constituting the offense; without affidavits calling the Court’s attention to the matter and in derogation of the statute involved.
“The answer to the above question is obvious. It could not.”
As authority for this position, petitioner primarily relies upon York v. State, 89 Ark. 72, 115 S. W. 948. We do not agree that the York case is controlling.
There, an injunction was issued by the Chancery Court restraining J. B. York and his brother, Robert York, from holding a stockholders’ meeting (Bluff City Lumber Company). Subsequently, the'court commanded the defendants to appear before the court and show cause why they should not be punished for contempt for refusing to obey the injunction, No affidavit, information, or statement of, facts was presented to the court as a foundation for the issuance of the citation for contempt. York and his brother appeared before the court and requested time to file a response and prepare their defense. The court denied this request, and proceeded to take testimony as to the contempt charged, found the defendants guilty, and assessed the punishment of J. B. York at a fine of $10,000 and his brother, Robert York, at a fine of $5,000. The matter was presented to this court through petitions for a writ of certiorari. We quashed the two judgments for the fines, but the statute there involved is entirely different from the statute here under consideration. The York opinion quotes the statute, Section 3989 of Kirby’s Digest, which is identical to Ark. Stat. Ann. § 32-101 (Repl. 1962). The statute reads as follows:
“Disobedience of an injunction may be punished by the court, or by the judge thereof, or any circuit judge in vacation, as a contempt. An attachment may be issued by the court or judge, upon the production of evidence by affidavit of the breach of the injunction, against the party committing the same. And unless he purges the contempt, if in vacation, the judge may commit him to jail until the sitting of the court, or take a bond with security for his appearance to answer for the contempt at the next term of the court, and in the meantime to obey the injunction.”
The present case does not relate to violation of a civil injunction, and the statute involved is Ark. Stat. Ann. § 34-903 (Kepi. 1962), which reads as follows:
“Contempts committed in the immediate view and presence of the court, may be. punished summarily; in other cases, the party charged shall be notified of the accusation, and have a reasonable time to make his defense.”
This statute (Section 722 of Kirby’s Digest, which is identical to Section 34-903) is discussed in CarlLee v. State, 102 Ark. 122, 143 S. W. 909, and the distinction, herein noted, pointed out. The court then stated:
“Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto-—his day in court.”
Here, the accused was informed of the basis of the alleged contempt in the attachment; was further advised of the facts constituting the charge at the outset of the hearing, and was given the opportunity to make his defense, which he proceeded to present. Unlike York, no request was made for a continuance for the purpose of additional time in which to prepare the defense; petitioner was present with counsel, entered his plea of not guilty, and the order recites, “by agreement' the case is submitted to the court. ’ ’ Section 34-903 was fully com plied with. Certainly, petitioner suffered no prejudice in any manner under the procedure followed.
We think logic unquestionably supports the position taken. As stated in the CarlLee case,
“The spectacle of a court of record and general jurisdiction being without power to initiate a proceeding to punish for contempt * * * without an affidavit of some third person first made setting out the charge, would be pitiful in the extreme, and was not contemplated by our statutes and under our Constitution. The court would thus be rendered impotent, powerless to protect its authority and enforce its mandates and retain the respect and confidence of the people, for whose benefit it was organized and exists, except by the grace of some third person.”
Petitioner also asserts that there was really no order by the court prohibiting him from transporting the prisoner to the penitentiary, and therefore no violation of Ark. Stat. Ann. § 34-901 (Repl. 1962). This section sets out the acts which constitute contempt, and petitioner, in making this assertion, has reference to Provision 3 of the section, which states that the court may punish persons guilty of “wilful disobedience of any process or order, lawfully issued or made by it.” It is true that the court entered no Avritten order, but to accept petitioner’s argument, Avould simply be to place form before substance. If Hall had made the request of Judge Kirby on the streets, or in the corridors of the Courthouse, a different situation Avould be presented, and petitioner’s argument might Avell contain merit. But here, the request and denial took place in open court. Hall apparently recognized the fact that he should obtain the court’s approval before taking the prisoner to the penitentiary; it is clear that he distinctly understood that his request Avas refused. The refusal, in practical effect, Avas entirely the same as if the court had stated, or Avritten, “You are hereby ordered not to deliver Tolbert to the penitentiary.”
For the reasons herein set forth, the petition is denied.
The record does not disclose how the matter was brought to the judge’s attention.
Bond was set at $100.00, which was made by Hall.
Another attorney was cited, together with Hall, and the charge against the former was heard at the same time. The proof reflected that' this attorney had three clients at the penitentiary that he desired to see, and accordingly went with Hall and the prisoner, the two attorneys sharing expenses. The evidence showed that this lawyer had never represented Tolbert, had never seen him in court, never conversed with him, and had nothing to do with making arrangements to deliver the prisoner to the penitentiary. The charge against this attorney was dismissed at the end of the hearing. | [
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Sam Robinson, Associate Justice.
The petitioner is a lawyer whose license to practice law was suspended on the 22nd day of October, 1962, by an order of the Pulaski Circuit Court, the Honorable Charles Light, Judge of the Second Judicial District, presiding on exchange ; the suspension was for a period of three years. The petitioner is now asking this court to revoke the suspension and restore her license to practice at this time, more than a year having expired since the date of the suspension.
The disbarment proceeding was prosecuted in the Circuit Court by the Bar Rules Committee of this court, and the committee is resisting the petition for revocation of the suspension. The charge in the disbarment proceeding was that the petitioner had converted to her own use about $2,500.00 belonging to a client. The client has long since been paid in full; in fact, payment was made prior to the issuance of the order of suspension.
No doubt petitioner committed a grievous offense in using her client’s money at all, even though she may have intended to use it only for a short time. The Bar Rules Committee has done its full duty in prosecuting the disbarment proceeding and in resisting the petition for reinstatement, and we want to take this opportunity to thank the fine lawyers on that committee for their devotion to duty and their diligence in performing the work of the committee.
The question before the court at this time is not the guilt or innocence of the petitioner, but whether it would be better for everyone concerned to restore petitioner’s license at this time, or that it be restored only after the full three year period has expired.. The rvrongful act committed by petitioner was not of such magnitude as to call for a complete disbarment, but it appeared that it would not be best for the public to allow petitioner to go unpunished. The idea of punishment is not to wreak vengeance upon the wrongdoer, but to reform the wayward and deter others. The spirit of revenge has no place in our procedure.
Through the proceedings in this case it has now been conclusively demonstrated that a lawyer’s misapplication of a client’s money will not be tolerated. The attorney has been severely punished. We cannot see where further punishment would benefit the petitioner or the public. Furthermore, we think this is a situation where the application of the quality of mercy will not be misplaced.
The petition is granted. Petitioner’s license to practice law is hereby restored.
Harris, C. J. and McFaddin and George Rose Smith, JJ., dissent. | [
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Jim Johnson, Associate Justice.
This is an appeal from a summary judgment denying a petition for writ of habeas corpus.
Appellant Rachel Merrill Frazier and appellee D. B. Merrill were divorced in Oklahoma by a decree dated September 11,1961, which apparently divided custody of their two minor sons, D. B. Merrill, Jr., age eight, and Steven Ray Merrill, age five, between the father and mother. A copy of this decree is not in the record. Thereafter appellant moved to Kansas, taking the boys with her, and there refused to deliver custody of the boys to appellee or even permit him visitation rights. Appellee immediately returned to Oklahoma and on petition, the Oklahoma court amended its original decree giving appellee complete and exclusive custody of the boys. Appellee then returned to Kansas and filed a petition for a writ of habeas corpus. The decree of the Kansas court, entered June 8, 1962, recites that the parties had stipulated that the court had jurisdiction, that appellee should have custody of the older son two months during the summer, and of the younger son one month, that appellee must file a $1,000 performance bond, and that appellee would have all orders of the Oklahoma court subsequent to the divorce decree of September 11, 1961, set aside.
Prior to the granting of this Kansas decree, appellee had the Oklahoma amended decree set aside. Upon obtaining custody of the boys, after posting the bond, appellee returned with them to Oklahoma. Thereafter he filed a new motion in the Oklahoma court to amend the divorce decree, alleging, inter alia:
“That the said order [setting aside all orders in this cause which were made subsequent to the date of the divorce decree of September 11, 1961] was made at the request of this defendant [appellee] because of the fact that at that time another action was pending in the courts of Wichita, Kansas, regarding the custody of said children and that the plaintiff [appellant here] had violated the orders of this court and had taken said children to Wichita, Kansas, and there refused to deliver custody of said children to this defendant as per order of this court; that the defendant was then required to bring action in courts in Wichita, Kansas, for custody of said children and that the attorneys for the plaintiff refused to have any hearing until such time as the orders of this court made subsequent to the divorce decree be set aside; therefore, this defendant [appellee] had said order set aside because of the coercion and demands of the attorneys for the plaintiff in Wichita, Kansas; ...”
and prayed for exclusive custody of the children. On August 13, 1962, the Oklahoma court again amended its original divorce decree and again granted appellee exclusive custody of the children. No appeal was taken from this decree. Some time thereafter appellee and the boys moved to Fort Smith. On November 27,-1962, appellant petitioned for a writ of habeas corpus in Sebastian Chancery Court. At trial on December 6, 1962, the Chancellor found that the Order Amending Decree of the Oklahoma court of August 13,1962, is a valid decree and entitled to full faith and credit; that appellant made no allegation of changed circumstances affecting the welfare of the children since the date of the Oklahoma Order Amending Decree, or that there existed any material facts .unknown to the Oklahoma court on the date of its order, and that no material question of fact existed and thereupon granted appellee’s motion for summary judgment and denied appellant’s petition for writ of habeas corpus. From the decree appellant has appealed, contending that the Oklahoma order is void on its face and therefore subject to collateral attack.
The Oklahoma statute which authorizes a court to modify or change child custody orders in divorce cases provides, as follows:
“12 O. S. 1961 § 1277. Care and custody of children.. —A petition or a cross-petition for a divorce, legal separation or annulment must state whether or not the parties have minor children of the marriage. If there are such children, the court shall make provisions for guardianship, custody, support and education of the minor children, and may modify or change any order in this respect, whenever circumstances render such change proper either before or after final judgment in the action. ’ ’
Appellant argues skillfully that since there was no allegation of material change of condition or circumstances in appellee’s motion to amend the Oklahoma decree nor found in the order of the Oklahoma court, that court was without authority to change custody. Appellee contends that the exact words need-not be specifically set out.
The Order Amending Decree reads as follows:
“The above defendant [appellee] having filed his motion requesting the court to amend decree heretofore made by this court regarding the custody of Steen Bay Merrill and D. B. Merrill, Jr., minor children of the par ties hereto and the plaintiff [appellant] having been served with notice of said motion and of the hearing of said motion on this date and she having failed to answer, protest, or appear, and being three times called in open court and failing to answer and the court having examined the file in said cause finds that said plaintiff has been properly and legally notified of this hearing; and the court proceeds to hear the evidence offered by the defendant and upon due consideration thereof finds that the children are in the custody of this court and that they are personally present in court; the court further finds that all of the allegations contained in defendant’s motion are true and that it is for the best interest of the children that the defendant, D. B. Merrill, be granted the exclusive and perpetual custody and control of said minor children.
“It is therefore ordered by the court that the orders heretofore made by this court be amended and the defendant D. B. Merrill is hereby awarded the exclusive and perpetual care, custody and control of Steen Ray Merrill and D. B. Merrill, Jr., and the minor children of the parties hereto.
“Dated this 13th day of August, 1962.”
It is well-established that a judgment of a court of record of a sister state is entitled to full faith and credit and may not be collaterally attacked unless the judgment is void on its face. U. S. Const, art. IV, § 1.
It was said by the Oklahoma Supreme Court in Welch v. Focht, 67 Okl. 275, 171 P. 730, that:
“There is also practical unanimity among the authorities that a judgment of a court of general jurisdiction cannot be collaterally attacked, unless the record affirmatively shows want of jurisdiction, and every fact not negatived by the record is presumed in support of the judgment of a court of general jurisdiction, and where the record of the court is silent upon the subject, it must be presumed in support of the proceedings that the court inquired into and found, the existence of facts authorising it to render the judgment which it did.” [Emphasis ours.]
In McDougal v. Rice, 79 Okla. 303, 193 P. 415, after cpioting the paragraph above, the court goes on to say:
“In Welch v. Focht, supra, the following was quoted with approval of this court from Yan Fleet on Collateral Attack, wherein it was said:
“ ‘There is no connection between jurisdiction and sufficient allegations. In other words, in order to ‘set the judicial mind in motion,’ or to ‘challenge the attention of the court,’ it is not necessary that any material allegation should be sufficient in law, or that it should even tend to show facts that are sufficient. If that were the rule, the absence of any material allegation would always make the judgment void, because it cannot be said that such a complaint has any tendency to show a cause of action. * * * When the allegations are sufficient to inform the defendant what relief the plaintiff demands, the court having power to grant it in a proper case, jurisdiction exists, and the defendant must defend himself. * * * Allegations immaterial and wholly insufficient in law may be sufficient to ‘set the judicial mind in motion,’ and to give a wrongful but actual jurisdiction, which will shield the proceedings from collateral attack.’
“ Then the opinion continues:
“ ‘And the learned author sums up the whole matter by saying that in his opinion the true and logical rule is that, if there is any petition at all invoking the action of the court, a judgment based thereon cannot be assailed collaterally because of insufficiency in the pleading. This, too, is the rule adhered to by the Supreme Court of the United States.’ ” (.Cases cited.)
It is true that neither the motion nor the order contain the specific words “changed conditions or circumstances,” nevertheless we are impelled to the conclusion that the motion contained sufficient allegations to challenge the attention of the court and set the judicial mind in motion, and such silence of the order upon the subject is presumed in support of the proceedings that the court inquired into and found the existence of facts authorizing it to render the judgment that it did. This being true, the Sebastian Chancery Court properly accorded full faith and credit to the Oklahoma Order Amending Decree.
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Jim Johnson, Associate Justice.
This suit involves personal injuries and property damage sustained by a driver and personal injuries sustained by a passenger in a car hit from the rear by a truck.
On June 17,1962, appellee Lucille Smith was driving-east on East Broadway Street in North Little Rock when she and the two cars ahead of hers stopped to permit another car to turn left off the street. Her mother, appellee Bertie Stalnaker, was a passenger. Appellant Carl Beggs, who was driving a dump truck, apparently had brake failure, was unable1 to stop and ran into the rear of appellees’ stopped automobile,, damaging the automobile and injuring appellees. Appellees filed separate suits against appellant which were consolidated for trial. Trial was held April 11, 1963. The jury returned a verdict of $5,000.00 for appellee Stalnaker and $22,500.00 for appellee Smith. From judgments on the verdicts, ■appellant has appealed, urging that the trial court erred in refusing to direct a verdict for appellant, errors in instructions, and that the verdicts were grossly excessive.
Appellant moved for a directed verdict, contending that appellees produced absolutely no evidence of any negligence on the part of appellant. (Appellant’s principal contention was that this was an unavoidable accident.)
Testimony by and on behalf of appellees established that the collision did occur, the damage to the automobile by testimony on before-and-after valuations of the car, the nature and extent of appellees’ injuries, diag nosis and prognosis. Virtually the only testimony offered by appellees relative to the truck was appellee Smith’s statements that, “I looked in the rear view mirror and about a block behind us this truck went through the intersection traveling at a normal rate of speed,” that there was no car to her right, also no traffic in the right hand lane (indicating that the truck could have turned right and avoided hitting the automobile), and, “Well, the truck hit us and the gravel spilled all over the street and it broke all the motor supports in my car and broke the seat track where mother was sitting and just pushed the. motor clear up into the front end where it caused the radiator to burst ...”
In a similar case this court held:
“It is insisted by the appellee that this proof falls short of establishing negligence, since the mechanical defect might have arisen suddenly and without fault on Rorke’s part. Even so it was not necessary for the plaintiff to anticipate and disprove this possible explanation. By statute every motor vehicle must be equipped with adequate brakes. Ark. Stats. 1947, § 75-724. It has often been held that proof of the violation of such a safety measure is evidence of negligence. Union Securities Co. v. Taylor, 185 Ark. 737, 48 S. W. 2d 1100; Kendrick v. Rankin, 219 Ark. 736, 244 S. W. 2d 495. The appellant’s testimony constituted substantial evidence to the effect that the statute had been violated; it was for the jury to say whether the defendant was guilty of negligence.” Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906.
In addition to appellees’ testimony, there was some testimony adduced on behalf of appellant which tended to strengthen appellees’ case. Considering all the evidence, with every reasonable inference arising therefrom, in the light most favorable to appellees, as we do to determine whether a jury question was presented, Harrison v. State Farm Mutual Insurance Co., 230 Ark. 630, 326 S. W. 2d 803, we find that the trial court made no error in refusing to direct a verdict for appellant.
Appellant asserts that three of the court’s instructions to the jury were prejudicially erroneous. The first two recite the law requiring fitness of vehicles and brakes, and the third had to do with an element of damages. These three instructions were contended to be wrong not particularly because they were erroneous statements of the law but because there was no evidence in the case to justify the giving of such instructions. We do not agree. It is our view that two of the instructions complained of were absolutely necessary in order to fairly present appellees’ theory of the case to the jury for its consideration, and the third, though close, was supported by some competent evidence in the record.
Next appellant urges that the trial court erred as a matter of law by refusing to instruct the jury that in assessing damages to appellees’ automobile, the cost of repairs should be considered as evidence. The general rule is that the measure of damages for injury to an automobile is the difference between the market value of the automobile immediately before and after the collision. Payne v. Mosley, 204 Ark. 510, 162 S. W. 2d 889, Kane v. Carper-Dover Mercantile Co., 206 Ark. 674, 177 S. W. 2d 41. Two of appellees’ witnesses, used car dealers familiar with that particular car, testified on the market value of that car immediately before and immediately after the collision. It is true that, in the absence of such competent proof as to the amount of damages, the difference in market value before and after the collision may be established by proof of the total amount paid for repairs necessitated by the collision. Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593. In the instant case there was no repair bill in evidence, and although appellee Smith testified as to what she had so far paid for repairs, she also testified that repairs were not completed. In our opinion, the jury was presented with the best evidence available, that is, competent appraisals, and the trial court did not err in refusing to instruct the jury that they should consider the cost of repairs in assessing the property damage.
Appellant’s last point urged for reversal is that the verdicts are grossly excessive and are not supported by the evidence.
The jury returned a verdict of $5,000.00 for appellee Stalnaker. Mrs. Stalnaker, who is 76, was injured in the knee as well as receiving a strained neck. Immediately after the accident Mrs. Stalnaker was taken to the hospital where x-rays were taken and her leg bandaged, after which she was sent home. The following day her neck started hurting and became so painful that she went to an orthopedist the following day. His examination revealed that any attempt to turn her head left caused extreme complaint of pain and spasm of the muscle in the cervical spine; 'further, that she could not bow or bend her head backward. The doctor diagnosed the condition as a strain of the neck and prescribed special physiotherapy treatment at his office. She made 23 or 26 trips to the doctor’s office over a period of three or four months. The doctor testified that her injuries were very painful, that “all those areas of involvement are associated with pain.” At the time of trial Mrs. Stalnaker testified that, “My neck bothers me quite a bit;” that she was 75 at the time of the accident and had never had anything.wrong with her neck before the accident; that she was getting along pretty good, except when the weather declares otherwise, “then at night, [she] can’t sleep good.”
The jury returned a verdict of $22,500.00 in favor of appellee Smith, which included property damage. Two witnesses testified on the fair market value of appellee’s car before and after the accident, 'which placed the diminution in value at $1,275.00 to $1,300.00.
Mrs. Smith testified that immediately after the collision she couldn’t focus her eyes and that her neck hurt some but not a lot at that time. Nothing was done for it at the hospital and she went home with her mother. Two days later (when she could get an appointment), after suffering extreme pain, she went to an orthopedist. He testified that when he saw her she was holding her head up with her hands, that he made one lateral x-ray but was afraid to make a comprehensive x-ray study at that time because the necessary twisting or bending of her neck might aggravate a possible fracture or dislocation. . Her injuries were diagnosed as a sprain of her neck and strain of her back. She was hospitalized as soon as possible and placed in head traction for almost four weeks, with medication and, when able, physiotherapy which was continued during the next seven months. The doctor testified that he thought her back had recovered and that he didn’t think she had any permanent disability to her back. However, when asked if her neck had recovered, the doctor testified, “No, sir. I don’t think it ever will recover,” and estimated Mrs. Smith’s permanent partial disability at twenty or twenty-five percent. The doctor also testified that he did not anticipate surgery, that she probably will require sporadic treatment, and that, “All I know, these people learn to live with themselves like they do with arthritis. They learn to live with their pain.” Mrs. Smith was off work several months, at time of trial was still not working regularly on a full-time basis, still had to wear a cervical collar several days a week, and was not able to indulge in her avocations of fishing and driving.
“Under our well established rule the amount of recovery in these personal injury cases is for the jury’s fair determination and when supported by substantial testimony we do not disturb the verdict unless it is shown to have been influenced by prejudice and so grossly excessive as to shock the conscience of the court.” Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647.
From the testimony above and other testimony contained in the record not detailed here, we certainly cannot say that the amounts of the jury verdicts for 'Mrs. Stalnaker and Mrs. Smith are so grossly excessive as to shock the conscience of the court.
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Paul Ward, Associate Justice.
This is a Workmen’s Compensation case. Appellant, John T. Mann, appeals from a judgment of the circuit court which affirmed an order of the Commission. The Commission’s order affirmed a former order awarding claimant $25 per week for a 25% permanent partial disability to the body as a whole. A brief summary of the pertinent facts will suffice to understand the issue to be decided.
Appellant (claimant) is a married man, 48 years old, who farms part time and at other times works for appellee (Potlatch Forests, Inc.) in the timber and lumber business. While in the course of his employment with appellee on October 30, 1956, claimant suffered a compensable injury to his back and in due course was awarded $25 per week pending a determination of his healing period.
In an opinion dated July 1, 1959 the Commission, after a hearing, made the following findings and conclusions; (a) claimant’s healing period ended June 5, 1959, leaving him with a 25% permanent partial disability to the body as a whole; (b) claimant is entitled to $25 per week for 112% weeks dating from June 6, 1959; and (c) if claimant decides to undergo surgery and further medical attention it will be at his own expense because he has declined to accept such treatment from appellee, but has decided to accept the award above mentioned.
In August, 1961 appellee made the last payment to appellant pursuant to the above mentioned order. Shortly thereafter claimant initiated a claim for additional benefits, contending that he had developed a worsened condition and that he was temporarily totally disabled, or that his permanent partial disability was greater than 25% to the body as a whole. Appellee answering the claim, said (a) the Commission’s order of July 1, 1959 concluded the rights of the claimant; (b) the condition of claimant had not worsened; and (c) if it had worsened it was the result of claimant’s refusal to accept medical treatment.
At the hearing before the full Commission the only issue presented was whether appellant’s disability (as a result of his original injury) was greater than that found by the Commission in its order of July 1, 1959— 25 % permanent partial disability to the body as a whole. A determination of the above mentioned issue involved a fact question, depending on competent testimony. That the conclusion of the Commission must be upheld if it is supported by substantial evidence is too well established to require citations. As previously stated, the Commission found that there had been no increase in appellant’s disability.
We believe it would serve no useful purpose to set out fully the testimony of the several witnesses. It must be conceded that appellant and his wife and Dr. Carruthers — all — testified definitely that appellant’s disability was (at the time of the hearing) greater than it was on July 1, 1959. It must also be conceded that the testimony of all the other doctors was to the effect that appellant’s disability has increased since July 1, 1959. It is, however, undisputed that Drs. Padberg and Agar testified that appellant’s increased disability was due to pulmonary emphysema and not to his original injury. In the testimony of Dr. Carruthers pulmonary emphysema is not even mentioned. We gather from appellant’s argument that he does not dispute the facts just pointed out. He does, however, ably and forcefully rely for a reversal on the point presently discussed.
Appellant’s contention is to the effect that the testimony of Drs. Padberg and Agar should be discarded because they gave no consideration to claimant’s age, occupation,' etc. In support, appellant relies on what we recently said in Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685. There, in a somewhat similar situation, we said:
“. . . consideration should have been given, along with medical evidence, to the appellant’s age, education, experience, and other matters affecting wage loss.”
We believe appellant has misconstrued our holding in the Glass case or has misapplied it to the facts in this case. First, conceding for the purpose of this opinion that the testimony of Drs. Padberg and Agar does not positively show they took into consideration appellant’s age, occupation, etc., that fact would be of no avail to him. [It is noted, however, that Dr. Padberg did take into consideration claimant’s age, occupation, etc.] The Glass opinion places the duty on the Commission, and not the doctor, to consider the elements mentioned above. In the cited case we said: “Apparently, they also considered only medical evidence and this we consider error.” The word “they” obviously refers to the Commissioners and not the doctors. In the next place, appellant is in no position to contend the Commission failed to take into consideration his age, occupation, etc. The record shows that the Commission was made aware of our holding in the Glass case, and we cannot say it did not follow that holding here in arriving at appellant’s disability.
Finding substantial competent evidence to sustain the order of the Commission, we hereby affirm the same.
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Jim Johnson, Associate Justice.
This is an appeal from the Perry Chancery Court’s dismissal of a complaint for divorce. The parties, appellant Guy Napier and appellee Mary Napier, were married at Hartwell, Georgia, on September 27, 1960, and later moved to Mountain Home, where they purchased a home. Sometime in 1962 appellant moved to Perry County, appellee continuing to occupy the home in Mountain Home with their child who was born June 12, 1961. On November 16, 1962, appellant filed suit for divorce, alleging that appellant was a resident of Perry County, appellee a resident of Baxter County; that the parties had been separated since June 1962; that appellee treated him with contempt, neglect, hatred and abuse, systematically and continually, making his condition intolerable; that appellant had purchased a home in Mountain Home which was presently occupied by appellee; and prayed for determination of their interests in the real property and for a divorce. Appellee answered, admitting the marriage, the child and that her residence was Baxter County, denied all the other allegations, affirmatively alleged that appellant had deserted appellee and their child, without means of support or maintenance, and prayed for dismissal of appellant’s complaint. Appellee cross-complained for support, child support, attorney fees and costs, Avhich appellant answered and denied.
A hearing on appellee’s petition for temporary child support and attorney, fees Avas held on December 3, 1962, at AAdiich time appellant was ordered to pay $25.00 per week child support and $50.00 attorney’s fee pendente libe. The suit came to trial February 5, 1963, folloAving Avhich, by order filed April 23,1963, the Chancellor found that appellant failed to prove grounds for divorce, dismissed appellant’s complaint, and further ordered appellant to continue to pay $25.00 per week child support and aAvarded an additional fee of $100.00 to appellee’s attorney. From the decree comes this appeal.
For reversal appellant urges that the preponderance of the evidence established that appellee had been guilty of personal indignities such as to create in appellant grounds for divorce, and the trial court erred in failing to so find.
At final hearing, appellant had the testimony of three AAdtnesses, one to corroborate his residence and tAvo, himself and another (his mother), to testify concerning his grounds for divorce. In defense of the marriage, appellee Avas the only witness. The Chancellor had the opportunity to see, hear, and question these Avitnesses, which he did. Dearien v. Lancaster, 221 Ark. 98, 252 S. W. 2d 72. We do not feel that it Avould he helpful to detail the testimony, because on virtually every point the testimony was in conflict and frequently unconvincing for either party. As we have said so many times, the State is always a party to a marriage, Dunn v. Dunn, 222 Ark. 85, 257 S. W. 2d 283; Whitford v. Whitford, 100 Ark. 63, 139 S. W. 653; Hill v. Rowles, 223 Ark. 115, 264 S. W. 2d 638; Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502; and this is one contract that should not be dissolved capriciously. Trying this case de novo on the record before us, we cannot say that the Chancellor’s conclusions that appellant failed to prove grounds for divorce are against the preponderance of the evidence. Snyder v. Snyder, 233 Ark. 188, 343 S. W. 2d 420.
Appellee’s attorney is hereby allowed $150.00 for his services in this court, which shall be taxed as costs.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This litigation involves (a) the will of Sam Miller; and (b) his marital status. Sam Miller departed this life, a citizen and resident of Clark County, Arkansas, in 1958, at the age of 78 years. In due time his will was admitted to probate by the Clark Probate Court, and his son, Marvin Miller, named as executor, proceeded to act under the will. Within the period permitted by law (Ark. Stat. Ann. § 62-2114 [1947]) the appellants objected to the will and questioned the marital status of the deceased, Sam Miller. The probate court ruled against the appellants on all points; and this appeal ensued.
Until 1919 or 1920, Sam Miller lived in Kentucky, and was married to the appellant, Dinah Miller in 1901. Three children are the issue of that marriage, being the appellants herein, Casper Miller, Frances Miller Speak, and Mary Miller Barraco. In 1919 or 1920 Sam Miller left his wife and three children in Kentucky and moved to Arkansas; and on July 11, 1920, he married Ethel Dodd in Garland County, Arkansas; and four children are the issue of that marriage, one of whom is the appellee, Marvin Miller, executor of the will of the deceased, Sam Miller. Mrs. Ethel Dodd Miller departed this life a few years ago; and Mr. Miller did not thereafter remarry. From 1922 until his death in 1958 Sam Miller lived in Gurdon, Clark County, Arkansas. His will was executed October 23, 1958; and he died on November 28, 1958. We proceed to consider the two issues on this appeal.
I. The Validity of the Will of 8am Miller. In the will Mr. Miller left his entire estate to his four children who were the issue of his second marriage. He named his Kentucky children in the will by using this language:
“I am not unmindful of the fact that I have three children by a previous marriage, namely Casper Miller, Frances Miller, who is now married to someone I do not know, and Mary Miller, who is also married to someone I do not know. I direct that they shall have nothing from my estate.”
The Kentucky children do not claim as pretermitted heirs: rather, their claim is based on the assertion that Mr. Miller was under the complete influence and domination of his son, Marvin Miller, and that the will was the result of duress exercised by Marvin Miller on his father. The evidence entirely fails to substantiate such attack on the validity of the will. It was shown that Mr. Miller had executed a will in 1957 in which he did not name the Kentucky children; that when he showed this will to his son, Marvin Miller, to discuss with him the duties of an executor, Marvin Miller pointed out that the Kentucky children, not being named in the 1957 will, would take as pretermitted heirs. Mr. Miller thereupon contacted his attorney and the 1958 will was prepared. Mr. Miller took the 1958 will from his attorney and went, alone and unassisted, to the First National Bank in Gurdon; and there, in the Bank, called on Mr. Willard Tarpley and Mrs. Joe Davis to attest his will. These parties called as witnesses testified that Mr. Miller signed the will in their presence, and asked them to he attesting witnesses, and they signed the will as such witnesses in his presence and in the presence of each other. Each witness testified that Mr. Miller knew what he was doing and that he was not accompanied by any person. There is no evidence of any duress exerted by Marvin Miller on Mr. Sam Miller: the positive evidence is entirely to the contrary. The Probate Court was correct in sustaining the validity of the will of Mr. Miller.
II. The Denver Claim of Mrs. Dinah Miller. Mrs. Dinah Miller claimed that she and Sam Miller were lawfully married in Kentucky in 1901; that they were never legally divorced; and that she was entitled to dower. It was stipulated that Sam Miller and Dinah Miller were married in Rockcastle County, Kentucky, on April 26, 1901; that there was no record of any divorce proceedings between Sam Miller and Dinah Miller in the court records of Rockcastle, Harlan, or Bell County, Kentucky, or in the court records of Garland or Clark County, Arkansas, or in Windsor, Ontario, Canada. Mrs. Dinah Miller testified that she and Sam Miller were lawfully married in Kentucky; that they lived together as husband and wife for nineteen years and had three children (being the Kentucky children previously named); that they all the time lived in the State of Kentucky; that in 1920 Sam Miller went to Hot Springs, Arkansas, for treatment of an illness and remained there about a month; that when he returned to Kentucky the marital relationship was resumed; that he stayed at home about a month; that they had a general store and a farm of about 112 acres; that she joined with Sam Miller in a deed and other instrument in disposing of these properties ; that he left and deserted her in 1920 and never came back; that she remained in Kentucky until 1923; that he never contributed anything to her support after 1920; and that she never received any notice of any kind that Sam Miller had instituted any divorce proceedings against her in any place. Mrs. Dinah Miller was corroborated by some of the other parties as to the fact that Sam Miller left in 1920, and was also corroborated on some other points.
The big question in this case is whether the appellant, Mrs. Dinah Miller, has offered sufficient proof to overcome the presumption of the validity of Sam Miller’s marriage to Ethel Dodd in G-arland County, Arkansas, on July 11, 1920. The marriage certificate, with the return of the officiating minister thereon, and the recording by the County Clerk, was duly introduced in evidence. TTith the marriage to Ethel Dodd in 1920 being established, there is a presumption that it was a valid marriage, and the burden was and is on Mrs. Dinah Miller to prove that marriage to be void if Mrs. Dinah Miller is to receive any dower interest in the estate of Sam Miller. She attempted to prove the invalidity of the 1920 marriage to Ethel Dodd by proving (a) her own valid marriage to Sam Miller in Kentucky in 1901; and (b) the complete negation of any divorce granted Sam Miller from her or to her from him. The Trial Court held that Mrs. Dinah Miller had failed to offer sufficient proof to overcome the presumption of the validity of the second marriage; and the correctness of that holding is the issue on this appeal.
TVe have several cases bearing on the question presented, some of which are: Estes v. Merrill, 121 Ark. 361, 181 S. W. 136; Lathan v. Lathan, 175 Ark. 1037, 1 S. W. 2d 67; Spears v. Spears, 178 Ark. 720, 12 S. W. 2d 875; Gray v. Gray, 199 Ark. 152, 133 S. W. 2d 874; and Shaw v. Brewer, 234 Ark. 898, 356 S. W. 2d 17. Throughout all of our cases the rule is reiterated (as stated in Gray v. Gray, supra) :
“The law is well settled that, where a second marriage is established in form according to law, a presumption arises in favor of its validity as against a former marriage, even though the husband or wife (as the case may be) of the former marriage is living at the time the second marriage is brought into question. It has been said by this court that the presumption of validity at tending the second marriage is not overcome by the presumption of law in favor of the continuance of the first marital relation, coupled with the testimony of the former spouse that he or she has not obtained a divorce.”
In Lathan v. Lathan, supra, Justice McHaney reviewed our earlier cases and showed the strength of the rule by this quotation from Estes v. Merrill, supra-.
“ ‘So strong is the presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains, even though it involves the proving of a negative, and although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage.’ ”
In Spears v. Spears, supra, Justice Mehaffy indicated how great a burden was placed on the party attacking the second marriage. There, as here, the first wife claimed the subsequent marriages were invalid and that she had introduced sufficient proof to overcome the presumption of the validity of the subsequent marriages; and Justice Mehaffy said:
“However, the proof does not show that Spears did not obtain a divorce in some county in Florida besides the one whose records were searched; it does not show that he did not get a divorce somewhere in Tennessee in some county other than Shelby or Tipton, and the proof does not show that he did not get a divorce in some county in Arkansas. While the law requires a residence in a State for a certain length of time, it is not required that the party bringing the suit reside in the county where he brings the suit for this length of time. One might reside in Jefferson County, Arkansas, a year or more, and then establish a residence in Cleveland County, or some other county in Arkansas, where he could obtain a divorce, and then move his residence back to Pine Bluff. . . .
“We think the presumption that the marriages of Spears were innocent is also strengthened by the conduct of appellee and her people. . . . Her conduct, as well as the conduct of her people, is a very strong circumstance tending to show that she had no claim on Spears, and it supports the presumption that Spears’ conduct was not unlawful, but that he had obtained a divorce somewhere, and that his marriages in Pine Bluff were lawful. ’ ’
Applying the rule of the foregoing cases to the case at bar leads us to the conclusion that the Chancery decree was correct. Sam Miller left Kentucky in 1919 or 1920. His mother continued to live with Mrs. Dinah Miller for a short time. Later, in about 1922 or 1923, Sam Miller’s mother moved from Kentucky to G-urdon, Arkansas, and lived there with Sam Miller until her death several years later; and her body was returned to Kentucky for burial. It was stipulated that Mrs. Dinah Miller knew of the whereabouts of Sam Miller and his family since 1922; and it was further stipulated that the character, veracity, and integrity of Sam Miller was good. In 1944 some of his Kentucky children came to G-urdon, Arkansas, to visit him, and he subsequently corresponded with them. They knew of his marriage to Ethel Dodd Miller, and met and knew some of the children of that marriage. Yet the record fails to show that Mrs. Dinah Miller ever made any claim on Sam Miller in any way from the so-called desertion in 1920 until after his death. From 1920 to 1958—for 38 years—Sam Miller claimed he was legally married to Ethel Dodd Miller, and during all those 38 years neither Mrs. Dinah Miller, nor anyone for her, saw fit to question such marriage. Mrs. Dinah Miller had signed a deed or other instrument with Sam Miller in 1920 disposing of the lands in Kentucky; but no copy of that instrument was introduced by her to show the capacity in which she signed; that is, as wife or divorced wife.
It was stipulated that the court records in certain of the counties in Kentucky, as previously named, showed no divorce proceedings between Sam Miller and Dinah Miller; but that stipulation did not negative the possibility of divorce in any of the other counties in Kentucky. In Johnson v. Johnson, 12 Bush 485 (1877), and in Tudor v. Tudor, 101 Ky. 530 (1897), the Supreme Court of Kentucky held that the defendant in an action for divorce, by failing to plead or object to the jurisdiction on account of the suit not being in the county of the residence of the female defendant, waives the jurisdiction of venue, and the court will have complete jurisdiction to hear and determine the case on its merits. One or the other of these early Kentucky cases has been cited with approval in many subsequent Kentucky cases, some of which are: Gorin v. Gorin (1942), 292 Ky. 562, 167 S. W. 2d 52; Smith v. Smith (Ky. 1951), 242 S. W. 2d 860; and Jones v. Jones (Ky. 1959), 320 S. W. 2d 124. We mention this to show that the mere fact that no divorce proceedings were in three of the counties in Kentucky did not negative in any way the possibility of divorce proceedings in other counties in Kentucky. Of course, any divorce granted would have to be a valid divorce Orsburn v. Graves, 213 Ark. 727, 210 S. W. 2d 496; but if Sam Miller and Mrs. Dinah Miller had a divorce proceeding in any county in Kentucky and she did not raise any question of jurisdiction or venue, then the divorce would be valid. The burden resting on Mrs. Dinah Miller to show the entire absence of any legal divorce was not discharged by the stipulations and proof in this case.
It would unduly prolong this opinion to further detail the evidence. We conclude that the Chancery decree was correct and it is in all things affirmed.
We will sometimes hereinafter refer to the appellants, who are children of Mrs. Dinah Miller, as “the Kentucky children.”
Our cases are in accordance with the holdings generally. See 35 Am. Jur. p. 322, “Marriage” § 216; and see annotation, “Presumption as to validity of second marriage,” in 14 A.L.R. 2d p. 7. | [
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Frank Holt, Associate Justice.
The question presented in this case is whether the appellant effectively canceled the automobile insurance policy issued by it to the appellees. In a declaratory judgment proceeding’ the trial court, sitting as a jury, resolved the issue in favor of the appellees. The judgment recited, in pertinent part:
“That the attempted cancellation of the aforesaid policy by the defendant, Riverside Insurance Co. of America, on or about the 15th day of May, 1961, was not effective for the reason that the defendant did not tender to the plaintiffs the unearned or unused portion of the premium of $250.70 paid by the plaintiffs to the defendant as aforesaid and covering the period of time from November 11, 1960 to November 11, 1961, and that up to the time of this decision [March 19, 1963] no tender has been made by the defendant, Riverside Insurance Co. of America to the plaintiffs of such unearned portion of the premium paid; * * ® and that the plaintiffs are not bound by any transactions had by the defendant and the said Cordon Reader, d/b/a Reader’s Insurance Agency, as to the return of the unused portion of the premium;”.
On appeal appellant urges for reversal that “failure to tender return premium did not render ineffective cancellation as of May 25, 1961, and appellant insurance company had no insurance in force on August 20, 1961.”
The essential facts in this case appear to be undisputed. Through the Reader Insurance Agency, the appellees purchased an automobile insurance policy from appellant, Riverside Insurance Company of America, on November 11, 1960 and paid in full the annual premium of $250.70. The relevant part of the cancellation clause of this contract of insurance provides:
“* * * If the Company cancels, earned premiums shall be computed pro rata. Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation.”
The appellees received a notice of cancellation dated May 15, 1961, advising that their insurance policy was canceled effective May 25, 1961. The cancellation notice reads, inter alia:
“If the premium has been paid, the excess of paid premium above the pro rata premium for the expired term, if not tendered to you herein, shall be made as soon as practicable after cancellation becomes effective, or upon demand.”
Upon receipt of this notice of cancellation Mr. Parker called Mr. Reader, who had handled his insurance for about ten years, and was advised by him “forget about it, you are covered”. Unknown to appellees, Reader later issued an office credit memo in their favor, intending to replace appellees ’ insurance business with, another company but through inadvertence did not do so. As advised by Reader, appellees forgot about the cancellation notice assuming continued coverage. They had no further knowledge of the status of their coverage hy appellant until after August 20, 1961 when their automobile was involved in an accident resulting in appellees’ claim of coverage and this action.
The initial premium from Reader to appellant and the unused return premium of $116.83 were both handled in Reader’s monthly “account current” with appellant. The “account current” or the debits and credits of Reader’s agency were adjusted at the end of each month. Therefore, in accordance with this bookkeeping procedure, it was not until the end of May that appellant credited Reader’s account with a total of $410.84 which included appellees ’ unused premium of $116.83. It is undisputed that no money representing the return premium has ever been tendered or refunded to appellees.
' ' It is appellant’s contention that under the language of the contract the payment or tender of appellees’ unearned premium is not a condition precedent to an effective cancellation of the insurance contract. In Merrimack Mutual Fire Insurance Co., v. Scott, 219 Ark. 159, 240 S. W. 2d 666, we held that the purpose of a notice of cancellation is to enable the insured to secure other coverage and, therefore, strict compliance with the cancellation provisions of a policy is a prerequisite to the assertion of the right of cancellation.
It is true that the cancellation clause of the contract in the case at bar provides that payment or tender of an unearned premium is not a condition of cancellation. However, there is another provision which states that the “premium adjustment may he made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective”. Further, the cancellation notice received hy the insured appellees provides that any unused portion of the premium “shall be made as soon as practicable after cancellation be comes effectives”.- [Emphasis added] It was approximately three months from the time of receipt of this notice of cancellation until the accident from which arose this claim of coverage. Neither during this time nor since has there been a refund or a tender of the unused portion of appellees’ premium. The phrase “as soon as practicable” in insurance contracts means a “reasonable time”. National Surety Corporation v. Diggs, 272 S. W. 2d 604 (Texas 1954); U. S. Insurance Co., v. Brown, 285 S. W. 2d 843 (Texas 1955); Ellzey v. Hardware Mut. Ins. Co. of Minn., 40 So. 2d 24 (La. 1949). Under the facts in the case at bar we do not consider that appellant has complied with the provisions of its policy and its subsequent notice of cancellation. Certainly three months must be said to be more than a reasonable time for appellant to effect the plain and unambiguous provisions of its own policy and cancellation notice as to payment of the refund.
The appellant argues that upon appellees’ receipt of the cancellation notice the cancellation became effective. after ten days and thereafter a debtor-creditor relationship existed between appellant and appellees. We do not agree. Although the facts in General Exchange Insurance Corp., v. Coffelt, 192 Ark. 468, 92 S. W. 2d 213, differ somewhat from the case at bar, we think the same principle was involved there as in the instant case. In that case the policy expressly provided that cancellation could be effected with or without a refund of the unearned premium. -It also contained the provision that a refund must.be made upon demand. A notice of cancellation Avas given and a demand for refund Avas made as provided in the policy. Before a refund Avas tendered an accident' occurred upon AAhich the insured appellee based his claim of cor^erage. We said that this delay of the refund rendered the cancellation ineffective because there Avas a promise to refund -upon demand. There is, •also, a promise in .the instant case' that a refund of the ■unearned premium must be made upon demand or it “shall be made as soon as practicable after cancellation becomes effective”. [Emphasis added] We think that ■tlie failure to refund or make a tender of the unused premium as soon as practicable or within a reasonable time, under the facts in the case at bar, resulted in the cancellation of the policy being ineffective. Therefore, since appellees’ loss occurred during this period of delay they are entitled to a recovery.
Nor can it be said by appellant that crediting its agent by an adjustment of the running account between them at the end of the month was, in effect, payment to the insured. 29 Am. Jur., Insurance, § 396; Kinney v. Caledonian Ins. Co., 148 Ill. App. 256; Kinney v. Rochester German Ins. Co., 141 Ill. App. 543; Indiana Ins. Co. v. Hartwell, 100 Ind. 566.
Furthermore, we think the appellees were lulled into a false sense of security by appellant’s agent assuring them of continued coverage in spite of appellant’s cancellation notice. Appellees relied upon this assurance to their detriment. This, coupled with the fact that appellees have never received a return of their unearned premium from any source, estops the appellant from now contending the policy was canceled. See U. S. Insurance Co., v. Brown, supra. We think the following language in that case is applicable:
“* * * where appellant did not tender the unearned premium to Johnson at the time of the alleged cancellation, or ‘as soon as practicable’ thereafter, or at any time, * * * appellant is also estopped to contend that the policy in question was cancelled.”
In the case at bar the appellees paid the insurance premium for the entire term of the policy. This premium was accepted by the appellant and the unused portion was never refunded nor a tender thereof made to the insured appellees. Instead, the unused portion of appellees’ premium was used in a bookkeeping transaction in the adjustment of accounts between appellant and its soliciting agent after appellant had given notice of cancellation to appellees promising a refund “as soon as practicable”. The appellees were unaware of such a bookkeeping transaction. Although the payment or tender of the unearned premium is said not to be a condition of cancellation, there is the unconditional promise by appellant that such refund shall be made as soon as practicable after cancellation becomes effective. Such provisions must be strictly construed and strictly performed. To permit appellees to thus have the benefits and at the same time repudiate the burden of its own agreement would not be in harmony with the fundamental principles of justice.
Appellees request that we award an attorney’s fee for their services on this appeal. We think a fee of $150.00 is reasonable and it is so ordered.
Affirmed.
Ward and George Rose Smith, JJ., dissent. | [
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George Rose Smith, J.
These two condemnation suits, consolidated below, are actually test cases by which the parties seek a determination of this question: Does a drainage district, by reason of its uncollected assessment of benefits, have a property interest in lands within the district for which it is entitled to compensation, in a condemnation proceeding, in addition to the award made to the landowner? The trial court answered this question in the affirmative, holding that the district was entitled to recover a sum equal to the total amount of all the unpaid future drainage district assessments that had been levied by the district against the land being condemned. By direct appeal the Commission contends that it does not owe the district anything. By cross appeal, which we do not reach, the district contends that it should recover a sum equal to the uncollected portion of the benefits assessed against the land being condemned.
The lands in question, which the Commission is taking in fee simple, lie within several overlapping drainage districts. This appellee, a typical drainage district, was organized in 1924 under the Alternative Drainage District Law. Ark. Stat. Ann. §§ 21-501 et seq. (Repl. 1956). Benefits from the proposed improvement were assessed against lands within the district. § 21-513. Funds for the construction of the drainage system were raised by the issuance and sale of bonds, secured by a pledge of the assessed benefits. § 21-553. For the payment of the bonds taxes are levied in annual installments against the assessment of benefits. § 21-554. This particular district now has an outstanding bonded debt with annual maturities running until 1980. The trustee for the bondholders was made a party to this litigation.
In these test cases the parties selected two fact situations for the presentation of their problem to the courts. In the first case the Highway Commission, without notice to the drainage district, acquired a tract with in tin? district by purchasing the fee simple title from the landowner. The Commission then brought this condemnation action against the district, alleging, however, that the district had no compensable property interest apart from that already acquired by the Commission from the landowner.
In the second case, involving another tract, the Commission joined the landowner and the district as defendants in a condemnation suit. The case was first tried with respect to the landowner’s interest alone. He received an award for the fee simple estate. It was stipulated that whatever rights the drainage district might have would be determined at a later date.
The trial court, as we have said, held in both cases that the district had a separate compensable property right in the lands. This was error. There is no tenable theory upon which it can be said that the Commission is taking from the district an independent property right that is separable from the landowner’s fee simple estate.
Two possible theories come to mind. First, the district has a lien against the assessment of benefits—a lien which, upon the landowner’s failure to pay his taxes, may be enforced against the land itself by means of a foreclosure suit. Ark. Stat. Ann. § 21-546 (Repl. 1956). Thus the district has a remedial right against the land that is, if not actually a lien, at least in the nature of a lien.
Such a remedial right is not an estate in the land. With respect to true liens, such as mortgages, the condemnation award takes the place of the land, so that the lienholder’s remedy is to proceed against the award. Nichols, Eminent Domain (Rev. 3d Ed.), § 5.74. Hero the district chose to forego any claim against the landowner’s award and to insist instead that it has a distinct cause of action against the condemnor. It is clear, however, that if the district’s claim is in the nature of a lion its sole remedy is against the award.
Secondly, in addition to its remedy in the event of a delinquency the district also has a substantive right to levy taxes in the future against the assessed benefits. It might be argued that the destruction of this power of taxation is a taking of property for which compensation must be made.
We think it plain that the district’s potential ability to collect the assessed benefits must necessarily be regarded as an element in the landowner’s fee simple estate, for which payment has admittedly been made. To illustrate: We were told in the oral argument that many years ago Mississippi county, where this litigation arose, contained extensive swamp areas of little value. By the creation of levee and drainage districts those swamps have been converted into valuable farm lands. That transformation has been financed by the assessment of benefits against the lands. It is perfectly clear that the physical benefits conferred by the various improvement districts are reflected in the increased market value of the farm land. When the condemnor pays that increased market value, as it has done in these cases, it also pays for the benefits conferred by the districts. If the condemnor were compelled also to pay the districts for their potential power of taxation, the condemnor would be paying twice for the same enhancement of value. If by any chance—and we express no opinion on this point—• the district has some sort of equitable claim arising from the fact that the assessment of benefits has not been paid in full, that controversy is between the district and the landowner and can be of no concern to the condemnor.
This drainage district earnestly argues that, as a matter of equity, if the potential tax liability of the condemned land should be extinguished without compensation to the district the result will be to increase the payments that will eventually have to be made by the other landowners in the district. No doubt this is. true, but the situation is simply an unavoidable consequence of the State’s sovereign immunity from taxation. In fact, this situation is commonplace. Almost every tract of land taken by eminent domain is subject to future taxation for public improvements already made, such as a levee, a drainage system, a courthouse, a municipal auditor ium, a schoolhouse, and so on. There can, as a practical matter, obviously be no requirement that the sovereign satisfy all these nebulous obligations as a condition to the acquisition of the land. (See Public Water Supply Dist. No. 3 v. U.S., 135 F. Supp. 887.) That some shift in the burden of taxation may take place is merely one of the risks that every taxpayer incurs.
A somewhat similar argument is that the value of the district’s outstanding bonds might be destroyed if the State should elect to condemn all the land in a particular improvement district. Whether equity might provide a remedy in that situation is a question that we prefer to leave unexplored until it arises. In the case at bar the lands being taken represent such a tiny part of the total taxable property in the district that there is not even a hint that the security of the outstanding bonds has been impaired. We do not feel called upon to adopt an unsound rule of law, by affirming this decree, merely to hedge against a contingency so remote that it does not seem ever to have arisen or to be likely ever to arise in the future.
Reversed.
Harris, C.J., and McFaddin and Holt, JJ., dissent. | [
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Jim Johnston, Associate Justice.
This suit involves the ownership of a 5% foot strip of land across two lots along Highway 10 in Little Bock. During 1961 appellant Arkansas State Highway Commission reconstructed Highway 10, including the part of Highway 10 that is adjacent to the property of appellees, O. T. and Maudie Montgomery. On January 3,1963, appellees filed suit in Pulaski Chancery Court against appellant, alleging that appellant claimed a sixty foot right of way adjacent to their property, but in fact had only a forty foot right of way, that appellees had never been compensated for the portion of their property claimed by appellant and sought to enjoin appellant from taking their property until condemnation proceedings were commenced.
Appellant answered denying that appellees had any right or title to any of the sixty foot highway right of way established by Pulaski County Court order of October 24, 1935, contending, inter alia, that title to the land here in question had passed by reason of such order. At trial before the Chancellor on April 22, 1963, the parties stipulated that the area in dispute is a strip 5% feet wide immediately south of the curb, along the front of appellees ’ property. It is undisputed that the County Court records show that in 1935 the Pulaski County Court entered an order condemning a right of way sixty feet Avide for Highway 10, to be constructed over an existing gravel road commonly called Little Bock West, and that in 1935 or 1936, -the Highway Commission constructed a highway consisting of approximately eighteen feet of pavement with about five feet of shoulder and five feet of ditch on each side for a total use of right of Avay of approximately forty feet. Appellant conceded that it could not find evidence of direct notice to appellees or their predecessors in title of the County Court proceedings or that any compensation Avas paid to appellees or their predecessors in title. In addition a detailed exhibit Avas introduced by stipulation shoAving the location and exact measurements of appellees ’ property, the location of the business thereon and the location of the strip of land here in dispute. After trial the chancellor found that appellant “should be restrained and enjoined from claiming, taking or using in any Avay any portion of plaintiffs [appellees’] land Avhich lies immediately south of and adjoining the present curb and pavement of Highway 10.” From the decree, appellant has prosecuted this appeal, urging as its major point that the chancellor erred in not finding that the Highway Commission had title to the disputed area of land through the county court condemnation order.
The question involved in this point is notice. In Arkansas State Highway Commission v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283, Ave said that, “It is axiomatic that insufficient notice is no notice at all” and went on to say:
“In State Highway Commission v. Holden, 217 Ark. 466, 321 S. W. 2d 113, wliere there was a County Court Order without notice to the landowners the court approved this language:
“ ‘It is our view that the act of taking is not complete when the judgment of condemnation is rendered. Since such judgment may be without notice, the lawmaking body must have had in mind an order of condemnation followed by entry upon the land. Such entry, being physical and visible, affords the proprietor an opportunity to exact payment or to reqtoire a guaranteeing deposit.’ (Emphasis supplied.)
“In that case the Court said ‘... that the landowner is entitled to damages as of the date when the act of taking is complete—that is, when his lands are actually entered and taken under the order.’ ”
The issue here, then, is whether there was such notice of the county court order when Highway 10 was constructed in 1935 or 1936 as would afford the landowner an opportunity to seek just compensation for his property from the county court within the one-year statutory limitation. That burden of proof is on appellant. We stated in Arkansas State Highway Commission v. Dean, 236 Ark. 484, 367 S. W. 2d 107, that:
“Where, as here, there was no payment of compensation for the taking of land and no publication of notice proved, the burden is on appellant to prove that the land owner had actual notice of the taking of his land. Arkansas State Highway Commission v. Anderson, 234 Ark. 774, 354, S. W. 2d 554.”
Appellant in the instant case was unable to prove payment of compensation or publication of notice, and failed to show that construction of Highway 10 in 1935 or 1936 was anything more than the paving of an existing road. This being true, we have held this situation to be insufficient to put adjoining property owners on notice that additional lands were being taken. See Arkansas State Highway Commission v. Dobbs, sttpra, and Arkansas State Highway Commission v. Dean, supra.
Appellant next urges that the deed to appellees, as well as prior deeds in the chain of title, except from the conveyance “that part in the present right of way of Highway 10” and are therefore clear proof of notice of the taking of the property. There is, however, nothing within these instruments to indicate whether the grantors considered the “present” right of way to be a forty-foot or a sixty-foot right of way. It is undisputed, however, that no more than forty feet was used for highway purposes prior to 1961 and that appellees’ deed, which was introduced into evidence, under which they claim ownership was executed in June 1959. It is our view that the word “present” undoubtedly indicates the right of way to be the forty feet that was in use at the time of the conveyance. Appellees also testified as to actual use and occupancy of the property here in dispute. The detailed exhibit introduced by stipulation of the parties showing appellees ’ property and its location on Highway 10 along with the graphic depiction of the land here in dispute clearly refutes appellant’s contention that the case at bar falls within the rule of Arkansas State Highway Commission v. James, 236 Ark. 556, 367 S. W. 2d 236. We find no merit in appellant’s insistence that ap.pellees failed to prove their ownership of the property in dispute.
When Highway 10 was reconstructed in 1961, appellant ditched beside the highway within the disputed 5% foot strip and put down drain tile (culverts) as appellees had done in 1959. Appellant argues persuasively that this ditching and laying tile was such an entry as would constitute notice to appellees, and that since this action was filed more than a year after the ditching, appellees’ action, which should have been a claim for compensation in the county court, was barred by the one-year period of limitation for filing such claims. Appellees contend on the other hand that the one-year statutory limitation is not applicable to them because appellant has not taken the property; that at the most there was a temporary interruption of their proprietary úse which did not amount to a taking; that since 1959 appellees have used the 5% foot strip as part of the driveway and parking area of their cafeteria, and still do so. Appellees urge that appellant’s entry on their land Avas a temporary, occasional or incidental injury such as is discussed by the Federal District Court in Sponenbarger v. United States, 21 F. Supp. 28, rev’d 101 F. 2d 506, rev’d 308 U. S. 256. Review of the record reveals, first, that one of the appellees testified that appellant removed the drain tile appellees had installed in 1959. On questioning by the court, the witness testified that the location of their culvert Avas ‘Havo feet under the pavement.” “In other Avords, the tile you had placed there, if it had been left there, it AAmuld have been paved over today.” Second, in addition to paving over the area Avhere appellees had placed their tile, appellant ditched the disputed strip, placed 18-inch tile all the AAray across and moved a utility pole onto the strip. Third, while the highway prior to the 1961 reconstruction AAfas forty feet Avide including paving, shoulders and ditches as stipulated by the parties, it is undisputed that after reconstruction the paved portion alone of Highway 10 is forty-nine feet Avide. Finally, in appellees’ complaint appellees allege that “certain parts of plaintiffs [appellees’] property has been taken and a paved highway constructed thereon AAdthout compensation to plaintiffs. ’ ’ On trial de novo on the record before us, Ave deem these itemized facts to be more than sufficient to demonstrate an actual taking that Avould put appellee-landoAvners on notice that their land Avas being taken or had been taken, and thus start the running of the one-year limitation for claims provided for by Ark. Stat. Ann. § 76-917 (Repl. 1957). This notice afforded appellees an opportunity to seek just compensation from the county court Avithin one year after their actual notice of the taking. Appellees failed to present their claim for damages within the statutory period and are foreclosed from so doing now. Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803.
Reversed and dismissed. | [
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Jim Johnson, Associate Justice.
This is an appeal from a final decree and a modified decree of divorce entered against the appellant, Joan Stephenson, and in favor of appellee J. H. Stephenson. These parties were married on September 11, 1954, and separated March 3, 1962. On July 2, 1962, appellee filed a complaint for divorce in Garland Chancery Court against appellant, alleging that appellant was guilty of indignities to appellee’s person and seeking custody of the two young sons of the parties. A general denial was thereafter filed on behalf of appellant. After changing counsel, appellant filed a motion on September 18, 1962, requesting an order permitting appellant to file an amended and substituted answer and cross-complaint. This motion was granted and on October 2, 1962, appellant’s amended and substituted answer and cross-complaint was filed, 'which specifically denied appellee’s allegations and cross-complained, inter alia, for divorce, custody, child support and attorneys fees. On December 7, 1962, the case was tried before the chancellor, with the parties and a number of witnesses testifying in support of appellee’s complaint and appellant’s cross-complaint. On December 11, 1962, the court entered its final decree of divorce granting custody of the children to appellee except during June, July and August of each year, from which decree appellant has prosecuted this appeal. (On January 29, 1963, a modified decree was entered by the chancellor. The ruling appears to be identical with the original decree, with the additions (1) that appellee was ordered to return to appellant her personal belongings and personal property owned by her prior to the marriage, and (2) that each of the parties was given visitation rights two weekends each month while the children are in the other party’s custody.)
Appellant urges six points for reversal which are argued collectively and resolve down to (1) that the trial court erred in granting custody of the young boys to the father and (2) that the evidence did not support the findings and decree of the chancellor.
It is not usual for a chancellor or this court, for that matter, on trial de novo to award custody of young children to anyone other than their mother. However it is not unheard-of. See Bornhoft v. Thompson, 237 Ark. 256, 372 S. W. 2d 616. Arkansas Stat. Ann. § 34-1211 (Repl. 1962) says in part that, “Where a decree [of divorce] shall be entered, the court shall make such order touching the . . . care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable.” In custody matters the unyielding consideration is the welfare of the children. It matters not to this court which of the parties “wins” custody, so long as the children are the ultimate winners of good care and home. In the case at bar the chancellor found that appellee was entitled to a divorce on his complaint and that appellant was not entitled to a divorce on her cross-complaint, and awarded custody to appellee except during the months of June, July and August, during which time appellant should have their custody. During the hearing the perceptive chancellor had the opportunity to fully appraise the witnesses and their testimony. Appellant vigorously contends that the chancellor erred in awarding custody of the children to the father, but there was estimable evidence which supported the able chancellor’s conclusion, and we have said, consistently and frequently, that we will not reverse the findings of the chancellor unless such findings are against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Austin v. Austin, 237 Ark. 127, 372 S. W. 2d 231. As we said in Bornhoft v. Thompson, supra:
“The parties and the witnesses were all observed by the chancellor, who thus had the opportunity to note their demeanor on the stand, the 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 ... is against the preponderance of the evidence: . . .
“. . . Of course, the father [mother, here] can always petition the court for a modification of the present decree if circumstances indicate that a change should be made.”
Solicitors for appellant have petitioned for an allowance of attorneys’ fee for their services rendered in this court, which is hereby granted, in the sum of $200.00.
Affirmed.
G-eorge Rose Smith, J., dissents. | [
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Paul Ward, Associate Justice.
The trial court ruled that appellant, James Harris Boyd, had no right to share equally with his half brother and his three half sisters in certain real estate—hence this appeal. The factual background is summarized below.
James Thomas Boyd and his wife, Mary Etta, were the parents of one son and three daughters, named respectively: William Bentley Boyd, Clara Lillian Rowe, Etta Blanche Eifling, and Minnie Lucy Brown. We will at times hereafter refer to these as the four heirs. Appellant was the son of the said James Thomas Boyd by a former wife. James Thomas Boyd died in 1949 and his wife, Mary Etta, died later, intestate, in possession of the real property here involved. Other pertinent facts are revealed by the following summary of the pleadings.
Petition: Minnie Lucy Brown filed a complaint against her brother and two sisters alleging that they were equal owners of four parcels of land in Lonoke (each parcel specifically described); that the lands were not susceptible of division in kind; that they should be sold and the money equally divided between the four heirs. Order: The court ordered the lands to be sold and the proceeds to be divided between the four heirs. Intervention: Appellant set out the relationship mentioned above; that the property was an ancestral estate of James Thomas Boycl; that he (appellant) was entitled to an undivided one-fifth interest; that James Thomas Boyd deeded the property to Mary Etta Boyd in 1932 for a consideration of $1,000, no part of which was paid; that James Thomas Boyd willed all his property to Mary Etta with the understanding she would give appellant one-fifth; and that the four heirs were estopped to deny his one-fifth interest. The prayer was to have the land sold and the proceeds divided equally between the five parties. Response: The four heirs denied all allegations of intervenor; admitted Mary Etta bought the lands from James Thomas Boyd for $1,000 which amount was paid; admitted the will but said none of subject lands were included; admitted paying appellant one-fifth of proceeds of an insurance policy on the life of Mary Etta payable to James Thomas Boyd.
After a hearing on the above issues the court resolved all issues against appellant, who now prosecutes this appeal for a reversal on four separate grounds.
First, appellant says the court erred in refusing-certain testimony proffered by him. ‘ ‘ Q. Mr. Boyd, your father, did he ever say anything to you—?” The court sustained an objection to the proffered testimony. Obviously, no reversible error is shown. Appellant did not set out what his testimony would have been if he had been allowed to testify. No principle of procedure is better established by our decisions than the rule that an objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing what the testimony would have been. See: Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199, and Weston v. Hilliard, 232 Ark. 535, 338 S. W. 2d 926.
Second, we see no reversible error in the court’s refusal to allow appellant’s witness to testify as an expert regarding the market value of the subject real property. Regardless of the qualifications of the witness as an expert, any such testimony was immaterial since it was not shown that appellant had any interest in the land. ' •
Third, appellant contends the court erred in not disposing- of the property as provided by law for the division of an ancestral estate. There can be no merit in this contention because there was no testimony to show the land belonged to James Thomas- Boyd at the time of his death.
Finally, we cannot agree with appellant’s contention that the four heirs were estopped to deny he had a one-fifth interest in the subject lands. This contention is based on the fact that appellant was given one fifth' of the personal estate of Mary Etta Boyd, deceased. This could have been merely an act of generosity on the part of the four heirs or it could have been because (as contended by the four heirs) a life insurance policy on Mary Etta’s life was payable to appellant’s father. In either case, this circumstance in no way amounts to an admission on the part of the four heirs that appellant owned a one-fifth interest in the subject real estate.
Although the point is not raised or argued by appellant, it might be contended that the rule in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, is applicable here because no testimony was introduced by the four heirs in response to the testimony introduced by the intervenor. Even so, the case must be affirmed since appellant’s testimony wholly failed to make out a prima facie case in his favor.
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Boyd Tackett, Special Justice.
Appellants are citizens and taxpayers of the State of Arkansas. Appellee Loyd Sadler is a Member of the General Assembly of the State of Arkansas and, also, is a Member of the State Board of Pardons and Paroles. Appellee Van Mosley is a Member of the General Assembly of the State of Arkansas and, also, is a Member of the Board of Southern State College—a State supported institution. Appellants petitioned the Chancery Court of Pulaski County, Arkansas, under Article XVI, Section 13, of the Constitution' of the State of Arkansas, to enjoin each Appellee from holding one or the other state office, and for an accounting of any funds unlawfully received by virtue of holding dual state offices. Appellants and appellees moved for a Summary Judgment in the case, and the Chancellor entered a Decree granting Appellees’ Motion for Summary Judgment, ruling that the Chancery Court was without jurisdiction to hear and determine this cause—and, thus, this appeal.
By Separate Answer to the Complaint and Reply to Request for Admissions, Appellee Van Mosley alleged that he had received no pay for services or reimbursement of expenses incurred as a Member of the Board of Southern State College. Whether Appellee Loyd Sadler has received pay for services or reimbursement of expenses as a Member of the State Board of Pardons and Paroles is not revealed.
Article V, Section 10of the Constitution of the State of Arkansas, reads, “No Senator or Representative shall, during the term for which he shall have been elected, he appointed or elected to any civil office under this State. ’ ’ This Constitutional provision clearly precludes Appellee Loyd Sadler from serving as a Member of the State Board of Pardons and Paroles during the term for which he has been elected to serve as a Member of the General Assembly of the State of Arkansas, and clearly precludes Appellee Van Mosley from serving as a Member of the Board of Southern State College during the term he has been elected to serve as a Member of the General Assembly of the State of Arkansas; Wood v. Miller, 154 Ark. 318, 242 S. W. 573; Collins v. McClendon, 177 Ark. 44, 5 S. W. 2d 734; Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S. W. 2d 981; Smith v. Faubus, 230 Ark. 831, 327 S. W. 2d 562; Jones v. Duckett, 234 Ark. 990, 356 S. W. 2d 5.
Appellee Loyd Sadler, is an illegal Member of the State Board of Pardons .and Paroles, and Appellee Van Mosley is an illegal Member of the Board of Southern State College.. . ;
Article IV of the Constitution of the Státé 'of'Arkansas specifically provides that the powers of our state government shall be divided into three departments— legislative, executive, and judicial—and provides that no person,.or collection of persons within one of these departments, shall exercise any power in either of the'other departments.
The most controverted issue in this case is whether the Chancery Court had jurisdiction to determine this cause. This Court holds that the Chancery Court did have jurisdiction of this cause, and that the Chancellor erroneously ruled to the contrary.
Article XVI, Section 13, of the Constitution of Arkansas reads, “Any citizen of any county, city, or town, may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exaction whatever.” The Chancery Court has jurisdiction of suits to prevent illegal exactions; and, therefore, Chancery Court has jurisdiction of this suit for Declaratory Judgment—the equity court does not lose jurisdiction Toy the holder of a civil office electing to perform the duties of the office without pay for services or reimbursement of expenses incurred.
Ark. Stat. 7-202 charges Members of State Boards with the management and control of the respective institutions of the State of Arkansas, affording the Members the necessary power and authority to operate the Boards in a businesslike manner, and directs the Members to take over all records, files, books, papers, furniture, fixtures, and contracts of the institutions.
Ark. Stat. 7-206 directs' the Board Members to meet, organize, elect officers, and transact business on behalf of the institutions; and further provides that the Members of the Boards shall be entitled to the actual expenses which they incurred in attending meetings. Other legislative statutes detail the powers, duties, and responsibilities of Members of the State Board of Pardons and Paroles and Members of other Boards of the various State institutions.
The Members of the State Boards have access to, and supervision over, considerable property, assets and funds belonging to the people of the State of Arkansas, accumulated through taxation. For illegal Members of such State Boards to be entitled to expenses in attending to such state business, in receiving expenses, or in being afforded authority to operate State institutions, constitutes an illegal exaction; and, therefore, any citizen of any county, city or town may, by virtue of Article XVI, Section 13, of the Constitution of the State of Arkansas, institute suit on behalf of himself and all other interested persons to protect the inhabitants of Arkansas against the enforcement of the illegal exactions.
This Chancery Court action was instituted pursuant to Article XVI, Section 13, of the Constitution of the State of Arkansas, and the Chancery Court had jurisdiction of this Constitutional proceeding. This Constitutional provision is self-executing, and imposes no terms or conditions upon the right of the citizens there conferred. Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875; 8 Ark. Law Review 129 (1954).
‘ ‘ Illegal Exaction ’ ’ under the Arkansas Constitution means both direct and indirect illegal exactions, thus comprehending any attempted invalid spending or expenditure by any government official, Quinn v. Reed, 130 Ark. 116, 197 S. W. 15; Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529.
“Illegal Exaction means far more than the mere collection of unlawfully levied taxes. With little limitation, almost any misuse or mishandling of public funds may be challenged by a taxpayer action. Even paying too much for cleaning public outhouses has been held by our courts as basis for a taxpayer’s right to relief, Dreyfus v. Boone, 88 Ark. 353, 114 S. W. 718. Any arbitrary or unlawful action exacting taxes or tax revenues maybe restrained and annulled by a taxpayer affected by such procedure, Bush v. Echols, 178 Ark. 507, 10 S. W. 2d 906; McClellan v. Stuckey, 196 Ark. 816, 120 S. W. 2d 155; Park v. Hardin, 203 Ark. 1135, 160 S. W. 2d 501; Brookfield v. Harahan Viaduct Improvement District, 186 Ark. 599, 54 S. W. 2d 689.
The remotest effect upon the taxpayer concerning any unlawful act by a tax supported program or institution may be enjoined under Article XVI, Section 13, of the Constitution of the State of Arkansas, Green v. Jones, 164 Ark. 118, 261 S. W. 43. Equity jurisdiction has been expanded by the “illegal exaction” provision to afford taxpayers relief by Chancery Court injunction, concerning any arbitrary or unlawful action of a public operation, Ford v. Collison, 128 Ark. 119, 193 S. W. 531; Eddy v. Schuman, 206 Ark. 849, 177 S. W. 2d 918. Any action wherein tax moneys are involved, colored with illegality, entitles the taxpayer to injunctive relief in a court of equity under Article XVI, Section 13, of the Constitution of the State of Arkansas.
We are not dealing in this instance with statutory or common law proceedings—we are dealing with a Constitutional provision affording injunctive relief to a taxpayer concerning illegal exactions. We are not concerned with an election contest for the purpose of determining the rightful office holder, which action would necessarily need be brought in the law court. We are concerned with the Constitutional right of appellants to enjoin appellees from illegally holding civil office wherein illegal exactions are involved.
Our Court thoroughly'discussed “illegal exaction” in the case of Arkansas Association of County Judges v. Green, 232 Ark. 438, 338 S. W. 2d 672, wherein jurisdiction of the Chancery Court was questioned and illegal exaction was involved. This Court stated that the theory of an illegal exaction does not necessarily involve an illegal tax, citing the case of Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901, wherein the Court was not dealing with illegal tax, but with the question of illegal use or appropriation of county funds. This Court, in the case of Lee County v. Robertson, stated that the order of reappropriation was tantamount to an allowance and enforcement of an illegal exaction against every taxpayer of the county, and that each taxpayer was, therefore, individually interested in such order. In the case of Ark. County Judges v. Green, this Court noted that the Arkansas Supreme Court had many times construed Article XVI, Section 13, of the Arkansas Constitution, and had never limited its application to an illegal tax but had uniformly construed it to apply to an illegal exaction as defined in the Lee County v. Robertson case, further stating that the Constitutional provision had been and was being construed to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizens to maintain a suit to prevent such misapplication of funds.
The case of Arkansas County Judges Association v. Green cited the case of Ward v. Farrell, 221 Ark. 636, 253 S. W. 2d 353, wherein this Court stated concerning the involved Constitutional provision:
“There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as referred to above, that a remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication.”
Appellees are illegally holding state civil office as Members of State Boards during the term for which they have been elected to the General Assembly of the State of Arkansas. They are empowered to manage, control and supervise a considerable amount of state property, assets, and funds while serving as illegal Members of the Boards. They are entitled to expenses of attending Board meetings. These activities constitute an illegal exaction affording injunctive relief by any citizens or taxpayers of the State of Arkansas.
Concerning the prayer of appellants for an accounting by appellees of any funds unlawfully received by virtue of holding dual offices, there is nothing in the record to justify a finding that appellants have acted with any fraudulent intent, or that they have even appreciated the possibility of their holding illegal offices. Under the circumstances, those appellants should not be required to account for funds received for services rendered and expenses incurred as Members of the involved State Boards.
The Decree of the Pulaski County Chancery Court is reversed and this cause is remanded, with directions that the Chancellor enter a Summary Judgment enjoining appellee Loyd Sadler from Membership on the State Board of Pardons and Paroles, and enjoining Appellee Van Mosley from Membership on the Board of Southern State College. | [
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Ed. F. MoFaddin, Associate Justice.
This litigation stems from a traffic mishap on Grand Avenue in the City of Hot Springs. E. C. Combs was plaintiff below and is appellee here. Donald Wood and Ben M. Hogan & Co. were defendants below and are appellants here. Mr. Combs drove his car into the rear of a tractor-trailer unit owned by Ben M. Hogan & Co. and operated by Donald Wood. For his personal injuries and damages to his car Mr. Combs filed this action against Donald Wood and Ben M. Hogan & Co., both of whom denied liability. Trial to a jury resulted in a verdict and judgment for appellee Combs, and on this appeal appellants urge two points:
I. The Court erred in failing to direct a verdict for the defendants at the conclusion of the testimony in the case.
II. The Court erred in giving, in failing to give, and in modifying certain instructions.
I. Refusal To Direct A Verdict. This assignment necessitates a review of the evidence; and in so doing we must view the evidence in the light most favorable to the successful party, as is our well established rule in such cases.
Ben M. Hogan & Co. had two tractor-trailer units, each 45 feet in length; and both of these units were engaged in transporting an asphalt plant through the City of Hot Springs on November 11, 1960. The first tractor-trailer unit drove entirely into Jim & Joe’s Service Station property in Hot Springs for the purpose of being serviced. The second tractor-trailer unit was driven by appellant, Donald Wood. He attempted to drive into the same service station property, but because of the presence of the first unit, the trailer part of the tractor-trailer unit, driven by Donald Wood, was parked so that it extended out into Grand Avenue several feet in front of the said filling station. The appellee Combs was driving west on Grand Avenue on his proper side of the street and drove into the said parked tractor-trailer unit. Grand Avenue runs east and west through Hot Springs. It is a four-lane highway with a median divider so that on the north side there are Wo lanes going Avest and on the south side there are two lanes going east. Jim & Joe’s Service Station is on the north side of Grand Avenue. Thus the parked trailer unit driven by Donald Wood Avas partially in the service station, partially on the driveway approach to the service station, and partially extending into Grand Avenue a distance of nine feet.
On the morning in question Mr. Combs was driving his car west on Grand Avenue in the extreme north, or outside lane, and his speed Avas about 25 miles an hour. Just before he reached the entrance to Jim & Joe’s Service Station, one or more cars overtook and passed Mr. Combs on his left, thus forcing him to remain in the north or outside lane. Then he discovered the empty end of the trailer unit extending out into Grand Avenue, directly in his path. At 25 miles an hour he Avas travelling approximately 37 feet per second. The trailer unit Avas a “1oa\t-boy”; and the rear end of the trailer extending out into Grand Avenue Avas empty and was only about three feet above the highway. Mr. Combs testified that he Avas keeping a lookout but was unable to stop before striking the trailer unit. It was stipulated that the ordinance of Hot Springs provided for parallel parking on Grand Avenue and also provided that no vehicle should be parked on a sidewalk or in front of a driveway.
Thus, ■with the tractor-trailer unit parked at an angle in Grand Avenue, and over what was the sideAvalk, and in front of what was the driveway to Jim & Joe’s Service Station, there was evidence that the defendants were violating the ordinance of Hot Springs; and the violation of a law or ordinance is evidence of negligence. Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S. W. 887; Mays v. Ritchie Groc. Co., 177 Ark. 35, 5 S. W. 2d 728; Ozan Lbr. Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182.
The defendants offered testimony that Mr. Combs’ visibility was impaired because his windshield was either frosted over on the outside or covered with moisture on the inside; but such evidence was disputed. The defendants also insisted below, and vigorously urge here, that for Mr. Combs to drive into a parked trailer was a far greater act of negligence than was the parking of the trailer; and on this point the appellants also insist that they were entitled to an instructed verdict. The comparative negligence statute applicable at the time of this case was Act No. 296 of 1957, which, in effect, provided that a plaintiff could not recover if his negligence was equal to or greater than the negligence of the defendant.
From what we have, detailed of the evidence, it is clear that Mr. Combs made a case for the jury, unless this Court is prepared to hold, as a matter of law, that Mr. Combs’ negligence exceeded the negligence of the defendants. After carefully reviewing the record we conclude that a question was made for the jury, both on the issue of the defendants’ negligence and the plaintiff’s contributory negligence. There are some cases in which we have held, as a matter of law, that the plaintiff’s negligence—in that particular case—was greater than the negligence of the defendant; but the usual rule is that the matters of negligence and contributory negligence are issues for the jury. In Ozan Lumber Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182, we said: 786; Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856; D. F. Jones Construction Co., Inc., v. Lewis, 193 Ark. 130, 98 S. W. 2d 874. Whether plaintiffs were guilty of contributory negligence in stopping their buggy unequipped with tail lights on the shoulder of a paved highway at night when the buggy was struck by the automobile of defendant was held to be a question for the jury, in the case of Duckworth v. Stephens, 182 Ark. 161, 30 S. W. 2d 840.”
We have held in one or more cases that, under the facts in that particular case, a motorist who drove his car into a train standing still at a crossing was guilty of a greater amount of negligence than was the railroad company, as a matter of law. But we have also held that a question of fact was made for the jury on negligence and contributory negligence when a motorist drove his car into a train standing still on the crossing. These cases are reviewed in Hawkins v. Mo. Pac., 217 Ark. 42, 228 S. W. 2d 642; and that case shows the line of delineation as to whether, under the facts and circumstances in each case, reasonable men might differ as to which party was guilty of the greater degree of negligence. In the case at bar we conclude a question was made for the jury.
II. Instructions. Appellants insist that the Trial Court ruled erroneously regarding each of five instructions. The assignments related to: (a) giving Court’s Instruction No. 6; (b) refusing to give defendants’ Instructions Nos. 10 and 13; and (c) modifying defendants’ Instructions Nos. 12 and 14; but we find no error in any of the Court’s rulings.
The Court’s Instruction No. 6 reads:
“What do we mean by the term ‘proximate cause’! It is a cause which in its natural and continuous sequence —unbroken by any new efficient intervening cause—produces an event, and without which the event would not have occurred. So, in order to warrant a finding that negligence is a proximate cause of a collision, it must appear from the evidence that the collision was a natural and probable consequence of the negligence and ought to have been foreseen by a person of ordinary prudence as likely to occur under the circumstances. ’ ’
The defendants’ specific objection to this instruction was this:
"... in the second paragraph thereof the affirmative statement is upon the finding that negligence is a proximate cause of a collision, when the finding should have been upon some act or omission of the parties constituting negligence, and for that reason is misleading to the Jury.”
The Trial Court gave eleven instructions on its own motion, and these covered such matters as negligence, contributory negligence, ordinary care, proximate cause, preponderance of the evidence, burden of proof, the duty of the jury to weigh the evidence, etc. This Instruction No. 6 was one of such instructions, and when we- consider Instruction No. 6 in its context with the other instructions, we find no merit to appellants’ objection.
The Trial Court refused to give defendants ’ Instruction No. 10, Avhich reads as folloAArs:
"You are instructed that if you find from a preponderance of the evidence that at the time of the accident herein sued upon, parking Avas permitted upon Grand AArenue, and if you further find from a preponderance of the evidence that the portion of the defendant’s truck extending out into Grand Avenue did not extend further out into the street than would a vehicle parked in the usual and customary manner at the curb, then you are instructed that as to the issues betAveen plaintiff and defendant, it Avould be the same as if the vehicle had been parked on Grand Avenue in a normal and customary manner. ’ ’
The Court was correct in refusing this instruction because it Avas argumentative and was a comment on the weight of the evidence. In the defendants’ Instruction No. 9 the Court had told the jury there could be parallel parking on Grand Avenue; then in defendants’ Instruction No. 11 the Court told the jury that no vehicle with a width greater than eight feet could be on the highway except by special permit. To sandwich in this Instruction No. 10 between the two instructions would be in effect to tell the jury that if the trailer as parked extended out into Grand Avenue a distance of less than eight feet it would be the same as if it had been parked parallel. This was argumentative. If an automobile had been parked on Grand Avenue parallel to the curb, as required by the ordinance, the car would not have been in front of the driveway of the filling station as was this trailer. Furthermore, a parked car would have been higher than three feet and therefore more visible than was the empty portion of this lowboy.
The Court was also correct in refusing defendants’ Instruction No. 13, which read:
“You are instructed that the Arkansas law provides as follows: ‘No person shall drive any motor vehicle with any sign, poster or other non-transparent material upon the front windshield, side wings, side or rear windows of such vehicle other than a certificate or other paper required to be so displayed by law.’ If you find from a preponderance of the evidence that all or a portion of the windshield of the car driven by the plaintiff was obscured by a non-transparent material such as ice or frost then the driving of the vehicle under these circumstances would be a violation of the above quoted statute, which may be taken into consideration by you, along with all of the other evidence in the case in determining whether or not the plaintiff, it. C. Combs, was guilty of negligence. ’ ’
There was no evidence that the plaintiff had any “sign, poster, or other non-transparent material” on the windshield. What the defendants had reference to in this instruction, was the testimony by some of the defendants ’ witnesses that the windshield of Mr. Combs’ car was either partially covered over by frost on the outside, or was partially clouded by moisture on the inside. But the instruction as offered was framed from Ark. Stat. Ann. § 75-730 (Repl. 1957), which section does not relate to frost or moisture but to ‘ ‘ stickers. ’ ’ See Kirkey v. Portland Elec. Co. (Ore.), 298 P. 237.
Defendants complain because the Court modified two of their instructions by deleting certain language in each one. These are rather lengthy and we will not burden this opinion by copying them. It is sufficient to say that we find that the Court was not in error. The jury had been instructed as to the duty of the appellee to keep a lookout and to drive with care and caution; and these matters having been covered in other instructions, the Court did not have to repeat such items.
Finding no error, the judgment is affirmed.
Ark. P. & L. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; Mo. Pac. v. Hopper, 208 Ark. 128, 185 S. W. 2d 88.
There was some dispute as to the distance that the trailer extended into Grand Avenue. Plaintiff Combs said nine feet; another witness said six or eight feet; and another witness said four or four and one half feet; the jury could have found the greater distance of nine feet; and we must so consider it on this appeal.
The word lowboy is defined in Webster’s New 3rd International Dictionary as “lowboy vehicle” and one “having a bed only a few inches above the roadway.”
In 42 A.L.R. 2d, page 13, there is an exhaustive annotation, entitled, “Liability ior motor vehicle accident when vision of driver is obscured by smoke, dust, atmospheric condition, or unclean windshield.” | [
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Melvin Mayfield, Judge.
The appellant’s brief states that the history of this case has as many “twists and turns as an Ozark mountain highway.” The judgment appealed from names the defendants as Raymond and Vester Pryor and Ray and Stephanie Pryor. However, the notice of appeal names only Ray and Stephanie as appellants; therefore, we regard Ray and Stephanie as the appellants and will refer to them as “the Pryors.” They appeal from a judgment of the Hot Spring County Chancery Court which restrained them from interfering with appellees’ (the Rapers) use of certain property and which established the “correct legal description” of that property.
This case started in Saline County Circuit Court as an action for ejectment. In a judgment entered on September 3, 1986, Circuit Judge John Cole found that the Rapers had obtained by adverse possession a strip of land south of the Hot Spring/Saline County line, that included their driveway and a portion of their garden plot. The judgment stated that “The section line separating the properties of these parties and by stipulation, establishing the county line between Saline and Hot Spring Counties, is as indicated by the survey of Larry Harper.” However, the judgment stated that the exact dimensions of this strip of land were to be determined later, and on February 7, 1987, an order describing the property was entered. Thereafter, on March 12, 1987, a supplemental order correcting a “clerical mistake” in the description was also entered. We now know that both of these descriptions were in fact erroneous because they described land north, rather than south, of the section and county line.
In an unpublished opinion handed down November 25, 1987, this court affirmed the judgment of the Saline County Circuit Court. Our decision held that the trial court’s finding that the Rapers had obtained title to the disputed strip by adverse possession was not clearly against a preponderance of the evidence. The exact description of the land involved was not an issue on appeal, but we noted that while the strip of land subject to adverse possession lay in Hot Spring County, it was a piece of the Rapers’ property — most of which lay in Saline County. Therefore, we held that under Ark. Code Ann. § 16-60-101 (1987) the suit could be brought in either county. See also Adkisson v. Starr, 221 Ark. 331, 260 S.W.2d 956 (1953).
After our decision in November of 1987, the Pryors (in March of 1989) filed a petition to quiet title in Hot Spring County Chancery Court. On September 20, 1989, that court dismissed the petition holding “proper jurisdiction is in the Circuit Court which previously had jurisdiction in the matter.”
The Pryors then returned to Saline County Circuit Court and filed a “Motion to Correct or Amend Judgment.” They alleged that a clerical error existed in the description of the property awarded the Rapers and asked the circuit court to “take whatever steps it deems appropriate to ascertain the actual metes and bounds description of the ‘driveway and portion of garden plot’” awarded to the Rapers in the court’s previous orders. On January 22, 1990, that court held it was without jurisdiction to redetermine or restructure its previous orders.
On March 26, 1990, the Rapers filed the present action (Petition to Correct Legal Description, Petition for Injunction and Petition for Damages) in Hot Spring County Chancery Court. Count I of the Rapers’ petition alleged that an error existed in the description of the property awarded them in the adverse possession suit in Saline Circuit Court and sought “the equitable powers of Chancery Court to correct the misdescription in the property in order to provide the Plaintiffs with a correct description to their property as originally provided for in the judgment of the Circuit Court.” Count II of the petition alleged the Pryors had “caused numerous holders [sic] and rocks to be dumped” on the property awarded the Rapers and that the Rapers were unable to use their driveway due to the rocks and boulders and “due to the Defendants having caused a deep trench to be dug in the driveway by a backhoe.” The Rapers asked for a permanent restrain ing order to prohibit the Pryors from interfering with or damaging the Rapers’ property.
On April 12, 1990, the Pryors filed a motion to dismiss, and it was denied by the chancellor. The Pryors then filed a petition for writ of prohibition in the Arkansas Supreme Court, and that petition was denied by an opinion dated November 19, 1990. See Pryor v. Hot Spring Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990).
On May 19, 1992, a hearing on the present action was held in Hot Spring County Chancery Court. At the hearing Judge Cole testified that he recalled the decision in the original case in the Saline Circuit Court, at which he presided, and that the Rapers acquired by adverse possession that property which constituted the driveway to their home and most of the garden plot which they had been using for years. He said this property was south of the Hot Spring/Saline County line; that it was determined by a surveyor to be a rectangular shaped strip of property 450 feet on the north and south sides, and 23 feet on the east and west ends; that it was bordered on the north by the county line; and that the 450 feet began running at the east right-of-way line of U.S. Highway 67.
Appellee George Raper testified that appellant Raymond Pryor had placed rocks on the strip of land awarded to the Rapers by the circuit court and that this prevented Raper from driving his car on the strip of land and using it as a driveway. Mrs. Raper testified that she walks up the driveway several times a day and that Mr. Raper is not able to walk through the area because he walks with a cane and there are “ditches through there.” She testified further she must carry groceries and laundry in a wheelbarrow from the highway.
On appeal, the Pryors argue that the trial court did not have jurisdiction to correct the judgment of the Saline County Circuit Court and that the doctrine of res judicata prevented the correction.
First, we note that both parties agree that the description in the judgment of the Saline Circuit Court is incorrect. Judge Cole testified that he held in that case that the Rapers had acquired title by adverse possession to a strip of land south of the county line. His judgment entered on September 3, 1986, held that the section line separating the properties of the parties was the same as the county line separating the two counties, but both of the two subsequent orders that the judge signed in an attempt to fix and correct the description of the land acquired by the Rapers by adverse possession placed the land north instead of south of the section and county line.
Second, we note that both parties have attempted to get a judicial correction of the description of the property awarded to the Rapers by adverse possession. Indeed, a trial brief filed by the Pryors in the trial court in the case now on appeal points out that after the Saline Circuit Court had entered its last order attempting to correct the description of the land awarded to the Rapers by adverse possession, the Pryors “initiated their own cause of action” in the Chancery Court of Hot Spring County in an attempt “to remove the cloud from the title of the lands in question effected by the error in the legal description supplied by [the Rapers] to the original trial court.” The trial brief then points out that “Judge Shirron, as the presiding judge of the Chancery Court of Hot Spring County dismissed the cause of action as being a matter of res judicata.” Introduced into evidence in the case now on appeal (as defendant’s exhibit 3) is a copy of Judge Shirron’s order, and it states that the suit filed by the Pryors is dismissed because “proper jurisdiction is in the Circuit Court which previously had jurisdiction of this matter.” Moreover, the trial brief filed by the Pryors in the case now on appeal points out that the Rapers have also — prior to the present case — “attempted to correct the erroneous description.” The brief refers to the “Motion to Correct or Amend Judgment” filed by the Pryors in the Saline County Circuit Court which was dismissed by that court by an order (“exhibit 4” in the transcript) entered on January 22, 1990. The order finds “both parties agree that the previous orders of this Court contain an error” but the court “is without jurisdiction to redetermine or restructure the previous orders entered herein without agreement of both parties.”
Under the circumstances existing in this case, we think the Hot Spring Chancery Court was correct in correcting the legal description of the property awarded the Rapers by adverse possession and restraining the Pryors from interfering with the Rapers’ use of that property. Rule 60(k) of the Arkansas Rules of Civil Procedure contains a provision which abolishes certain writs previously used to obtain relief from a judgment or decree and states that the procedure “for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by independent action.” (Emphasis added.) The Reporter’s Notes to Rule 60(k) contains this statement:
5. Subsection (k) follows Section (b) of FRCP 60 by permitting a court to entertain an independent action to relieve a party from a judgment. Bankers Mortgage Co. v. United States, 423 F.2d 73 (C.C.A. 5th, 1970), cert. den., 90 S.Ct. 2242. Arkansas has previously recognized the power of an equity court to review a judgment from a court of law, although such power is severely limited. Cotton v. Hamblin, 233 Ark. 65, 342 S.W.2d 478 (1961).
The case of Cotton v. Hamblin, supra, states that “a chancery court has limited power to set aside the judgment of a law court, but it must be shown that there is no adequate remedy at law.” This subject was discussed by the Arkansas Court of Appeals in Taggart v. Moore, 8 Ark. App. 160, 650 S.W.2d 590 (1983), where we said:
In the development of the English common law, courts of equity obtained the power to restrain the enforcement of judgments at law which were procured by fraudulent and inequitable conduct. This power arose at a time when law courts had little or no authority over their final judgments or power to stay enforcement of unjust ones. This equitable power was limited to those cases where judgments were entered by extrinsic fraud, mistake or accident and where the defendant had a valid legal defense on the merits but was prevented from maintaining it by such fraud. It was based on equity’s general jurisdiction over all inequitable and fraudulent conduct and its inherent power to grant relief where there is no adequate remedy at law.
8 Ark. App. at 163, 650 S.W.2d at 592.
The appellants (Pryors) argue that under the Taggart decision the Hot Spring Chancery Court was wrong in the present case to correct the property description contained in the judgment of the Saline Circuit Court. This is true, according to the appellants’ brief, because Taggart “tells us unequivocally that no such jurisdiction exists.” Appellants’ argument is based on the fact that Taggart held that equity will not vacate or modify a law court judgment where “there is an adequate remedy at law.” Although that is clearly what Taggart held, the appellants do not explain how there was an adequate remedy at law at the time the Hot Spring Chancery Court corrected the property description in the present case. It must be remembered — as we have noted — that both parties in this case admit that the description in the circuit court judgment is incorrect. Even the circuit judge affirmed this fact in his testimony in this case. It must also be remembered that the appellants filed a motion in the Saline Circuit Court to correct the description in that court’s judgment and that court held it was without jurisdiction to redetermine or restructure its prior judgment. Thus, it seems obvious that there was no adequate remedy at law to correct the circuit court judgment at the time the Hot Spring Chancery Court granted the petition filed by the appellees (Rapers) in which they asked that court to exercise its “equitable powers ... to correct the misdescription in the property” and to issue a permanent restraining, order to prohibit the appellants from interfering with the appellees’ use of their property. We, of course, recognize that the chancery court agreed with the appellees’ contention as to what description was correct — and not with the appellants’ contention in that regard — but the appellants do not question the correctness of the chancery court’s description, only its power to make that correction.
Under the circumstances in this case, we think it is clear that the chancery court had the power and the right to correct the circuit court’s property description in this case. Certainly it had the power and right to issue an injunction, and that issue was decided by the Arkansas Supreme Court in the opinion denying the writ of prohibition in this case. Pryor v. Hot Spring Chancery Court, supra. Also, our supreme court has held that “the remedial processes of equity are quite flexible, and where there is a manifest right clearly recognized, in equity jurisprudence they cast about for some fit mode of enforcing it, if no exact precedent may be found applicable to the case.” Riddick v. Streett, 313 Ark. 706, 711, 858 S.W.2d 62, 64 (1993). Moreover, as our supreme court said in Cotton v. Hamblin, supra, and as the court of appeals said in Taggart, supra, Arkansas has recog nized the equitable power to set aside or modify a law court judgment (when there is no adequate remedy at law) where the judgment resulted from extrinsic fraud, mistake, or accident. Our Rule of Civil Procedure 60(k) does not eliminate this authority. Such authority is allowed by the Federal Rules of Civil Procedure, see discussion in 11 Wright and Miller, Federal Practice and Procedure, Civil § 2868 (1973), and, at least, in some state courts, see discussion in Nevada Industrial Development, Inc. v. Benedetti, 741 P.2d 802 (Nev. 1987).
Our view of this case, as explained above, makes it unnecessary to discuss other points raised by each side. For example, we do not have to decide whether the error in the circuit court’s judgment was a clerical error. The appellees cite Luckes v. Luckes, 262 Ark. 770, 561 S.W.2d 300 (1978), and say the error here did not arise from the exercise of the court’s judicial discretion and was therefore a clerical error. The appellants do not agree. Furthermore, they argue that the error was the result of appellees’ counsel “not knowing the exact dimensions of the strip of land.” Appellants say, “that is a proof problem, not a typographical error.” There is, however, no evidence abstracted by appellants to show that the incorrectness of the property description resulted from appellees’ negligence or inattention any more than from that of the appellants. The chancery court’s decree simply states that the circuit court judgment “contained a clerical error in the description of the property.” Even if that description was not a clerical error, we review chancery cases de novo and affirm if we find the result reached by the chancellor was correct for any reason. American Investors Life Insurance Co. v. TCB Transportation, 312 Ark. 343, 345, 849 S.W.2d 509, 511 (1993); Moore v. City of Blytheville, 1 Ark. App. 35, 39, 612 S.W.2d 327, 331 (1981). We find that the chancellor’s decision in this case was correct.
Affirmed.
Robbins and Cooper, JJ., agree. | [
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James R. Cooper, Judge.
This appeal involves a dispute under Act 401 of the Public Grain Warehouse Law between the creditors of Sunrice Milling, Inc., a public grain warehouse, over the proceeds from the sale of rice in its possession. The chancellor held that Ark. Code Ann. § 2-17-303(a) (1987) protected the claims of the appellees who produced the rice and that their claims were entitled to be paid first from the proceeds from the sale of the rice. On appeal, the appellant, Banque Indosuez, a secured creditor of Sunrice, claims that the appellees’ claims are not entitled to protection under the Public Grain Warehouse Law and that it is entitled to priority in the proceeds by virtue of its perfected security interest in the Sunrice inventory.
Sunrice Milling, Inc. (Sunrice), operated a rice mill and warehouse in Crawfordsville, Arkansas. The appellant, Banque Indosuez, loaned operating capital to Sunrice and obtained a security interest in Sunrice’s real and personal property including its inventory. In late 1991 and early 1992, Sunrice verbally agreed to purchase rice produced by the appellees and had their rice delivered to its warehouse. The appellees were never paid for their rice, however, and Sunrice discontinued operating its business shortly thereafter. Sunrice was then audited by the Arkansas State Plant Board, and in the course of its audit, the State Plant Board determined that a mistake had been made in its past audits of Sunrice. The State Plant Board decided that, since Sunrice did not have priced scale tickets or any other written documentation evidencing its alleged purchase of the appellees’ rice, the rice in its possession should be considered stored grain rather than inventory. The effect of this decision was to make the rice produced by the appellees “stored grain” under the Arkansas Public Grain Warehouse Law. Because the rice in Sunrice’s possession was insufficient to cover the claims of Sunrice’s creditors, a petition for receivership was filed by the State Plant Board, and the State Plant Board Director, Gerald King was appointed receiver. Under the receiver’s proposed plan of distribution, the appellees’ claims were given priority to the proceeds over the claim of the appellant. The appellant was allowed to intervene and at trial contended that the State Plant Board erred in determining that the rice in Sunrice’s possession was stored grain rather than grain purchased by Sunrice and subject to its perfected inventory lien.
At the conclusion of the trial, the chancellor held that, because the rice was not beneficially owned by Sunrice and title to the rice had not been transferred to Sunrice by written document, the grain should be considered stored grain and subject to the provisions of Act 401 of 1981 of the Public Grain Warehouse Law. Act 401 § 2, codified at Ark. Code Ann. § 2-17-303, voids any encumbrance placed by a warehouseman on grain in its possession unless the owner of the grain has transferred title of the grain to the warehouseman by written document. The chancellor therefore concluded that the claims of the appellees were entitled to priority in the proceeds and approved distribution of the proceeds according to the receiver’s plan. Additionally, the chancellor held that there was sufficient evidence of constructive fraud and that it would be inequitable to hold that Sunrice or the appellant beneficially owned the rice.
The appellant couches its arguments in terms of the applicability of Act 401 of 1981 to the case at bar. These arguments are premised on the appellant’s contention that the appellees sold their grain to Sunrice. The arguments are without merit, however, because the premise is unfounded. In our view, the thresh-hold question in this case is whether, on this record, the chancellor’s conclusion that there was no sale is clearly erroneous or against the preponderance of the evidence. Upon our review of the record, we cannot say that the chancellor was wrong.
Act 401 of 1981 amended the Public Grain Warehouse Law, which is codified at Ark. Code Ann. § 2-17-201 et seq. Section 2-17-303, which is the basis of the present dispute, provides that:
(a) Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman. No public grain warehouseman shall sell or encumber any grain in his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman.
(b) Notwithstanding any provision of the Uniform Commercial Code, as amended, 4-1-101 et seq., to the contrary or any other law to the contrary, all sales and encumbrances of grain by public grain warehousemen are void and convey no title unless the sales and encumbrances are sup ported by a written document executed by the owner specifically conveying title to the grain to the public warehouseman.
In the case at bar, it is undisputed that no documents of transfer or conveyance of title were executed by the appellees nor were the appellees paid for their rice that Sunrice had delivered to its warehouse. Therefore, the burden was on the appellant to show that a sale occurred.
The clear language of Act 401 defines “owner” and declares that any transfer of title of grain by a warehouseman is void without the original written transfer of title from the grain depositor to the warehouseman. In other words, the farmer continues to own his grain until he signs a document giving up title to the grain. This requirement is similar to the “statute of frauds” title transfer requirement for realty. Once the farmer shows that he signed no document, the initial legal conclusion under the statute is that no sale occurred. The burden of proof is then on the party alleging the occurrence of a sale. A successful defense against the farmer would be to prove that the farmer did sell and should therefore be estopped from asserting void title.
Gregory K. Stephens, Act 401 of the Public Grain Warehouse Law: An Exception to the U.C.C. Concept of Voidable Title, 37 Ark. L. Rev. 293, 304-06 (1984).
Sunrice, as a licensed public grain warehouse, was subject to all the provisions of the Arkansas Public Grain Warehouse Law including the rules and regulations adopted by the State Plant Board. See Ark. Code Ann. § 2-17-205. Regulation VIII(B)(4) requires that all scale tickets issued by a warehouse must be marked to denote the type of transaction and applies to all persons delivering grain to a public grain warehouse. The Plant Board relied on this regulation in concluding that the rice at Sunrice was stored and not owned.
Edward Downing, manager of the Grain Warehouse Division of the Arkansas State Plant Board, testified that he is responsible for the licensing and auditing of public grain warehouses and that the Plant Board audits facilities to determine whether there is stored grain in a facility and if there is enough grain in a fácil ity to cover the warehouse’s obligations. He stated that, under the Public Grain Warehouse Law, everything is considered “stored grain” until documents such as a priced-scale ticket, a contract, or a purchase where a check has been written can prove otherwise. In order to make this determination, he testified that the auditor reviews the scale tickets on received grain and, if the scale tickets are priced, the grain represented by those tickets is not considered “stored grain.” He further testified that Ark. Code Ann. § 2-17-202(7) includes an unpriced scale ticket under the definition of a warehouse receipt and that is why the Plant Board considers unpriced scale tickets as obligations of the warehouse. He testified that there are regulations and instructions which the Plant Board has issued specifying how the licensed warehouse-men are to handle scale tickets; that warehouseman are supposed to issue scale tickets on all grain received in the facility; and that there are boxes on the scale tickets, which can be checked to show whether the grain is for sale, stored, or condition or purchase contract. He also stated that, if a warehouse has a priced scale ticket, it can then issue itself a warehouse receipt in its own name and use it as collateral at a lending institution to borrow money. In reference to the claims of the appellees J & G Farms, P & C, Inc., and Phillip Pollard, Downing testified that he audited Sunrice after it shut its doors and determined that there were no priced scale tickets, contracts transferring title, or evidence that Sunrice had paid for the grain from these producers.
Roger Gilmore, former mill manager and rice buyer for Sunrice, testified that Sunrice’s primary business was buying rice from farmers, milling the rice, and selling the rice and its by-products. He stated that the purchases he made for Sunrice were done by verbal agreement and that payment was made by Sunrice’s Houston office directly to the farmers after the Houston office received his “rough rice report.” He stated that, normally, he would fill out a “buyer’s report” when he made a deal with a farmer; that the buyer’s report contained the estimated quantity of grain, the milling yields, and the quoted price; and that he then arranged for transportation of the rice. He stated that a scale ticket showing the weight of the rice was completed when the grain was delivered to Sunrice and, after he received the scale ticket, he then completed a rough rice purchase report (also known as a settlement report) on which he figured the price and then sent it to Houston. He stated that the “buyer’s report,” scale ticket, and the “rough rice report” were routinely used in every transaction and it was the only paperwork he had on acquiring rice. Although he admitted that Sunrice did not issue priced scale tickets, evidencing its purchase of the grain, Gilmore contended that the rice was all priced because he had buyer’s reports showing the prices and the scale ticket numbers. He stated that the farmers were entitled to scale tickets after the trucks were weighed but that the buyer’s reports that he completed which showed the agreed price were not furnished to the farmers on a regular basis. Concerning the rice he purchased from J & G Farms, he testified that nothing was provided J & G evidencing Sunrice’s receipt of its rice. He also testified that it was his personal opinion that Sunrice did not own the rice until the producer was paid.
The appellees’ witness, Chris O’Neal, of P & C, Inc., a farming operation, testified that P & C delivered 8,400 bushels of rice to Sunrice in 1992 but did not receive any scale tickets. He stated that he had talked with Gilmore in November and they had agreed on a price and delivery but he had locked in a price at a later date.
Greg Edmondson, partner in the appellee J & G Farms, testified that he had gotten with Gilmore at Sunrice, saw what Sun-rice was offering for rice, and that Sunrice had arranged to come and pick up his rice. He stated that the rice was for cash as soon as it was delivered, there was no contract signed, and he never signed any document transferring title to Sunrice. He testified that it was his understanding that Sunrice would hold the rice until he got paid and, once paid, the rice was theirs and they could mill it. He admitted, however, that he had no specific conversation with Gilmore to this effect.
On our review of chancery cases, we will not set aside a chancellor’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. Bright v. Gass, 38 Ark. App. 71, 78, 831 S.W.2d 149, 153-54 (1992). Based on our review of the record, we cannot say that the chancellor erred in finding that no sale of the disputed grain occurred and, therefore, that the grain in question was stored grain.
Because we affirm the chancellor’s holding as to the appellant’s first point, we need not address the appellant’s contention that the chancellor erred in finding constructive fraud.
Affirmed.
Jennings, C.J., and Robbins, J., agree.
Although Gerald King is also considered an appellee in this appeal, our reference to the appellees refers only to the claimants whose grain was in the possession of Sun-rice at the time it went into receivership. | [
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Paul Ward, Associate Justice.
This is a Workmen’s Compensation case. Claimant, Floyd Eddington, was denied compensation by the full commission, and this finding -was approved by the circuit court.
On appeal to this Court we are asked to resolve only one issue: Is the finding of the full commission (as approved by the circuit court) supported by substantial evidence? If it is so supported it is our duty to affirm the judgment of the trial court—as is established by decisions too numerous to require mention. What constitutes substantial evidence is a question of law. See: Boyd Excelsior Fuel Company v. McKown, 226 Ark. 174, 288 S. W. 2d 614, and Cummings v. United Motor Exchange, 236 Ark. 735, 368 S. W. 2d 82.
After a careful examination of the testimony and the applicable law we have reached the conclusion that there is no substantial evidence to support the finding of the commission in this case and that, consequently, the judgment of the trial court must be reversed. In support of that conclusion we set out hereafter at some length the pertinent testimony, after first giving the factual background.
The claimant (appellant), Floyd Eddington, is a married man 44 years old. He had been a pipe fitter for 15 years, and had ■worked for the City Electric Co. (appellee) for about a year. As such employee lie helped to install boilers and furnaces by putting the sections in place and adjusting the pipe connections. He was injured in June 1962 while helping install a boiler for the school at Luxora. Since the injury he has been able to do very little, if any, work. The decisive and difficult question is whether there was a causal connection between his injury and his later physical condition. We find no difficulty in concluding (from a study of the record) that claimant did suffer an injury and that his physical condition was thereafter impaired.
Lay Testimony. According to claimant: On Thursday, June 14, 1962 he and a Mr. Fair were engaged in installing a boiler of three sections—each weighing 500 to 600 pounds; it was hot (100 degrees in the shade) and humid, and they had to move each section quite a distance over muddy ground by use of a two wheel cart and then lift it in place; while they were lifting one of the heavy sections in place claimant hurt himself—said he was blind as a “bat” and his head was spinning; they took it easy the rest of the day. The following day (Friday) they worked but claimant said he felt bad, weak and used up. On the following Monday claimant went back to work, and while he and his helper (his brother, and also a pipe fitter) were installing some two inch pipe he blacked out, staggered and fell—hitting his head on the concrete floor; he Avas taken home and Dr. Godley Avas called. According to claimant Dr. Godley said the symptoms indicated heat prostration; the next morning he blacked out in the bathroom, and was then admitted to the hospital. Claimant said that on Monday the temperature Avas 102 degrees in the shade. He also said he had never previously had any physical ailments, except one minor injury about ten years previously when he lost no time at work.
The above testimony of claimant AAras corroborated by his helpers. Also, one Louis Carucci, a pipe fitter and an employee of appellee testified he had knoAvn claimant some ten years and that he never heard him complain about any physical ailments. He also stated that claimant needed more help on the job he was doing, but that the company ivas busy on other jobs.
It is undisputed that claimant had seven or eight convulsive seizures after June 1962 and that he has not worked since the injury.
Medical Testimony. Claimant was first examined by Dr. Godley. In essence Dr. Godley testified: I cannot say positively that loss of body fluid produced by prolonged heavy work in the hot sun and the blow on his head were the primary cause of appellant’s condition.
Q. “Then I will ask you if, in your opinion these were the precipitating or aggravating factors?
A. “Yes, sir. I think so.”
“...I myself thought Mr. Eddington’s difficulty started on the day that he fell and was precipitated by the heat and/or hitting his head on the ground and that since that time he has been ill and no positive diagnosis has been made.”
He further stated that claimant is still suffering from convulsive seizures, and he has not been discharged as well and able to go back to work.
Dr. Phil Orphet, who lives in Memphis and practices internal medicine, examined claimant at the request of Dr. Godley. In essence Dr. Orphet testified that he made laboratory studies and found claimant’s skull was not indented or fractured; his impression was that claimant had fainting.and swooning spells, but the origin was unknown to him; that the loss of body fluids and sodium produced by prolonged heavy work in the hot sun might have been a precipitating factor to claimant’s condition, but other things might have caused it; he could not say claimant was able to return to work; striking his head on the concrete floor could have caused a cerebral concussion—the brain tissue could be bruised even though the skull was not fractured; it is possible that a light concussion might cause a hemorrhage where there is a weakened blood vessel. ■ He advised that claimant be ex- aminecl by Dr. DeSaussure, a neurologist located in Memphis.
Dr. DeSaussure, who examined and X-rayed claimant, testified in essence: The Xray of the skull showed two or three suspicious areas—Xrays will not show damage to brain tissue; brain tumor was ruled out; he could not, from his examinations, determine the cause of claimant’s condition; he feels that claimant could continue his line of work as a pipe fitter but didn’t say when; it takes a fair degree of heat to damage the brain so as to cause convulsive seizures, but extreme heat can cause brain damage.
From the above it appears there is no positive medical evidence that claimant’s present physical condition was not caused or aggravated by his injury. Giving the greatest possible weight to the doctors ’ testimony, it only proves they do not know what caused claimant’s present physical condition. That being the situation we think this case is controlled by the case of Hall v. Pittman Construction Co., 235 Ark. 104, 357 S. W. 2d 263, where we said:
“If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award.”
Apply the above language to the facts in the case before us and a reversal is clearly indicated. The disability arose immediately after the accident, the accident occurred while claimant was working, and there is nothing to suggest any other explanation for claimant’s disability ■—the medical testimony being negative. Similar also, is the case of Clark v. Ottenheimer Brothers, 229 Ark. 383, 314 S. W. 2d 497. There, in reversing the commission, we said:
‘ ‘ There was no evidence and no opinion to the effect that appellant’s injury was not or could not have been caused by tbe heavy lifting she did. None of the four doctors who treated her, including the one who operated on her and removed the disc, was ever asked if the injury could have been caused by the work she was doing, and none expressed an opinion about the matter one way or the other. On the other hand the first doctor who treated appellant gave this written statement: ‘My opinion is the work she was doing at Ottenheimer Bros, was the causative factor to her troubles’.”
In this case, it will be recalled, the first doctor (Dr. Gi-odley) made a similar statement with reference to claimant.
We point out also that our Workmen’s Compensation law should be liberal^ construed, and that doubtful cases should be resolved in favor of the claimant. See: Boyd Excelsior Fuel Company v. McKown, supra, and Cummings v. United Motor Exchange, supra.
In accord with the conclusions heretofore expressed, the judgment of'the trial court is reversed, and the cause is remanded to the circuit court with directions to remand to the commission for further proceedings consistent with this opinion.
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Frank Holt, Associate Justice.
The appellant, Joe T. Baker, was charged by information with the crime of involuntary manslaughter. Upon a jury trial he was found guilty of the lesser offense of negligent homicide and his punishment assessed at one year imprisonment in the county jail. From the judgment upon that verdict the appellant brings this appeal.
For reversal the appellant first questions the sufficiency of the evidence. It is a most familiar rule that upon appeal the evidence must be viewed in the light most favorable to the appellee and if there is any substantial evidence to support the jury’s verdict it must be sustained. Coffer v. State, 211 Ark. 1010, 204 S. W. 2d 376; Grays v. State, 219 Ark. 367, 242 S. W. 2d 701; Carnal v. State, 234 Ark. 1050, 356 S. W. 2d 651, certiorari denied, 83 S. Ct. 146, 371 U. S. 876. With this rule in mind we proceed to review the evidence in this case.
On March 21, 1962 appellant and his half brother, Tom Baker, were riding in appellant’s pick-up truck which was entirely on the wrong side of the road when the truck collided head-on with a vehicle driven by Kay Helton who was accompanied by his wife and child. The appellant and his half brother each contend the other was driving. As a result of the collision Mark Helton, infant child of the Heltons, was killed. The accident occurred on a straight portion of the road about three o’clock in the afternoon and visibility was clear. There was no evidence of skid marks by the Baker vehicle. It came to rest in Helton’s lane of traffic. Helton’s vehicle was found in the ditch on his side of the road some distance from the point of impact. The appellant and his half brother were thrown from the pick-up truck and appellant was found unconscious on the pavement critically injured. Tom was found in a dazed condition near the scene of-the accident.
Through the window of his store a witness observed the appellant’s pick-up truck a few seconds before the collision and estimated its speed at 70 to 75 miles per hour as it passed another vehicle. He testified that “you could count to three” after it went out of sight before he heard the impact. A broken vodka bottle was found about three feet from the right side of the truck and beer cans were also found on the floor board of the truck and at the scene of the accident. The investigating officer testified that the appellant had a strong odor of alcohol on his breath. The appellant admitted that he had had three drinks of whiskey from about 12:30 P. M. until 3 P. M. when the accident occurred. Further, that during this time he had purchased a bottle of whiskey, however, he denied opening it. There was no evidence the half brother was drinking. The half brother testified that the appellant was drunk and driving the vehicle on the wrong side of the road at approximately sixty miles per hour when the truck collided head-on with the Helton vehicle. We think the evidence in this case was amply sufficient to sustain the verdict and judgment. Craig v. State, 196 Ark. 761, 120 S. W. 2d 23; Comer v. State, 212 Ark. 66, 204 S. W. 2d 875; Campbell v. State, 215 Ark. 785, 223 S. W. 2d 505, and Walker v. State, 237 Ark. 36, 371 S. W. 2d 135.
The appellant specifically questions the sufficiency of the evidence that he was the driver of the pick-up truck. No witness could testify who was driving other than appellant and Tom, his half brother. Appellant testified that Tom had been driving him around from 12:30 P. M. until' the accident at 3:00 P. M. Tom admitted that he had made a statement under oath that he and not the appellant was the driver. In repudiating this statement he maintained that the appellant had promised him money to make the statement. He testified that he asked to drive the car since appellant was drunk and that appellant refused. Furthermore, the appellant contends that the physical facts, with reference to the position of the vehicle and where he was found unconscious and where Tom was observed in a dazed condition following the -accident, are contrary to his half brother’s testimony as to which one was driving the truck. The conflicting evidence as to which one was the driver of the vehicle was a proper question for the jury’s determination and it chose to disbelieve appellant’s version as it had a right to do. Lewis and Wren v. State, 220 Ark. 914, 251 S. W. 2d 490.
The appellant also urges “there is no proof of willful or wanton negligence ’ ’. The answer to this contention is that the appellant was convicted of negligent homicide which, according to Ark. Stat. Ann. ■§ 75-1001 (Repl. 1957), only requires sufficient proof that the appellant operated his vehicle in a reckless or wanton disregard for the safety of others. The jury was so instructed by Instruction No. 10 without any objection to it. The word “willful” is not contained in this statute. It was deleted by Act 174 of 1955 as an amendment to this statute.
Finding no error in any of appellant’s contentions, the judgment is affirmed. | [
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Gteorge Rose Smith, J.
This appears to he an action brought by the appellee to recover judgment upon six promissory notes executed by the appellant. We do not reach the merits, for under Rule 9 we are compelled to affirm the the judgment. The appellant has submitted only a statement of the case, a list of the points relied upon for reversal, and a brief. There is no abstract of the pleadings, the judgment, or the testimony that was heard below. To determine the facts in the case we should have to explore the record, which is contrary to our practice. Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265.
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Sam Eobinson, Associate Justice.
This is an eminent domain proceeding in wbicb the Arkansas Highway Commission condemned a portion of two tracts of land. It is alleged that the tract owned by appellees, C. A. and Lessie Slagle, was damaged in the sum of $850.00, and the tract owned by appellees, Allen and Joella Carpenter, was damaged in the sum of $100.00. There was a judgment for the Slagles in the sum of $3,163.00, and a judgment for the Carpenters in the sum of $2,900.00. The Highway Commission has appealed.
For reversal the appellant contends that the court erred in refusing to strike the testimony of the landowners’ value witness, alleging that he did not use a proper basis for determining the before and after value.
The appellees’ witness who testified to the value of the property was Donald M. Eoderick, a real estate dealer in Ft. Smith, Arkansas. After having stated on direct examination his opinion as to the market value before and after the taking, Mr. Roderick was asked by counsel on cross-examination exactly how he arrived at the market value after the taking. He testified that he considered loss of land taken, replacing a fence, loss of trees, replacement of shrubs and flowers, moving the house back from the right of way line, cost for replumbing and rewiring the house after it was moved, and finally the cost for a motel or hotel for a family to stay until the workmen could get the house back in livable condition after it is moved from its present location.
All the items mentioned above, with the exception of the cost required to live in a motel, are factors to be properly considered in arriving at the before and after value. We have said that there is no set formula or pattern that must be followed in arriving at before and after value. Springfield v. Housing Authority of the City of Little Rock, 227 Ark. 1023, 304 S. W. 2d 938; Ft. Smith & Van Buren District v. Scott, 103 Ark. 405, 147 S. W. 440. Consideration may be given to every element which a purchaser, willing but not obligated to buy, would consider. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792. The profits of a business, however, cannot be considered in arriving at the value. Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802 (September 30, 1963).
Certainly, all the items mentioned by Mr. Roderick, with the exception of the cost of staying at a motel, are factors to aid in determining the difference in the before and after value of the property; these figures would likely be used by a buyer to determine market value. In Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S. W. 2d 794, we quoted as follows from Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S. W. 2d 796; “Evidence of the cost of improvements for restoration purposes and relocation costs is proper.” But, we also said: “Let it be borne in mind that these prospective expenditures are not the measure of damages, but are only an aid in determining the difference in tbe before and after value of the property.”
The testimony-as to the cost of staying in a motel while the house is put back in livable condition cannot be considered as a factor in determining market value; but in making his objection to Mr. Roderick’s testimony, counsel asked that all Roderick’s testimony be stricken, and did not specifically point out that the cost of hotel or motel accommodations should not be considered in determining market value. The court was correct in overruling the motion to strike all of the testimony of Mr. Roderick. As recently as September 30, 1963, in Arkansas State Highway Commission v. Wilmans, supra, we said that a motion to exclude all the testimony of a witness is properly overruled if a part of it is competent.
Appellant makes the same objection to Mr. Roderick’s testimony with respect to the Carpenter property, but what we have said regarding the witness’ testimony about the Slagle land applies in a like manner to the damages sustained by the Carpenters.
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Ed. F. McFaddin, Associate Justice.
Appellant, George Edward Walker, was charged with, and convicted of, involuntary manslaughter; and brings this appeal. The motion for new trial contains a total of nineteen assignments, which we group and discuss in suitable topic headings.
I. Sufficiency Of The Evidence. On the night in question Walker and another man, named M. J. Hunter, Jr., were in a truck proceeding west on 13th Street in Pine Bluff. The truck approached U. S. Highway No. 79, failed to stop at the stop sign, smashed into an automobile being driven on Highway No. 79, overturned the automobile, and injured Miss Suzy Glover, a passenger in the automobile. Miss Glover died in a short time as a result of said injuries. There was substantial evidence from which the jury could have found—and did find by its verdict of guilty-—that the defendant Walker was the driver of the truck that caused the death of Miss Glover; and that Walker was intoxicated at said time. Certainly the evidence is sufficient to support the verdict. Fitshugh v. State, 207 Ark. 117, 179 S. W. 2d 173; Lewis and Wren v. State, 220 Ark. 914, 251 S. W. 2d 490; and Stacy and Rusher v. State, 228 Ark. 260, 306 S. W. 2d 852.
II. Severance Granted Hunter And Refusal To Quash The Information As To Walker. M. J. Hunter, Jr. was in the truck with the defendant, Walker, at the time of the collision, and the State named both Walker and M. J. Hunter, Jr. in the information. Hunter sought, and obtained, a severance; and Walker complains of the ruling of the Court granting the said severance and the refusal to quash the information against Walker because of the severance. There was no error in the Court’s ruling. Since both Hunter and Walker were in the truck at the time of the collision, both could be charged with the homicide, under the cases previously cited. When Hunter sought a severance it was within the discretion of the Trial Court to grant or refuse it. Ark. Stat. Ann. §43-1802 (1947). There was no abuse by the Court of its discretion. Bennett and Holiman v. State, 201 Ark. 237, 144 S. W. 2d 476; Finley v. State, 233 Ark. 232, 343 S. W. 2d 787. There was no reason to quash the information against Walker merely because of the severance.
III. Refusal To Excuse A Juror. On voir dire Paul Lucus, a member of the regular panel, stated that he was an officer in a service club in Pine Bluff; that Mr. Glover, father of the deceased, Miss Suzy Glover, had been a member of the club; that the club held its luncheons at the Hotel Pines; that Mr. Glover refused to attend the luncheons at the hotel, since the defendant Walker worked at the hotel; that a committee was appointed to see what could be done about Mr. Glover’s complaint; that Mr. Glover subsequently resigned from the club. Mr. Lucus stated that he knew nothing about the facts of the homicide. The following occurred when Mr. Lucus was being interrogated on voir dire:
“THE COURT: Have you formed or expressed any opinion as to the defendant’s guilt or innocence?
“MR. LUCUS: No, sir.
“THE COURT: Any bias or prejudice for or against bim?
“MR. LUCUS: No, sir.”
Tbe Court then asked Mr. Lucus if he could try tbe case solely on tbe law and tbe evidence; and Mr. Lucus answered in tbe affirmative. Tbe Court beld Mr. Lucus to be a qualified juror, and be served on tbe jury. There was no error in the ruling of tbe Court bolding Mr. Lucus to be a qualified juror.. Tbe fact that be bad tbe activities stated did not ipso facto disqualify bim. Tbe fact that a juror has done business with one of tbe litigating parties does not ipso facto disqualify bim as a prospective juror. Rumping v. Ark. Nat’l Bank, 121 Ark. 202, 180 S. W. 749; Becker v. Laws, 74 Ark. 286, 85 S. W. 425. Tbe vital question for tbe Trial Court to determine was whether tbe venireman would and could try tbe case solely on tbe law and tbe evidence and render a fair and impartial verdict. Tbe Trial Court so beld as regards Mr. Lucus; and we see no error committed. '
There is another, and in itself, a sufficient reason for bolding against the appellant regarding tbe juror Lucus; and such reason is because there is no evidence of any kind in tbe record to show that tbe defendant exhausted bis peremptory challenges and was thereby forced to accept Mr. Lucus as a juror. Our cases bold that a defendant cannot complain of tbe overruling of a challenge for cause unless tbe defendant exhausted bis peremptory challenges and was forced to accept tbe questioned juror. Mabry v. State, 50 Ark. 492, 8 S. W. 823; Holt v. State, 91 Ark. 576, 121 S. W. 1072; Shoop v. State, 209 Ark. 498, 190 S. W. 2d 988. Tbe defendant’s motion for new trial contained the following allegation:
“Because the Court erred in denying defendant’s motion on voir dire examination for the Court to excuse tbe prospective juror, Paul Lucus, for cause when tbe defendant bad already exhausted bis peremptory challenges.”
Tbe quoted allegation in tbe motion for new trial—about exhausting peremptory challenges—is not sustained by the record. There is no evidence of any kind in the record to show that the defendant exhausted his peremptory challenges; and a mere allegation in the motion for new trial does not constitute evidence. Shinn v. Tucker, 37 Ark. 580.
IY. Statements Defendant Made To Arresting Officer. After the collision between the truck and the car, the defendant walked across the street and sat down near a filling station. When the investigating officer arrived at the scene, he noticed the defendant had a contusion on his forehead and asked him how he got the wound. The defendant told the officer that he (the defendant) was driving the truck that was involved in the collision. Thereupon, the officer took the defendant to the hospital for dressing of the defendant’s wound; and the defendant, in the presence of others, repeated the statement that he was driving the truck at the time of the collision. It is claimed that the officer failed to advise the defendant that anything he said could be used against him; so it is urged that the statement of the defendant to the officer was a confession and was under duress. But when the defendant took the witness stand in the trial of the case, he admitted that- he told the Prosecuting Attorney on several prior occasions that he (the defendant) was driving the truck at the time, and so admitted on the witness stand. Thus, any statement that the defendant made to the officer under the circumstances above mentioned was rendered entirely harmless by the other testimony in the case. The defendant explained that the reason he admitted driving the car was because M. J. Hunter, Jr. did not have a driver’s license, and the defendant and Hunter had agreed when they started on their trip, that in case any trouble should develop, the defendant would admit being the driver. This explanation by the defendant rendered harmless any ruling of the Court regarding the testimony of the officer, even if the said testimony might have otherwise been objectionable—a matter we need not decide. The evidence showed that Hunter and the defendant had, just before the collision, consumed a considerable quantity of gin, beer, and whiskey; so that they hardly knew which one was driving the car; but disinterested witnesses testified that immediately after the collision the defendant was in the driver’s seat. Under the circumstances heretofore cited, the defendant could have been convicted of involuntary manslaughter, even if he had not been driving the vehicle.
CONCLUSION. We have examined the other assignments and find no error. Affirmed. | [
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Carretón Harris, Chief Justice.
This appeal results from the refusal of the Craighead Circuit Court to dismiss forgery charges against appellants on grounds of double jeopardy. The facts, briefly, are as follows:
Appellants, James D. Cody and Gardner Lee Muse, were arrested and incarcerated in the Craighead County Jail on November 17, 1962. An information charging them with forgery was filed ten days later in the Circuit Court. Neither defendant was able to make bond, •and they have remained in custody since their arrest. Five months later the court was advised that appellants were indigent and unable to retain counsel; the court, on April 17,1963, appointed counsel to defend appellants on the charge, and the next day, April 18, the trial began. The jury was selected, impaneled and sworn, and the state proceeded to call five witnesses, including merchants, whose testimony dealt with the claimed forgery, and officers, who testified to a confession by Muse and certain oral statements by Cody. Defense counsel moved for a mistrial after the Muse confession was read, because the confession included incriminating statements relative to Cody. The jury was instructed that the evidence should not be considered as to Cody, and the motion for mistrial was overruled. At the conclusion of the testimony of these five witnesses, the state rested. Charles Muse, a brother of defendant Muse, was placed on the stand, evidently for the purpose of testifying to mental incompetency on the part of his brother, dating back to a harrowing war experience, but when Charles was asked, “Where has your brother been in the years since World War II?” the Prosecuting Attorney objected, and the court sustained the objection. Appellant, Gardner Muse, then testified, stating, inter alia, that he was drunk and had been in that condition for two days at the time the checks were written; that he had no recollection of writing same, and subsequently mentioned that he had taken a number of shock treatments. At the conclusion of his testimony, the trial was- recessed over the weekend. When the court reconvened on Monday morning, the trial judge in chambers made the following statement :
“On Thursday, April 18, 1963, at about 4:45 P.M. this Court was recessed until this morning. At the time of the recess the defendant, Gardner Lee Muse was on the stand. The defendant Muse had entered a general plea of not guilty to the crime of forgery upon which he is being tried. Prior to the commencement of the trial no notice had been given or indication made that insanity would be a defense. During the course of exami nation of witnesses, the testimony drifted toward the defendant’s actions tending to lead to a showing of the possibility of insanity. Certain rulings were made by the Court relative to the issue of insanity and of the competency of testimony relating thereto. During the adjournment of this case, the Court has had an opportunity to further consider the matter and the law pertaining thereto and now makes this ruling: under the general plea of not guilty, this defendant has the right to avail himself of any defenses which the testimony adduced in this cause tends to establish including that of insanity. Any ruling heretofore made by the Court in conflict herewith shall be superseded by this ruling. If any of the parties wish to recall any of the witnesses for further examination in view of this ruling, they will be permitted to do so.”
--The state, through the Assistant Prosecuting Attorney, then moved the court to declare a mistrial in the case, and order Muse committed to the Arkansas State Hospital for observation and examination. This motion was made on the basis of; Ark. Stat. Ann. § 43-1301 (Supp. 1961), the pertinent portion of which provides:
“If the trial had already begun when the issue of insanity is raised, and the court deems it necessary for the proper administration of. justice that a mistrial be declared, it shall be the duty of the judge to declare such mistrial, and then to proceed as herein provided. * * *”
Defense counsel objected, and the court denied the motion, stating:
“If after proceeding with the evidence it is shown that there is a possibility of insanity, then the Court under the statute can exercise its discretion as to declaring a mistrial and have him sent to the State Hospital for observation, or in the alternative, may have him examined by two local doctors. At this time the Court finds nothing in the record to justify a mistrial for observation of the defendant.”
Charles Muse, the brother of appellant, was then recalled to the stand, and testified that, the mental condition of his brother had radically changed after the war. He related a number of incidents which tended to show a highly nervous and incompetent condition, and further testified that his brother had, in 1960, been a patient in the Psychiatric Ward at Kennedy Hospital, where he had received a number of shock treatments, and had also been committed to the Mississippi State Hospital twice. Following the testimony of this witness, the court called a short recess, and in chambers made the following statement to counsel:
“Gentlemen, in view of the trend of the testimony that has been adduced from this particular witness, the brother of the defendant, and a close associate, the court deems it necessary for the proper administration of justice to declare a mistrial and commit the defendant to the State Hospital for observation.”
Defense counsel strenuously objected, and likewise vigorously objected and noted exceptions when the court announced that it was declaring a mistrial also as to Cody, counsel announcing that he would plead double jeopardy as to both defendants. The court entered its order directing that Muse and Cody be delivered to the State Hospital for Nervous Diseases for the purpose of observation and examination, and directed that all proceedings in the case be held in abeyance pending the completion of such examinations. Appellants filed their motion seeking dismissal of the cause on grounds of ■former jeopardy, and the court entered its order overruling such motion, and granting an appeal.
Before discussing appellants’ contentions, we might first make mention of one of the arguments advanced by the state. In the instant case the Prosecuting Attorney, after the court had announced that it was declaring a mistrial as to Cody, called attention to the fact that this defendant had already moved for a mistrial himself, and the Prosecutor stated: “At this time the state joins in the motion * * * that a mistrial be granted in this case.” Counsel for appellants then asked to withdraw the -motion. It is difficult to determine from the record what action was taken by the court in this respect; in fact, the record does not reveal that any order or statement was made by the court relative to this request. It does not appear, however, that the court’s order declaring a mistrial was in any wise based on defendant’s earlier motion. Of course, this motion had already been passed upon and was not at issue when the insanity of Muse was suggested by the evidence.
The Attorney General argues that Cody, by his earlier request for mistrial, “waived his constitutional right of jeopardy notwithstanding the trial court originally denied the motion * * We do not agree with this argument. The situation is closely akin to the Florida case of State v. Himes, 15 So. 2d 613. In that case, the defendant moved for a mistrial on grounds of the admission of improper testimony (as was here done), and the motion was overruled by the trial judge. Thereafter, the state after it appeared that it would be unable to establish a case, joined in the motion, and the defendant attempted to withdraw his motion, which the court denied, such denial being based upon the fact that the-state had already acquiesced in the motion. The Supreme-Court of Florida reversed the trial court, holding that the defendant should have been permitted to withdraw his motion. Here, too, even if the court had based the mistrial on appellants’ earlier motion (which evidently was not the case), we would reverse, and hold that the motion for withdrawal should have been granted.
Appellants devote the- first point in their brief to the fact that the order overruling the motion to dismiss is appealable, and, among other cases, cite Jones v. State, 230 Ark. 18, 320 S. W. 2d 645. However, the appealability of the order is not at-issue since no motion has been made by the state to dismiss the appeal, the Attorney General apparently conceding that the order is appealable, and that Jones v. State is sufficient authority for that conclusion. While it is true that the second trial has not been set, and it is within the realm of possibility that a second trial would never be held, tbe proceedings need not advance to that extent before tbe issue of double jeopardy can be passed upon. In tbe Jones case, we said:
“When the jury is finally sworn to try tbe case (§43-2109 Ark. Stats.), jeopardy has attached to tbe accused; and when, without tbe consent of tbe defendant, express or implied, tbe jury is discharged before tbe case is completed, then , tbe constitutional right against double jeopardy may be invoked, except only in cases of ‘Overruling necessity.’ ”
Of course, it would be pointless to send a case back for re-trial, necessitating tbe additional expense to tbe county, and depriving tbe defendants of their freedom for months longer, if we feel that tbe contention of double jeopardy contains merit and would eventually be upheld under the facts presented. As stated in Jones v. State, supra:
“If tbe defendant’s claim against double jeopardy contains merit, then tbe Constitution requires that be should be freed; and tbe denial of bis freedom is tbe point at issue. Furthermore, having concluded—as we have—that tbe appellant’s plea of former jeopardy was well founded, it would certainly be putting form above substance for us to hold that he could not prevail at this time on bis motion to discharge; but that be would have to suffer a long and expensive trial before be could bring to this Court the issue of former jeopardy. Justice demands that an accused have bis rights tested and determined speedily. As the Constitution says in Article 2, §13: ‘Every person is entitled . . . to obtain justice . . . promptly and without delay.’ ”
Tbe quoted language is appropriate in tbe case before us since we have concluded that tbe appellants ’ plea of former jeopardy is well founded.
Appellants vigorously argue that Section 43-1301 (heretofore referred to) is unconstitutional in that it, in effect, subjects a defendant to double jeopardy and is thus in conflict with Article 2, Section 8, of the Constitution of the State of Arkansas. We do not agree with this contention. This court has rendered several opinions which hold that the defense of double jeopardy may not be invoked if the court has discharged the jury and declared a mistrial because of “overruling necessity.” McDaniel v. State, 228 Ark. 1122, 313 S. W. 2d 77; Franklin v. State, 149 Ark. 546, 233 S. W. 688, and cases cited therein. This is in line with the general rule which is found in 22 C.J.S., Section 259, Page 674.
“The manifest necessity permitting the discharge of a jury without rendering a verdict and without justifying a plea of double jeopardy may arise from various causes or circumstances; but the circumstances must be forceful and compelling, and must be in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.”
In construing the statute under attack (43-1301) we must do so in view of, and in conformity with, the previous holdings of this court relative to “overruling necessity,” wherein we have stated, that, in such cases,, the constitutional prohibition is not violated. Under our decisions, we think the statute is perfectly valid, and the-court may declare a mistrial when the issue of insanity suddenly enters the case, provided that the circumstances, are compelling or give rise to an emergency over which neither court nor attorney could have any control or which could not have been averted by diligence and care. For instance, if a defendant first showed signs of insanity during the trial, or if background facts, which could not have been earlier determined, indicated insanity, or if the prisoner had been represented by counsel who had advised court officials that no issue of insanity would be raised, the court might well be justified in declaring a mistrial because of “overruling necessity.” But the facts in the present case do not conform to those examples.
As far as Cody is concerned, the record reflects neither a plea of insanity nor a single line of evidence that would suggest this appellant to be insane. Even if the mistrial had been justified as to Defendant Muse, there was nothing to prevent the continuation of the trial as to Cody. It is apparent that there was no compelling reason, nor emergency, which made necessary the order of mistrial as to this appellant.
Turning to Muse, the transcript reflects that prosecuting officials had been in possession of the record sheet from the Department of Justice for several months, and this sheet lists “S. H. Whitfield,. Miss., Gardner Lee Muse, February 6, 1961, patient.” From the colloquy between counsel, it appears that the sheet also reflected, “S. Hospital, Whitfield, Miss.” While it is true that the record does not reflect the nature of the illness, or the report made by the hospital, we think the mentioned notation was sufficient to suggest to law enforcement officials that further inquiry should be made, particularly since the Arkansas institution for nervous diseases is likewise known as the State Hospital. A letter, telegram, or phone call to the State Hospital at Whitfield would doubtless have enabled these officials to have obtained pertinent information.
As heretofore pointed out, these prisoners had been in jail for five months before an attorney was appointed to represent them. If the Circuit Court had been advised that two indigent prisoners were in the jail, and in need of counsel, that court could have appointed an attorney who would have then had an opportunity to confer with the clients, ascertain, their backgrounds, and apply for an appropriate order before the case was set. [Ark. Stat. Ann. § 43-1304 (Supp. 1961).]
Under the circumstances herein, there was but little opportunity for appointed counsel to acquaint himself with Muse’s past history, since he was appointed one day, and the trial commenced the next.
We hold that Section 43-1301 is valid, and when the issue of insanity is raised after the trial has commenced, the court may, where necessary for the proper administration of justice, declare a mistrial and commit a defendant to the State Hospital for observation. However, by “necessary,” we mean “overruling necessity,” as the term has been used herein.
In the instant case, we find no “overruling necessity, ’ ’ and this view is strengthened by the fact that the court’s action in declaring a mistrial meant that these defendants would remain in jail for a number of months longer, and it would now appear that they have been in custody for about ten months. Article 2, Section 10, of our State Constitution, provides that ‘ ‘ The accused shall enjoy the right to a speedy and public trial * * Appellants vigorously objected and excepted when the court entered its order. We think the objection was well taken, and the court should have granted the motion filed by appellants seeking dismissal of this case against them.
In accordance with the reasoning herein expressed, the court’s order overruling the motion to dismiss on grounds of double jeopardy is reversed, cancelled, and set aside, and this cause is remanded to the Circuit Court with directions to enter an order dismissing Case No. 8255 against these appellants.
It is so ordered.
McFaddin, J., dissents; Robinson, J., concurs.
Referring to the original trial.
Emphasis supplied.
In U. S. v. Haskell, Pa., 26 F. Cas. No. 15, 321, the members of a jury reported to the court that one of their fellow jurors, from his actions and conduct, was apparently insane; the jury rendered a verdict of guilty, but when the jury was polled, this juryman, evidently quite agitated, and declaring that he was not “quite collected,” answered, “Not guilty.” From his personal observation of the juror and the reports made from other jurors, the court declared a mistrial and discharged the jury. The next day, the defense contended that the discharge of the jury amounted to an acquittal (raising the double jeopardy argument) which contention was denied. On appeal, the Circuit Court of Appeals held that this was a case of necessity, and that the trial court had not abused its discretion in discharging the jury-under the circumstances.
This record, commonly called “rap sheet,” is compiled through finger-printing, and sets out all arrests, convictions, or entrance into any jail or institution where the finger-prints of a subject are taken upon admission. | [
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George Rose Smith, J.
This is an action for breach of contract brought by the appellee, Texarkana Construction Company, Inc., a general contractor. Texarkana was the successful bidder upon a school construction job at Fort Smith. Before bidding for the job Texarkana had first obtained bids from several electrical contractors for the electrical work involved. The appellant Reynolds was the low bidder for the electrical subcontract. Texarkana relied upon Reynolds’ figures in computing its own bid for the principal contract.
Before the principal bids were opened Reynolds discovered that he had made a serious error in bidding for the subcontract, in' that he had overlooked the cost of the fixtures that were required. There is some dispute in the testimony, but the circuit court, sitting without a jury, was justified in finding that the Reynolds bid was not so low as to put Texarkana on notice that a mistake had been made, that Reynolds failed to withdraw his offer until two days after the principal bids were opened, and that after the bids were opened it was too late for Texarkana to avoid entering into the principal contract upon the terms stated in its own low bid. See Bailey v. Carter, 211 Ark. 369, 200 S. W. 2d 313.
Upon Reynolds’ refusal to perform the subcontract Texarkana was compelled to employ another electrical contractor at a figure that was $4,997.20 in excess of the Reynolds bid. This appeal is from a judgment awarding Texarkana damages in the sum just stated.
Reynolds contends that he was not bound by his offer to undertake the subcontract, for the reason that he received no consideration for the offer and in fact withdrew it before having been notified of Texarkana’s acceptance.
In this situation, despite the absence of a formal acceptance, the offer by Reynolds became binding under the principle of promissory estoppel. “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Rest., Contracts, § 90. We approved this doctrine in Peoples Nat. Bk. of Little Rock v. Linebarger Const. Co., 219 Ark. 11, 240 S. W. 2d 12, noted in 7 Ark. L. Rev. 61. We pointed out that the promise giving rise to the estoppel may be without consideration.
Upon facts similar to those before us the better rule is that the subcontractor is bound to perform upon the terms of his bid. Drennan v. Star Paving Co., Calif., 333 P. 2d 757; Northwestern Engineering Co. v. Ellerman, 69 S. D. 397, 10 N. W. 2d 879. As the court observed in the Ellerman case, the contrary view, adopted in James Baird Co. v. Gimbel Bros., 2d Cir., 64 F. 344, has been rather severely criticized. Justice demands that the loss resulting from the subcontractor’s carelessness should fall upon him who was guilty of the error rather than upon the principal contractor who relied in good faith upon the offer that he received.
As a secondary argument Reynolds contends that his offer was revoked by a counteroffer made by Texarkana. The exact terms of the proposed subcontract had not been discussed by the parties when Reynolds submitted his bid. Later on, after Texarkana had obtained the principal contract, Texarkana sent Reynolds a mimeographed subcontract. Reynolds now says that the proffered agreement contained several clauses, such as a performance bond requirement and daily liquidated damages for delay, that he would never have agreed to. Hence, he insists, the proposal amounted to a counteroffer that constituted a rejection of his bid. Smith v. School Dist. No. 89, 187 Ark. 405, 59 S. W. 2d 1022.
The trial court may well have doubted whether Reynolds would actually have refused the subcontract if it had contained a price sufficient to assure him of a profit. In any event, however, we think the present contention to bo mi afterthought that comes too late. Reynolds rejected the proposed subcontract upon the sole ground that he could not do the work for the price that was offered. His conduct in that respect constituted a waiver of the objections that are now leveled against Texarkana’s proposal.
Affirmed.
Johnson, J., dissents. | [
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Sam Robinson, Associate Justice.
On December 19, 1957, William B. Moore was admitted, as a patient, to the Arkansas Baptist Hospital. In consideration of the services to be rendered by the hospital to Moore, appellant, Stewart K. Prosser, agreed in writing to pay for such services. When Moore left the hospital on December 24, there was a balance of $87.65 owed for services rendered. The account was not paid.
On June 2, 1959, in an effort to collect, the hospital filed this suit in the North Little Rock Municipal Court. Both Moore and Prosser were named as defendants. On motion of appellant Prosser, the case was transferred to the Municipal Court of Jacksonville. It does not appear from the record that either of the defendants filed an answer, and it does not appear that Moore was served with summons. In fact, the summons was returned by the Sheriff to the Municipal Court marked “non est” as to Moore.
On April 24, 1961, the cause came on for trial and judgment was rendered in favor of the hospital against the defendant Prosser. The judgment recites that both Prosser and Moore appeared in person and were repre sented by counsel; lienee, the fact that Moore was not served with summons is of no consequence. Nichols v. Arkansas Trust Co., 207 Ark. 174, 179 S. W. 2d 857; Purnell v. Nichols, 173 Ark. 496, 292 S. W. 2d 686; Austin v. Hemphill, 170 Ark. 945, 282 S. W. 1.
On August 11, 1961, the judgment of April 24 was set aside by the Municipal Court on motion of Prosser, and another judgment was entered against both Moore and Prosser. There was an appeal by Prosser to the Circuit Court, but it does not appear that Moore appealed. The trial in Circuit Court resulted in a judgment in favor of the hospital against Prosser, and he has appealed to this court.
It is appellant Prosser’s contention that he merely signed the agreement to pay the hospital as security for Moore and that it was the duty of the hospital, as provided by Ark. Stat. Ann. § 34-333 (Eepl. 1960), to commence suit against the alleged principal debtor, Moore, and prosecute such suit to a conclusion. It appears from the record before us that the hospital did the very thing that appellant contends it should have done. The record shows that not only did the hospital name Moore as a party defendant in this case, but actually secured a judgment against him in the Jacksonville Municipal Court.
Affirmed.
Harris, C. J., disqualified and not participating. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Workers’ Compensation Commission. Appellant, Virginia Huckaby, requests that this court clarify the opinion of the Commission. We dismiss the appeal.
Appellant’s request on appeal is that this court clarify the opinion of the Commission and hold that it may not act as a bar to any future litigation of the issues of permanent disability and vocational rehabilitation, which issues appellant asserts were properly reserved. Appellant does not argue that the opinion of the Commission was erroneous or that it should be reversed. In the alternative, appellant requests that this case be remanded to the Administrative Law Judge for judgment on the merits of the reserved issues of permanent disability and vocational rehabilitation. Appellant cites no authority in support of either her request for clarification or her alternative request for remand to the Administrative Law Judge.
Under Ark. Stat. Ann. § 81-1325 (Supp. 1985) this court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
(1) That the Commission acted without or in excess of its powers.
(2) That the order or award was procured by fraud.
(3) That the facts found by the Commission do not support the order or award.
(4) That the order or award was not supported by substantial evidence of record.
Appellant does not ask for a reversal because of any error of the Commission. Rather, appellant requests that this court clarify the opinion of the Commission or, in the alternative, remand the case to the ALJ for a determination as to permanent disability and vocational rehabilitation. Appellant’s request is premature. This court cannot determine whether the opinion of the Commission will have a res judicata effect on issues raised in her claim for permanent disability or rehabilitation benefits because appellant has not yet brought this claim. This court does not render advisory opinions. Neeley v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986).
This court is not empowered to grant the type of relief appellant requests in her appeal. Therefore, we hereby dismiss appellant’s appeal. It is unnecessary to discuss the Commission’s decision because that issue is not properly before this court.
Dismissed.
Cracraft and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this Workers’ Compensation case, Wanda Guthrie, was injured at her workplace on July 7, 1982. More than two years later, on August 6, 1984, the appellant filed a tort action against her employer, which was dismissed on the grounds that the appellant’s exclusive remedy was under the Workers’ Compensation Act. On March 25,1985, the appellant filed her notice of a Workers’ Compensation claim against the employer. The administrative law judge ruled that the appellant’s claim was barred by the two-year statute of limitations set out in Ark. Stat. Ann. § 81-1318(a)(l) (Supp. 1985). The Workers’ Compensation Commission essentially adopted the decision of the administrative law judge in an opinion dated April 15,1986, and therefore dismissed her claim. From that decision, comes this appeal.
For reversal, the appellant argues that Ark. Stat. Ann. §81-1318(e) (Repl. 1976), controls and prevents her claim from being barred by the two-year limitation period prescribed in § 81-1318(a)(1). Because we find this argument to be persuasive, we do not address the appellant’s argument that Tyson was estopped to rely on the limitations defense.
Arkansas Statutes Annotated § 81-1318(a)(1) (Supp. 1985) provides that:
A claim for compensation for disability on account of an injury (other than an occupational disease and occupa tional infection) shall be barred unless filed with the Commission within two (2) years from the date of the injury.
Although the appellant did not file her claim within two years from the date of her injury, she contends that her claim was nevertheless timely filed under Ark. Stat. Ann. § 81-1318(e) (Repl. 1976), which states that:
Whenever recovery in an action at law to recover damages for injury to or death of an employee is denied to any person on the ground that the employee and his employer were subject to the provisions of this Act [§§ 81-1301 — 81-1349], the limitations prescribed in subsections (a) and (b) shall begin to run from the date of the termination of such action.
(Emphasis supplied). The question, then, is whether the action at law for damages referred to in § 81-1318(e) must itself be filed within the two-year limitation period for filing compensation claims set out in § 81-1318(a)(1) in order to give effect to the tolling provision in § 81-1318(e).
As a prerequisite for the tolling of the statute of limitations, paragraph (e) requires (1) an action at law for damages; (2) denial of recovery; and (3) that recovery be denied on the ground that the employer and employee were subject to the Workers’ Compensation Act. Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969). That the action for damages must be filed within the two-year period prescribed by § 81-1318(a)(1) cannot be inferred from the language of paragraph (e). Instead, that paragraph clearly states that whenever an action at law for damages is terminated on the ground that the parties were subject to the Workers’ Compensation Act, the two-year period in paragraph (a)(1) begins to run only upon termination of that action. Because the Workers’ Compensation Act is highly remedial, it is entitled to a liberal construction. Hart’s Exxon Service Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ark. App. 1980). Moreover, in keeping with the policy of resolving doubtful cases in favor of the claimant, where there is substantial doubt concerning which statute of limitations is applicable in Workers’ Compensation cases, the rule is that the longer statute of limitations is to be preferred and adopted. Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W.2d 211 (1956). We therefore hold that an action at law for damages need not be filed within the period prescribed by Ark. Stat. Ann. § 81-1318(a)(1) in order to give effect to the tolling provision in Ark. Stat. Ann. § 81-1318(e).
We reverse and remand for further proceedings consistent with this opinion.
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John E. Jennings, Chief Judge.
This appeal is a result of a dispute between Elizabeth and Mildred Self, the two wives of Alex Self, now deceased, over which one is entitled to the deceased’s veteran’s benefits. The issue is whether the motion of Mildred Self, the first wife, to set aside an earlier divorce decree, is barred by the doctrine of laches. The trial court held that it was not and we affirm.
There is no serious dispute as to the facts. Alex and Mildred Self were married in 1947 and eventually had four children. Alex served in the military overseas.
In 1964 Alex and Mildred returned from Tripoli, Libya, and moved to Pineville, Louisiana, where they owned a home. Alex was stationed at the air force base in Clinton, Oklahoma and Mildred and the children remained in Pineville.
On September 1, 1965, Alex filed a complaint for divorce in Union County Chancery Court, alleging that he had been a resident of the state of Arkansas for more than ninety days and that Mildred’s last known address was Alexander City, Alabama. A warning order was issued and an attorney ad litem wrote Mildred at an address in Alexander City. The letter was returned as “undeliverable.” It is undisputed that Alex had not been a resident of Arkansas for the time prescribed by law, that Mildred was not then a resident of the State of Alabama, and that Mildred had no notice whatsoever of the proceedings.
On October 8, 1965, Alex obtained a decree of divorce and promptly returned to his home in Pineville, Louisiana. One week later Mildred found the divorce decree in Alex’s car. She promptly consulted with James Gravel, a lawyer in Alexandria, Louisiana, who thought that the Arkansas divorce decree was “null and void.” Mr. Gravel then filed for and obtained, in Louisiana, a decree of separation from bed and board on Mildred’s behalf. Alex paid child support under the terms of this decree, albeit sporadically. He and Mildred never lived together again.
In 1982, Alex met Elizabeth Zagatta. On February 15, 1984, they had a daughter, and they married on May 17, 1984. Elizabeth testified that Alex had shown her his divorce decree prior to the marriage.
On May 10, 1987, Alex died. Elizabeth applied for, and began receiving, veteran’s benefits. In August 1987, Mildred filed for veteran’s benefits. Her claim was eventually denied. On April 3, 1989, Mildred filed a motion to set aside the Union County Chancery decree of divorce, without notice to Elizabeth. On May 24, 1989, the Union County Chancery Court entered an order holding that the decree was void for lack of jurisdiction. On November 18, 1991, Elizabeth filed a motion to intervene and to set aside the order setting aside the decree. After a hearing the chancellor denied the motion, and Elizabeth appeals. The sole question is whether the chancellor erred in not finding that Mildred’s claim was barred by the doctrine of laches.
The doctrine of laches is founded on the equitable maxims of “he who seeks equity must do equity” and “equity aids the vigilant.” Grimes v. Carroll, 217 Ark. 210, 229 S.W.2d 668 (1950). In the application of the doctrine, each case must depend upon its own particular circumstances. Grimes, supra. The issue of laches is one of fact. See Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991). We will not reverse the trial court’s decision on a question of fact unless it is clearly erroneous. Ark. R. Civ. R 52(a); Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993).
In the case at bar it is undisputed that Mildred was not aware of Alex’s purported remarriage to Elizabeth until after his death. The contention, however, is that Mildred should have taken action to set aside the Arkansas divorce decree within a reasonable time of her discovery of it in 1965. Unquestionably, Mildred took prompt action upon her discovery of the divorce decree. She consulted local counsel, filed an action for legal separation, and sent the Union County Chancery Clerk a letter stating that Alex had not been a resident of Arkansas and that she had had no notice of the proceedings. It is by no means clear that the Louisiana attorney’s advice was in error. When service of process is invalid, judgments obtained thereby have been said to be void. See Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978); Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972); Black v. Merritt, 37 Ark. App. 5, 822 S.W.2d 853 (1992). Actual knowledge of proceedings does not validate defective service of process. Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989). In Murphy v. Murphy, 200 Ark. 458, 140 S.W.2d 416 (1940), the supreme court said:
Here, the naked truth is that a man who never, even for ninety days, became a resident of this state, gave an improper address, which made it impossible to notify his wife that she had been sued, and she remained in ignorance of that fact until after she had been divorced. Such divorces have a “mail-order” appearance, and we shall not hesitate to set them aside, even though the divorced party shall have remarried before we have that opportunity; and, however innocent the second wife may be, we cannot permit such frauds to be practiced upon the courts of this state.
In support of her position, Elizabeth cites Sariego v. Sariego, 231 Ark. 35, 328 S.W.2d 136 (1959); Allsup v. Allsup, 199 Ark. 130, 132 S.W.2d 813 (1939); Corney v. Corney, 97 Ark. 117, 133 S.W. 813 (1910); Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960); and Maples v. Maples, 187 Ark. 127, 58 S.W.2d 930 (1933). Each case lends support to her position, but the most compelling is Maples, which is markedly similar to the case at bar. Maples was an adversary proceeding between Emma Lou Maples and Bertha Maples, both of whom claimed to be the widow of B.F. Maples. The issue was which woman was entitled to veteran’s benefits. In 1917, B.F. Maples obtained a decree of divorce in Pulaski County Chancery Court from Emma Lou after the issuance of a warning order. It was undisputed that B.F. was a resident of Alabama and that his representation that he was a resident of Arkansas was false. Ten days after he obtained the divorce decree, B.F. married Bertha in Tennessee and soon a child was born. B.F. and Bertha then returned to the community in Alabama where his first wife still resided.
In 1918 B.F. Maples died and in 1924 Bertha began receiving veteran’s benefits. In 1931 Emma Lou filed suit in Pulaski County Chancery Court to set aside the decree of divorce. In reversing the chancellor’s decision the supreme court said:
Here, the first wife, having been advised that her husband had married another woman in 1917, waited until after her husband was dead and until 1931 before proceeding to have the divorce decree vacated. We feel constrained to hold that she waited too long, and is barred by her laches.
The differences between Maples and the case at bar are significant. The first Mrs. Maples had known of her husband’s remarriage and the birth of a child by that marriage since 1918 and took no action until 1931. Mildred Self was not aware of Alex’s remarriage until after his death in 1987. While Emma Lou Maples took no action at all, Mildred Self promptly filed suit in Louisiana for separation from bed and board. Alex’s payment of child support pursuant to the Louisiana decree was an indication that even he regarded the Arkansas divorce as invalid. Finally, there is no indication from the supreme court’s decision in Maples that the first Mrs. Maples received no notice of the pendency of the Arkansas divorce proceeding.
Our conclusion is that the chancellor’s decision on the question of laches was not clearly erroneous.
Affirmed.
Robbins, Mayfield, JJ., and Wright, S.J., dissent.
Pittman, J., not participating. | [
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George Kose Smiti-i, J.
This is a foreclosure suit brought by the appellant upon an installment note and mortgage that originally evidenced a debt of $3,830.40. According to the complaint the indebtedness had been reduced to $1,980.80 when this suit was filed in 1962. The chancellor found the transaction to be void for usury and upon that ground alone entered a decree for the defendants, Ellis Knight and his wife. The appellant argues only the issue of usury, while the appellees urge several reasons for an affirmance of the decree.
The note was payable in 72 monthly installments of $53.20 each, which included both principal and interest. The chancellor, in holding the instrument to be usurious, apparently based his decision upon the fact that the appellant had exercised its option to accelerate the maturity of future payments and had filed suit for the full amount without making any deduction for the interest that had not yet accrued. This procedure, however, did not render the transaction usurious. In such a situation the court should merely refuse to permit the creditor to recover the unaccrued interest. Eldred v. Hart, 87 Ark. 534, 113 S. W. 213; Sager v. American Investment Co., 170 Ark. 568, 280 S. W. 654.
The note was originally payable to Jim Walter Corporation, a Florida company which had contracted to build a house for the Knights for an agreed consideration of $2,945.00. Knight testified that the total expense for materials and labor should have been only about $1,600.00. Even so the appellees are in error in contending that this disparity rendered the note usurious. The corporation did not make a loan to the Knights. It simply agreed to build a house according to certain plans and specifications for the sum of $2,945.00. The fact that the builder’s profit may have greatly exceeded 10 per cent of the contract price has no bearing upon the issue of usury, which is ordinarily defined as an excessive charge for the loan or forbearance of money.
It is also insisted that the note and mortgage are unenforceable because neither Jim Walter Corporation nor the appellant, both Florida corporations, was licensed to do business in Arkansas when the contracts were executed. We take judicial notice of records required to be kept by the Secretary of State. Public Loan Corp. v. Stanberry, 224 Ark. 258, 272 S. W. 2d 694. These records show that Jim Walter Corporation was licensed to do business here on September 30, 1957, which was more than a year before the date of the construction contract and the note and mortgage. It is true that the appellant, apparently a finance company, was not then authorized to do business in Arkansas, but there is no proof that the company has done any business here. That the two corporations have the same officers and directors and the same postoffice address is not in itself sufficient to destroy their existence as separate entities. See Rounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S. W. 2d 1.
The appellees’ final contentions are that the note and mortgage are invalid for the reason that Knight’s name was signed by his minor son and for the further reason that the mortgaged property is not correctly described. As to the signature, the Knights’ attorneys have overlooked the fact that one of them made this announcement during the trial: “We ratified the boy’s signing of the note. We ratified it. And we are not going to raise the question that he is not liable for that reason. ’ ’ As to the description, if it is defective the purchaser at the foreclosure sale may not acquire a good title, but that fact is not a basis for exempting the Knights from liability upon their obligation.
We find the Knights to be in default, but we cannot with certainty fix the amount new due. The cause will accordingly be remanded for further proceedings.
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Sam Robinson, Associate Justice.
Appellants, Eugene Jones, Charles Williams and Betty Williams, and Richard Wilson James, Jr., were the parents of three young boys who drowned in a .pond located on land owned by appellees near the city limits of Ft. Smith. The trial court granted defendants’ motion for a summary judgment and plaintiffs have appealed. The only issue is the action of the trial court in granting the motion for summary judgment.
Ark. Stat. Ann. § 29-211 (Repl. 1962) provides : “(b) . . . A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
“(c) . . . The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall lie rendered forthwith if the pleading, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . .”
In the very recent case of Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141, decided by this court December 16, 1963, we pointed out that if in a hearing on a motion for summary judgment it is shown by uncontroverted affidavits that there is no genuine issue of fact, it becomes the duty of the trial court to dispose of the case accordingly.
The plaintiffs allege that the defendants owned the property on which the pond is located, and it is further alleged in the complaint: “Situate upon said described property and in the Northeast corner thereof is an old pond, lake or body of water approximately 150 feet long by 100 feet wide and 15 feet deep, upon which an old boat or part thereof was located together in the near proximity with a large tree with a hanging cable or rope used by the decedents and other children to swing upon, play with, wade in, swim in and otherwise enjoy because same was attracted to them. All of said lands being unfencod, unenclosed and easily accessible to the public and more particularly to the three decedents.
“Plaintiffs further state that the situated land, lake, swinging tree, playground and other areas as mentioned and allowed to be mentioned is a dangerous instrumentality that is attractive to children. That same had been made attractive to children and was an open invitation to children to come upon the premises. That all of same was in such an attractive character that the defendants, and each of them, knew or as reasonable, prudent persons, should have known, would invite the attention of children and draw them to it, particularly to their sported and playful natures; and defendants and each of them, allowed said condition and situation to exist, well knowing same to be attractive and dangerous to the public and more particularly to the three deceased minors.
“As a direct and proximate result of the conditions existing as aforesaid, the three deceased minor children on April 7th, 1962, went upon the described premises at or around 4:00 P.M. on said date and were drowned, thereby causing the damages as hereinafter complained of.”
The defendants filed an answer denying the allegations of the complaint and alleging the affinnative defense of contributory negligence. On authority of Ark. Stat. Anno. § 28-355 (Repl. 1962), defendants then propounded interrogatories to plaintiffs, requesting: ‘ ‘ State the names and addresses of all persons known to you or your Attorneys having any knowledge or information of any facts relevant or pertinent to any of the allegations of fact contained in paragraphs 8, 9, 10, 11, 12 and 13 of your complaint.”
In response, plaintiffs filed a list of their witnesses. The defendants then served notice on plaintiffs that discovery depositions -would be taken from the witnesses named by the plaintiffs in the response to the interroga tories. Depositions were taken, counsel for both sides being present. Also affidavits of other witnesses were filed. Later, defendants filed a motion for a summary judgment alleging, in effect, that according to the uncontroverted evidence, as shown by the depositions and affidavits, there was no genuine issue of a material fact; that according to the undisputed evidence there was no liability on the part of the defendants, and that, as a matter of law, defendants were entitled to a judgment in their favor. The court granted the motion and entered a judgment for the defendants. The plaintiffs have appealed.
Two of the boys that drowned were nine years of age and one was eight years of age. Two of the boys had bicycles. Late in the afternoon on April 7, 1962, the boys disappeared from their homes. About 8 o’clock p.m. on that same day a cap belonging to one of the boys was found floating in the pond on appellees’ property. The property is located about one-half mile from where the boys lived. A further search was made by police and firemen and the bodies of the three young boys were recovered from the pond. The bicycles belonging to the boys were found the following day on the west side of appellees’ property.
The property owned by appellees was formerly used as a golf course and the pond was part of the course. It is about 150 feet long by 100 feet wide and about 15 feet deep. One of the bodies was located about eight feet from the west shore of the pond, near the north end. The other two bodies were recovered from a little farther out in the pond. On the northeast shore of the pond there was an old boat partly in and partly out of the water. About 150 or 200 feet north of the pond there -was an old bag swing hanging from a limb of a tree.
There is no indication whatever that appellants contend that there is any liability on the part of the defendants except the theory that the defendants maintained an attractive nuisance. If appellants cannot recover on the attractive nuisance doctrine there can be no recovery under the allegations in the complaint. There is no showing, by affidavit or otherwise, that there is an issue of a material fact. If appellant liad knowledge of facts that would make applicable the attractive nuisance doctrine, such facts should have been shown by counter-affidavit. In Epps v. Remmel, supra, we quoted from U.S. 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.”
The weight of authority in this country is that ponds, lakes, streams, reservoirs, and other bodies of water do not constitute an attractive nuisance in the absence of any unusual element of danger. See 8 A.L.R. 2d 1298, § 42, which cites a long list of cases from many states supporting this rule. We have subscribed to the foregoing rule. Carmichael v. Little Rock Housing Authority, 227 Ark. 470, 299 S. W. 2d 198.
Appellants rely on Brinkley Car Works & Mfg. Co. v. Cooper, 60 Ark. 545, 31 S. W. 154. That case is clearly distinguishable from the case at bar. There, a six year old child was scalded by walking into a pit containing hot water, the water being covered with pieces of bark to such an extent that the -water could not be seen. Clearly the boiling water covered with bark created an extremely dangerous situation that Avas very unusual and amounted to a trap for a six year old child.
The proposition of ponds, lakes, streams, etc. being excluded from the attractive nuisance doctrine is thoroughly discussed in the Carmichael case, and there is no doubt about this court’s holding on that point. But we pointed out in that case that if the pond or other body of water constituted a trap, or there was some other hidden inherent danger, the attractive nuisance doctrine would apply. Here, however, there is nothing about the pond in question that could be said to be a trap or hidden danger within the meaning of those terms as expressed in the Carmichael case, unless it could be said that the bag swing located at least 150 feet north of the pond or the old boat could come within that category.
There is nothing' that indicates that the old boat could, in any way, have contributed to the tragedy. It was partly on the bank on the opposite shore from the shore near which the bodies were found, and, of course, the bag swing being at least 150 feet north of the pond could not have been involved. Even if it could be said that the bag swing and old boat were instrumental in attracting the children to the pond to play, still that would not be sufficient to make applicable the attractive nuisance doctrine. In the Carmichael case it was found that: “The pond is unenclosed and children from the heavily populated area congregate there in the shade of the trees and on the large rock to watch and throw rocks at the fish. Parents in the vicinity caution their children against playing around the pond but have difficulty keeping them away. ’ ’
In harmony with the Carmichael case, where it was held that the attractive nuisance doctrine was inapplicable although it was shown that children congregated in the shade of trees and on a large rock at the pond to throw rocks at the fish, there is a long line of cases, such as National Metal Edge Box Co. v. Agostini, 258 F. 109 (Five year old boy drowned attempting to get stick from hole in ice.); Cox v. Alabama Water Co., 112 So. 352 (Slime had accumulated on sides of reservoir creating danger. Eight year old boy fell and drowned.); Melandez v. Los Angeles, 68 P. 2d 971 (Children playing on raft and boards. One child fell off and drowned.); Denver Tramway Corp. v. Callahan, 150 P. 2d 798 (Eleven year old child tried to cross pond by cable and drowned.); Harriman v. Afton, 281 N. W. 183 (Thirteen year old child fell off raft into pond and drowned.); McKenna v. Shreveport, 133 So. 524 (Ten year old boy fell off raft and drowned.); Cooper v. Overton, 52 S. W. 183 (Ten year old boy fell off plank and drowned.); Lomas v. West Palm Beach Water Co., 57 So. 2d 881 (Fact pond had white sand banks did not render owner of pond liable for drowning of child.); Newby v. West Palm Beach Water Co., 47 So. 2d 527 (Pond had a white spray with rainbow effect.); Smith v. Chicago & E.I.R. Co., 95 N. E. 2d 95 (Nineteen month old girl slipped off partially submerged timber and drowned.); Anneker v. Quinn-Robbins Co., 323 P. 2d 1073 (Three year old child fell off raft and drowned. Pact that rafts, logs, or other objects were floating on pond did not constitute attractive nuisance.).
According to the testimony given by plaintiffs’ witnesses in the discovery depositions and other affidavits filed in the case, no counter-affidavits being filed, there is no issue of a material fact. The facts do not bring the case within the attractive nuisance doctrine and the trial court, therefore, correctly granted appellants’ motion for a summary judgment.
Affirmed.
Johnson, J., dissents. | [
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George Rose Smith, J.
This suit was brought by B. M. Solomon (now deceased) and Michael Gradus to foreclose a real estate mortgage executed by Arthur Cotton, Jr. By intervention the four appellants, Arthur’s brothers and sisters, contended that they were tenants in common with him, that they had not joined in the mortgage, and that it was not a lien against their undivided four-fifths interest. The chancellor held that the appellants were bound by the mortgage. On appeal, however, we reversed that decree, finding that the mortgage lien was effective only as to Arthur’s one-fifth interest. Griffin v. Solomon, 235 Ark. 909, 362 S. W. 2d 707.
In taking their first appeal the appellants did not supersede the decree. The foreclosure sale was accordingly held while that appeal was pending. David Solomon, Jr., the attorney for the mortgagees, bid $4,300 for the land and directed that the commissioner’s deed be made to J. A. Hale, which was done. After the reversal of the original decree the appellants asked that the sale be set aside and that the land be resold. They contend that the purported sale to Hale was merely a colorable transaction for the real benefit of the mortgagees and, further, that the land is actually worth about $8,000. This appeal is from a decree refusing to disturb the sale.
When property is sold under a decree that is erroneous but not void, the sale will be set aside upon a reversal of the decree if the purchaser was a party to the suit, and this is true even though the decree was not superseded. Fishback v. Weaver, 34 Ark. 569. On the other hand, the reversal does not affect the sale if the purchaser was a stranger to the case, paying a valuable consideration. Ibid.; Moore v. Woodall, 40 Ark. 42. The only importance of a supersedeas is that it enables the losing party to prevent the land from being sold to a stranger pending the appeal. Orem v. Moore, 224 Ark. 146, 272 S. W. 2d 60.
We are of the opinion that the sale to J. A. Hale was a colorable transaction, designed to keep the land in the Solomon family. B. M. Solomon testified that he did not anticipate that Hale would reconvey the land to him and Gradus, the mortgagees. But B. M. Solomon admitted that he was in the position of preferring to receive $860 under the first sale rather than receive $1,600 as the true value of Arthur Cotton’s one-fifth interest. His only explanation for his position was that “you might say I’m hard-headed.”
Hale is an employee of Solomon & Goldsmith Cotton Company. He works under the direction and supervision of David Solomon, Jr., the attorney, who is the chief executive officer of the corporation. Solomon, who made the hid in Hale’s name, admitted with candor that he himself actually furnished the money for the purchase and that it was an open unsecured loan, not even evidenced by a note. Thus it does not appear that Hale, who did not see fit to testify, is in a position to insist that he paid value for the property.
In a well-reasoned opinion the Supreme Court of Florida held that when an attorney in the case purchases at the sale he must be treated in the same way as a party, so that a reversal avoids the sale. Johnson v. McKinnon, 54 Fla. 221, 45 So. 23, 127 Am. S. R. 135, 13 L.R.A. (n.s.) 874, 14 Ann. Cas. 180. Hence if David Solomon, Jr., was actually the purchaser, as the proof suggests, the land should be resold. This course of action is not unjust.
In fairness we should add that Mr. .Solomon, as counsel for the appellees, does not argue that the sale to Hale was genuine. He first contends that the chancellor could not set the sale aside after the lapse of the term. This argument is without merit, because the effectiveness of our mandate upon reversal is not dependent upon a continuation of the trial court’s term. His second contention, that the appellants lost their rights by failing to supersede the decree, has already been answered.
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Ed. F. McFaddin, Associate Justice.
This litigation involves the liability of appellant on a title insurance policy. The appellees, James R. Moore and Marie L. Moore, his wife, filed this action against the appellant, Commercial Standard Insurance Company (hereinafter called “Commercial”), to recover for loss or damage sustained by the Moores. The complaint alleged that Commercial had issued to the Moores a policy of title insurance to protect the Moores against loss, inter alia, from materialmen’s and mechanics’ liens, that Commercial had failed to protect the Moores, who had been required to pay the sum of $8,066.40, for which recovery was sought, along with penalty and attorney’s fees. The defenses of Commercial were, inter alia: (a) that the policy originally issued to the Moores did not protect them against materialmen’s and mechanics’ liens; and (b) that the agent of Commercial had neither the power nor the authority to change the policy, as was done. The cause was tried to a jury and resulted in a verdict and judgment for the Moores; and on this appeal Commercial urges these four points:
“I. At the conclusion of all of this evidence, the Court should have directed a verdict for the defendant.
“II. When Commercial Standard Insurance Company, through Beach Abstract & Guaranty Company, issued the policy of title insurance sued on herein, the pertinent parts of paragraph 6 of the policy sued on were in full force and effect, the same being: ‘VI. Nothing contained in this policy shall he construed as insuring * 8 !* (6) against loss or damage by reason of mechanics’ or materialmen’s liens, liens of contractors, subcontractors, or other liens arising out of the construction or repair of buildings and improvements on tbe property, the title to which is hereby insured, not filed of record at the effective date of this policy * * *’ and no suit or other action was ever brought to make noneffective this writing, and it could not be reformed in a court of law.
“III. Beach Abstract & Guaranty Company was without authority to alter paragraph VI of the policy sued on in any manner and even had it been authorized, an alteration after the loss had occurred would not be effective for lack of consideration.
“IV. The Court erred in giving over the general and specific objections of the appellant, appellees’ Instruction No.- 1.”
I. Appellant’s Motion For Directed Verdict. This necessarily involves a recital of the salient evidence. In October 1961 the Moores were buying a lot, in a new addition to Little Rock, on which a house was in the course of construction. The Moores employed Mr. Homer Tanner as their attorney to examine the abstract of the property. When he learned that construction was in progress, Mr. Tanner advised the Moores that only by a title insurance policy could they obtain full and safe protection against the possibility of materialmen’s and mechanics’ liens. At the Moore’s request Mr. Tanner called Beach Abstract & Guaranty Company (hereinafter called “Beach”) in Little Rock and explained the situation of the. Moores to Mr. Cathey of Beach and inquired whether Beach would write a policy of title insurance to protect the Moores against the possibility of material-men’s and mechanics’ liens attaching to the property they were buying. Mr. Cathey answered in the affirmative, and Tanner told the Moores to deal with Mr. Cathey of Beach in closing the matter. After Mr. Tanner furnished his title opinion and the above information, his services were completed. The Moores subsequently closed the transaction through Beach by paying the balance in full for the purchase price and by receiving from Mr. Cathey a policy of title insurance furnished by Beach as agent of Commercial and dated November 22, 1961.
Some time in January 1962 the Moores were served with notice of materialmen’s and mechanics’ liens. They took these notices to Mr. Tanner, and he called Mr. Cathey at Beach’s office and informed him of the lien notices. At that time Mr. Cathey informed Mr. Tanner that the policy as issued did not protect the Moores against materialmen’s and mechanics’ liens. Whereupon Mr. Tanner and the Moores went to the Beach office and laid the full facts before the President of that company. They exhibited the policy that Commercial had issued; and Section 6 of that policy provided, inter alia: “Nothing contained m this policy shall be construed as insuring * * * (6) against loss or damage by reason of mechanics’ or materialmen’s liens, liens of contractors, sub-contractors, or other liens arising out of the construction or repair of buildings and improvements on the property, the title to which is hereby insured, not filed of record at the effective date of this policy.” When Mr. Tanner explained the full situation to the President of Beach and told him that the main purpose for the Moores taking the title insurance was to obtain protection against materialmen’s and mechanics’ liens, the President of .Beach directed Mr. Cathey to strike from the policy the above quoted and italicized language. This was done and initialed by Mr. Cathey.
Notwithstanding all the above, Commercial refused to protect the Moores against materialmen’s and mechanics ’ liens and they were compelled to pay the amount that they sued for herein. There was evidence from which the jury could have found—as it evidently did— that Beach was the general agent of Commercial; and there was evidence that Commercial did issue title insurance policies that would protect against material-men’s and mechanics’ liens. We will discuss later the authority of Beach as general agent; but under the evidence as we have detailed it in the light most favorable to support the verdict, as is our rule, we conclude that a case was made for the jury and the Court was correct in refusing to direct a verdict for Commercial.
II. Necessity Of Reformation In A Court Of Equity. In its second point Commercial urges that the policy as originally issued contained the provision previously quoted to the effect that there was no insurance against materialmen’s and mechanics’ liens; and that the Moores could not sue on the policy in a court of law until they first had it reformed by a court of equity. We find no merit in this contention because the parties could modify and change the contract between themselves, and if Beach was the general agent of Commercial (as we will discuss in Topic III, infra), then Beach had authority to make the contract state what the parties originally agreed upon. In Mason v. Jarrett, 218 Ark. 147, 234 S. W. 2d 771, we held that parties could voluntarily reform their contracts, saying: ‘ ‘ Certainly the parties may do voluntarily that which a court of equity would have compelled them to do.” In 29 Am. Jur. p. 701, “Insurance” § 337, the holdings are summarized: “In the absence of statutory or contract provisions, or of restrictions upon the power known to the insured, a general agent or agent having power to enter into contract of insurance in behalf of the insurer has authority to modify, with the consent of the insured, contracts already in existence. An agent authorized to make contracts of insurance may, at any time during the continuation of his agency, even though subsequent to the loss, correct a policy issued by him to conform to the agreement of the parties.”
Thus, when Mr. Tanner and the Moores went to the President of Beach in January 1962 and explained the situation, the President of Beach reformed the policy to make it speak the truth in accordance with the conversation between Cathey and Tanner, which was the beginning of the dealings of the Moores with Commercial. The original policy is in the transcript before ns, and the clause that we have previously copied is deleted and initialed. That was full reformation. There was no necessity for the Moores to go into equity to get the policy reformed because it was already reformed.
III. The General Agency Of Beach. This is the main issue in this lawsuit. If Beach was the general agent of Commercial, then of course the reformation of the policy was validly accomplished. Arkansas is one of the States that makes the distinction between the authority of general agents and special agents of insurance companies; and we hold that a general agent is one who has authority to transact all business of the company of a particular kind and whose powers are prima facie coextensive to the business entrusted to his care. Phoenix Assurance v. Boyette, 77 Ark. 41, 90 S. W. 284; Preserve Loan Life Ins. Co. v. Compton, 190 Ark. 1039, 82 S. W. 2d 537; and Dixie Life Ins. Co. v. Hamm, 233 Ark. 320, 344 S. W. 2d 601. See also 29 Am. Jur. p. 550, “Insurance” § 151. In Phoenix Assurance Co. v. Boyette, supra, we said of the insurance agent there involved:
“But it is urged that the authority of the agent' was limited, and he was not authorized to issue a policy such as is claimed this should have been. This view is not sustained by the facts. Bridewell, as agent for the company, kept policies for execution and delivery, passed upon applications, received premiums, counter-signed and issued policies, and was therefore a general agent for such purposes. Having the conceded power to' issue a policy on all the cotton in the warehouse, he undoubtedly had the authority to issue a policy on any portion of it. Insurance Co. v. Brodie, 52 Ark. 11; Phoenix Insurance Co. v. Public Parks Amusement Co., 63 Ark. 187; German-American Insurance Co. v. Humphreys, 62 Ark. 348.”
In Dixie Life Ins. Co. v. Hamm, supra, we quoted with approval from American Jurisprudence:
“ ‘Broadly speaking, one must be regarded as the general agent of an insurance company if he is authorized to accept risks, to agree upon and settle the terms of insurance, and to carry them into effect by issuing and renewing policies. Accordingly, agents have been regarded as general agents where they fully represent the insurance company in a particular district and are authorized to solicit insurance, receive money and premiums, issue and renew policies, appoint subagents, and adjust losses.’ ”
In the case at bar it was shown that Commercial furnished policies to Beach; that one form would insure against materialmen’s and mechanics’ liens and another form would not; that Beach was authorized to accept risks as it saw fit and to agree upon and settle the terms of the insurance, using either form, as Beach thought appropriate; and that Beach signed and issued policies and collected the premiums. The words, “State Agent,” as applicable to Beach, were printed on the Commercial binders issued to the Moores in this case; and the contract between Commercial and Beach introduced in evidence herein says that Commercial appoints Beach “its exclusive general agent for the State of Arkansas, with the exception of Miller County, which will be non-exclusive, with authority to receive applications for title insurance upon all lands situated in the State of Arkansas, to issue reports on the condition of titles to land described in such applications, to receive and collect such premiums for title insurance and such abstract and/or ■attorney’s fees as are necessarily incident thereto, to counter-sign and deliver policies of title insurance and to nominate sub-agents for approval of first party;...”
In the light of all of the above, the Trial Court certainly committed no error against Commercial in submitting to the jury the question of whether Beach was the general agent of Commercial; and the jury verdict on this point is supported by abundant evidence. With Beach the general agent of Commercial we have the answer to the questions previously discussed.
IV. Appellee’s Instruction No. 1. This was an instruction on the apparent scope of authority of Beach as the agent of Commercial. The instruction is lengthy and no useful purpose would be served by copying it here. It is sufficient to say that we find no error in this instruction as against the objections made by the appellant.
Affirmed.
Reddell v. Norton, 225 Ark. 643, 285 S. W. 2d 328. | [
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Ed. F. McFaddin, Associate Justice.
The only appellant, E. J. Pigage Jr., is an 11-year-old boy and is called “Tad.” One afternoon in January 1962, while playing with a companion, Tad ran across the road in front of a car being driven by the appellee, Mrs. Chism, and Tad was struck and seriously and painfully injured. By his father, as next friend, Tad sued Mrs. Chism for damages; and Tad’s parents each also sought damages because of the injury to the minor and expenses incurred therefrom. The case was tried to a jury; and, among other instructions, the Court, without objection, told the jury:
“If you find from a preponderance of the evidence that Tad Pigage, Junior, was negligent, and that his negligence was the sole and proximate cause of his injuries, or that his negligence contributed to the cause of his injuries, then you are told that the negligence of said plaintiff is attributable to his father and mother, E. J. Pigage, Senior, and Mary E. Pigage, who are also plaintiffs in the case, and that means that negligence on the part of Tad Pigage would be the same as negligence on the part of the father and on the part of the mother, and should be treated as such by you in arriving at your verdict.”
The jury returned these three verdicts:
“We the Jury find in favor of the claim of E. J. Pigage, Senior, individually, and assess his recovery in the sum of $2,500.00.
“We, the Jury find in favor of the plaintiff, Mary E. Pigage, individually, and assess her recovery in the sum of $500.00.
“We, the Jury, find in favor of the defendant as to the claim of E. J. (Tad) Pigage, Jr., by and through his next friend, E. J. Pigage, Sr. ’ ’
Thus the jury refused to allow Tad Pigage Jr. any recovery, but awarded recovery to his mother and father in the amounts stated. The attorneys for Tad Pigage Jr. moved for a mistrial because the verdicts were inconsistent, in that a recovery had been awarded each of the parents and none awarded the boy. The attorneys for Mrs. Chism accepted the verdicts, saying:
“We will accept the verdicts as they are, your Honor. . . . . The Jury has found in favor of the defendant as to the boy . . . Now, standing alone, there is no question about the verdict. Now, if they have found a verdict in favor of the father and the mother in any amount, and the defendant accepts that verdict, then I don’t see where the court has any right to declare a mistrial. We are the only ones that could except to that. It is the defendant that could say that the father couldn’t recover, or that the moher couldn’t recover because the child did not recover, but we are not saying that. We are accepting the verdict, and I don’t believe the court has the right, or authority, to set aside the verdict of the jury in favor of the defendant as to the child. If the other two verdicts are erroneous then the people harmed by them are the ones to raise the objection, and we are not raising any. That is our position.”
Thereupon, over objections of Tad Pigage Jr., the Court accepted the three verdicts and rendered judgment in accordance with each verdict. Neither of the parents has appealed and each has accepted payment of the judgment awarded; so Tad Pigage Jr. is the sole appellant here and relies on one point, to-wit:
“The Lower Court Erred in Overruling the Plaintiff’s Motion For a Mistrial on the Grounds That the Verdicts Were Inconsistent.”
It is true that the verdicts are inconsistent in that recovery was refused the principal party (i.e., appellant) but was awarded the secondary parties (i.e., the parents of the appellant); but the appellant can claim no advantage from such inconsistency since there was a definite verdict against him as the principal party. The appellee, Mrs. Chism, if she had so desired, might have urged the matter of the inconsistent verdicts, but the appellant cannot benefit from the inconsistent verdicts under the state of the record before us since he was the primary or principal party and the verdict in his case is the controlling verdict. In 39 Am. Jur. p. 727, in discussing the right of a parent to recover from a third party for an injury caused by such party to the child, the holdings are summarized:
“Since . . . the parents’ cause of action arises out of the injury to the child, an act or omission which would not support an action by the child will not furnish a ground of action by the parent . . . The parent takes his right of action subject to any defense that could be urged against the child in whom the whole cause of action, but for the law, would vest. ”
The case of Shiels v. Audette, 119 Conn. 75, 175 A. 323, 94 A.L.R. 1206, was an action by a parent to recover for loss of services and money expended in the care of a minor son who was injured by falling off a truck owned and operated by the defendant; and the Court stated the applicable law in this language:
“. . . an essential element of the cause of action vested by law in the parent is that the compensation recoverable by him, for expenses flows from a personal injury for which, under the law, the child would be entitled to recover compensation. Proof of that fact is an essential prerequisite to recovery. If the child was not entitled to recover compensation for his injury, there can be no recovery by the parent. ‘If the injury occurs under such circumstances as do not give the child a right of action for the personal injury, the father cannot recover.’ Thibeault v. Poole (Mass.), 186 N. E. 632, 635. This principle prevails generally. Callies v. Reliance Laundry Co., 188 Wis. 376, 206 N. W. 198, 200, 42 A.L.R. 712; Tidd v. Skinner, 225 N. Y. 422, 432, 122 N. E. 247, 3 A.L.R. 1145; Vorrath v. Burke, 63 N. J. Law, 188, 42 A. 838; Winner v. Oakland Tp., 158 Pa. 405, 410, 27 A. 1110, 1111; Wueppesahl v. Connecticut Co., 87 Conn. 710, 89 A. 166; 46 C.J. p. 1303.”
The status of the appellant and the parents, as regards recovery against the appellee, is analogous to the situation of agent and principal, where the agent alone is charged with having committed a tort. When the verdict is in favor of the agent, then the principal is thereby exonerated because the agent is the primary party and the principal is the secondary party. In Patterson v. Risher, 143 Ark. 376, 221 S. W. 468, such situation was before us; and here is our holding:
“Now, under the allegations and proof in this record, if there was no negligence on the part of the servants of the appellee Coal Company, which was the proximate cause of the injury to and death of appellant’s decedent, and for which none of them were liable, then neither could the appellee Coal Company be held liable. Because, as already stated, there could be no liability of the appellee Coal Company, independent of the acts of its servants which the appellants alleges were the proximate cause of the injury.”
In the case at bar, when the jury returned a verdict against the appellant, Tad Pigage Jr., that ended his cause of action. The fact that there was an inconsistency in the secondary verdicts did not give Tad Pigage Jr. any further rights. The defendant accepted the verdicts, and Tad’s mother and father have been paid the verdicts awarded them. In asking that the secondary verdicts— in favor of the parents—control over the primary verdict against him, the appellant is, in effect, asking that the “tail wag the dog.” Appellant, alone, cannot claim any advantage because of the inconsistency between the primary and the secondary verdicts.
Affirmed.
Attention is here called to Porter-DeWitt Constr. Co. v. Danley, 221 Ark. 813, 256 S. W. 2d 540; Citizens Coach Co. v. Wright, 228 Ark. 1143, 313 S. W. 2d 94; and Davis v. Perryman, 225 Ark. 963, 286 S. W. 2d 844. | [
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George Eose Smith, J.
On March 19, 1947, James Collier died testate in Pulaski County. His will left the bulk of his estate to two of his children, Nathaniel and Eosetta, with bequests of one dollar each to eight other children. The will was promptly filed in the office of the county and probate clerk, but for some reason no order admitting the instrument to probate was entered. The matter lay dormant until 1963, when the appellant, as the guárdian and next friend of Nathaniel, the only surviving principal beneficiary, filed a petition for the probate of the will. This appeal is from an order holding that the attempt to probate the instrument is barred by limitations.
The appellant testified that after Collier’s death she took the will to the clerk’s office. At a deputy clerk’s suggestion she employed an attorney, who filed the will and also prepared and filed the necessary proof of execution by the attesting witnesses to the will.
Under the statute then in force it was the duty of the probate clerk to proceed with the probate of the will. “When any will shall be exhibited for probate, the court of probate, or clerk thereof in vacation, in person or by his deputy, may and shall receive the probate thereof in common form, and shall grant a certificate of probate, or, if the will be rejected, shall grant a certificate of rejection; but such action by such clerk or deputy, in vacation, shall be subject to the confirmation or rejection of the court.” Ark. Stat. Ann. § 60-209 (1947). It was then the usual practice for the clerk to attend to the entry of the order of probate, in harmony with the directive that he “may and shall” receive the probate of the will in common form. Hence the oversight in this instance was at least partly chargeable to the clerk.
There was formerly no limitation upon the time within which a will might be offered'for probate. Hudson v. Hudson, 219 Ark. 211, 242 S. W. 2d 154. The Probate Code, however, provides that no will shall be admitted to probate unless application therefor is made to the court within five years from the death of the decedent. Ark. Stat. Ann. § 62-2125 (Supp. 1963). The appellees now insist that the five-year statute began to run upon the adoption of the Code in 1949, so that the attempted probate in 1963 came too late.
We are not in sympathy with this contention. The Probate Code took effect on July 1, 1949, “except that when its application . . . would work injustice in particular proceedings then pending, the former procedure shall apply.” Ark. Stat. Ann. § 62-2002 (Supp. 1963). This ease falls within the exception. The appellant and her attorney had taken the necessary steps to offer the will for probate in common form under the law as it existed in 1947. It would be unjust to apply the five-year limitation in this instance, not only because a public officer was at fault in the matter but also because, in a doubtful situation, we prefer to give effect to the testator’s intention by upholding the will.
Reversed. | [
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Frank Holt, Associate Justice.
This is a garnishment proceeding. The appellee and cross-appellant, Cora S. Faught, served a writ of garnishment upon the appellant, Clyde Bohner, in an effort to collect a judgment of $2,112.50 which she had secured against her former husband. The garnishee filed an answer denying any indebtedness to her former husband. The answer was signed by his attorneys and was unverified. Thereupon the appellee and cross-appellant filed a verified denial by her attorney to the garnishee’s answer. The relevant part of the denial reads:
“That she has reason to believe the answer of the Garnishee in the above cause is untrue or insufficient and denies the correctness of said answer. Si *
^THEREFORE, the plaintiff denies the answer of the Garnishee, and prays judgment against the Garnishee, Clyde Bolmer, in the sum of $2,112.50.”
The issue, thus being joined, was submitted to the court sitting as a jury. The court found, inter alia, “that the true financial relationship between the garnishee and the defendant was not made known” until the date of the trial; that the defendant, Louis Faught, had been an employee of the garnishee for ten days when the garnishee’s answer was filed and continued as such until the date of the trial, or a tota] of 115 days at $5.33 per day. The court accordingly entered judgment for the cross-appellant against the garnishee-appellant in the sum of $612.95 together with costs.
The appellant has abandoned his appeal. The cross-appellant contends for reversal, on appeal, that the court erred in not rendering judgment against the appellant-garnishee for $2,112.50 because the garnishee’s answer to cross-appellant’s interrogations was not full, direct and truthful and, further, was not signed under oath by the garnishee himself but by the unverified signatures of his attorneys.
The cross-appellant contends that the garnishee did not file an answer as required by Ark. Stat. Ann. § 31-506 (Repl. 1962). This statute reads:
“Answers to interrogatories.—Such garnishee shall on the return day named in such writ exhibit and file, under his oath, full, direct and true answers to all such allegations and interrogatories as may have been exhibited against him by the plaintiff.”
It is undisputed that the garnishee’s answer was not signed by him under oath and, also, that the signatures of his attorneys were unverified.
Thus, it is the position of the cross-appellant that the failure to strictly comply with Ark. Stat. Ann. § 31-506 is the same as if the garnishee had filed nothing and, therefore, pursuant to Ark. Stat. Ann. § 31-512 (Repl. 1962) the court should have entered judgment against the garnishee for $2,112.50 as sought in the writ of garnishment. We do not agree. Ark. Stat. Ann. § 31-508 (Repl. 1962) reads:
“Insufficiency of answer—Trial.—If the garnishee shall file his answer to the interrogatories exhibited, and the plaintiff shall deem such answers untrue or insufficient, he may deny stich answer, and cause his denial to be entered on the record; and the court or justice, if neither party require a jury, shall proceed to try the facts put in issue by the answer of the garnishee and the denial of the plaintiff.” [Emphasis supplied]
The cross-appellant controverted the garnishee’s unverified answer and proceeded to try the facts put in issue by the garnishee’s answer and her denial of the answer. She did not question the lack of verification of the garnishee’s answer during any proceeding before the Trial Court. Consequently, she is deemed to have waived any such defect and it cannot now be raised on this appeal In Queen of Arkansas Insurance Co., v. Taylor, 100 Ark. 9, 138 S. W. 990, we said:
“It is too late for appellant to complain here that the complaint in the action was not signed by counsel nor verified, after having, without objection thereto on that account, filed an answer and gone to trial in the case. It should by proper motion have had the complaint stricken out or signed by counsel and verified.”
See, also, Mason v. Hatchett, 219 Ark. 631, 243 S. W. 2d 733.
In the case at bar there was no objection made to any defect as to the signature or verification of the garnishee’s answer. The cross-appellant filed a denial to the garnishee’s answer and put the issues before the court as a trier of the facts. Therefore, she is bound by the court’s findings and the judgment rendered thereon since such is based upon substantial evidence.
Affirmed.
“Refusal of garnishee to answer — Effect. — If any garnishee, after having been served with a writ of garnishment ten [10] days before the return day thereof, shall neglect or refuse to answer the interrogatories exhibited against him on or before the return day of such writ, the court or justice before whom such matter is pending shall enter judgment against such garnishee for the full amount specified in the plainitff’s judgment against the original defendant, together with costs.” | [
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Paul Ward, Associate Justice.
This appeal comes from an order of the circuit court approving the annexa tion of certain lands to the City of Pine Bluff. The lands consist of 7.52 square miles which lie east, south and west of and are contiguous to said city.
The annexation proceedings were commenced with the filing of a petition by the City on November 20, 1961 and subsequent steps taken, all pursuant to Ark. Stat. Ann. § 19-307 (Repl. 1956) and related sections. There is no contention here that all procedural steps pursuant to all applicable statutes were not taken by the City and the county.
The only point relied on by appellants for a reversal is that “the territory sought to be annexed is unreasonably large”. In support, and as a basis of their contention, appellants rely heavily upon our holdings and announcements in the cases of Vestal v. Little Rode, 54 Ark. 321, 15 S. W. 891 and Cantrell v. Vaughn, 228 Ark. 202, 306 S. W. 2d 863. It appears to be appellants’ contention that the trial court failed to follow the fundamental rules applicable to annexation cases as laid down in the Vestal case. There it was said:
“. . . city limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owners, (3) when they furnish the abode for a densely settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purposes, as for the extension of its streets, or sewer, gas or water system, or to supply places for the -abode or business of its residents, or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses ...”
Applying the above general rules to the testimony introduced at the trial court we think this case must be affirmed. The record- shows that the lands proposed for annexation are divided into four separate areas. Area 1 lies east of the city; Area 2 is southeast of the city; Area 3 lies south and west of the city; and, Area 4 lies northwest of the city. Appellants, in support of their position, contend that “A substantial portion of the proposed annexation represents property not settled nor adaptable for settlement”; and that “The city did not demonstrate ability to furnish services to an area of this magnitude. ’ ’ With these contentions of appellants in mind, we can more easily understand the weight and relevancy of the testimony by relating it to each separate Area.
Area 1. One witness stated that eight new industries would be brought into the city with annexation—naming them; a realtor said one acre was sold for $2,400 and that he has lands listed for $2,000 per acre. The city planner said 25% is industrial. No landowner is objecting.
Area 2. One witness said 50% was built up—part in modern homes; the city engineer said there were 2,152 people on 1,000 acres, and that a drainage bottleneck affects the present city limits. No landowner is objecting to annexation.
Area 3. A realtor said this area has no value for agricultural purposes; that the Chamber of Commerce paid $1,000 per acre for a development site—and it is one of three industrial sites available for the city; many new homes are being built; the population is 2,642 for 1,405 acres; it will be provided with sewer facilities— one of the worst problems at present. There is a new school, and building lots sell for $1,250 to $2,000 each. For farm purposes the land is not worth more than $100 per acre but is worth many times that price for building and industrial purposes.
Area 4. This area is known as Dew Drop, and appellants say it is a “self-sufficient, unitary community which has worked out its own destiny'—-that it is economically, geographically and politically an entity”, and that it has practically no affinity to Pine Blnff. There is, however, testimony to the contrary. One witness who lives there said it was a part of Pine Bluff. There was testimony (by appellants) that part of the Area was known as College Heights to Pine Bluff; that some get mail addressed to Pine Bluff and some have telephone, gas, and electricity from Pine Bluff distribution centers; they use the Pine Bluff telephone exchange with no toll charges; and, most of the people are employed in Pine Bluff.
It would serve no useful purpose to detail more of the voluminous testimony. Suffice to say there ivas testimony to the effect that Pine Bluff was financially able to furnish the annexed areas all necessary utilities as well as fire and police protection, and that it would do so.
In the Vestal case, supra, it was also pointed out that annexation should be ordered: “In all cases, however, where actual unity is practicable, legal unity should be ordered as promising the greatest aggregate of municipal benefits.” In this connection it is pertinent to note the trial court made the finding:
‘ ‘ ‘ That the territory sought to be annexed is already part of the Pine Bluff community in practice. All that remained to be done was annexation. The territory . . . is an outgrowth of the City of Pine Bluff and after annexation will make up a homogeneous city.’ ”
Other interesting and pertinent findings of facts, set out below, were made by the trial court:
“The property values in the territory sought to be annexed show that the lands are valuable for city use or for adaptability for prospective town use rather than for use or adaptability for use for agricultural purposes.
“The population in the area sought to be annexed is approximately 7,500. In what has been described in the testimony as area four or the Dew Drop area over 2,000 people now live which is more people than live in the county seats of Rison, Star City or Arkansas City.
“The territory sought to be annexed is needed for proper town purposes, the extension of streets, sewer system, gas and water and to provide residences and the City’s need for business expansion. Pine Bluff is expanding and expanding rather rapidly.
“The area sought to be annexed is very much in need of police regulation.”
We have uniformly held that the order of the circuit court (in annexation eases) will be upheld if it is supported by substantial evidence. See: Burton v. City of Fort Smith, 214 Ark. 516, 216 S. W. 2d 884: Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317; and the Cantrell case, supra, relied on by appellants. Also, the burden was on appellants to show the lands should not be annexed. Dodson, et al. v. Mayor and Town Council, Fort Smith, 33 Ark. 508.
Since we are unable to say the order and findings of the trial court were not supported by substantial evidence, the same are affirmed.
Affirmed.
Harris, C. J., and Johnson, J., not participating. | [
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George Rose Smith, J.
The appellant, aged nineteen, ivas charged by information Avith having raped a girl under the age of sixteen. The jury found him guilty of the lesser offense of carnal abuse and fixed his punishment at three years imprisonment.
There is no real 'question about the sufficiency of the eAÚdence. The accused admitted the act of intercourse but testified that it took place AAdth the cooperation and consent of the prosecuting AATitness. According to the proof she Avas then only fifteen years old; so her consent Avould not be a defense to the charge of carnal abuse. Ark. Stat. Ann. § 41-3406 (1947); Reed v. State, 175 Ark. 1170 (mem.), 299 S. W. 757.
It is insisted that the trial court erred in allowing the mother of the prosecutrix to state her daughter’s age, the objection being that the child’s birth certificate would be the best evidence. This identical contention was rejected in Tugg v. State, 206 Ark. 161, 174 S. W. 2d 374.
At the pretrial conference counsel for the accused asked for the names of the State’s witnesses. The prosecuting attorney supplied all the names except that of Katy Thompson, whose name he could not recall. He explained, however, that she lived in a certain neighborhood, that A. W. Keith, a deputy sheriff, knew her name, and that he (the prosecutor) would furnish the name when he returned to his office. In fact, however*, the prosecuting attorney overlooked the matter of communicating the requested information to the defense attorney before the trial. Even so there was no error in permitting Katy Thompson to testify, for the defense could have learned her identity simply by making a telephone call to the prosecuting attorney or to Keith. In the circumstances it cannot be said that the State unfairly produced a surprise witxxess.
The court was right in allowing Keith to relate an oral confession that was made to him by the accused. Under our holding in Finn v. State, 127 Ark. 204, 191 S. W. 899, this oral 'confession was not rendered inadmissible by the fact that a different confession, made several days later to a deputy prosecuting attorney, was reduced to writing. Moreover, on the witness stand Norton in substa-nce coxxceded the truth of his admissions to Keith.
We fiixd xio merit in any of the appellant’s assignments of error.
Affirmed. | [
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Carleton Harris, Chief Justice.
This is a Workmen’s Compensation case. Sylvester Smith was employed by Potlatch Forests, Inc., and contends that on September 19, 1961, he sustained a compensable injury, which resulted in the loss of his right eye. Appellant company controverted the claim, contending that the injury did not arise out of, and in the course of, his employment. The referee heard the evidence, concluded that the claim was compensable, and entered an order accordingly. The company appealed to the full commission, and that body found that a preponderance of the evidence sustained appellant’s contention that Smith’s injury did not arise out of, and in the course of, his employment. The referee’s opinion was therefore reversed, and the claim for compensation denied and dismissed. There after, claimant appealed to the Bradley Circuit Court, and the court reversed the finding of the Commission and remanded the case back for orders consistent with the award of the referee. From the judgment so entered, the company brings this- appeal.
The only question before this court is whether there was any substantial evidence to support the finding of the Commission. Preliminarily, we might dispose of one of the arguments advanced by appellee. It is pointed out 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. In case of contradictions or inconsistencies he had the right to accept the testimony of the witnesses’ he believed to be most worthy of credit and reject the testimony of those he believed less worthy of credit, or accept, any part he believed true and reject any part he believed untrue. 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 last year, we had occasion, in Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528, 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.”
Cases are then cited in support of the statement. Thus, as stated at the outset, we can only concern ourselves with whether the finding of the full Commission was supported by any substantial evidence.
Claimant’s case was primarily dependent upon the testimony of Smith himself. Appellee testified that he commenced work for Bradley Lumber Company in 1952, and had been working for that company and its successor, Potlatch, since that time. He stated that on September 19, he worked from 6:00 A.M. until 2:30 P.M. His duties consisted of pulling lumber off “the green chain.” At 2:30, he “punched out,” but waited around on the dock for about ten minutes to determine whether all night shift workers appeared, it being his purpose to put in extra time by work on the night shift if any workers were absent. During this period, he sat and smoked a cigarette. After observing that all of the night crew had reported in, he got up and started toward his parked car, walking underneath the conveyor belt. After walking ten or fifteen feet, his foot struck a stick, which “flew up” and hit him in the eye. Subsequently, he stated, “I remember my feet hitting the stick and something flew up and hit me’ in the eye is all I can say. ’ ’ The witness said he could not see out of his eye, but that he did not have any pain at that time. He could feel something “running” out of the eye, and wiped it with his handkerchief, but walked right on to his car and drove home. Smith testified that when the foreign object hit him in the eye, he sat down a few minutes, and then walked on, no pain occurring until after he reached his home. Appellee stated that he was able to drive his car normally, and that it took him about five or six minutes to drive from the plant to his house. Claimant’s wife took him to the hospital about 3:00 P.M. Around 4:00 o ’clock, Smith reported the accident to Herbert Bliss, yard foreman.
Smith’s wife, Velma, testified that her husband drove up to the house, but didn’t get out of the car. When she inquired as to the reason, he complained of his eye, and she then “taken him out of the car and carried him in the house.” Velma then drove her husband to the hospital. This testimony was corroborated by Rosa Benson, a neighbor.
Gilbert Block, a resident of Warren, testified that he (Block) had an artificial right eye, having lost the sight of his eye while working on his automobile, “and a piece of steel flew off and hit me and went through it. ’ ’ Block stated that he did not feel any pain in the eye until four days after it happened, “after Dr. Lanford took it out.”
Smith’s eye was treated by Dr. James "W". Marsh of Warren, who stated that he understood Smith to say that “something flew out of the clock (time clock) and hit him. But I am not at all sure of this because he was in pain and does not speak very clearly, and I didn’t question him on the history. ’ ’ Dr. Marsh found ‘ ‘ a laceration of the center of his cornea which was transverse with a slight ellipse. It had penetrated all the way through his cornea and had dislodged the lens to some extent so that the lens was partially protruding through this laceration. There was fluid escaping from the inside of the eye.” The iris was not struck by the object. In reply to a question as to whether he had any opinion concerning whether the object which caused the eye injury came from the ground level, the doctor replied, “I don’t think it could have.” As the basis for- this conclusion, Marsh stated that “the object hit him in the central cornea and went through the cornea and through the lens with no injury at all to the iris. And the angle of an object coming up from ground level from near him would have been such that to have penetrated both the central cornea and the lens would have caused some injury to the iris.” The doctor was of the view that the object came from approximately eye level, rather than from the ground. He likewise was of the opinion that the injury was not caused by a stick. The physician also testified that, in his judgment, initial pain would have been marked and severe, and probably would have continued from the time of the occurrence until Smith was taken to the hospital.
Dr. Marsh, after rendering emergency treatment, immediately made arrangements for Dr. W. R. Nixon, a Pine Bluff ophthalmologist, to see the patient. The history taken by Dr. Nixon reflected that Smith had stepped on a stick which “flipped up” and struck claim ant in the right eye. Smith was complaining of intense pain, and, most of the time, kept both eyes shut, particularly the right one. The doctor testified that at the time he saw appellee, he (Nixon) wondered about the injury being caused by any object from the ground. “Because when something flips up, hitting the eye, it would strike at an angle. Unless he was looking down at the ground it was rather difficult for it to go through the eye.without perforating the iris.” The doctor stated, “I wouldn’t necessarily say it hit at eye level. He could have been lying on his back and it dropped in his eye. ’ ’ Nixon was of the opinion that the object “would have to be reasonably sharp or thrown with extreme force to penetrate the eye, one or the other, or both. A blunt object hitting the eye would require a great deal of force to penetrate the eye.- They are a lot tougher than we think. For instance, a beebee gun so often hits the eye and bounces off. They cause a hemorrhage and damage, but bounce. * * * Another thing, this thing apparently hit between his lids, and the eye has a rapid- blink reflex. It has to hit with pretty good speed to hit the eye without damaging the lids. ’ ’ The doctor was of the opinion that the injury described by Smith Would have caused severe pain for at least a few minutes, probably “five to ten minutes.” Thereafter, he stated that the eye certainly Avouldn’t feel normal; there would be a certain amount of discomfort.
“I would think that, after looking at him, that the man Avas unable to see immediately from the injury out of that eye. Of course he has the other eye. He has been a two-eyed man and suddenly becomes a one-eyed man for all purposes. I am sure he has a loss of depth perception, plus peripheral vision. He could still drive. He would certainly be doing something a little bit difficult because he has had a sudden and abrupt change that he has never had to cope Avith before.”
Efforts were first made to save the sight of the eye, but subsequently, it became necessary to remove it. The testimony of these Avitnesses comprises the case for appellee.
On behalf of appellant, Arthur Weaver, a fellow employee of Smith, testified that on September 19, at 2:30, he was in the outhouse located across from the “green chain.” He heard the 2:30 siren blow, and came out a minute later. Weaver stated that he saw Smith, who was walking between the conveyor belt and the parking lot (having already passed under the belt), heading toward the lot. From subsequent measurements, Weaver testified that when he first saw Smith, the latter was “27 long steps” east of the conveyor belt, and twenty-four steps away from the witness. He said that Smith was walking toward his car, smoking a cigarette, with both hands down beside him. Smith was walking in his usual manner “in a kind of frisky way, the way his pants dangled on him when he walked.”
Clifton Roberts, another employee of Potlatch, testified that on the date Smith was injured, he (Roberts) “punched out” with the others at 2:30 P.M., and walked directly toward the parking lot. While walldng beneath the conveyor belt, he observed appellee about twenty-five steps away, not quite half way between the belt and the parking lot. According to the witness, Smith “was just walking along normal,” was not holding his eye, and there was no indication that anything was wrong with the claimant. Roberts testified that he saw Smith back his car out from where it was parked, and drive away.
Charlie Brown, another employee, testified that he left work at 2:30, and went straight to the parking lot ;■ that he knew where Smith usually parked his car, and that Smith’s car had already been moved from its usual location when the witness arrived at the parking lot. Subsequently, he passed Smith’s house, and noticed that claimant’s car was not there. A block or so later, he observed the Smith car “headed north towards home.” Linton Marks, another ■ employee, rode with Brown, and testified to substantially the same facts, viz, that Smith’s car was not in its usual parking place when he reached the parking lot; that claimant’s car was not at his home when they passed, and that subsequently they observed Smith, approaching approximately a hundred yards away.
Kirby McClendon, employed by Potlatch as a personnel worker, testified that Smith and his wife reported the injury to him between 4:00 and 4:30 P.M. (apparently after seeing Bliss). Smith told the witness that he stepped on a stick which flew up and hit him in the eye, the accident occurring under the lumber conveyor belt. McClendon, Herbert Bliss, and Pete Denson, assistant yard foreman, all testified to various contradictions and discrepancies in Smith’s account, and that of his wife. For instance, Bliss stated that claimant said that “he started out and walked right across the ramp and got across the ramp to the corner and said he set down there and set there fifteen minutes and smoked a cigarette and he got up from there, walked across the railway track, under the conveyor belt and about nine spaces I believe Sylvester spaced it off himself, he said he felt something under his foot and it flew up and hit him in the eye or something hit him in the eye, said at that time it hurt him so bad he fell down on his knees and caught his eye with his hands, stayed there a little bit and got up and went on to the car with his hand over his eye and got in the car and drove home.” Further, that Smith stated that his eye hurt “bad” and in wiping it, “he got some bloody water on his hand. ’ ’ The foreman also stated that he checked the area for sticks, and found but one.
Appellee asserts that the Commission committed an error of law in its finding, contending that the claimant is entitled to an award of compensation if there is any substantial evidence to justify the claim. Appellee is mistaken in this statement. It is true that our Compensation Act should be broadly and liberally construed, but it is also true that the burden of proof is placed upon the claimant to establish that his disability was occasioned by an injury received in the course of his employment. Pruitt v. Moon, 230 Ark. 986, 328 S. W. 2d 71. The commission determines litigation from what it deems to be the preponderance of the evidence, and we affirm if there is any substantial evidence to support the Commission’s ruling. Chicago Mill and Lbr. Co. v. Fulcher, 221 Ark. 903, 256 S. W. 2d 723; Moss v. El Dorado Drilling Co,, supra. Of course, it is established that Smith injured his eye. It is likewise established that the injury occurred between 2:30 and 3:00 P.M. on September 19, but we are unable to say that the Commission’s finding (to the effect that the injury did not occur on the premises) is not supported by substantial evidence. Actually, it is apparent that the Commission did not place credence in Smith’s testimony, and there is no requirement, that that body must accept, at face value, the testimony of a claimant—or for that matter, the testimony of aim person. A similar situation existed in the case of Ray v. D. H. Garner Construction Co., 236 Ark. 654, 370 S. W. 2d 73. In that case, Ray testified to a back injury. Admittedly, he had suffered such an injury (as here, Smith admittedly had suffered an injury). Ray testified that this injury happened on the job, and detailed the circumstances relative to the occurrence. No one was able to verify that the injury happened in the course of employment (as here). However, in Ray, two doctors testified that, in their opinion, Ray incurred the injury to his back from the incident described by him, rather than from a subsequent injury which occurred off the job. Dr. Horace Murphy testified that the history recited by appellant was entirely consistent with his testimony. However, the Commission denied the claim, obviously because it did not believe appellant’s testimony. It is apparent that a similar situation exists in the instant case, i.e., the Commission was not persuaded by claimant’s version of the manner in which the injury occurred. And there are facts which support the position taken.
According to the testimony of Weaver and Roberts, both observed Smith after the stated time of the accident, i.e., he had already passed the place where he alleged the injury to have been received. Both testified that Smith was proceeding toward his car in his usual manner, giv ing no indication that anything out of the ordinary had happened to him. Bear in mind the testimony of Roberts who testified, that, after checking out, he proceeded immediateley toward his own car in the parking lot. It would have been impossible for Roberts to have seen Smith walking toward his car if the latter, as he testified, had waited around for at least ten minutes before leaving. This witness also observed claimant, apparently acting in a normal manner, driving his car from the premises. Witnesses Brown and Marx testified that they (separately) walked to Brown’s truck, and that Smith’s car was not in its regular parking place. This evidence corroborated the testimony of Weaver and Roberts that Smith had, instead of staying around the plant, immediately left the premises. Claimant admitted that he had parked his car, on coming to work, at his usual parking-place.
As stated, there was a direct conflict in the evidence. If the testimony of these four witnesses was correct— then Smith’s testimony was incorrect. If Smith’s statements relative to the injury were true—then, the evidence of these four witnesses was false. There is nothing-in the record which indicates that these co-workers had any reason to deliberately prevaricate as to what they had observed. In addition, the evidence of both doctors tends to contradict Smith’s version.
At any rate, even though we might feel that the Commission had reached the wrong result, we are without authority to upset the finding, unless there is no substantial evidence to support the order. Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810. Undoubtedly, there was evidence in behalf of both Smith and the company, which could be considered substantial evidence—but the Commission is the trier of the facts, and a determination of the weight of the testimony falls within its province.
In accordance with the reasoning herein set out, the judgment of the Circuit Court is reversed, and the cause is remanded with instructions to affirm the order of the Commission.
Robinson and Johnson, JJ., dissent.
No prior claims were indicated from his work record.
This meant that Smith had already passed under the conveyor belt, and had walked that distance from it. | [
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Sam Robinson, Associate Justice.
Appellant, Mc-Gehee Hatchery Company, is engaged in the business of hatching eggs on a large scale at McGehee, Arkansas. Appellee, Keno R. Gunter, who lived in Mississippi, sold newly hatched chickens for appellant; his salary was $285.00 per month. At the same time, Gunter also worked for other concerns who were engaged in some angle of the chicken business. On January 22, 1958, Gunter was severely injured in an automobile accident in Mississippi. At the time, he was on business for appellant, McGehee Hatchery, and also on business for the Warren Produce Company of Greenville, Mississippi. Gunter was awarded workmen’s compensation in Mississippi as an employee of the Warren Produce Company. Later, he filed a claim with the Arkansas Workmen’s Compensation Commission for benefits as an employee of the McGehee Hatchery Company. The Arkansas Commission denied the claim on the ground that payment of benefits in Mississippi barred Gunter from receiving benefits under the Arkansas law. The claimant appealed to the circuit court and there the court reversed the Commission. The McGehee Hatchery Company then appealed to this court. We affirmed the judgment of the trial court with the modification that there could be no duplicate cash award for hospital and medical expenses. McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S. W. 2d 608. The case went back for a hearing on the merits before the Workmen’s Compensation Commission. The Commission awarded compensation. The trial court affirmed the action of the Commission, and McGehee Hatchery Company has appealed.
Appellant now contends that Gunter was not its employee at the time he was injured; that he was an independent contractor. When' the case was here the first time it was not suggested that Gunter was not an employee. In that case we said: “. . . [Gunter] was also employed as a traveling salesman by the appellant, an Arkansas concern, at a salary of $285.00 a month.” But we need not decide whether the above language constitutes the law of the case, because in the case at bar there is substantial evidence to sustain the finding ^ the Commission that Gunter was an employee and not an independent contractor. In fact, there is very little, if any, evidence to the contrary. No written contract showing Gunter to be an independent contractor was introduced in evidence, and no one testified that there was an oral contract to that effect. Actually, Mr. Floyd, president of the McGehee Hatchery, testified that Gunter was an employee. Gunter was paid a regular salary of $285.00 per month; social security and income taxes were deducted from his salary. However, workmen’s compensation insurance premiums were not paid on claimant, but the failure to pay such premiums was not for the reason that appellant company did not consider that Gunter was its employee, but was due to the insurance agent having told appellant not to pay premiums on Gunter because he lived in another state.
Appellant argues that the fact that the appellant company did not tell Gunter when and where to sell chickens is strong evidence that he was an independent contractor. Even so, such evidence in itself is not sufficient to overturn the finding of the Commission based on substantial evidence that an employer-employee 'relationship existed.
Agricultural farm labor does not come within the purview of the Arkansas workmen’s compensation law. Ark. Stat. Ann. § 81-1302(c) (Repl. 1960). In this case the Commission made a finding that the McGehee Hatchery is engaged in agriculture within the meaning of the statute, and is, therefore, not subject to the workmen’s compensation law. But, the Commission held that the hatchery had waived its exemption under the provisions of Ark. Stat. Ann. § 81-1307 (Repl. 1960). The Commission based its finding that appellant was engaged in agriculture on the case of Franklin v. McCoy, 234 Ark. 558, 353 S. W. 2d 166. Our decision in that case was founded squarely on the facts of that particular case. There, the employer had been engaged in farming for many years, raising cotton, hay, peanuts, popcorn, soybeans, hogs, cattle and chickens. But in 1959, at the time the employee was injured, only chickens were being raised. We said: “In view of the foregoing we are unwilling to say that the legislature . . . meant that .raising chickens (in the manner previously set out) is not an agricultural farm activity. ’ ’
We do not construe the Franklin case as broadly as construed by the Workmen’s Compensation Commission in the case at bar. It would appear from the evidence in this case that the McGehee Hatchery is not engaged in agriculture within the meaning of the workmen’s compensation law. But we do not turn our decision on that point because the evidence is sufficient to support the finding of the Commission that the appellant waived the exemption even if it was exempt.
As heretofore pointed out, the Workmen’s Compensation Commission held that appellant was engaged in agriculture, and therefore did not come under the provisions of the Workmen’s Compensation Act, but that appellant could and did waive such exemption. Appellant argues that to effect such waiver there must have been a strict compliance with the act, and that there was no such compliance by appellant because notices of the waiver of exemption were not posted in accordance with the act. Ark. Stat. Ann. § 81-1307 (Eepl. 1960) provides: “Any employer carrying on any exempted or excepted employment may at any time waive such exemptions or exceptions as to any employee or all employees engaged in such employment as he may elect by giving notice of waiver of such exemptions or exceptions as provided in section 8.”
Ark. Stat. Ann. § 81-1308 (Eepl. 1960) provides: “Notice of waiver of exclusion or exemption heretofore referred to shall be given in accordance with the following provisions: (a) Every employer who waives such exclusion or exemption shall post and keep posted in and about his place of business typewritten or printed notices to such effect in accordance with a form to be prescribed by the Commission and he shall file a duplicate of such notice with the Commission, (b) Such notice shall be given at least thirty [30] days prior to any injury; provided, however, that if the injury occurs less than thirty [30] days after the date of employment, such notice, if given at the time of employment, shall he sufficient notice. ’ ’
The Workmen’s Compensation Act is highly remedial and is entitled to a liberal construction. Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380. The act should be accorded a broad construction and doubtful cases should be resolved in favor of compensation. Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Triebsch v. Athletic Min. & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26.
No doubt appellant considered that it was subject to the provisions of the act and accordingly secured insurance coverage for protection. In all probability, neither the McGehee Hatchery Company nor its insurance carrier ever considered that the company was exempt under the act until the decision in Franklin v. McCoy, supra, rendered on the 29th day of January, 1962, some four years after the date Gunter was injured. For its own protection and for the protection of its employees, the appellant had secured a policy of workmen’s compensation insurance and filed the policy with the Workmen’s Compensation Commission. For all intent and purposes the company had secured itself against the hazards of being subject to the common law of torts; and then months after the employee was injured, it is claimed that there is no liability under the workmen’s compensation law on the part of the employer because the employer did not strictly comply with the statute in posting notices. In this case, apparently, except for the workmen’s compensation law, there would be no liability on the part of the employer.
In 136 A.L.R. 900, it is said: “Workmen’s compensation acts generally contain provisions governing the acceptance of them by employers as to whom the acts are not mandatory. No general rule can be laid down other than that a substantial compliance with these provisions is usually required. The question as to whether there has been a sufficient compliance depends upon the facts of the individual cases.”
No doubt appellant elected to operate under the act. Certainly appellant would not have bought and paid for a policy of insurance and then deliberately failed to post a simple notice whereby there could be recovery on the policy. Moreover, when the case was here the first time, the employer made no contention that it was not operating under the act. The. requirement of the posting of the notice was for the benefit of the employee, to let him know that the company had waived the exemption, and that the employee was, therefore, bound by the provisions of the workmen’s "compensation law. But here the employer claims that there is no liability on his part because he failed to give the employee a notice that was required by law for the benefit of the employee. Of course the employer did not need to notify himself for his own benefit that he had waived the exemption.
In similar cases it has been held that the employer is estopped to deny that he is operating under the act. In the case of L. E. Marks v. Moore, 64 S. W. 2d 426, the court held that although the employer had failed to comply with all requirements to come under the compensation act, he was estopped to deny that he had elected to and was operating under the act at the time the employee was injured. To the same effect is Yeomans v. Anheuser-Busch, Inc., 198 S. C. 65, 15 S. E. 2d 833, 136 A.L.R. 894. In that case the record did not show that notice was not given, but the decision did not turn on that point. The court said: “We agree with the trial judge that if it [notice] was not given, default of the employer cannot be taken advantage of by the latter and his carrier to defeat the claim of an employee.” And, in Ham v. Mullins Lumber Co., 7 S. E. 2d 712, the court said: “Defendants also contended that decedent was not given notice of his employer’s election, and consequently was not covered by the Act. That contention has already been disposed of in this order. However, even if it were true that such notice was not given, defendants could not plead as a defense to the claim of decedent’s heirs after his death their own failure to perform their duty to him under the law. It appears to me that in good morals, justice and law they could not do so, and that they would be estopped from so doing.”
Appellant also argues that even if it waived the exemption as to certain employees, it did not do so as to appellee because no premium was paid to the insurance carrier on him. Since it is being held that appellant cannot take advantage of its own failure to post notices that were for the benefit of the employee, the employee’s right to benefits is not affected by the employer’s failure to pay premiums.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is a boundary line dispute between adjacent landowners, and the precise question is whether appellant Coons acquired title by adverse possession to the strip in dispute.
On April 15,1953, appellant Coons purchased a tract on Lake Hamilton, lying south of and adjoining the property owned by appellee, Mary Lawler; and some time later (just when is disputed) Coons planted a row of willow trees for a distance of approximately 200 feet on appellee’s property and being 20 feet north of the line stated in Coons’ deed. This seems to have been deliberately done, with full realization that the row of willow trees was 20 feet north of the correct boundary.
On June 30, 1961, appellant Coons filed the present suit against Mary Lawler, claiming: that for more than seven years he had been in adverse possession of all the 20-foot strip up to the said row of willow trees and had acquired title to the said 20-foot strip by sufficient acts of adverse possession; and that Mary Lawler should be restrained from interfering with Coons’ ownership of said 20-foot strip. By answer and cross complaint, Mary Lawler pleaded record ownership of the 20-foot strip in issue; denied Coons ’ claim of title by adverse possession; prayed that her title to the disputed 20-foot strip be quieted; and prayed that Coons be required to remove a boathouse he had constructed in front of her property and bordering on Lake Hamilton. The cause was heard by the Chancery Court on evidence ore terms; and from a decree in favor of Mary Lawler, Coons brings this appeal and urges two points, being:
“I. The plaintiff held actual open, notorious, continuous, hostile, and exclusive possession of the land in question for a period of seven years prior to the time this action was instituted without a break in the continuity of possession.
“II. The lower court decision was against the weight of the evidence.”
Both of these points go to the sufficiency of Coons’ evidence to support his claim of adverse possession, and to the sufficiency of such possession; so we consider the two points together. Coons testified that as soon as he purchased Ms property in 1953 he planted the said row of willow trees; had a light pole erected on the 20-foot strip; and had used the 20-foot strip for a trailer park for more than seven years. Some of Ms witnesses supported some of the claimed acts of adverse possession done by him at various times since 1953. Such testimony related to: construction of a septic tank in 1954 or 1955; filling in a low place on the strip in 1953 or 1954; parking trailers on the property at irregular intervals; and building the boat dock at some date not definitely shown. Mary Lawler established by testimony of herself and others: that she was the record owner of the title to the 20-foot strip in dispute; that in 1957 and 1958 her tenant had a garden on the disputed strip; that there were no trailers on the disputed strip in 1957 or 1958; and that when Mary Lawler’s true line was surveyed in 1960 there was only one trailer that extended over her line and that for a distance of three or four feet. Several witnesses called by Mary Lawler testified that there were no willow trees on the disputed strip in 1957.
Thus, there was not only a sharply disputed fact question as to whether Coons had exercised acts of adverse possession for the required statutory period of seven years, and also there was the legal question as to whether Coons had acquired title by adverse possession, even if he had done all of the acts he sought to establish. On either point the Chancery decree was correct. If the Chancellor believed Mary Lawler and her witnesses, then Coons had not exercised any acts of adverse possession for the required period of seven years; and we cannot say that the Chancery decree is against the preponderance of the evidence on this factual issue.
As to the legal question: even if Coons did all that he and his witnesses claimed, nevertheless such acts fall short of that adverse possession required for a trespasser’s claim to ripen into a title. Our statute allowing seven years adverse possession to ripen into title is Ark. Stat. Ann. § 37-101 (Repl. 1962); and such adverse possession must be actual, notorious, exclusive, continuous, and hostile. Some of our cases explaining and applying these requirements are these: Dowdle v. Wheeler, 76 Ark. 529, 89 S. W. 1002; Sanderson v. Thomas, 192 Ark. 302, 90 S. W. 2d 965; DeMers v. Graupner, 186 Ark. 214, 53 S. W. 2d 8; Crawford v. Davis, 147 Ark. 126, 227 S. W. 5; Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; Sharp v. Johnson, 22 Ark. 79; and Fulcher v. Dierks, 164 Ark. 261, 261 S. W. 645. To prevail on a claim of adverse posses sion not under color of title (and Coons does not claim color of title), one must show actual or pedal possession to the extent of the claimed boundaries. Griffin v. Isgrig, 227 Ark. 931, 302 S. W. 2d 777; Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236.
The decree in favor of Mary Lawler is in all things affirmed.
One of the best considered cases on the essential acts necessary to create title by adverse possession, and in which most of the Arkansas cases are listed, is Dierks v. Vaughn, 131 F. Sup. 219, affirmed 221 F. 2d 695. See also Jones “Arkansas Titles” (Original Vol. and Annotated Supplement) § 1497 et seq. | [
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Paul Ward, Associate Justice.
Appellee, George Burnett, brought suit to collect a commission of $6,500 from appellant, Edward L. Canute. The suit was based on the contention by appellee that he produced a purchaser ready, able, and willing to pay appellant an agreed price for his property. A jury trial resulted in a verdict in favor of appellee in the amount sued for, and appellant hero seeks a reversal.
Por a reversal, appellant says -he relies on four points, but, in his argument, he abandons all points except two—(a) “The demurrer should have been sustained”, and (b) “The court should have instructed a verdict for defendant”.
The essential allegations of the complaint were, in substance, as follows:
Plaintiff (appellee) was a real estate broker at all pertinent times; the defendant (appellant) owned the Star Motel at Rogers; Gilbert and Virginia Ivlevgaard owned the Magnolia Inn at Fort Smith; plaintiff, as a licensed real estate agent, worked up an exchange of the two properties on terms contained in a 'written contract dated March 6, 1961, a copy of which is attached to the complaint and is marked Exhibit “ A ”; in said contract appellant agreed to pay appellee a commission of $6,500 if he (appellant) should default on the contract; and, later appellant did default on the contract and refuses to pay the specified commission although demand has been made on him.
The essential portions of Exhibit “A” attached to the complaint are set out below:
Edward L. Canute is first party and Gilbert Ivlevgaard is second party, each party owns the property previously mentioned; first party and second party agree to exchange properties on certain specified terms regarding title, exchange of abstracts, taxes, and assumption of certain indebtedness; each party deposited $1,000 as earnest money; and, a commission fee of $6,500 for appellee was agreed on. Also contained in the contract is the following sentence: “If either party shall default on this Exchange Contract, the defaulting party agrees to pay the agent the full commission of both parties”. (Emphasis added.)
The above contract was signed by “Edward L. Canute, Party of First part”; by “Virginia Klevgaard, Party of Second part”; “Gilbert Klevgaard, Party of Second part” and by “George Burnett, Agent”.
(a) It is first contended by appellant that the complaint failed to state a cause of action because the contract was not enforceable. It was not enforceable, says appellant, because his wife did not sign it. There is no merit in this contention. This is not an action for specific performance to force appellant to convey his motel to Klevgaard but it is an action to compel appellant to pay appellee the commission he would have received had appellant not broken the exchange agreement. ■ That being-true no enforceable contract was necessary, and, consequently it is immaterial that appellant’s wife did not sign the contract. In Fike v. Newlin, 225 Ark. 369, 282 S. W. 2d 604, wherein the facts were similar to those of this case, the Court said:
“It is immaterial that the contract for the exchange of the properties was not signed by Mr. Fike or Mrs. Hinton, as a real estate broker earns his commission by producing a buyer ready, willing, and able to take the property on the terms fixed by the seller.”
See also: Boyles v. Knox, 211 Ark. 426, 200 S. W. 2d 966, whore we said:
‘£ However, if it be conceded that the agreement . . . was not sufficiently definite in its terms to sustain an action for specific performance, this would not preclude appellee from recovering- a commission, if he, in fact, produced a buyer who was ready, -willing and able to take the property on terms which, were satisfactory to appellants at the time the agreement was made.”
We do not agree with the argument that appellee could not collect a commission because there was no contractual privity between him and appellant. The case of Acme Brich Company v. Hamilton, 218 Ark. 742, 238 S. W. 2d 658, is relied on by appellant. However, the material facts in that case are not the same as in the case under consideration. Here, privity is clearly shown by the following: both parties signed the contract, and appellant agreed to pay appellee upon default.
(b) It is here contended the court should have directed a verdict at the close of the testimony because appellee admitted he knew the contract was not to be complete or binding unless and until appellant’s wife signed it. In support appellant quotes appellee’s testimony as follows:
“Mr. Canute advised me that he was not going through with the deal because Mrs. Canute would not sign the contract. ...” (Emphasis added.)
The record, however, reflects that aiopellee used the word “deed” instead of the word contract in the above quotation. We find nothing in the record which indicates appellant’s signature on the contract was not to be binding on him unless his wife signed it.
Finding no reversible error, the judgment of the trial court is affirmed.
Affirmed.
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George Bose Smith, J.
In this case the chancellor granted the appellee husband a divorce on the ground of three years separation. For reversal the appellant contends that the court should have denied the appellee’s application for divorce and should instead have awarded the appellant that relief upon her counterclaim.
The appellant is right in her insistence that the proof does not sustain the decree. The statute requires that the parties live “separate and apart,” without cohabitation, for three consecutive years. Ark. Stat. Ann. § 34-1202 (Bepl. 1962). Oxford testified that he and his wife had not had marital relations for more than three years before the suit was filed in 1962. He conceded, however, that they lived together under the same roof, occupying separate rooms, until about two and a half years before the date of the trial. Under our ruling in Brimson v. Brimson, 227 Ark. 1045, 304 S. W. 2d 935, this evidence is insufficient to establish three years separation within the meaning of the statute, for it cannot be said that the couple lived separate and apart from each other.
Despite this failure of proof the appellee argues that the decree should nevertheless be affirmed upon the alternative ground of desertion, which was also alleged in the complaint. Again, however, the proof is deficient. At the trial the appellee directed his testimony to the issue of three years separation and made no real effort to make out a case of desertion. He gave no details whatever concerning his wife’s departure, merely stating- that “she ain’t been home in two and a half years.” The appellant denied having left her husband without cause; so there is no basis upon which a finding of willful desertion could be made.
The appellant contends that the chancellor should have granted her a divorce upon one of the three grounds asserted in her counterclaim. First, she charged her husband with habitual drunkenness. She and witnesses in her behalf testified that Oxford frequently drank intoxicants. He and his witnesses minimized the extent of his drinking. We need not determine where the weight of the evidence lies, for the appellant’s proof falls decidedly short of showing that Oxford was a habitual drunkard as we have defined the term. O’Kane v. O’Kane, 103 Ark. 382, 147 S. W. 73, 40 L.R.A. (n.s.) 655.
Secondly, the appellant charged nonsupport, which under our statute is the husband’s willful failure to provide his wife with the common necessaries of life. Ark. Stat. Ann. § 34-1202 (Repl. 1962). During most of the couple’s ten years together Mrs. Oxford either operated a dairy business at the family farm or found employment away from home. In this way she earned money for herself and her two sons by a prior marriage. These facts alone do not establish the allegation of nonsupport. There is no definite testimony by Mrs. Oxford, and no corroborating proof at all, to indicate any specific instance in which Oxford willfully failed to provide his wife with the necessaries of life.
The third ground relied upon is personal indignities. Each spouse accused the other of infidelity and of other conduct amounting to indignities. After studying the record we are convinced that Mrs. Oxford was at least as much at fault as her husband, perhaps more so. Moreover, it does not appear that the conduct of which Mrs. Oxford now complains was the real cause for her de cisión to leave the family home in August or September of 1961. Neither spouse related any of the details attending Mrs. Oxford’s departure, hut in view of her own statement that marital relations occurred within a month before their final separation it is quite apparent that the earlier incidents did not bring about the failure of the marriage. We are inclined to think that the couple, separated in age by more than thirty years, had simply grown tired of one another.
We conclude that neither party established a cause of action. With respect to the three years separation, however, the suit may be merely premature; so, in accordance with our practice in such a situation, it will he dismissed without prejudice. Trimble v. Trimble, 65 Ark. 87, 44 S. W. 1040.
Reversed and dismissed. | [
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Frank Holt, Associate Justice.
This case involves a dispute among relatives as co-tenants. It was precipitated when eminent domain proceedings were instituted against the appellants and appellee as the sole heirs at law of Cato Johnson in order to acquire the title to Lots 4, 5, 6 and 7, Block 1, Military Heights Addition, North Little Hock, Arkansas. The appellee, Cato James, by cross complaint against his relatives, the appellants, sought to establish in himself the sole and absolute title to the lots. The appellants, Horace Johnson, Jr., Effie Johnson, Julius James and Dink James, his wife, responded by appropriate pleadings. The cross complaint also named other relatives, Charles Johnson and Essie, his wife, and Geneva James each of whom defaulted. The Chancellor found the issues in favor of appellee upon his cross complaint and decreed that the title to the lots in question be vested in him by adverse possession and, further, that as the sole and absolute owner he was entitled to the funds representing the value of the property acquired by the eminent domain proceedings. From such decree the appellants bring this appeal and for reversal contend that appellee’s “claim was not unequivocally hostile” to the extent “notice of an adverse claim would be presumed” to exist for “more than ■seven years prior to the commencement of this action.” In other words, appellants question the sufficiency of the evidence to vest the title in appellee by adverse possession.
When appellees’ and appellants’ common ancestor, Cato Johnson, died in 1925 the appellee was living with him on the property in question. He has continued to live on this property from that time until it was acquired by the eminent domain proceedings in 1961. During this time appellee has had the sole and exclusive possession of the four-room dwelling situated in the middle of the four lots which were fenced. Appellee testified that he expended approximately $1,500.00 improving the property by adding a bedroom and installing plumbing facilities, mortgaging the property in order to do so. The appellee has paid all taxes on the property, rented part of the property and retained the rent, and paid for the insurance. It is undisputed that when Cato Johnson died in 1925 he left a will which is in evidence without objection. By the terms of this unprobated will the property in question was devised absolutely to the appellee. It reads, in pertinent part, as follows:
“First: I devise to my grandson, Cato James, my home place in Military Heights, North Little Bock, Arkansas, consisting of four twenty-five foot lots and buildings thereon, at No. 306 West 27th Street.”
The will also provided that “I am not forgetting my grandchildren, Horace Johnson, Cato Johnson, Jr., * * 4 and Julius James.”
Appellee testified that his grandfather, the testator, had shown him the will stating “now nobody can do you no harm.” Appellee kept the will in his possession. He testified: “I told all the family about the will” and “the whole family lmowed it,” including the appellants. His aunt, Essie Johnson, corroborated appellee’s testimony that the existence of the will was known. However, she considered that appellee’s interest was limited to a life estate. Appellant Horace Johnson, Jr., contended he never knew a will existed. He admitted that he lived in the vicinity and knew of appellee’s exclusive occupancy for the thirty-six years. Appellant Effie Johnson, widow of the grandson, Cato Johnson, Jr., did not testify although it appears she is a resident of the community. Appellant Julius James, who has for many years resided in Tennessee, testified that he knew about the will and understood that it provided for appellee to have a “life time will oil the place.” He knew of appellee’s exclusive occupancy for the thirty-six years and was an annual visitor, often spending the night with his brother, the appellee. Appellee also testified that he understood that by the will his grandfather ‘ ‘ gave it [the property] to me, just gave it to me.”
It is well settled that possession by a tenant in common is presumed to he possession by all cotenants and where a family relationship exists, then stronger and more cogent evidence of adverse possession or hostile acts of ownership are required than where no such relationship exists. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125; McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714. We have also held that knowledge of adverse possession must be made known to other cotenants directly or by notorious acts of such an unequivocal character that notice may be presumed and, further, that acts of possession, payment of taxes, enjoyment of rents and profits, and the making of improvements are consistent with a cotenancy and do not necessarily amount to disseizin. McGuire v. Wallis, supra; Griffin v. Solomon, 235 Ark. 909, 362 S. W. 2d 707; Hardin v. Tucker, 176 Ark. 225, 3 S. W. 2d 11. However, we have held that when the acts of ownership of a cotenant are of such a notorious nature as to amount to a declaration of hostility to other cotenants for more than seven years, that title by adverse possession is vested in the occupant. Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96; Hildreth v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353; Singer v. Naran, 99 Ark. 446, 138 S. W. 958.
In the case at bar the appellee has lived on and had sole and exclusive possession of the property in question for thirty-six years exercising such acts of ownership as payment of taxes, enjoyment of rents and profits, payment of insurance made payable to him, together with possession of an unprobated will giving him the property. According to appellee the appellants had direct knowledge of the will. Until this property was acquired by eminent domain proceedings the appellants never asserted any claim to the property. When we consider these factors in the aggregate we are convinced that title to the property in question was vested in the appellee by adverse possession for more than the required statutory period of seven years. Individuals ordinarily do not slumber so undisturbed upon their property rights for thirty-six years under these circumstances.
We find no merit in any of appellants’ contentions.
Affirmed.
Johnson, J., dissents. | [
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George Rose Smith, J.
The appellee, as administratrix of the estate of her husband, Charles Ratliff, inventoried as an asset of the estate a savings account in a Prairie Grove bank. The appellants, Ratliff’s son and daughter, excepted to the inventory, contending that the bank account had been a joint account with survivorship which did not become part of the estate. The only question here is ’whether the probate court was right in holding that Ratliff did not take the necessary steps to create a right of survivorship.
Ratliff opened an account in this bank many years ago, at least as far back as 1929. At that time the bank did not use signature cards, relying instead upon its employees’ familiarity with every depositor’s signature.
On October 21, 1961, Ratliff went to the bank, made a deposit of $970.25, and directed the assistant cashier, Mrs. Broyles, to add the names of Ratliff’s son and daughter to the account. The bank had on hand two forms of printed signature cards that might have been used. One by its language would have created a joint account with survivorship. The other would merely have given the son and daughter the right to check against the account, with any balance in the account at Ratliff’s death becoming part of his estate.
Mrs. Broyles did not use a signature card at all. There was a ledger sheet for the account, showing the date and amount of each deposit and withdrawal, together with the resulting new balance. Mrs. Broyles wrote above Ratliff’s name at the top of the ledger sheet, “Mrs. N. Edith Matthews or Herbert L. Ratliff.” She also inserted a typewritten notation, “Names added by Mr. Ratliff 10-21-61.” There is some indication, but no direct proof, that the two new names were also written in the passbook for the account.
Ratliff died in 1962, survived by his widow and the two children (and perhaps by a third heir, the adopted child of a deceased son. See case note, 15 Ark. L. Rev. 194). The estate was valued at $13,064.73, the principal assets being a homestead worth $7,500 and this $3,909.01 bank account.
Apart from the transaction between Batliff and Mrs. Broyles there is evidence indicating that Batliff thought his two children would be entitled to the account at'his death. First, he did not tell them about having added their names to the ^ eco ant, which suggests that he did not mean for them to have any control over the account until his own death. Secondly, six weeks after the account was changed Batliff wrote out a statement, perhaps intended as a will, in which he mentioned his other property but, significantly, made no reference to the savings account.. In view of all the proof we may assume for the purpose of this opinion that when Batliff went to the bank on October 21, 1961, he intended to change the account to a joint one with a right of survivorship in his children. That intention, however, was not fully disclosed, for, according to the testimony, Batliff merely instructed Mrs. Broyles to add the two names to the account.
At common law the action taken on October 21 would not, according to the great majority of the courts, have created survivorship rights in the appellants. The various common law theories are discussed in Professor Brown’s work on Personal Property, § 65. We are not now concerned with the common la*w, however, for in Arkansas the field has been covered by statute:
“When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same . . . shall be held for the exclusive use of the person[s] so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; ...” Ark. Stat. Ann. § 67-521 (Bepl. 1957).
The statute explicitly and unmistakenly requires that the deposit be made “in form to be paid to either, or the survivor.” Admittedly that requirement was not observed here. The problem is whether the omission may be supplied by extrinsic facts showing that the depositor really intended to create a joint account with survivor-ship.
We think the trial court was right in holding that Ratliff did not take the minimum action essential to the creation of a right of survivorship. We need not hold, as the New York courts do under a similar statute, that there must be a strict and literal compliance with the wording of the act. In re Fonda’s Estate, 206 App. Div. 61, 200 N.Y.S. 881. We do hold that there must be a substantial compliance.
.Our earlier cases point to this conclusion. We lay aside the matter of joint accounts between husbands and wives, for such an account is a tenancy by the entirety, with a right of survivorship that is not derived from the statute. Black v. Black, 199 Ark. 609, 135 S. W. 2d 837. In other situations when we have found a right of survivorship the opinion has almost always recited facts showing that the statute was complied with, in that the account was payable to either depositor or the survivor. Pye v. Higgason, 210 Ark. 347, 195 S. W. 2d 632; Vincent v. Vincent, 224 Ark. 449, 274 S. W. 2d 772; Tesch v. Miller, 227 Ark. 74, 296 S. W. 2d 392. The facts were not fully stated in Von Tungeen v. Chapman, 233 Ark. 219, 343 S. W. 2d 782. We referred only to the prima facie intent indicated by the signature card, but the record in that case shows that the signature card created an account “in the joint names of the undersigned as joint tenants with the right of survivorship and not as tenants in common.” So there was substantial compliance with the statute.
The appellants insist that Ratliff’s intention should be of controlling importance. This matter of the depositor’s intention was thoroughly considered in Park v. McClemens, 231 Ark. 983, 334 S. W. 2d 709. The case involved four bank accounts. Three of them were evidenced by signature cards conforming to the statute and creating a prima facie case for a right of survivorship. The proof showed, however, that the depositor, Mrs. Witten, had not really meant to create snch a right. We therefore held that the prima facie case for survivorship had been overcome.
The fourth account in the Park case was like the one now before us, in that it was not in form payable to either depositor or the survivor. With reference to that account we added language which, if it were not for the possibility that it was dictum, would be absolutely controlling in the case at bar: “We point out also that in any event (and regardless of the intention of Mrs. Wit-ten) the Chancellor’s finding must be affirmed in regard to the $2,159.59 Savings Account No. 4931 in the Texarkana National Bank, because there is no language on the signature card creating a joint account with the right of survivorship.”
Dictum or not, this is a correct interpretation of the statute. A joint account with survivorship is similar to a will in that both are statutory devices by which property may be disposed of at death. In each case certain minimum formal action in the exercise of the statutory privilege has been required by the legislature, doubtless to avoid the dangers of perjury and the uncertainties of parol evidence after death has sealed the lips of the person principally concerned. The chief safeguard with respect to a joint bank account is the requirement that it be in form payable to either depositor or to the survivor. In the case at hand that essential condition to a right of survivorship is absent. Unless we are to strike an important clause from the statute, which we are not at liberty to do, we must conclude that Ratliff failed to take the necessary steps to create a joint account with the right of survivorship.
Affirmed.
Robinson and Johnson, JJ., dissent. | [
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Sam Robinson, Associate Justice.
On November 25, 1960, appellant, Jerry Moss, while working as a roughneck (laborer in drilling oil wells) for the El Dorado Drilling Company, received an injury to his back. He was awarded workmen’s compensation benefits for loss of time to April 3, 1961. Further compensation was denied by the Workmen’s Compensation Commission on the ground that he had fully recovered from the injury sustained. Moss has appealed contending that he is still disabled. The issue is whether there is substantial evidence to sustain the finding of the Commission.. Incidentally, in its opinion the Workmen’s Compensatioii Commission states: “. . . The Full Commission finds that the Referee’s Opinion is supported by substantial evidence and should be and is hereby affirmed.” 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. Chicago Mill & Lumber Co. v. Fulcher, 221 Ark. 903, 256 S. W. 2d 723; Stout Construction Co. v. Wells, 214 Ark. 741, 217 S. W. 2d 841.
Appellant is 28 years of age, is married, and has two children. From the evidence it appears that he has been working and making his own living since he was 15 years of age. He worked as a roughneck in the oil fields in 1949. In 1951 he joined the Army and served therein for four years. After his discharge from the Army in 1955, he again went to work in the oil fields and worked as a roughneck until he was injured on November 25, 1960, while working for appellee.
The occupation of roughneck is hard work; it requires heavy lifting, twisting, turning, bending, and climbing oil derricks. On the day he was injured, Moss was working up in a derrick about 55 feet from the ground. Some of the pipe used in connection with the drilling operation was standing upright within the framework of the derrick. A large pulley block struck the side of the derrick causing the pipe to. fall. Around his waist appellant had a safety belt which was secured to the derrick by a rope. The pipe fell against this safety rope giving appellant a violent jerk and threw him against the derrick. The safety rope, one end fastened to the derrick and the other to appellant’s'safety belt, was supporting the heavy pipe. Other roughnecks climbed tbe derrick, released appellant, and lowered him to the ground by means of an elevator. The accident occurred about 5:45 a.m. Although suffering pain in his back, appellant stayed on the job on the ground until the end of the shift which ended about 45 minutes later, at 6:30 a.m.
Just as soon as he got home, Moss phoned his employer and told him that he thought he should go to a doctor. The employer referred him to Dr. A. D. Cathey. He went to see the doctor about 7 o ’clock a.m. that same morning. Dr. Cathey treated him for several days, but at the end of that time appellant did not feel that he was any better. He then went to see Dr. G-. D. Murphy, who treated him until January 11, 1961, at which time Dr. Murphy wrote to the insurance carrier as follows: ‘ ‘ The above captioned individual has failed to respond to treatment given him for back injury. It is my recommendation that he see an orthopedist in Little Rock, Arkansas for consultation and evaluation. I would like to make an appointment for him to see Dr. Elvin Shuffield in Little Rock at an early date.”
Appellant was then referred to Dr. Shuffield in Little Rock. He treated appellant at various times, and finally, on March 27, Dr. Shuffield wrote to Dr. Murphy and among other things stated: “He [appellant, Moss] was discharged from the Arkansas Baptist Hospital on February 24, 1961, at which time the shape of his spine was found to be good. His muscle spasm was gone, and he had a very good range of motion. I do not think there is any doubt but what this man does have a congenital malformation of the lumbosacral spine. I think he has had a temporary period of total disability because of aggravation of a pre-existing condition. I think that has now improved to where he should be given a trial of work, to see for sure whether or not he is going to have any permanent disability. If you can get close to this man and re-assure him that he is not badly hurt, I think it will go farther toward helping him than anything I know of. He seems to have the utmost confidence in you, and what you have done for him, but I believe we are going to have a real problem in getting this man back to heavy construction work. I am of the opinion that his back is structurally weak from the congenital malformation, and his back is such that it will be easily injured, and when it is injured it will be slow in making recovery. ’ ’
Just three or four days after the date of Dr. Shuffield ’s letter recommending that appellant “be given a trial of work to see for sure whether or not he is going to have any permanent disability”, Dr. Murphy “discharged the patient as cured” on March 31, 1961. Dr. Shuffield did not say the man had recovered, he merely recommended that Dr. Murphy should endeavor to get him to return to work to see whether his back would stand up to the job.
The insurance carrier cut off the compensation as of April 3, 1961. Moss went back to appellee drilling company for which he was working at the time he received the injury, but appellee company would not put him back to work because the driller considered that he had not recovered sufficiently to do the work of a roughneck.
Since compensation had been stopped and appellant had a wife and two children he had to do something, so he moved in with his brother-in-law in Haynesville, Louisiana, and applied to the Wheelis Drilling Company for a job without mentioning his disability. He was put to work as a roughneck. Later, the Wheelis people said that if they had known about his disability they would not have put him to work. The very first day he worked for Wheelis, and the first time he attempted to lift anything heavy, as he was required to do as a roughneck, his back gave way and he could no longer continue on the job.
At the time of the hearing before the Eeferee, appellant was again referred to Dr. Shuffield for an examination. Dr. Shuffield reported: “It is my opinion that. this man apparently has had a new injury while lifting a muffler on April 29, 1961, while working for Wheelis Drilling Company. At this time I do not find any evidence of any permanent partial disability, and I think this man is capable of doing his work. However, in view of the congenital malformation of the lumbosacral spine, I do not think he should try to do any extremely heavy lifting, because his spine is notorious for being the type that will not hold up under heavy work. I recommend that he contact the Vocational Rehabilitation program,, and try to learn some trade where he can make a living without having to do heavy lifting and straining.”
It will be noticed that Dr. Shuffield states his opinion to be that appellant is able to do “his work”. “His work” is that of a roughneck in the oil fields—a job which requires hard manual labor such as the lifting of heavy objects; and yet, Dr. Shuffield also states that he does not think the man should “do any extremely heavy lifting” because of the congenital malformation of his lumbosacral spine. It does not appear that the congenital malformation of appellant’s spine had disabled him in any manner whatever prior to the time his back was injured while working on the derrick November 25, 1960.
Appellant was 28 years of age at the time he was injured; he had been making his living by hard manual labor since he was 15; he had served four years in the Army, and it is a matter of common knowledge that the training and duties of a soldier are not too easy on the back. Moreover, he had worked as a roughneck in the oil fields regularly for about five years at the time he was injured. There is not a scintilla of evidence that he ever had any trouble with his back prior to the injury. All the evidence is to the contrary.
After appellant received his second injury—the one he received the first day he worked for Wheelis, April 29, 1961—he went to Dr. George Byram of Haynesville, Louisiana. After examining appellant and making S-ray studies of his back, Dr. Byram referred him to “The Orthopedic Clinic” at Shreveport. Dr. Byram reports that in his opinion, appellant has a back injury secondary to a possible premature return to work following the first injury and to a congenital defect in the lumbar spine.
Dr. Carson R. Reed, Jr. of the Orthopedic Clinic reported: “It is thought that he [appellant] had not recovered from his initial injury when he again aggravated his lumbarsacral region by lifting.” Dr. Reed further stated that appellant was totally disabled for heavy work at that time, May 25, 1961. In December, 1961, Dr. J. B. Wharton of El Dorado reported that in his opinion the original injury received by appellant in November, 1960, was the greatest cause of the aggravation of the pre-existing deformity of the lumbar spine.
We do not believe that Dr. Murphy’s opinion that appellant had made a complete recovery on March 31, 1961, as shown by his report to the insurance company, can be said to be substantial evidence to sustain the finding of the Commission in view of all the other evidence in the case. It will be recalled that Dr. Murphy had referred appellant to Dr. Shuffield, and only three days before Dr. Murphy states that the appellant had fully recovered, Dr. Shuffield had suggested to Dr. Murphy that he endeavor to get appellant to work on a trial basis to see whether he had recovered.
True, at a later date, in July, 1961, Dr. Shuffield gave a statement to the effect that in his opinion appellant was able to do “his work”, but in the same breath Dr. Shuffield says he should not attempt to do heavy work. The only work appellant knew how to do was heavy work; he had done that kind of work all his life. It toas “his work”.
Now as to the applicable law. The fact that appellant has a congenital malformation of the spine—a weak back—is not in itself a valid defense to his claim for compensation, since such condition was aggravated by the injury he received on November 25, 1960, according to the undisputed testimony, for which injury he was paid four months compensation. Quality Excelsior Coal Co. v. Maestri, 215 Ark. 501, 221 S. W. 2d 38; Starrett v. Namour, 219 Ark. 463, 242 S. W. 2d 963; Bryant Stave and Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436; Hamilton v. Kelley-Nelson Const. Co., 228 Ark. 612, 309 S. W. 2d 323.
Next we come to the question of whether the disability is to be attributed to the first injury where there was a second injury, as in the case at bar. In Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S. W. 2d 315, this court quoted with approval from 99 C.J.S. 607, as follows: “ ‘If the employee suffers a compensable injury and thereafter suffers further disability which is the proximate result of the original injury received, such further disability is compensable. Thus, where an employee suffers a compensable injury and thereafter returns to work and as a result thereof his injury is aggravated and accelerated so that he is further disabled than before, he is entitled to compensation for his entire disability. ’ ’ ’ And the court further quoted from Larson on Workmen’s Compensation Law, Yol. 1, § 13.00: “ ‘When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct. ’ ’ ’ And from 58 Am. Jur. 775 : “ ‘ A subsequent incident, or injury, may be of such a character that its consequences are the natural result of the original injury and may thus warrant the granting of compensation therefor as a part of that injury.’ ”
In 99 C.J.S. 605, it is said under the heading of “Dual Contributing Causes”: “To authorize a recovery of compensation, it is not sufficient to show that the injury resulted from one of two causes, but the claimant must show that the proximate cause was one for which the employer would be liable; and as between two accidents, the question whether a disability should be attrib uted to the first or second, depends on the circumstances of the case.”
It is firmly established by the great weight of authority that if the second injury is a recurrence of the original injury, compensation therefor must be paid by the employer and insurance carrier at the time of the first injury. See annotation 102 A.L.R. 790, and the many eases cited therein.
In Quinn v. Henry Becker & Son, 21 A. 2d 617, the court said: “Where a primary industrial accident causes a fracture which does not unite or results in poor boney union and therefore a weakened condition exists so that a secondary or subsequent event causes the disability to be prolonged, the original accident is responsible for the ultimate resultant condition.”
In Kennedy v. Alaska Industrial Board, 138 F. Supp. 209, the employee received an injury to his back while working in San Francisco in 1949. Subsequently, he worked for several different concerns. On April 14,1952, while employed by Sullens & Hoss Timber Company at Rocky Bay, Alaska, the applicant and another man were lifting a part of a planer weighing approximately 400 pounds when applicant felt something snap in his low back. An operation followed with a spinal fusion. There, it was held that disability was due to the injury he received while working for the Koenig Lumber Company in San Francisco three years previously.
There is no question about appellant receiving an injury to his back on November 25, 1960 while working in the due course of his employment as a roughneck for appellee, El Dorado Drilling Company. There is no question about appellee being disabled by reason of such injury to March 31, 1961. There is no question about appellant hurting his back again on April 29, 1961 when he was helping lift a muffler while working for Wheelis. The only question is whether the disability suffered while working for Wheelis was a new injury, or was it an aggravation of the injury he received while working for appellee, El Dorado Drilling Company. All the circumstantial evidence and the testimony of appellant, along with the testimony of Dr. Byram, Dr. Reed, and Dr. Wharton, tends to prove that the disability of the claimant is due to the first injury. As heretofore pointed out, there is no substantial evidence to the contrary.
The judgment is reversed with directions to the Circuit Court to refer the matter back to the Workmen’s Compensation Commission for further proceedings not inconsistent herewith. | [
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Boyd Tackett, Special Justice.
Appellant William. M. (Bill) Berry is a citizen and taxpayer of the State of Arkansas. At the time the Chancery Court action was instituted and .when the cause was concluded in the trial court, Appellee Nathan Gordon was Lieutenant Governor of the State of Arkansas, Appellee L. A. Clayton, was Treasurer of the State of Arkansas, and Appellee John P. Bethel -was Speaker of the House of the Arkansas State Legislature.
Appellant petitioned the Chancery Court of Pulaski County, Arkansas, in a taxpayer action, under Article XVI, Section 13, of the Constitution of the State of Arkansas, to enjoin and restrain appellees from paying out or reeeving public funds over and above their regular salaries—challenging the Constitutionality of Act 399 of the Arkansas Legislative Acts of 1961—and seeking an account of public funds paid out or received by appellees over and above their regular salaries.
The parties- stipulated that appellees paid out or received payments under Act 399 of the Arkansas Legislative Acts of 1961, and that expenses authorized by other legislation had been paid out and received by one or more of the appellees. Appellant and appellees moved for a Summary Judgment in the case. The matter was submitted to the trial court upon the pleadings, depositions, stipulations, and briefs of the parties. The Chancellor granted the Motion of Appellees for Summary Judgment and dismissed the Complaint of appellant upon the grounds that Act 399 of the Arkansas Legislative Acts of 1961 was not unconstitutional on its face, and that appellant had failed to introduce any evidence to show that the amounts received were unreasonable, arbitrary, used for unofficial purposes, or that the payments constituted an increase in salary rather than reim bursement or payment of expenses legally incurred— thus, this appeal.
The title of Act 399 of the Arkansas Legislative Acts of 1961 reads as follows: “An Act to Make an Appropriation to Defray Expenses in Connection with Public Relations Activities of Certain Constitutional Officers of the Executive Department of the. State of Arkansas.” SECTION 1 of the Act concerns the alleged need of some state officials to receive funds for public relations purposes, arising from the necessity of maintaining satisfactory public relations with official guests from neighboring states and the Federal Government. The Act declares as its purpose the promotion of the common good of the State of Arkansas by providing funds which will enable the state officials to continue beneficial public relations activities without personal financial hardship. SECTION 2 of the Act appropriates funds—payable from the Constitutional and Fiscal Agencies Fund—to defray expenses in connection with public relations of the following Constitutional Officers of the Executive Department the sum of One Thousand Eight Hundred (1,800) Dollars each for the fiscal year 1961-1962, and the sum of $1,800 each for the fiscal year 1962-1963: Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, Land Commissioner, and Speaker of the House. SECTION 3 of the Act provides that, on the 1st day of each calendar month in each of the foregoing fiscal years, the Auditor of State shall issue a warrant drawn in favor of each of the named officials in the amount of one-twelfth of the appropriation allocated to each such official, authorizing and directing the State Treasurer to pay said warrants from funds appropriated. SECTION 4 of the Act repeals all laws and parts of laws in conflict with Act 399.
Appellant insists that Act 399 is in conflict with Amendment 5 and Section 6 of Amendment 6 of the Constitution of the State of Arkansas. Amendment 5 of the Arkansas Constitution provides that each Member of the General Assembly receive a designated sum per day during the first sixty days of any regular session of the State Legislature, a designated sum per day during the first fifteen days of an extraordinary session of the Legislature, and expenses for travel to and from the Seat of Government to attend regular and extraordinary sessions. The Amendment further provides that the terms of all Members of the General Assembly begin on the day of their election, and that they shall receive no compensation, perquisite, or allowance whatever, except as provided by the Amendment. Section 6 of Amendment 6 of the Arkansas Constitution provides that the Lieutenant Governor shall receive for his services an annual salary of Two Thousand (2,000) Dollars, and shall not receive or be entitled to any other compensation, fee or perquisite for any duty or service he may be required to perform by the Constitution or by law.
Concerning salary and expense entitlements of the Speaker of the House, we need to ascertain any changes made to Amendment 5 of the Arkansas Constitution by subsequent Amendments of our Constitution. Amendment 15 of the Arkansas Constitution provides for annual salaries to certain State and District officers, payable in monthly installments, and provides for salaries and expenses of the General Assembly Membership. Paragraph 3 of Amendment 15 provides that each Member of the General Assembly receive a designated sum each two-year period, the designated salary of the Speaker of the House of Representatives being one hundred dollars more each two-year period than the salary of the other Members of the General Asembly; provides an additional designated sum per day for Members of the General Assembly, including the Speaker, that they be required to attend an extraordinary session; and provides travel expenses to and from the Seat of Government to attend the regular and extraordinary sessions of the General Assembly. Amendment 15 repealed provisions of the Constitution of the State of Arkansas in conflict with the Amendment; and this Amendment does not contain a clause precluding the Speaker of the House or other Members of the General Assembly from receiving additional expenses.
Next we have Section 3 of Amendment 37 of the Arkansas Constitution, providing that each Member of the General Assembly receive a designated salary for each two-year period, the designated salary of the Speaker of the Honse of Representatives being One Hundred Fifty (150) Dollars more each two-year period than the salary of the other Members of the General Assembly; providing an additional designated sum per day for Members of the General Assembly, including the Speaker, that they be required to attend an extraordinary session; and providing expenses for travel to and from the Seat of Government to attend regular and extraordinary sessions of the General Assembly. Amendment 37 repealed all provisions of the Constitution of the State of Arkansas in conflict with the Amendment; and this Amendment does not contain a clause precluding the Speaker of the House or other Members of the General Assembly from receiving additional expenses.
Further concerning entitlements of the Speaker of the House, Amendment 48 of the Arkansas Constitution —the current Constitutional authority at the involved time—provides that each Member of the General Assembly receive a designated salary per annum, the designated annual salary of the Speaker of the Honse being One Hundred Fifty (150) Dollars more than the designated salary of the other Members of the General Assembly; provides an additional designated sum per day for Members of the General Assembly that the General Assembly be in regular session; provides an additional designated sum per day for Members of the General Assembly that they be required to attend an extraordinary session; and provides expenses for travel to and from the Seat of Government to attend regular and extraordinary sessions of the General Assembly. Amendment 48 repealed all provisions of the Constitution of the State of Arkansas in conflict with the Amendment; and this Amendment does not contain a clause precluding the Speaker of the House or other Members of the General Assembly from receiving additional expenses.
Concerning salary and expense entitlements of the Lieutenant Governor, we need ascertain any changes made to Section 6 of Amendment 6 of the Arkansas Constitution by any subsequent Amendments of our Constitution. Section 2 of Amendment 37 of the Arkansas Constitution—the current Constitutional authority at the involved time—provides annual salaries for officers of the executive department of the State of Arkansas, payable in monthly installments, including the annual salary of the Lieutenant Governor in the amount of $2,500. As beforementioned, Amendment 37 repealed all provisions of the Constitution of the State of Arkansas in conflict with the Amendment; and this Amendment does not contain a clause precluding the Lieutenant Governor from receiving additional expenses.
Concerning salary and expense entitlements of the State Treasurer, we need ascertain pertinent provisions of the Arkansas Constitution. (Appellant does not question by this litigation the entitlements of the other state officials named in Act 399 of the Arkansas Legislative Acts of 1961—Secretary of State, Auditor of State, Attorney General, or Land Commissioner—to receive expenses in addition to their salaries.) It should be noted that Section 23 of Article 19 of our Constitution provides that no officer of the state, nor any county, city, or town, shall receive, directly or indirectly, for salary, fees, and perquisites, more than $5,000 net profit per annum in par funds, and that any and all sums in excess of this amount shall be paid into the state, county, city, or town treasury, as shall hereafter be directed by appropriate legislation.
Constitutional Amendment 15, repealing Constitutional provisions in conflict, concerning salaries to most state officers, the Circuit Judges, the Chancellors, and Members of the General Assembly, afforded the Governor a salary of more than $5,000 per year, and provided fixed salaries for other state officers, Circuit Judges, Chancellors, and Members of the General Assembly.
It should further be noted that Constitutional Amendment 37 provides annual salaries to state officials as follows: Governor-$10,000, Lieutenant Governor-$2,500, Secretary of State-$5,000, Treasurer of State-$5,000, Auditor of State-$5,000, Attorney General-$6,000, and Commissioner of Lands-$5,000; provides salaries and expenses to Members of the General Assembly as herein-before noted, and provides annual salaries and expenses for Circuit Judges and Chancellors a sum of not less than $4,800 nor more than $7,200.
We must determine (1) whether the provision of Constitutional Amendment 5 precluding the Speaker of the House from receiving compensation, perquisites, or allowance, in addition to his entitlements under current Constitutional provisions in effect, has been repealed or continues in force; (2) whether the provision of Section 6 of Constitutional Amendment 6 precluding the Lieutenant Governor from receiving compensation, fee, or perquisite, in addition to his entitlements, under the current Constitutional provisions in effect, has been repealed or continues in force; and (3) whether the current Constitutional provisions in effect preclude the Treasurer of State from receiving public relations or other expenses in- addition to his salary entitlements.
The two familiar rules or classifications applicable in determining whether or not provisions of the Constitution have been repealed are set forth in the case of Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649:
“One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the latter one which governs the subject matter so far as relates to the conflicting provisions, and to that extent only.
“The other one is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new.
“Where there are two Acts on the same subject, the rule is to give effect to both, if possible, but, if the two are repugnant in any of their provisions, the latter Act, without any repealing clauses, operates to the extent of the repugnancy as a repeal of the first; and, even where two acts are not in express terms repugnant, yet, if the latter Act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first Act, it will operate as a repeal of that Act.”
The rules of construction governing Constitutional xVmendments are the same as the rules governing the construction of statutes—Bailey v. Abington, 201 Ark. 1072, 148 S. W. 2d 176. It is a rule of universal application that the Constitution must be considered as a whole, and that, to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same subject. Chesshir v. Copeland, 182 Ark. 425, 32 S. W. 2d 301. The Constitution is to be construed according to the sense of the terms used and the intention of its authors. Rankin v. Jones, 224 Ark. 1001, 278 S. W. 2d 646.
ITpon ax^plying these applicable rules to determine whether the early Constitutional provisions have been repealed, considering all of the Constitutional provisions and Amendments as a whole, it is clear, concerning expense entitlements of the Speaker of the House, that Paragraph 3 of Constitutional Amendment 15 repealed CVmstitutional Amendment 5, except the beginning date of terms of Alembers of the General Assembly, which was repealed by Section 6 of Constitutional Amendment 23; that Section 3 of Constitutional Amendment 37 repealed Paragraph 3 of Constitutional Amendment 15; and that Constitutional Amendment 48 repealed Section 3 of Constitutional Amendment 37. Constitutional Amendment 48 is full and complete and covers the pertinent subject matter of Constitutional Amendment 5, Paragraph 3 of Constitutional Amendment 15, and Section 3 of Constitutional Amendment 37. It embraces new provisions, plainly showing that it was intended as a substitute for the former pertinent Constitutional Amendments. There were three Constitutional Amend ments covering the subject matter of Constitutional Amendment 5 from 1913 until the adoption of Constitutional Amendment 48 in 1958—a period of 45 years— and had there been a desire to continue the pertinent prohibition contained in Constitutional Amendment 5, same would have been included in these Constitutional Amendments.
Applying these applicable rules, it is clear, concerning expense entitlements of the Lieutenant Governor, that Section 2 of Constitutional Amendment 37 fully and completely covers the provisions of Section 6 of Constitutional Amendment 6, and replaces and repeals such Constitutional provisions. Constitutional Amendment 6 was adopted in 1914. Thirty-two years later, the same subject matter of Section 6 thereof was covered by Section 2 of the Constitutional Amendment 37; and, had there been an intent to continue the involved prohibition in effect, same would have been included in the latter Constitutional Amendment, as did Section 3 of Constitutional Amendment 37 cover expense entitlements of Circuit Judges and Chancellors. Subsequent to the adoption of Section 6 of Constitutional Amendment 6 and prior to the adoption of Section 2 of Constitutional Amendment 37, our Supreme Court decided the case of Ashton v. Ferguson, 164 Ark. 254, 261 S. W. 624, which invalidated certain expense payments because of the prohibition of Constitutional Amendment 5. Thereafter, Section 2 of Constitutional Amendment 37 was adopted, removing the restrictions upon the payment of expenses to the Lieutenant Governor.
Further applying these applicable rules, it is clear, concerning expense entitlements of the Treasurer of State, that Section 23 of Article 19 of the Constitution of the State of Arkansas, precluding state officers from receiving salary, fees, and perquisites, of more than $5,000 per year, was modified by Constitutional Amendment 15, and was definitely repealed, concerning entitlements of the executive officers of the state, by Section 2 of Constitutional Amendment 37. The entire subject of Section 23 of Article 19 of the State Constitution and Constitutional Amendment 15, concerning entitlements of the executive officers, is fully covered and repealed bjr Constitutional Amendment 37.
Our state Constitution is not a grant of power, but constitutes a limitation, and, if there be no limitation of power, impliedly or specifically expressed, the Legislature, in the exercise of its sovereign right, may authorize such appropriations as it deems necessary. Newton v. Edwards, 203 Ark. 18, 155 S. W. 2d 591; Smart v. Gates, 234 Ark. 858, 355 S. W. 2d 184; Hooker v. Parker, 235 Ark. 218, 357 S. W. 2d 534. Courts are without jurisdiction to review the discretion of the Legislature in the exercise of the power it possesses Russell v. Cone, 168 Ark. 989, 272 S. W. 678.
There is no Constitutional prohibition precluding the Lieutenant Governor, the Secretary of State, the Treasurer of State, the Auditor of State, the Attorney General, or the Land Commissioner, from receiving expenses for the purposes set forth in Act 399 in addition to their authorized salaries; and the Speaker of the House is not prohibited from receiving expenses in addition to his entitlements enumerated in Constitutional Amendment 48. Act 399 of the Arkansas Legislative Acts of 1961, with the omission of Paragraph 3 thereof, is not unconstitutional, and the discretion exercised by the Legislature in this instance should not concern this court.
The cases of Tipton v. Parker, 71 Ark. 193, 74 S. W. 298; Dickinson v. Johnson, 117 Ark. 582, 176 S. W. 116; and Ashton v. Ferguson, supra, which appellant insists control this case, lend no assistance. All three cases were decided prior to the adoption of the Constitutional Amendments repealing the provisions of Constitutional Amendment 5 and Section 6 of Constitutional Amendment 6 precluding the Speaker of the House and the Lieutenant Governor from receiving expenses. The Tip-ton case merely held that the Senate had no authority under a Senate Resolution, not concurred in by the House, to extend powers and duties of a Senate Committee beyond duration of the legislative session and to fix compensation of members of the committee. The Dickinson case held that the Legislature, by concurrent resolutions, could not authorize investigating committees to perform duties beyond the duration of the legislative session, and afford compensation and expenses to the committee membership; that such legislative authorization would have required the enactment of a Bill. The Ashton case simply ruled that Members of the Legislature were not entitled to allowances prohibited by the Constitutional provisions in effect at that time. Those Constitutional provisions have been repealed.
The cases of White v. Williams, 187 Ark. 113, 59 S. W. 2d 23, and Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380, cited by appellant, offer no assistance because those cases concern a Sheriff and a Prosecuting Attorney receiving funds prohibited by Section 23 of Constitutional Article 19, which Constitutional prohibition is not involved in this instance. Because Section 4 of Constitutional Amendment 37 limits Circuit Judges and Chancellors to salary and expenses of not more than $7,200 per year, the case of Gipson v. Maner, 225 Ark. 976, 287 S. W. 2d 467, cited by appellant, is not in point for the reason that the current Constitutional Amendments in effect do not prohibit the Speaker of the House, the Lieutenant Governor, and the Treasurer of State from receiving expenses in addition to their salaries.
We must be concerned with whether the Speaker of the House is entitled to public relations expenditures in light of the title of Act 399 announcing the Act as an appropriation to defray public relations expenses of Constitutional Officers, and in view of Section 2 of the Act 'which appropriates expenses of certain Constitutional Officers of the Executive Department, including the Speaker of the House. Of course, the Speaker of the House is not a Constitutional officer and is not a member of the Executive Department. While the title of an Act may be considered in arriving at the legislative intent, it is no part of the Act and is not controlling in its construction. Glover v. Henry, 231 Ark. 111, 328 S. W. 2d 382. The drafters of the Act erroneously referred to the Speaker of the House in the caption and in Section 2 thereof as a Member of the Executive Department. However, that error does not affect the status of the Speaker of the House as a Member of the General Assembly, and in no manner affects the issue of whether the State Officials set forth in Act 399 are entitled to public relations expenditures. Bailey, Lieutenant Governor v. Abington, 201 Ark. 1072, 148 S. W. 2d 176.
Any fair construction of Act 399 of the Legislative Acts of 1961 leads us to the conclusion that the Legislature intended to afford reimbursement of public relations expenditures incurred by certain state officials, as provided in Section 1 of the Act. Section 3 would authorize monthly payments of public relations expenditures by the state officers whether or not they had incurred such expenditures. Therefore, we conclude that Section 3 of Act 399 must be stricken. Otherwise, such reimbursement would violate our Constitution. In view of the expressed intent of the Legislature to provide these state officials with limited public relations expenditures, the officials are not entitled to reimbursement of expenditures not expended. That Section, when severed, does not affect the intent of the Legislature. Every presumption must be indulged in favor of the constitutionality of an Act of the Legislature. Beaty v. Humphrey, 195 Ark. 1008, 115 S. W. 2d 295.
In the case of Bailey v. Abington, supra, this Court held that in construing legislation and Constitutional provisions, it is the duty of the courts to ascertain and give effect to the intent of the framers and to the people who adopted it, even though the true intention, though obvious, has not been expressed by the language employed when given its literal meaning; that the courts are confined to the real purpose and intention of the language rather than to the literal verbiage employed; that the reason, spirit, and intention of the legislation or Constitutional provision shall prevail over its letter; that this rule of construction is especially applicable where adherence to the letter would result in absurdity or injustice, or would lead to contradiction, or would defeat the plain purpose of the law; and that to afford such construction, courts must restrict, modify, enlarge, and/or transpose the expressed terms.
(Supplemental opinion on denial of petition for rehearing delivered March 23, 1964, p. 865.)
We note that Act 399 of the Arkansas Legislative Acts of 1961 has expired. The evidence does not reveal whether the public officials spent more or less for public relations than allowed them by Act 399. While the officials afforded public relations expenditures by virtue of Act 399 are not entitled to reimbursement of expenditures not expended, they are not required to make an accounting at this time because the Attorney General, on the 8th day of June, 1953, issued an Opinion to the Auditor of State, concerning Act 467 of the Arkansas Legislative Acts of 1953—the same legislation as Act 399 of 1961, except that the Speaker of the House was not named in the former Act as an officer entitled to public relations expenditures. Section 3 of each Act being word for word the same—wherein the Attorney General advised the Auditor of the State that the legislation constituted no Constitutional objection and that it was the duty of the Auditor of State to comply with the Act. There has been no other Attorney General Opinion or court determination contrary to the Attorney General’s Opinion of 1953. The Attorney General’s Opinion relieves appellees from the burden of making an accounting. State v. Fidelity & Deposit Company of Maryland, 187 Ark. 4, 58 S. W. 2d 696; State, ex rel. Attorney General v. Broadway, 192 Ark. 634; State ex rel. Smith v. Leonard, 192 Ark. 834, 95 S. W. 2d 86. Then, too, there is nothing in the record remotely indicating that either appellee has acted in the premises except with honesty and sincerity.
The Decree of the Pulaski County Chancery Court is affirmed, subject to modification severing Section 3 of Act 399 of the Arkansas Legislative Acts of 1961; and this cause is remanded with directions that the Chancellor modify his Decree by striking Section 3 of Act 399.
Holt, J., not participating. | [
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Paul Ward, Associate Justice.
The issue for decision grows out of the sale of a combine and a title retention note. The material facts are not in dispute.
Appellee, Louis George, d/b/a Louis George Motor Company (hereafter referred to as George), sold an Allis Chalmers 66 combine to J. C. Henry for the price of $1,575 on October 11, 1956. Henry paid $325 cash as a down payment and executed a title retaining note for the balance of the purchase price (plus $37.50 for life insurance). One payment of $300 was due January 1, 1957, and the other payment of $987.50 was due November 15, 1957. Pour days after the note was executed Henry assigned it to the Mississippi County Bank.
Henry was unable to make the $300 payment due January 1, 1957, and George agreed not to repossess the combine if Henry would give him satisfactory security. So, on January 18, 1957 Henry executed another note for $300 payable to George due October 15, 1957. Appellant was an accommodation signer on this note and George agreed to accept it.
When the $987.50 became due on October 15, 1957 it was also not paid by Henry, and George repossessed the combine. Shortly thereafter George paid the bank $1,407.10 and the title retention note was turned over to him.
Some four years later — on June 2, 1962 — George filed this suit against Henry and appellant to recover on the $300 note executed by them on January 18, 1957, but no service was had on Henry. Appellant filed an answer contending he was only an accommodation endorser and that Henry’s indebtedness to George was extinguished (or satisfied) when he repossessed the combine. The cause was tried before a jury, and after both sides rested, the court directed a verdict in favor of George in the sum of $300.. Thereupon appellant filed' a motion for judgment non obstante veredicto, and this motion was overruled. This appeal follows.
In addition to the facts above set out George (the only witness), in material parts, testified in regard to the $300 note signed by appellant as follows:
‘ ‘ Q. Did the note have anything to do with the sale price of the combine?
‘‘A. None at all. All it did was secure the payment.
“Q. Why did you have Mr. Woodsmall to endorse the note?
“A. I told Mr. Henry to get somebody that was good enough that would secure me for the amount of that note for the payment he couldn’t pay at that time, that I would go ahead and accept it. ’ ’
“Q. Now, you did, after receipt of this note, Plaintiff’s Exhibit 1, you did thereafter repossess this combine, didn’t you?
A. Yes, sir.
“Q. You didn’t turn that note over tó the hank?
“A. No.
“ Q. At the time you took this note, the bank owned that title retaining note?
“A. Yes.”
In our opinion the only reasonable deduction that can be drawn from the above is that George took the accommodation note to secure the payment of the $300 due on the title retention note—in fact he so states. If George, had, in truth and in fact, taken the note as a payment on the prime note, then credit should have been so indicated. Moreover, at the time the accommodation note was executed, the bank was the owner of the prime note and so George had no power to force the bank to accept a note in lieu of cash.
Under the above factual situation, when applied to the' numerous uniform decisions of this • court, the trial court should have directed a verdict in favor • of appellant.
In Hollenberg Music Company v. Bankston, 107 Ark. 337, 154 S. W. 1139, the Court said:
“When a debt, secured by a reservation of title, matures, the vendor has the right to retake the property and thus cancel the debt, or he may bring his action to recover the debt, and thus affirm the sale and waive the reseiwation of title; and as a.general rule, the choice of inconsistent remedies abandons and debars the pursuit of any except the one chosen. Dudley E. Jones v. Daniel, 67 Ark. 208. But this choice of remedies is to be exercised in the event only that the vendor decides to take some affirmative action. He is not required to act simply because the debt has matured.” (Emphasis added) '
Beene Motor Company v. Dison, 180 Ark. 1064, 23 S. W. 2d 971, held:
“. . . when appellant retook possession of the car, it elected to take the property to which title- had been retained, and thereby caucel the indebtedness. It had only one of two remedies; either it could have treated the sale as canceled and repossessed the property, as it did, or treat the sale as absolute, and sue for the purchase price.
“. . . when appellant elected to retake the truck, it also elected to cancel the balance of the indebtedness due against the car, which had the effect of relieving the appellee Shepherd either as surety or joint maker on the note.”
■ This Court said.in Oliver, Wheeler, Thomas Company, Inc. v. Boon, Administrator, 224 Ark. 830, 276 S. W. 2d 417:
“When title is retained as security for the unpaid debt, the seller cannot be permitted to recapture the property and also to exact its price from the buyer.”
Quoting from Gale & Company v. Wallace, 210 Ark. 161, 194 S. W. 2d 881, in Noble Gill Pontiac, Inc. v. Bassett, 227 Ark. 211, 297 S. W. 2d 658, we stated:
“ ‘When the debt becomes due the vendor, in sales of this character, may bring an action to recover the debt, and by this he affirms the sale and waives the reservation of title; or he may elect to take the property, and by doing so, cancels the debt. He may not, however, have both remedies, and, where he elects to retake the property an action to recover on the debt is barred.’ ”
In view of what we have heretofore said, it is our opinion that when George repossessed the combine he elected to disclaim the sale and thereby also released Henry of all indebtedness. It is undisputed that appellant would not be liable unless Henry was also liable.
• Reversed and Dismissed.
MoFaddin and Robinson, JJ., dissent. | [
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Ed. F. McFaddin, Associate Justice.
The appellees, Mr. and Mrs. Baker, on the claim of false representations, sought to rescind their purchase of realty, and also to recover damages, from the appellants, Mr. and Mrs. Croley. In the complaint and in the trial i.n the Chancery Court there were a number of claimed misrepresentations relating to a variety of matters; but the Chancellor found that all of the alleged misrepresentations had been waived except the one as to the water supply for the house; and on that basis, alone, rescission and damages were awarded. On this appeal the only question relates to the representations regarding the water supply for the house.
Mr. and Mrs. Croley owned a farm of 80 acres in Carroll County which they listed for sale with the Strout Realty Company. In the listing which the landowners gave the said real estate broker there was this statement as regards the water situation for the house r “Number of wells, one; Depth, 125 feet; Dug or drilled, drilled; Pumping equipment, electric pressure. ’ ’ The real estate broker advertised the property for sale, and the advertisement said, as regards the water situation for the house: “Well for water; ...” Mr. and Mrs. Baker lived in Texas; he is an electronics engineer and she is a writer of books for children. The Bakers saw the advertisement of the Croley property, and on November 22, 1960, the Bakers visited the Strout Realty Company office in Eureka Springs, and Mrs. Andrews-Porter, an agent of the Strout Realty Company,'showed the Croley property to the Bakers. Here is Mrs. Baker’s testimony as to what Mrs. Andrews-Porter said to her about the water for the house:
“Q. Did Mrs. Porter tell you there was plenty of water in the well, or did Mrs. Porter tell you what you testified this morning?
“A. She said to try it and we tried it and there was no reason to believe there wasn’t.
“Q. You testified this morning you asked Mrs. Porter how much Avater was in the Avell and she said she didn’t know but to try it?
“A. We tried it and there seemed to be plenty of water in the well.
“Q. All right. Then she didn’t misrepresent that to you, did she ?
“A. -She didn’t know—”
Miss Barbara Hussey accompanied the Bakers on their inspection of the Croley house; and she testified as to what was said about the water situation in the house:
“Q. ... What inspection did they make concerning the water pump, related equipment?
“A. Mr. Baker asked her about the water supply, and where the water supply might come from and she took us outside the porch to a little shelter and I don’t know -whether there was a lock on it, I don’t recall, however, the roof was raised on it, and the pressure system was shown to Mr. and Mrs. Baker and myself, and consisted of a pump set in concrete, as she said must be over the well; and there was a small pressure tank, related hoses leading to it. And she also pointed out the large spring holding tank up just from the house. I don’t recall whether she pointed it out. I know we went up and looked at it later on. Mr. Baker looked for some time at the pump, and asked about it. He turned the switch on. We tried the facilities in the house. There was water.”
And on cross-examination Miss Hussey stated:
“Q. Now, as to the—as to the water supply, did she go any farther beyond the fact that she said when she was asked if there was plenty of water she said that she didn’t know, you would have to try it and see?
“A. That’s as far as she went.”
Mrs. Andrews-Porter, the agent for the Strout Realty Company, testified as to the inquiry and representations regarding the water situation for the house:
“Q. Did they ask you at that time anything about the water on the property?
“A. Specifically what water?
“Q. The well water.
“A. The well.
“Q. The water that was used in the house?
“A. They asked about the well, and I said the well was pure, as far as I know, it’s all right. We went in and they turned on the spigot and water ran out. They flushed the stool and they seemed to be well pleased with the way it operated and that was all that was said about it.”
Mr. Baker did not testify in the case; and the testimony of Mrs. Baker, Miss Hussey, and Mrs. Andrews-Porter, as above copied, together with the said listing and advertisement, constitute the entire representations concerning the water situation for the house. It was shown that the Bakers moved into the house on May 29, 1961; that the water supply in the house first became inadequate on June 28th; that work was done on the well then and again on July 25th; that the well “went dry” some thirteen times between June and October; that an engineer, Mr. Roy Downs, tested the well and said it would produce only 11.4 gallons per hour or 273.6 gallons for 24 hours. Mr. Downs, called as a witness by appellees, testified:
“A. The average amount used for a family of 4 would be somewhere around 250 or 300 gallons.
“Q. In a 24 hour period?
“A. In a 24 hour period.
“Q. If that is true, Mr. Downs, . . . and this well produced 11.4 gallons per hour, would not that yield, in 24 hours period 273.6 gallons? . . .
“A. Yes.”
Another witness, John Hadden, called by the appellees, testified:
“Q. John, you don’t know how deep that well is, do you?
“A. No, sir, I sure don’t.
“Q. And you don’t know how far off the bottom of that well that jet is?
“A. That’s what I said, Mr. Simpson, what McKinney reported back to me.
“Q. That’s all yon know is what somebody else reported ?
“A. That’s all I know.”
We have given the evidence in some detail to demonstrate that there is no testimony that the well toas other than as represented. Wherein was there a false representation as regards the water situation in the house? We fail to find any; and there must be a false representation in order to support a decree for rescission. In Hunt v. Davis, 98 Ark. 44, 135 S. W. 458, Mr. Justice Frauenthal stated the burden resting on one who sought a rescission of a contract on the claim of false representations :
“In order to charge the seller with fraud, it must be shown that he has made an active attempt to deceive the buyer relative to some matter material to the contract, either by statements which he knows to be false or by acts, conduct or representations which suppress the truth and induce in the buyer a false impression. Representations which are considered fraudulent in law must be of a nature that are material to the contract, and ‘must be made by one who either knows them to be false or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect.’ Louisiana Molasses Co., Ltd. v. Fort Smith Gro. Co., 73 Ark. 542. If a representation is made by the seller which he knows to be false, it will constitute fraud, but a representation will also be fraudulent, even if he had no knowledge whatever, if it is made of a matter as truth of personal knowledge.”
To the same effect, see Whaley v. Niven, 175 Ark. 839, 1 S. W. 2d 3; and Fausett v. Bullard, 217 Ark. 176, 229 S. W. 2d 490.
We have several recent cases involving rescission of a contract because of inadequate water. We discuss these to point out the differentiation in the factual situations between the adjudicated cases and the case at bar. In Massey v. Tyra, 217 Ark. 970, 234 S. W. 2d 759, we allowed rescission for misrepresentation of the water supply for a house; but in that case there were definite misrepresentations, for the opinion recites:
“This was what Tyra was looking for, but before closing the deal he asked specifically about the water and made it clear that he would not purchase unless the water supply was sufficient for stock raising as well as for the home and restaurant. Wheeler told him there were two good springs on the land, suitable for watering stock, and that the 358-foot well near the house produced an ample water supply.”
In Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256, recission was awarded for misrepresentation about the water supply ; and here is what the opinion recites:
“The appellee, Mrs. Brand, testified that the appellant, Mrs. Clay, told her when she inspected the tourist court there was ‘plenty of water here’ and that Mrs. Clay brought the matter up several times; that Mrs. Clay assured her there was an adequate water supply for the needs of the house, the court, and the beauty shop.”
In Blythe v. Coney, 228 Ark. 824, 310 S. W. 2d 485, a new house was sold in a section of the city wherein it later developed that there was, and would be for the foreseeable future, an entirely insufficient supply of water from the city water mains. The opinion gives these facts:
“In September, appellants checked with the city water department and were informed that they could not expect any change in the water supply in the near future. There is persuasive evidence that after Mr. Coney and Mr. Woodall were advised of the information obtained at the city water department, appellants were led to believe that Mr. Coney and Mr. Woodall would get them another house with a sufficient supply of water. After the parties failed to get together on a settlement, this suit was filed by appellants to set aside the contract of purchase. ’ ’
We granted rescission, saying:
“We think the assumption of the parties in this instance that there was a sufficient water supply to the house constituted a mutual mistake of a material fact under the circumstances, and appellants have the right to rescind the contract.”
The facts in all of the cited and discussed cases are at great variance from those in the case at bar: because, here, there was no misrepresentation of the water situation of the house, there was no- concealment; there was no evasion; and it was never shown that the appellants had experienced any trouble with the water supply. The appellees failed to make sufficient inquiry. The Chancery decree awarding rescission and damages, is reversed and the cause remanded, .with directions to dismiss the complaint of the plaintiffs.
As regards the water for the rest of the place, there was a spring for cattle, etc.; but that is not now before us. We confine the discussion entirely to the water supply for the house.
The full advertisement showed a picture of the house on the land and said: “80 ACRES—$7900. 80 acres; half tillable and best for cattle, berries, 80 acres pasture to graze 20' head of cattle. Well for water; fencing and some cross-fencing for stock security., Nice variety of fruit trees for home use. Split-level home in excellent condition throughout; features 6 rooms, 3 bedrooms, bath, fireplace, hardwood flooring, porch, electricity and garage. View of town from large, shaded lawn with flowers and shrubs. Sheds. 5 mile drive to town with mail and milk routes passing. School bus near too. $2000 down makes this one yours. Pull price, $7900. STROUT, Eureka Springs, Ark.” | [
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Jim Johnson, Associate Justice.
This appeal arises from a suit in ejectment filed by appellees, Hallie C. Ormond and Jeanne C. Ormond, his wife, against appellants Leatrice R. Nix and Virgil Lane in Van Burén Circuit Court on January 3, 1963. Appellees alleged that they are owners of certain property in Van Burén County, which was described and their title deraigned from the State, and alleged that appellants were in unlawful possession of the lands, using them for pasture and other purposes and prayed judgment for the recov ery of their property and damages for the unlawful possession and detention of the land in the sum of $1,000.00. Appellant Lane demurred, alleging that he was merely the agent, servant and employee of appellant Nix and prayed for dismissal of the complaint as to him. Appellant Nix answered, alleging that she had first and paramount right of possession and ownership of the property under a purchase contract of November 1957 with W. C. and Mary Jenkins (appellees’ predecessors in title). She cross-complained against appellees and named the Jenkins and C. W. Scarsdale as defendants in the cross-complaint, prayed that the purchase contract with the Jenkins be specifically enforced, that the subsequent deeds from Jenkins to Ormond to Scarsdale and back to Ormond be cancelled and set aside as a cloud on appellant Nix’s title, and finally prayed damages against appellees for use of the land and hay and timber cut in the sum of $3,500.00.
Appellees and the cross-defendants demurred to the cross-complaint on the grounds, inter alia, that (1) the cross-complaint shows on its face that the alleged purchase contract was dated October 23, 1957, and the last correspondence relating to it was dated November 7, 1957, that the cross-complaint was filed on February 8, 1963, which'was more than five years after the contract was made and more than five years after the last correspondence relating to it was had; (2) that the cross-complaint shows on its face that the Jenkins had an option to return a $300.00 earnest money payment or to do such curative work as might be recommended by the title examiner and that the Jenkins exercised their option to refund the $300.00, and appellant Nix accepted the return of the $300.00, which constituted a waiver of any rights under the contract; and (3) that never having asked or insisted on performance of the purchase contract, appellant is now estopped from claiming any right under the contract. The trial court sustained this demurrer, dismissed the cross-complaint against the Jenkins and Scarsdale and found that the issues in the case were then based on appellees’ complaint and appellant Nix’s general denial. The trial court sitting as a jury-heard the testimony of the parties and their witnesses and found appellees to be the owners of the lands described in their complaint, that appellants admitted that appellees own all of this land except a small portion lying between an old slough and the present channel of the Red River consisting of approximately five acres, that appellees are the owners of the five acres and that the present channel of the Red River was the boundary of appellees’ land, that appellants failed to show by evidence any title or right of possession of any of the lands and should be ejected, and that appellees’ prayer for damages should be denied. Prom such judgment appellants have appealed, urging, first, that the trial court erred in sustaining the demurrers to the cross-complaint and in finding that appellant Nix failed to allege sufficient fraud to toll the statute of limitations.
Appellant Nix’s cross-complaint alleges that:
“1. ... [Appellant] Nix and defendants W. C. Jenkins and Mary Jenkins on October 23, 1957, made and entered into a written contract whereby [the] Jenkins agreed to sell lands described in complaint . . . for $2,500.00. Copy of said contract is attached hereto marked Exhibit “A” . . .
“2. Cross plaintiff executed and delivered to W. C. and Mary Jenkins her check to said lands in the sum of $300.00 under the terms of said contract. That cross defendants "W. C. and Mary Jenkins caused to be prepared and delivered to cross plaintiffs attorney for examination an abstract of title under the terms of said contract. October 30, 1957, the attorney’s written opinion on title was handed down delivered to cross plaintiff with a copy to cross defendants, Jenkins. Certain curative measures, of minor character, were requested in said opinion on said date and the cross defendants, in an effort to evade performance of the contract and to defraud the cross plaintiff and in deliberate breach of .said contract, by quitclaim deed conveyed said lands to cross defendants, Hallie C. Ormond on November 4, 1957.
“On November 5, 1957, cross defendants W. G. Jenkins and Mary Jenkins employed services of counsel who notified cross plaintiff that they did not desire to execute a deed required in the contract and said counsel returned in his letter to the cross plaintiff the aforesaid $300.00 check.
“Letter containing cross defendants refusal to take curative measures and check was not received by cross plaintiff until November 7, 1957, on which date cross defendants, Hallie C. and Jeanne M. Ormond conveyed said land by quitclaim deed to C. W. Scarsdale.
“O. W. Scarsdale on June 6, 1960 conveyed by quitclaim deed said lands to Hallie C. Ormond.
“3. Cross plaintiff has only recently discovered that cross defendants Hallie C. Ormond and Jeanne M. Ormond are related to cross defendant O. W. Scarsdale and wife and they are and were at all times herein referred to joint venturers in various business activities in various phases of timber and lumbering business. After conveying said lands by quitclaim deed to cross defendants Scarsdale, Hallie C. Ormond, his agent, servants, and/or employees cut the timber from said lands and sold a portion of it to Scarsdale, and in fact cross plaintiff now discovers that defendants in cross complaint H. C. Ormond and his wife have never relinquished possession, dominion and control over said lands to any persons during the period of time from November 4, 1957 to the date of the filing of this complaint.
“4. The aforesaid course of conduct by all of the cross defendants was had and done with a deliberate intent and design to cheat, hinder, and defraud cross plaintiff and to prevent her acquiring title to said property by proper conveyance from cross defendants, Jenkins, and in the enforcement of the terms of her written contract with cross defendants, Jenkins ...”
The purchase contract attached to the cross-complaint and marked “Exhibit A” contains the following-paragraph :
“First party [Jenkins] covenants and agrees to and with Second Party [appellant Nix] that they will, at their own expense, furnish to attorney for second party an abstract of title to the above described lands for the examination of said attorney; and in the event title is not approved by said attorney, they will pay back the $300.00 paid herewith, and/or will take such curative measures as are recommended by said attorney to be in a position of conveying to second party a good and merchantable and marketable title to said lands.”
The Jenkins clearly had an option to refund the $300.00 deposit or do the curative title work requested. If appellant Nix considered their election to refund the deposit and thus cancel the contract was improper or premature, the burden was on her to demand performance of the contract. More than five years has passed, so that appellant’s cross-complaint is clearly barred by the statute of limitations unless tolled by fraudulent concealment. Reviewing the pleadings quoted above, there are simply not enough facts set out to sustain, or even to really raise, the assertion of fraudulent concealment of a cause of action from appellant. As stated in Williams v. Purdy, 223 Ark. 275, 265 S. W. 2d 531, which see: ‘ ‘ There are no allegations of such affirmative and positive acts of fraudulent concealment on their part as to toll the running of the statute of limitations nor is the fraud alleged of such character as necessarily implies concealment. ’ ’
Appellants’ second point urged for reversal is that the trial court erred in rendering judgment in ejectment in behalf of appellees.
The boundary line of the five acres in dispute is described as “all that part of the N1/^ of the NE1/], of Section 16 . . . that lies North of Red River, said River being the line, . . .” [Emphasis ours.] Appellant Nix (whose property joins appellees’ property on the south) tried to prove that when the original government survey of the property was made prior to 1830, the old slough was then the channel of the Red River, that in 1956 when she had the property surveyed she had instructed the surveyor to use the old government field notes for the survey, that the then owner (Jenldns) was present during the survey, accepted the old slough as his boundary line instead of the present channel of the' Red River (all of which Jenkins denied), and thus the five acres was a part of appellant Nix’s property. The government field notes were not in evidence, apparently the testimony of the surveyor was not available and no evidence was introduced indicating that this section of the Red River ever flowed anywhere but in its present.channel. The trial court sitting as a jury heard all the evidence and testimony and found as a fact that the present channel of the Red River is the boundary of appellees’ land. Upon review of the whole case we cannot say that there is no substantial evidence to support the judgment.
Affirmed. | [
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George Rose Smith, J.
This is a suit by the appellant to foreclose a mortgage upon forty acres owned by the appellees, husband and wife. The mortgage was executed in 1948 to secure a $300 note, plus future advances. There were a number of such advances and a number of payments upon the debt between the date of the mortgage and the filing of this suit in 1961. There were, however, no payments whatever during a period of more than five years, from October 22, 1954, to January 22, 1960. The chancellor held that as a result of this intermission the five-year statute had barred all the account except one note, for $295, executed less than five years before the 1960 part payment. Among other arguments for reversal the appellant insists that there was a written acknowledgment of the debt in 1960.
Before reaching this main issue we must consider the appellees’ contention that the $200 payment that was made on October 22, 1954, was in fact a payment in full of the entire debt with the exception of the one subsequent note that the chancellor found to be enforceable. On this point both the appellees testified that in 1954 they thought their debt amounted to only $200, so that their payment in that sum satisfied their liability in full.
This testimony was not accepted by the chancellor and is against the decided weight of the evidence. McHenry, the lender, kept carbon copies of his typewritten letters to Littleton; their authenticity is not open to question. These letters convince us that the Littletons could not have believed their debt to be only $200 in 1954. In May of 1953 McHenry had written Littleton that the account stood at $587.64 plus interest. Later that month there was an additional advance of $200. In September of 1954, less than a month before the $200 payment, McHenry wrote Littleton and referred to the debt as being $787.64 plus interest. Moreover, in 1957, long after the $200 payment, McHenry wrote that tire ‘ ‘ additional loan” made in January of 1956 (the $295 note upheld by the chancellor) had increased his investment beyond the value of the forty acres. Finally, in 1960, when, according to the Littletons, only the $295 note was outstanding, Littleton’s wife wrote for him a letter offering to pay $500.00 on my account immediately if you will accept it. I cannot pay it all now. ’ ’ In view of this unimpeached written evidence we find it impossible to believe that the Littletons had any reason to think that the $200 payment in 1954 would be accepted as a full satisfaction.
On the main issue we find that the debt, even though barred, was revived by written acknowledgment. On January 13, 1960, McHenry, apparently realizing that the validity of the account was in jeopardy, wrote a letter to Littleton in which he said: “This is notice to you to get in touch with me right soon so that we can make some arrangements about your debt on you[r] property. It will be necessary that we at least make a new mortgage and make some small payment at least on your mortgage debt. ’ ’
In response to this letter the Littletons sent McHenry a $25 money order on January 22, 1960. In the accompanying letter the Littletons (the wife writing for her husband) said: “Please find enclosed p.o.m.o. for $25.00 on my account. I am hoping to be able to pay the account in full in the near future. I thought when I talked with [you] last that I would soon be able to pay you every penny on my account at once, but have been disappointed.” Again, in September of 1960 Littleton, as we have already said, offered by letter to pay $500 on the account and added: “I cannot pay it all now.”
Under our holding in Morris v. Carr, 77 Ark. 228, 91 S. W. 187, these letters were sufficient acknowledgments to revive the debt. In the Morris case the debtor, in reply to an inquiry by the creditor,, merely stated that “I will use the money another year. ’ ’ In finding that this letter constituted an acknowledgment of the debt we pointed out that such an acknowledgment need not affirmatively express an intention to pay the debt. It is enough, if the debtor unequivocally recognizes the indebtedness as a subsisting obligation and makes no statement repelling the presumption that he intends to pay.. In the case at bar the Lit-tletons’ letters fall well within the principles announced in the Morris case and thus had the effect of reviving the debtors’ liability.
The appellees insist, however, that under the rule stated in Opp v. Wack, 52 Ark. 288, 12 S. W. 565, 5 L.R.A. 743, where there are two or more obligations due to the creditor the written acknowledgment must identify the one or ones to which the promise to pay attaches. The answer is that, although McHenry held several of the Littleton notes, the parties always regarded the indebtedness as a single account, secured by a single mortgage. It was frequently so referred to in their correspondence. Hence when Littleton recognized his obligation to pay “every penny on my account” he must be taken to have meant the account as a whole.
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Carretón Harris, Chief Justice.
In the petition for rehearing appellant insists that this case is controlled by Huffstettler v. Lion Oil Company, 208 F. 2d 549. There it was held that the operator of a bulk plant who distributed Lion products to retailers who had contracted with Lion to sell that company’s products, was not an independent contractor, but a subcontractor.
The decision in the Lion case was based on Hobbs Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116, and Brothers v. Dierks, 217 Ark. 632, 232 S. W. 2d 646. In the Hobbs Western case it was shown that Hobbs Western was getting out crossties for the Bock Island Bail-road under a contract, and its was therefore held that one Lea, who was in turn getting out ties for Hobbs Western, was a subcontractor, not an independent contractor.
In Brothers v. Dierks it was shown that Dierks was getting out timber under a contract with the Federal Government, and therefore, the one that Dierks employed to remove the timber from the government laud was a sub-contractor and not an independent contractor.
In the case at bar it is not shown that Dierks had any contract with a third person in connection with the timber, and therefore, it cannot be said that the one who is getting out the timber for Dierks is a subcontractor.
Petition for re-hearing is denied. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with burglary, a violation of Ark. Stat. Ann. § 41-2002 (Repl. 1977). After a jury trial, the appellant was convicted of that charge and sentenced to five years in the Arkansas Department of Correction. From that conviction, comes this appeal.
For reversal, the appellant contends that the evidence was insufficient to support a conviction for burglary. In addition, he asserts that the trial court erred in failing to grant his motions for mistrial based on four events connected with the trial of the case: a statement by a prospective juror; a witness’s question from which the jury might infer that the appellant had a criminal record; a witness’s remark tending to focus attention on the appellant’s failure to testify in his own behalf; and the presence of witnesses in the courtroom during opening statements after the defense had invoked A.R.E. Rule 615. We find these arguments to be unpersuasive and we affirm.
Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we first consider the sufficiency of the evidence to support the appellant’s conviction. In so doing we review the evidence in the light most favorable to the appellee and affirm if the verdict is supported by substantial evidence. Lair v. State, 19 Ark. App. 172, 718 S.W.2d 467 (1986). Substantial evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and is of sufficient force or character to compel a conclusion one way or the other with reasonable certainty. Harris, 284 Ark. at 252; Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984).
Arkansas Statutes Annotated § 41-2002(1) (Repl. 1977) provides that:
A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.
In the case at bar the “offense punishable by imprisonment” upon which the burglary conviction was founded was theft of property. For reversal, the appellant contends that the evidence of intent to commit theft of property was insufficient. We do not agree. Viewed in the light most favorable to the appellee, the evidence shows that Albert Atchley and his family returned to their home to find that a bedroom light, which had been off when they left the house, was then lit. As he entered the house, Mr. Atchley saw that the back door had been removed. Atchley’s daughter, Melissa, then noticed that the light that had been on in her room was off. The police were summoned and Deputy Jim Brunson arrived shortly thereafter. Deputy Brunson searched Melissa’s room and found the appellant hiding between the wall and the bed, with blankets and covers partially pulled over him. The deputy removed a hunting knife from the appellant’s person, then retrieved the appellant’s shotgun from under the bed. Brunson testified that he had seen nothing else under the bed at that time, but that it was possible that other objects might have been concealed by the blankets and covers under which the appellant had been hiding. The deputy further stated that he removed the appellant from the house rather quickly, out of a concern that the appellant might be harmed by Mr. Atchley, who was quite irate.
Melissa testified that, soon after the appellant was removed from the Atchley home, she noticed that some of her money and jewelry were missing, and that she found the missing money and jewelry in a little pile under the bed where the appellant had been hiding. She further stated that she had not placed those objects there herself. Mr. Atchley took the items to the sheriff’s office the next day.
Intent is not ordinarily capable of proof by direct evidence, and must therefore be inferred from the circumstances. Parris v. State, 270 Ark. 269, 604 S.W.2d 582 (1980). The circumstances in the case at bar are that the missing money and jewelry were found wadded up in a pile under the bed, where the appellant had been hiding when apprehended. Moreover, Melissa stated positively that it was she and not her father who discovered the items under the bed, and that she did not place them there herself. We find these circumstances to be indistinguishable from those presented by Jimenez v. State, 12 Ark. App. 315, 675 S.W.2d 853 (1984), where we held that the requisite intent could be inferred from the fact that items in the burglarized home had been gathered up, as if to be carried off, coupled with the homeowner’s testimony that neither he nor his sister had moved them. We thus hold the evidence to be sufficient to support a conviction for burglary.
The appellant also urges several points for reversal based upon the trial court’s refusal to grant a mistrial at various stages of the proceeding. The first of these points arises out of the statement by a prospective juror at voir dire that he could “save the court a lot of time” and that he once “had a personal confrontation with” the appellant. This prospective juror was excused for cause upon the defense attorney’s motion. After the jury had been selected, the appellant requested a mistrial. It is argued that the prospective juror’s statement prejudiced the rest of the jurors against the appellant, and that the trial court erred in refusing to grant a mistrial.
We first note that the appellant failed to preserve for appeal any error that might have resulted from the prospective juror’s statement. An argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). To be considered appropriate, an objection must be made at the first opportunity. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). The record shows that the appellant in the instant case failed to make a timely objection, for he allowed twenty-four prospective jurors to be voir-dired between the time of the allegedly prejudicial statement and his motion for a mistrial. Moreover, we would reach the same result even if the appellant had preserved this issue for review. The impartiality of a jury is a question addressed to the sound discretion of the trial court, and the appellant must demonstrate a manifest abuse of that discretion to warrant reversal. McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). Here, the prospective juror’s statement that he could “save the court a lot of time” was ambiguous, and seems, in the context of the full record, to mean that the prospective juror knew he could not be impartial toward the appellant because of their prior confrontation: seen in this light, the statement meant only that the questions propounded to the previous potential juror need not be asked, thus “saving time” for the court. Finally, the jurors ultimately selected all stated that they were able to give the appellant a fair and impartial trial. Given these circumstances we do not think that the trial court manifestly abused its discretion in denying the appellant’s motion for mistrial.
The appellant also asserts that the trial court erroneously refused to grant a mistrial where the appellant’s attorney invoked A.R.E. Rule 615, but the witnesses were not sequestered until the conclusion of the attorneys’ opening statements.
Rule 615 provides, in pertinent part, that
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses ....
Arkansas Statutes Annotated § 28-1001 (Repl. 1979), A.R.E. Rule 615. While we agree with the appellant that the Rule is mandatory when requested by one or both of the parties, Morton v. Wiley, 271 Ark. 319, 609 S.W.2d 322 (1980), we are unable to determine from the record before us that the Rule was in fact requested prior to the close of opening statements. We do not reverse the trial judge on facts outside the record. Harvey v. Castleberry, 258 Ark. 722, 529 S.W.2d 324 (1975). The only affirmative showing of a request to invoke the Rule was a request by the appellant’s attorney that the witnesses be sequestered after the close of opening statements, and it is within the trial court’s discretion to grant such a request after the trial has commenced. See Morton v. Wiley, supra. Moreover, it is clear that, although the witnesses heard the attorneys’ opening statements, they were not present in the courtroom while testimony was being heard. The circumstances in the case at bar are thus distinguishable from the situation presented in Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985). In Fite we reversed the decision of a chancellor who allowed witnesses to remain in the courtroom and hear testimony over the objection of opposing counsel. 13 Ark. App. at 214-16. In the case at bar the witnesses were sequestered before they had the opportunity to hear the testimony of other witnesses, and therefore we find no error in the trial court’s refusal to grant a mistrial.
We next consider the appellant’s contention that it was error to refuse to grant a mistrial after a witness’s nonresponsive answer which implied that the appellant had a criminal record. This point for reversal is based upon the following exchange at trial between the arresting officer and the defense counsel:
Q Well, now, Jim, you know I’m not making fun of you.
A I know.
Q But we’ve got a purpose here.
A I know.
Q I’m not a medical doctor or a psychiatrist or a psychologist.
A Let me — let me ask you something before we get — I don’t understand why it is that medical history can be brought up in this trial and criminal history cannot. History is history, am I correct?
Q Well—
With respect to nonresponsive answers, the rule is that
when a witness, in response to a proper question, gives a nonresponsive answer stating matter that is incompetent and inadmissible as evidence, the trial court, on motion, should strike out the answer or so much of it as is improper and direct the jury to disregard it as evidence in the case.
Queary v. State, 259 Ark. 123, 124, 531 S.W.2d 485, 486 (1976). The appellant in the case at bar did not request that the jury be admonished to disregard the nonresponsive answer, but instead made only a motion for mistrial. Mistrial is a drastic remedy which should be resorted to only when the error is so manifestly prejudicial that justice cannot be served by continuing with the trial. Avery v. State, 15 Ark. App. 134, 690 S.W.2d 732 (1985). Because the trial judge is in a superior position to assess the possibility of prejudice, he is vested with great discretion in acting on motions for mistrial, and we will reverse only where that discretion is manifestly abused. Id. In the case at bar, the witness’s nonresponsive answer did no more than raise the possibility that the appellant might have a criminal record. We think that any prejudice caused by this comment could have been cured by an admonition to the jury, and we hold that the trial court did not err in refusing to grant the appellant’s motion for mistrial.
The final point for reversal to be considered is the appellant’s argument that the trial court erred in not ordering a mistrial following a witness’s nonresponsive answer tending to focus attention on the appellant’s failure to testify in his own behalf. Asked if the statement given by the appellant had been induced by promises or threats, the arresting officer answered:
No, sir. I believe if you will ask him, he’ll tell you the same thing, you know. Nobody said — nobody bothered him.
The appellant’s attorney made a non-specific objection to this testimony; the court sustained the objection and admonished the witness to refrain from making nonresponsive answers. However, the appellant’s attorney neither requested that the jury be admonished nor moved for a mistrial. The attorney was apparently satisfied with the trial court’s admonition to the witness, and in light of his failure to ask the trial court to take any action, this issue has not been preserved for appellate review. See Foots v. State, 258 Ark. 507, 528 S.W.2d 135 (1975). Nor would the result differ had the point been properly preserved. Read in context, we do not think that the witness’s answer focused attention on the appellant’s failure to testify to such an extent that justice could not be served by continuing with the trial. See Perry v. State, 279 Ark. 213, 650 S.W.2d 240 (1983); Avery v. State, supra.
Affirmed.
Corbin, C.J., and Jennings, J. concur. | [
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Donald L Corbin, Chief Judge.
Appellant, Jim Arthur Ward, was charged by amended information with two charges of burglary, felony and misdemeanor theft of property and breaking or entering. Count I of the amended information concerned the burglary of the Blytheville Police Firing Range in which appellant was charged with one of the charges of burglary and felony theft of property. Count II of the amended information concerned the burglary of the Blytheville Municipal Airport in which appellant was charged with burglary, breaking or entering and theft of property under $200.
The State elected not to proceed against appellant on Count I of the amended information which related to the burglary of the Blytheville Police Firing Range. Appellant was found guilty under Count II of having committed burglary and breaking or entering by a Mississippi County jury and was sentenced to a term of six years in the Arkansas Department of Correction on the burglary charge and five years on the breaking or entering charge, said sentences to run consecutively with appellant receiving credit for jail time. Appellant was found not guilty of misdemeanor theft of property. Three points are relied upon for reversal: (1) the trial court erred in allowing appellant to be tried for burglary and the object of the burglary, breaking or entering and theft of property under $200; (2) the trial court erred in not granting appellant’s motion to set aside the verdict and motion for new trial; and (3) the trial court erred in running appellant’s sentences consecutively instead of concurrently. We affirm.
Appellant first contends that inasmuch as breaking or entering is a lesser included offense of burglary, conviction of both offenses is prohibited by Arkansas Statutes Annotated § 41-105 (Repl. 1977). Appellant notes that the jury found him innocent of misdemeanor theft of property and that it would have been proper under the law to have convicted him of theft and burglary, but not burglary and breaking or entering. Pursuant to the authority of § 41-105, he argues that the breaking or entering conviction should be dismissed. In this regard, appellant states that he cannot be convicted of more than one offense arising out of the same conduct when one of the offenses is included in the other. Ark. Stat. Ann. § 41-105(1)(a) and (2)(a). He states further that the conduct constituted an offense defined as a continuing course of conduct and his course of conduct was uninterrupted and he could not be convicted of more than one offense. Ark. Stat. Ann. § 41-105(l)(e).
The State counters this argument by asserting that breaking or entering is not a lesser included offense of burglary pursuant to § 41-105(1)(a) and (2)(a). It acknowledges that when the commission of a criminal offense by definition cannot be established without the commission of any underlying criminal offense, convictions for both offenses are barred by § 41-105, citing Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983). The defendant in Robinson was convicted of aggravated robbery and first degree battery. He had been charged with first degree battery in violation of Arkansas Statutes Annotated § 41-1601(d) in that he committed the battery during the course of a felony, that felony being aggravated robbery. The court there set aside the conviction and sentence for first degree battery as it was violative of Arkansas Statutes Annotated § 41-105. The State also points out here that the criminal code does not excuse a defendant for multiple crimes committed during one escapade, citing as authority Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). We agree with the State’s recitation of the law to this point. However, in its brief the State concludes by stating that appellant’s burglary conviction related to his entering the Blythe-ville Police Department’s Firing Range and taking various items while the breaking or entering conviction pertained to his entering the Blytheville Municipal Airport and breaking into a soft drink machine. This is clearly in error inasmuch as the State did not pursue Count I of the amended information which related to the burglary of the Blytheville Police Firing Range. All of the charges which appellant was tried upon related only to the burglary of the Blytheville Municipal Airport. In any event, we find no merit to appellant’s contention that it was reversible error for the trial court to allow appellant to be tried for burglary and breaking or entering, as under the facts of this case, breaking or entering was not a lesser included offense of burglary and the two offenses did not arise out of the same conduct.
The record reflects that on or about February 27, 1985, the Blytheville Municipal Airport was burglarized. The owner of the facility, Albert Lee Richardson, Jr., testified that the night before the burglary took place he had locked up the building. The drawers of the desk in his private office inside the building were closed and locked as well. The interior door to his office was also locked. He was notified by an employee of the burglary and upon his arrival, observed the office door into his private office was broken and that his desk had been broken into. Petty cash, a roll of stamps and his cordless telephone were missing from the desk. Richardson also testified he observed that the Pepsi and Dr. Pepper machines had been broken into and the money contained therein had been removed. Richardson’s maintenance supervisor, Theodore M. Hooley, testified to essentially the same facts. He also noticed upon his arrival at the airport that the sliding door going into Richardson’s office was off its hinges and hanging off at an angle. Furthermore, a coin box from one of the vending machines was on the floor next to a hammer and chisel. The doors to the soft drink machines and candy machine were ajar and the locks torn off.
Officer Don Peace investigated the incident and reported that he was able to obtain a latent fingerprint on the coin box of the Pepsi machine. He testified the print was sent to the F.B.I. for comparison. Marilyn Ferguson, an employee of the F.B.I. and a fingerprint specialist, testified that she examined the latent print and that it was the print of appellant’s finger.
K.C. Davis, Jr., testified for appellee and stated that he and appellant burglarized the Blytheville Municipal Airport on February 27. He explained that they had entered the building by using a knife on the outside door. The lock to the interior door was torn off and Davis stated they went through the desk and removed a money bag and cordless telephone from it. After leaving the interior office, Davis and appellant went to another area of the building where the vending machines were located. Davis explained that they broke into all three of the machines and removed the coins.
Appellant testified at trial that he did not participate in the burglary of the Blytheville Municipal Airport on February 27. He was acquainted with K.C. Davis but could not recall what he did on February 27. Appellant was unable to explain why his fingerprint was found on the coin box of the Pepsi machine.
A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002(1) (Repl. 1977). Breaking or entering is committed by one who with the purpose of committing a theft or felony, enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box or other similar container, apparatus, or equipment. Ark. Stat. Ann. § 41-2003(1) (Repl. 1977).
In the case at bar appellant was tried for breaking or entering the vending machines located inside the Blytheville Municipal Airport, misdemeanor theft of the coins contained in the vending machines and the burglary of the building. The evidence clearly establishes that appellant entered and remained unlawfully in the Blytheville Municipal Airport and the jury could have inferred that he did so with the purpose of committing theft of property. The interior office was ransacked and items removed from it. Following this activity, appellant and K.C. Davis went to another area of the building and broke and entered the coin boxes of the vending machines. We hold that these acts do not constitute acts arising out of the same conduct as contemplated by Arkansas Statutes Annotated § 41-105. Furthermore, the offense of breaking or entering in this case did not concern the breaking or entering of the building itself but rather the coin boxes located inside the building. Therefore, the offense of breaking or entering was not necessarily included in the offense of burglary. We find no merit to this contention.
Appellant next argues that the trial court erred in denying his motion for new trial and to set aside the verdict. We disagree. Subsequent to the trial, a juror advised appellant’s attorney that although the jurors were unanimous in their finding of guilt, she and another juror did not agree to the number of years appellant was sentenced to. She further stated that the sentence of eleven years resulted from the mistaken belief that a majority vote of the jurors controlled. Appellant thereafter filed his motions, arguing that the jury judgment was by lot. He submitted affidavits of the two jurors. The motions were denied by the trial court.
The record reflects that upon the jury’s return to the courtroom, the trial judge proceeded to read its decision. After reading its decision and sentence, the jury was asked by the trial court if what it had just read was what the jurors understood and intended. All jurors indicated that it was. Neither appellant nor appellee requested that the jury be polled.
Appellant’s argument that a majority vote as to sentencing is the equivalent of voting by lot is erroneous. A verdict by lot is defined as involving an element of chance. Blaylack v. State, 236 Ark. 924, 370 S.W.2d 615 (1963). In Rogers v. State, 257 Ark. 13, 513 S.W.2d 908 (1974), the appellant had been convicted of possessing stolen property. Pending his appeal, he was released to serve a federal prison sentence. Upon being paroled, he was returned to state authorities in Arkansas to serve the previously imposed state sentence. Eleven of the twelve trial jurors asked the court by written petition to suspend the three-year old judgment. During a hearing, one of the jurors testified that she had consistently voted for the minimum sentence of one year. She agreed to the five-year verdict in the belief that a majority vote of the jurors controlled. The trial court refused to suspend the sentence and the appellant filed a motion to vacate the judgment and set aside the jury verdict. He argued that the jury verdict was invalid and a nullity because the juror’s testimony indicated that she agreed to the verdict in the belief that she thought the majority ruled. The Arkansas Supreme Court stated that it could not construe the juror’s testimony as tending to establish that the jury verdict resulted from any element of chance. The court also noted that the appellant did not poll the jury upon rendition of its verdict pursuant to Arkansas Statutes Annotated § 43-2160. The court concluded that Arkansas Statutes Annotated § 43-2004 [repealed by Act 1143 of 1975, currently codified as A.R.E. Rule 606 and Ark. Stat. Ann. § 43-2203 (Repl. 1977)] safeguarded a jury verdict from impeachment by the testimony in that case.
The jury’s less than unanimous decision on appellant’s sentences in the case at bar does not constitute voting by lot. Appellant did not avail himself of the right to poll the jury. We cannot say the trial court erred in denying appellant’s motion for new trial and to set aside the verdict.
Finally, appellant argues that the trial court committed reversible error in running his sentences consecutively instead of concurrently. In this regard, he asks this court to compare the sentences he received against those received by prosecuting witness K.C. Davis. Appellant states that as a result of his sentencing, he was denied equal protection under the Arkansas Constitution and the fourteenth amendment of the United States Constitution.
The Arkansas Supreme Court has consistently held that if the sentence is within the bounds set by the legislature, it is legal. Porter v. State, 281 Ark. 277, 663 S.W.2d 723 (1984). Furthermore, the appellate courts will not reduce or compare sentences which are imposed within the statutory limits. Shields v. State, 281 Ark. 420, 664 S.W.2d 866 (1984). The only exception to this rule is capital cases. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982). The Arkansas Criminal Code vests the choice between concurrent and consecutive sentences in the judge, not the jury. Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980). The judge’s decision in this regard is a discretionary matter and will not be disturbed on appeal absent an abuse of that discretion. See Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981).
We cannot conclude that the trial court abused its discretion in determining that appellant’s sentences should run consecutively. In addition, this court will not compare sentences such as these which are imposed within the statutory limits.
Affirmed.
Coulson and Jennings, JJ., agree. | [
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John E. Jennings, Judge.
This appeal comes to us from Pulaski County Chancery Court. The primary issue at trial was whether a stock redemption agreement had been modified by a subsequent oral agreement of the stockholders. The chancellor found that the oral agreement had been established by clear and convincing evidence, and enforced the original agreement as modified.
The primary issues on appeal are whether the chancellor applied the correct burden of proof and, if so, whether the evidence supports his finding. We affirm.
In 1949, Evangeline Upshur and Garman Freeman married while attending dental school in Tennessee. After graduation they moved to Little Rock where they practiced dentistry together for thirty years. In the 1960’s, Dr. Freeman and Dr. Upshur formed a professional corporation, known as PSI, with Dr. Jackson, a medical doctor, and Dr. Townsend, an optometrist. The corporation was formed for the purpose of building an office in which the four doctors could practice.
In 1968, the four entered into a written stock redemption agreement (SRA). Dr. Jackson and Dr. Townsend each owned one-third of the corporate stock; Dr. Upshur and Dr. Freeman owned one-sixth each. The agreement provided that if Jackson or Townsend died the corporation would buy, and his estate would sell, his stock in the corporation. It further provided that Freeman and Upshur would each make a will leaving his or her stock to the other. Upon the death of the surviving spouse, the corporation would then buy that person’s stock from his or her estate.
In 1979, Dr. Freeman obtained a divorce from Dr. Upshur. They continued to practice dentistry together for some time, however. Soon after the divorce Dr. Freeman remarried and promptly made a new will, naming his new wife, Shirley Freeman, as his executrix and leaving her his stock in PSI. In October, 1981, the stockholders met to discuss a modification to the 1968 SRA. The proposal was to free Dr. Freeman and Dr. Upshur from their mutual promises to make a will and to substitute a simple buy-sell provision for each. The evidence is in conflict as to whether or not an agreement was actually reached. Dr. Freeman died in 1984. His widow and executrix, the appellee here, sued the corporation and its stockholders to specifically enforce the SRA as allegedly amended.
Following the testimony, the chancellor held:
Nonetheless, the evidence — visual, oral, and documentary — makes it crystal clear that at the called meeting of the four shareholders . . ..on 10-5-81, they unanimously agreed to orally amend SRA to place the stock purchase of both Drs. Upshur and Freeman on a par with exactly the same as — that provided in the 1968 SRA agreement for Drs. Jackson and Townsend.
Dr. Upshur first asserts that the chancellor erred in requiring that the oral agreement be established by clear and convincing evidence. She argues that an oral agreement modifying an earlier written agreement must be established by “clear, unequivocal, and decisive” evidence, citing Apco Oil Corp. v. Stephens, 270 Ark. 715, 606 S.W.2d 134 (Ark. App. 1980) and Amerdyne Industries, Inc. v. POM, Inc., 760 F.2d 875 (8th Cir. 1985). Appellant asserts that this language effectively requires proof beyond a reasonable doubt. We need not decide the quantum of proof required by the language as it is clear that it has been correctly applied only in reformation cases. See Linda Elenia Askew Trust v. Hopkins, 15 Ark. App. 19, 688 S.W.2d 316 (1985).
An oral modification of a prior written contract must be established by clear and convincing evidence. Clark v. Duncan, 214 Ark. 83, 214 S.W.2d 493 (1948); see also Terral v. Poe, 190 Ark. 346, 79 S.W.2d 69 (1935).
The next question is whether the chancellor’s finding that the oral agreement had been established by clear and convincing evidence was clearly erroneous. A requirement that the evidence be “clear and convincing” does not mean that the evidence must be uncontradicted. It is not uncommon for an oral modification to be asserted by one party and denied by the other. Linda Elenia Askew Trust, supra. When the parties agree as to the existence of an oral modification there is no need for a lawsuit.
The evidence was that the four stockholders of PSI met on October 5,1981, to discuss a change in the SRA. Dr. Upshur, the secretary, wrote in the minutes:
The group agreed that Dr. Freeman’s and Dr. Upshur’s stock agreement is to be changed.
Although Dr. Upshur was part of “the group” her testimony at trial was that she had not in fact agreed. An unsigned copy of a formal written amendment to the SRA was found. The original SRA contained a marginal note which said “see amendment 10/5/81” and the provisions relating to mutual wills had been crossed out. Dr. Jackson and Dr. Townsend each testified that they were unable to recall whether an agreement had actually been reached, but each acknowledged that in a prior probate proceeding, he had testified that there had, in fact, been an agreement. There apparently was no further discussion of the matter after 1981. Of course, Dr. Freeman was not available to testify at trial.
When the burden of proving a disputed fact in chancery is by “clear and convincing” evidence, and the chancellor finds the fact so proved, the question we must answer on appeal is whether the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. ARCP Rule 52(a) and Reporters Note 2 thereto. While it is true that, regardless of the burden of proof below, we hear chancery cases de novo on appeal, it is also true that even where the burden at trial was by clear and convincing evidence, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52(a).
Here the chancellor had substantial evidence in written form that an oral agreement had been reached. Considering that evidence, together with the testimony adduced at trial, we are unable to say that his holding that the oral agreement had been established by clear and convincing evidence was clearly erroneous.
Appellant contends that the oral agreement was invalid due to a lack of consideration. Mutual promises, however, constitute consideration, each for the other. Afflick v. Lambert, 187 Ark. 416, 60 S.W.2d 176 (1933).
Dr. Upshur also argues that the chancellor took judicial notice of the prior divorce proceedings between Dr. Freeman and her and proceedings relating to the probate of Dr. Freeman’s estate. She contends that this is error under Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978), and that the case must therefore be reversed for an abuse of discretion. Here the chancellor apparently wrote one letter opinion disposing of two cases: the case at bar and an action relating to property problems still existing in the 1979 divorce proceedings. Appellant was no doubt aware that both actions were pending simultaneously before the same judge. Although the chancellor did not expressly take judicial notice of the divorce proceedings there are indications that he may have considered them in connection with the case at bar. If there was error here it was harmless, as it is quite clear from the record that his decision in this case was based on a finding that the SRA had been orally modified. We do not reverse for harmless error in the admission of evidence. See A.R.E. Rule 103(a).
It is also argued that the court erred in dismissing Dr. Upshur’s claim for back rent allegedly incurred by Dr. Freeman prior to 1979. The trial court dismissed the claim without comment. We find no error since the record reflects that the proof was insufficient to enable the chancellor to give judgment on this claim.
We have carefully considered appellant’s various other arguments, but find that none of them have merit.
Affirmed.
Cracraft and Mayfield, JJ., agree.
The language first appeared in this state in Carnall v. Wilson, 14 Ark. 482 (1854). It is traceable, at least, to an opinion in a reformation action by Mr. Justice Story, U.S. v. Munroe, 27 F. Cas. 32 (C.C.D. Mass. 1830) (No. 15,835). Although it is not entirely clear, it appears likely that the language is equivalent to “clear and convincing.” See e.g., Welch v. Welch, 132 Ark. 227, 200 S.W. 139 (1918), and the thoughtful but inconclusive discussion in McGuigan v. Gaines, 71 Ark. 614, 77 S.W. 52 (1903). | [
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Per Curiam.
Eugene B. Conley was found guilty of rape for having engaged in deviate sexual activity with a person less than eleven years of age and was sentenced to the Department of Correction for a term of twelve years.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 11 (h) of the Rules of the Supreme Court and the Court of Appeals, appellant’s counsel has filed a motion to withdraw on the ground that the appeal is without merit. The motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of objections made by the appellant and ruled on by the court, a record of all motions and requests made by the appellant and denied by the court, and a statement of the reason counsel considers each point raised as not arguably supporting the appeal. The clerk of this court furnished the appellant with a copy of his counsel’s brief and notified the appellant of his right to file a pro se brief within thirty days. He did not file a brief. The State concurs that the appellant’s counsel has complied with Rule 11(h) and that the appeal has no merit. We agree.
The victim testified that she was eight years old and that the appellant, her father, picked her up at her grandmother’s house on the evening of June 8 or 9,1985. She stated that the appellant first went to a liquor store and then took her under a bridge where they spent the night. She stated that he first told her to take her clothes off and then started “messing with me.” She stated that he “put his finger in my tee-tee” while indicating the vaginal area. She stated that he took off- his pants and tried to “stick his noodle in my tee-tee.” She stated that they spent the rest of the night under the bridge and he took her back to her grandmother’s the following morning, and her grandmother immediately gave her a bath because she had gotten dirty under the bridge. The victim’s grandmother testified that there were spots of blood on the victim’s panties when they were removed and that the child was then taken to Children’s Hospital for examination. Dr. Mark J. Lovell testified that he examined the victim and discovered “two, approximately half-centimeter, superficial mucosal lacerations on the side of the labia. . . . The area between her labia, the mucosa between her labia, was raw.” Based on this testimony, the lower court found the appellant guilty of rape. From our examination of the record, we conclude that the finding was sustained by substantial evidence.
Two motions were made by the appellant during the trial which were denied by the trial court. During the questioning of the eight-year-old victim, the appellant moved to have the witness declared incompetent to testify. This motion was based upon her youth and questionable ability to understand the obligation to tell the truth. The trial court determined that she was competent and permitted her to testify. We find no error.
Any person is competent to be a witness unless the contrary is shown. A.R.E. Rule 601. The criteria for determining whether a witness is competent are 1) the ability to understand the obligation of an oath; 2) an understanding of the consequences of false swearing; 3) the ability to receive and retain accurate impressions; and 4) the capacity to transmit a reasonable statement of what has been seen, felt, or heard. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982); Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986). The trial court has broad discretion in determining the competency of witnesses, particularly young ones, and, in eliciting testimony from such witnesses, some latitude in asking leading questions is permitted. Chappell v. State, supra. On the voir dire examination to determine the competency of the victim, she failed in many instances to verbally respond to questions, but did know that people were punished if they did not tell the truth, stated that she had promised to tell the truth when she raised her hand in court, and did promise to tell the truth at the trial. She understood that it was wrong to tell a lie and that she would be punished if she did not tell the truth.
The question of witness competency is a matter lying in the sound discretion of the trial court and, in the absence of clear abuse or manifest error, that exercise of discretion will not be disturbed on appeal. Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985). Although this victim was hesitant on voir dire and used child-like words, we cannot conclude from her testimony that she did not understand the nature of the oath or the consequences of false swearing, or that she lacked the ability to receive, retain, or transmit accurate impressions to the factfinder. Mere inconsistencies or hesitation in testimony may affect the credibility of a witness, but not her competency. In a child-rape case, the matter of the competency of the child is primarily for the trial judge to decide, as he is better able than we to judge the child’s intelligence and understanding of the necessity for telling the truth. It is the duty of the trial judge to evaluate the competency of a witness throughout her testimony and not to rely entirely upon preliminary questioning. Jackson v. State, supra. In this case, the child’s testimony concerning events, times, places, persons, and relationships was a clear and correct recollection and was not disputed. We cannot conclude that the trial court abused its discretion in determining that she was a competent witness.
At the conclusion of the trial, the appellant moved that the court either dismiss the charge of rape or reduce it to the lesser included offense of sexual abuse in the first degree. Ark. Stat. Ann. § 41-1801 (l)(b) (Supp. 1985) defines “deviate sexual activity” as the penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person. Here, the witness clearly testified that the appellant had penetrated her vagina with his finger. There was corroborating evidence from the doctor that penetration had occurred, and from her grandmother that there was blood in the vaginal area of her underwear. The court could, and did, reasonably find that there had been penetration, and that finding is supported by substantial evidence.
“Sexual abuse in the first degree” is defined in Ark. Stat. Ann. § 41-1808 (Supp. 1985) as engaging in sexual contact with another person by forcible compulsion or with one incapable of consent. “Sexual contact,” defined in Ark. Stat. Ann. § 41-1801(8) (Supp. 1985) as any act of sexual gratification involving the touching of the sex organs, buttocks, or anus of a person, or breast of a female, does not require penetration. Appellant never contended that he had not penetrated the child’s vagina but rather that he was not guilty of any sexual offense. The reduction of a charge to a lesser included offense is not warranted unless there is some rational basis for doing so. Where the defendant denies that any act occurred, there can be no such rational basis. See Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986); Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986). The testimony of the victim that there had been penetration was fully corroborated. There was no evidence that there had been sexual contact without penetration and therefore no rational basis for reducing the charge.
From our review of the record and the briefs presented to this court, we find that there has been full compliance with the requirements of Rule 11 (h) of the Rules of the Supreme Court and Court of Appeals and that the appeal is without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment of conviction affirmed.
Affirmed. | [
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George K. Cracraft, Judge.
Michael, Mark, and Leigh Ann Mock appeal from their convictions of various criminal offenses, advancing a number of points for reversal. Because the three appellants were convicted of different offenses and have filed a common brief, only an initial recitation of the facts can fully bring the issues into focus.
In October of 1983, the Arkansas State Police were investigating Mark and Michael Mock based upon information that they were engaged in the activity of manufacturing controlled substances at their residence near Jasper in Newton County, Arkansas. On October 11,1983, the officers were contacted by a reliable informant who told them that he had purchased both marijuana and amphetamines from the appellants in the past and had done so at their residence within the past seventy-two hours. The officers had also received information from the Oklahoma Bureau of Narcotics that the appellants had made large purchases of chemicals from companies in and around Tulsa. The chemicals purchased were known to the police to be commonly used in the manufacture of amphetamines. The officers further learned from the informant the manner in which the appellants made delivery of the controlled substances and a description of the vehicle used in making those deliveries.
On October 14, 1983, the officers were with the informant and taped a conversation between the informant and appellant Michael Mock concerning the purchase of amphetamines in which it was apparent that a delivery would be made within a short period of time. The officers then set up surveillance of the appellants’ residence in Newton County. The informant was in contact with the appellants thereafter but was told that they could not “meet him” until later. On October 15, in a similarly taped conversation, appellant Mark Mock told the informant that he was leaving for the prearranged place of delivery in fifteen minutes. According to the informant, that conversation meant that they were going to deliver to him amphetamines at a prearranged place, the location of which was furnished to the officers. This information was communicated to those officers watching the appellants’ home. A short time later, those officers observed appellant Mark Mock leave the house in a vehicle matching the description given by the informant, and head in the direction of the delivery location. A roadblock consisting of officers of Newton and Pope Counties and the Arkansas State Police was set up along that route inside Pope County. The appellant was stopped at that roadblock and ordered out of his vehicle. The officers stated that the appellant hesitated to do so and “made some movements around the side of his body.” They then noticed that he was wearing a shoulder holster, removed him from the vehicle, and found an automatic pistol in the front seat of the vehicle. Also about his person and truck were found two ounces of amphetamines, one ounce of marijuana, drug paraphernalia, and a chemical formula used in the manufacture of amphetamines. Appellant Mark Mock was then transported to the Pope County jail in Russellville, Arkansas. The Newton County officers then left to obtain a warrant to search the appellants’ home.
Pursuant to the search warrant for the home of appellants Michael and Leigh Ann Mock, the officers found marijuana in varying amounts in several different places, bags containing a white powdery substance, and chemical paraphernalia. In the trailer occupied by appellant Mark Mock and his wife, Mitsi (not involved in this appeal), they found bags of marijuana, books on chemical compounds, scientific glassware, and other drug paraphernalia. They also found a number of explosives including plastic explosives, a quantity of TNT, and military-type booby traps.
All three appellants were charged with the crimes of conspiring to deliver a controlled substance, manufacture of a controlled substance, possession of such substances with intent to deliver, and criminal possession of explosives. Michael Mock was found guilty of the offenses of manufacturing a controlled substance, conspiring to deliver a controlled substance, and possession of such substances with intent to deliver. Mark Mock was found guilty of manufacturing a controlled substance, conspiring to deliver a controlled substance, possession of such substances with intent to deliver, and criminal possession of explosives. Leigh Ann Mock, wife of Michael Mock, was found guilty only of possession of a controlled substance. The three appellants have filed a common brief and have not attempted to direct their arguments at the rulings as to any particular appellant. We find no merit in any of the points advanced and address them in the same manner.
The appellants first contend that the trial court erred in not suppressing the evidence of contraband found on the person and in the truck of Mark Mock at the time of his arrest and all other evidence discovered as a result because there was no probable cause for his warrantless arrest or the search of his vehicle. Rule 4.1 (a)(i) 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 person has committed a felony. Reasonable cause exists where facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient within themselves to warrant a man of reasonable caution to believe that an offense is being or has been committed by the person to be arrested. The test of probable cause for the stopping of an automobile rests upon the collective information of the police, not merely upon the information of the officer actually stopping the vehicle. Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984); Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986). Probable cause is simply a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused has committed a felony. The quantum of proof required to support a conviction is not required. Our courts have committed themselves to a reasonable, common-sense approach to these determinations and arrests are to be appraised from the viewpoint of prudent and cautious police officers at the time an arrest is made. Gass v. State, supra. On appeal, all presumptions are favorable to a trial court’s ruling on the legality of an arrest and the burden of demonstrating error rests upon the appellant. When we indulge these presumptions and consider the totality of the circumstances leading up to the warrantless arrest, we conclude that there was sufficient evidence to sustain the finding of probable cause for the arrest. We further conclude that, as the custodial arrest of the appellant was based on reasonable cause, the search of his person and vehicle incident to that arrest required no additional justification. Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982); Gass v. State, supra; A.R.Cr.P. Rules 12.1(d) and 12.4(a). In any event, appellants Michael Mock and Leigh Ann Mock would have no standing to assert the fourth amendment rights of appellant Mark Mock. Gass v. State, supra.
The appellants next contend that the search of the home of appellants Michael and Leigh Ann Mock was illegal because it was made prior to the time the search warrant was delivered to the home, and that the articles obtained through this search should therefore have been suppressed. Mark Mock argues that the evidence obtained from the search of his trailer should likewise have been suppressed since there was no warrant and no voluntary consent for that search. Although the attorney general does not argue this point, we must initially note that the appellants have not pointed out to us, and we have been unable to find, where the trial court was asked to suppress the evidence found in the home of Michael and Leigh Ann Mock, or in the trailer occupied by Mark. Our examination of the record only discloses a motion to suppress those items found on the person of Mark Mock and in his vehicle at the time of the search incident to his arrest.
In any event, we find no merit to the arguments advanced by the appellants. According to the evidence, after Mark Mock was arrested in Pope County, several of the Newton County officers involved in that arrest proceeded directly to a judge’s home to obtain a warrant to search the appellants’ premises. Early in his testimony Officer Rodney Combs of the Arkansas State Police stated that he was informed that a search warrant had been issued and that he and other officers went into the residence before the warrant arrived. He did not state, however, that any search was made at the time of entry, and it is clear from the other evidence that no search was conducted prior to the arrival of a validly executed search warrant. In several other places in Combs’ testimony he so indicated. Several of the other police officers who were returning with the warrant testified that the search was not in progress at the time the warrant arrived. Furthermore, Michael Mock himself testified that the police officers had the warrant when they first came into his home. When the testimony with regard to the manner in which the search warrant was executed is examined in its entirety, it is clear to us, as it could have been to the trial judge, that it was properly executed and that no search was made until the warrant had been delivered at the appellants’ place of residence.
The appellants also argue that the search warrant did not describe a trailer located on the property, but merely a “white frame residence and its curtilage.” No request to suppress the evidence found in the trailer was made in the trial court and none should be considered here. However, from our review of the record, it is clear that whether or not the trailer occupied by Mark Mock was included within the search warrant is immaterial. Rule 11.1 of the Arkansas Rules of Criminal Procedure provides that an officer may conduct a search and make seizures without a search warrant if consent to that search is given. The record reflects that a state policeman went to the door of the trailer and spoke with Mitsi Mock, who identified herself as the wife of Mark. The officer stated that he advised her of her rights and told her that Mark had been arrested. He stated that he asked if she had any objections to a search of the trailer and that she stated she had none. He testified that Mitsi Mock escorted him to the bedroom and surrendered a bag containing a green vegetable substance that was on the bed and showed him several pieces of scientific glassware. The officer also found in the residence a large quantity of military hardware. The officer testified that, after the search, Mitsi Mock was again asked if her consent to the search was free and voluntary, and she responded in the affirmative.
Appellant Mark Mock argues that “there is no telling what [his wife] was told” and that she was “overwhelmed, intimidated, coerced, and tricked into giving her consent to search the home.” We find no evidence contradicting the testimony of the officer that the consent was freely given. Mitsi Mock did not testify or attempt to give a different version of what occurred. Had she wished to do so, the proper procedure for the appellant to follow would be to elicit such evidence at a hearing on a timely motion to suppress the evidence. The proper manner of asserting a challenge to the legality of a search is at such a hearing, where the claims can be made without danger of self-incrimination, and one that fails to do so has no standing to make that challenge at a later point. Brown v. United States, 411 U.S. 223 (1973); Gass v. State, supra.
Appellant Mark Mock further contends that the trial court erred in denying his motion for a directed verdict of acquittal on the charge of criminal possession of explosives. Ark. Stat. Ann. § 41-3108 (Repl. 1977) provides that a person commits the offense of criminal possession of explosives when he sells, possesses, or manufactures an explosive substance or incendiary device with the purpose of using that substance or device to commit an offense. The appellant argues that, even though the explosives were found in his residence, there was no evidence that he had any intent to use them to commit a criminal offense.
Intent or purpose to commit a crime is a state of mind which is not readily capable of proof by direct evidence and may be inferred from the surrounding circumstances. Jackson v. State, 290 Ark. 160, 717 S.W.2d 801 (1986). In this case, testimony was offered without objection that virtually all of the devices were military devices; that they had no commercial usage; that they had no legitimate home usage, nor are they even sold to the public; and that these items were known to have been used to booby-trap controlled-substance operations. When giving consideration to the nature of the appellants’ operation, along with other weapons found at their residences and on their persons, we cannot conclude that the jury could not infer that these explosives were possessed for the purpose of aiding them in the commission of the offense of manufacturing controlled substances.
Appellants finally contend that the trial court erred in refusing to suppress the recorded telephone conversations between the informant and the appellants. They argue that the recordings were obtained in violation of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. (1982), because the informant had not willingly consented to their interception. Although the appellant moved to suppress the transcribed telephone recordings, it does not appear that the objection at the suppression hearing was made on this basis. Rather, this argument is presented for the first time on appeal. Although not required to do so, we have examined the record in this regard due to the seriousness of the offense for which the parties were convicted. We find no merit in their argument that the informant did not give his consent to the recording of the conversations or that he was forced or coerced into consenting.
At the hearing, the informant testified that he was more or less “forced” to call the appellant, and that he made the calls against his wishes and with a “gun stuck to my head.” It is understandable why a reluctant witness in a case of this nature might feel compelled to so testify. The Arkansas Supreme Court dealt with the issue of whether one of the parties to such a conversation voluntarily consented to its being recorded in Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980). The court there determined that, where the evidence is so conflicting as to whether the parties consented, the question resolves itself into one of credibility and resolutions of conflicts. In such instances, the appellate courts defer to the superior position of the trial judge. In the case now before us, Sergeant Dale Best of the Arkansas State Police testified that the informant agreed to place the telephone calls for the purpose of setting up a drug transaction with the appellants. The informant expressed his willingness and consent to do so. Sergeant Best further testified that the informant agreed that he would continue to make calls until such arrangements might be completed. The officer also stated that all of the recordings were made in the presence of the informant, who was fully aware that they were being made, and that it was not necessary to coerce him in any way to gain his cooperation. We cannot say that the trial court erred in its determination.
In the trial court, the appellants moved to suppress the taped conversations on the ground that they contained hearsay as to Leigh Ann Mock. It is to be noted first that all three appellants were charged with conspiracy to deliver a controlled substance. Rule 801(d)(2) of the Arkansas Rules of Evidence provides that a declaration is not hearsay if made by a co-conspirator of a party during the course and in furtherance of the conspiracy. The taped statements fall clearly within that exception. In all of them, Mark and Michael Mock, in coded messages, made arrangements to meet the informant for the purpose of delivering the substance. We further note that the informant testified to the content of those conversations in open court and nothing contained on the tapes was not mentioned in that testimony. Finally, these conversations had to do with the charges of possession with intent to deliver and conspiracy. Leigh Ann Mock was acquitted of those charges and therefore suffered no prejudice as a result of the tapes being admitted. We find no error.
Affirmed.
Jennings and Mayfield, JJ., agree.
Appellant Mark Mock was convicted in Pope County for the offense of possessing a controlled substance growing out of his arrest in that county. We affirmed that conviction in Mark Mock v. State of Arkansas, 20 Ark. App. 72, 723 S.W.2d 844 (1987). The issue of the legality of Mark Mock’s arrest and the resulting search of his person and vehicle is before the court in the present case because the evidence obtained in that search partially formed the basis for the issuance of the warrant authorizing the search of the appellants’ residence. Also, there is some variance between the two cases with respect to evidence of the events leading up to and surrounding Mark Mock’s arrest. The recitation of facts in this opinion are those reflected by the record made in the Newton County case now under review. | [
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