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McHaney, J.
Appellant, Thomas Bros. Lumber Co. is a partnership, composed of several brothers, and is engaged, in that firm name, in the operation of a saw mill and lumber yard at Curtis, Clark county, Arkansas. They employed one Johnie Bean, who owned a portable saw mill, to cut logs off their land and saw same into lumber for $10 per M. delivered. Bean hired and fired his own employees, but Thomas Bros, kept his pay roll and paid his men. The only control Thomas Bros, exercised over Bean was to designate the dimensions of the lumber cut from their logs. We assume that Bean was an independent contractor. On January 8, 1941, while Bean was cutting logs and sawing them into lumber for Thomas Bros., appellee, sawyer for Bean, fell into the saw and his right hand was severely injured, suffering the loss of three fingers and a part of his hand. On April 7,1941, he filed a claim for compensation with the Workmen’s Compensation Commission, in which he stated that his employer was Thomas Bros, and that appellant, Commercial Standard Insurance Co., was the insurance carrier. A policy of insurance was issued by appellant, Commercial Standard, to Thomas Bros, on December 5,. 1940, and it defended the claim on the ground that its policy covered Thomas Bros, only and not Johnie Bean and his employees, one of which was appellee Hill; that Bean was an independent contractor of Thomas Bros.; and that neither the company nor its authorized agents intended to cover contractors or subcontractors of Thomas Bros. On the other hand appellee insisted that the policy covers him, irrespective of whether Johnie Bean was an independent contractor or an employee of Thomas Bros, at the time he was injured; and that it was the intention of all the parties — Thomas Bros.,.Johnie Bean and A. B. Banks Insurance Agency, general agents of Commercial Standard, as also the local agent or broker, Charlie East — when the policy was written on Thomas Bros, to cover the operations of Johnie Bean. Charlie East and Lawrence Banks of the A. B. Banks Agency so testified, as did Johnie Bean and Ira Thomas, one of the partners. Bean testified that Mr. Thomas promised to look after his insurance coverage shortly before December 5,1940, and that he started paying a premium on his insurance at that time, or about that date. Ira Thomas testified he told East to cover Johnie Bean’s operations, and that they kept a copy of the payroll of Bean’s Mill. East said that he was instructed by Thomas Bros, to procure Workmen’s Compensation Insurance to cover them, Johnie Bean and Tom Marshall, another operator for Thomas Bros.; that he brokered the insurance through A. B. Banks Company of Fordyce and instructed them to cover Thomas Bros., Bean and Marshall and all their operations; that an initial payment on the premium o.f $512.50 was made and this amount was the deposit on insurance to cover all three insureds. They gave a binder on the 5th of December which covered all three and the policy was issued later. Lawrence Banks testified that: “At the time Thomas Bros.’ policy was written Mr. East told me that a Mr. Bean and a Mr. Marshall were working for Thomas on a contract basis and would they come under Thomas Brothers’ policy — I told him that they would. ’ ’
A mass of testimony was given before the Commission and it made a finding that the policy covered Bean’s employees and made an award to appellee, the amount of which is not here in question. An appeal was taken to the Clark circuit court where the judgment and award of the Commission were affirmed. This appeal followed.
For a reversal of this judgment, appellant insurance carrier (and it is the only real appellant) first says that since appellee was the employee of Bean, an independent contractor of Thomas Bros, who was not specifically named in the policy of insurance, and was not an employee of Thomas Bros., it is not liable to appellee. Section 6 of the Workmen’s Compensation Law, Act 319 of 1939, p. 777, is quoted and it is stated that this section was borrowed from the New York Act with the construction theretofore placed on it by the appellate court of that state and certain cases are cited to the effect that the insurance carrier for a contractor cannot be held for an injury to an employee of a subcontractor unless the carrier has specifically covered the subcontractor’s employees in its policy. Passarelli v. Columbia E. & C. Co., 270 N. Y. 68, 200 N. E. 583, and Monello v. Klein, 216 App. Div. 105, 214 N. Y. S. 486. Conceding this contention to be correct, we do not think it applicable here for this reason: Shortly after the policy was written, A. B. Banks & Co. sent to Charlie East for Thomas Bros, to execute the following agreement: “In consideration of the issuance of Workmen’s Compensation coverage on our operations we understand that the policy covers all employees including the employees of any contractor or sub-contractor that we engage who has not provided Workmen’s Compensation coverage of his operations.
“We agree to fully comply with § 3 of the Arkansas Workmen’s Compensation Endorsement No. 347 attached to our policy.
“It is further agreed that in the event certificates of coverage are furnished, we shall require that such certificates will provide that we will be given fifteen days’ notice of cancellation in the event of termination of such coverage.” This agreement was executed by Thos. Bros., the six of them signing. The one executed shortly after December 5, 1940, was lost or misplaced by Banks, so he sent them another dated March 5, 1941, which was likewise executed. We think this instrument, no matter when actually executed by Thomas Bros., relates back to the effective date of the binder or policy and therefore covered “the employees of any contractor,” one of which was Johnie Bean, just as completely and effectively as if he had been specifically mentioned therein.
The only other contention for a reversal of the judgment is that the Commission undertook to reform the policy issued to Thomas Bros, to “specifically cover” the appellee and, in doing so exceeded its powers, and the circuit court erred, therefore, in affirming the decision of the Commission. It is insisted with much persuasive force that reformation of written instruments is a matter for the exclusive exercise of equity jurisdiction, and that the Workmen’s Compensation Law does not confer any such authority on the Commission. While we are prepared to quite agree with appellant’s argument in this regard, we think it 'inappropriate here. The Commission did not undertake to reform the policy, or if it did, it was unnecessary to the decision made by it. The writing executed by Thomas Bros, as above set out had the effect of reforming the policy as originally issued so as to cover the employees of contractors and subcontractors. This writing was executed in conformity with the original intent and purpose of all the parties and had the effect of extending coverage for Bean’s employees, including appellee, from December 5, 1940. It is said that appellant has not collected premiums-based on Bean’s payroll. It either has or had the opportunity to so figure its premiums, since Thomas Bros, kept Bean’s payroll. The $512.50 deposit made on the estimated premium to become due, a portion of which was paid by Bean, was for the purpose of covering all employees of Thomas Bros., Bean and Marshall, and Bean says he began paying on his pro rata share thereof at that time. After the injury to appellee, appellant issued to Bean an individual policy and it is argued this is indicative of the contention that he was not covered in the policy issued to Thomas Bros. On the contrary, we understand that Bean quit cutting for Thomas Bros. .\nd, if so, would not be covered by its policy. -
Affirmed. | [
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George Rose Smith, Justice.
This is a dispute between two lawyers, practicing in Conway, about the division of a $14,605.33 attorneys’ fee which they earned in T.I.M.E. Freight v. McNew, 241 Ark. 1048, 411 S. W. 2d 500 (1967). When the present controversy arose the bank that had been disbursing the proceeds of the Mc-New judgment filed this bill of interpleader and deposited the disputed funds in court. After a hearing the chancellor directed that the two lawyers share the fee equally. For reversal Jones contends that Donovan is entitled to only $5,000 — the sum that the chancellor would have awarded Donovan if his fee had been determined on quantum meruit.
The testimony is not before ns. Jones, in appealing, failed to bring’ up the testimony and filed instead a “stipulation,” signed by his attorney only, in which Jones agreed that “the facts recited in the- trial court’s memorandum opinion are true and correct.” Donovan did not sign that stipulation, but he has not insisted that the testimony be produced. That procedure enables us to state the facts in a few sentences.
Throughout a decade, ending about April, 1964, these two lawyers had worked harmoniously together in about a hundred tort cases. When either was employed in such a case he would engage the other’s assistance as co-counsel. It does not appear that the division of the fees in those cases was ever fixed by a written agreement between the two men. It was, however, tacitly understood all along that every fee would be shared equally, regardless of whose office originated the case and regardless of the particular services contributed by each lawyer to the litigation.
For some reason not disclosed by the record, but apparently having to do with political differences, the two men discontinued their association in 1964. A year or so later Jones was employed in the McNew case. Before drafting the complaint he happened to meet Donovan in a hallway and asked him to take part in the case. Donovan accepted the offer. Nothing was said about how the fee would be divided if the litigation ended in success, as it did.
Counsel for Jones, in seeking to limit Donovan to a fee fixed by quantum meruit, presents a two-step argument : First, the chancellor found that there was no “implied contract” for the division of the McNew fee. Secondly, in the absence of a controlling contract, this court (counsel insists) follows the minority rule by which the fee of the lawyer brought into the case is determined by quantum meruit rather than by the majority rule of equal division. Counsel, in insisting that we have adopted the minority rule, cites Dudley v. Adams, 227 Ark. 376, 298 S. W. 2d 701 (1957), and Terral v. Poe, 190 Ark. 346, 79 S. W. 2d 69 (1935).
The chancellor, in dividing the fee equally, took the position that the Dudley and Terral cases did not definitely commit us to either rule. There is much to be said for that view. In the Dudley case an express contract was found to exist; so the present question did not arise. In the Terral case the retained co-counsel was asserting a contract for only a fourth of the fee; so there was never any contention by either side that the fee should be divided equally.
We need not, however, decide the majority-minority rule question, because we find in the case at bar that there was a tacit agreement to share the fee equally. Although the chancellor, at the conclusion of the hearing, apparently made an oral finding that there was' no implied contract between the two lawyers, in a supplemental written opinion he pretty well receded from that view and gave effect, we think properly, to the ten-year course of dealing between Jones and Donovan. In directing that the fee be shared equally the chancellor went on'to say in his written opinion:
“This is supported by the general practice that existed between these two lawyers for ten years. It was logical for. Donovan to conclude that this custom would continue. Senator Jones had a duty, I feel in equity, to advise Donovan to the contrary, if he did not so intend. Actually, I believe he so unconsciously intended till political differences reared its ugly head. I realize I held there was no implied contract.”
There can be no doubt that the parties ’ prior course of dealing is to be considered in determining whether a tacit but still actual contract comes into existence. Cor-bin, Contracts, § 97 (1963); Southern Pub. Ass’n v. Clements Paper Co., 139 Tenn. 429, 201 S. W. 745 (1917). Justice Holmes put his finger on the point in Hobbs v. Massasoit Whip Co., 158 Mass. 194, 33 N. E. 495 (1893). There the plaintiff, a trapper, had sent eel skins to the defendant, a manufacturing company, on four or five occasions. Although there was no contract between the two the defendant had accepted and paid for the skins. The litigation arose when the defendant received another batch of skins and kept them for some time before they were destroyed. In holding that the manufacturer was bound by contract to pay for the skins the court summarized the law in a sentence: “The proposition stands on the general principle that conduct which imports acceptance or assent is acceptance or assent, in the view of the law, whatever may have been the actual state of mind of the party.” (Our italics.)
In resting our conclusion upon the existence of a contract we are not overlooking the parties’ agreement to submit the case upon the chancellor’s opinion, which included a statement that he had found no implied contract. That statement, however, was not so much a finding of fact as a conclusion of law stemming from facts already found. Needless to say, the parties’ stipulation does not bind us to accept that conclusion of law, any more than it binds us to accept the chancellor’s construction of the Dudley and Terral opinions. This must be true, for otherwise our appellate function in the case would be limited to that of placing an approving rubber stamp upon the chancellor’s decree.
Affirmed.
HaeRis, C. J., dissents. | [
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John A. Fogleman, Justice.
This is an appeal from a decree dismissing a suit to recover payments alleged to constitute preferences under the federal bankruptcy act.
The suit was brought by R. M. Priddy, Trustee in Bankruptcy of the estate of Commodities, Inc., a cor- porátion, adjudicated bankrupt on November 5, 1959, on petition filed September 16, 1959. Later, G. L. Nicklaus, trustee in succession to Priddy, was substituted as plaintiff during the pendency of the action in the lower court. It was alleged that appellee, who was president of the corporation, received $10,000, or some other amount, from the corporation in payment of an indebtedness within -120 days prior to the filing of the petition in bankruptcy, with full knowledge of the insolvency of the corporation. The suit was filed July 13, 1962. The complaint cbntained an allegation that information relating to the cause of action was not obtained by the trustee until an audit of the affairs of the corporation was had. Appellee filed a general denial and pleaded the bar of limitations set forth in Ark. Stat. Ann. § 64-803 (Repl. 1.966) and in 11 U. S. C. § 29. The trial court entered judgment for appellee on December 8, 1966, finding that the action was barred by 11 TJ. S. C. § 29(e). This judgment was set aside by the trial court on January 4, 1967, and appellant Hi-Pro Pish Products, Inc., a creditor and assignee of other creditors of the bankrupt corporation, was permitted to intervene. Later the court dismissed the action “on limitations.”
The trustee employed one D. C. (Dave) Garrett, CPA, to make an audit of the affairs of the corporation. This audit was delivered to the trustee between July 1 and July 15, 1961. The trustee was authorized to bring this suit on April 4, 1962.
Appellee was called as a witness by appellant. He testified that he, his wife, and an unnamed person each owned 30% of the stock of the corporation. McClure was president and had general supervision of the corporation business. The Bank of Russellville loaned the cor poration $10,000 on March 25, 1959. McClure testified that the note was signed by Commodities, Inc. and endorsed by him. He stated that these proceeds did not go through his hands, the bank having only given him a deposit slip to the account of Commodities, Inc. for the proceeds of the loan. These were used to pay debts of the corporation.
It was stipulated that the loan was repaid as follows :
$1,630.00 April 28, 1959
1,638.15 May 26, 1959
1,646.34 June 26, 1959
1,655.76 July 25, 1959
1,662.70 August 25, 1959
1,767.05 August 27, 1959
The executive vice president of the Bank of Russell-ville testified that a loan of $10,000 was made to appel-lee personally; however, the loan was actually made by an officer of the bank who did not testify. The bank’s liability ledger sheet indicated that this loan was made on March 25, 1959, for 30 days. The credits appearing on this ledger correspond with the stipulated dates and amounts of payments on the loan which appellee testified was made to the corporation.
D. C. Garrett testified that his audit of the books of the corporation was not a complete one because many of its records were not available for inspection. McClure had testified that some of the corporate records had been destroyed prior to the filing of the bankruptcy petition. Garrett’s partial audit and report to the trustee in bankruptcy were dated in May 1961. He had found a record of payments by the corporation on the $10,000 note on the journal of the corporation. It corresponded with the dates and amounts shown on the bank’s liability ledger sheet. When the witness asked ap-pellee for the note, he was told that it had been de stroyed. The books of the corporation reflected the receipt of this $10,000 and showed that it was expended in payment of company obligations.
Title 11, § 29(e), USCA provides in pertinent part:
“A receiver or trustee may, within two years subsequent to the date of adjudication or within such further period of time as the Federal or State law may permit, institute proceedings in behalf of the estate upon any claim against which the period of limitation fixed by Federal or State law had not expired at the time of the filing of the petition in bankruptcy.”
Appellant seeks to avoid the bar of this statute by the argument that the statutory period did not begin to run until July 1, 1961, when the audit was delivered to appellant.
We find that the learned chancellor was correct in his application of this statute of limitations. Authorities cited by appellants are based upon the rule of law that statutes of limitations do not run against a cause of action based upon fraud until the fraud is discovered. In equity this rule has often been applied where the one allegedly injured remains in ignorance of the facts without fault or want of diligence on his part. See Bailey v. Glover, 88 U. S. (21 Wall.) 342, 22 L. Ed. 636; Holmberg v. Armbrecht, 327 U. S. 392, 66 S. Ct. 582, 90 L. Ed. 743.
This cause of action to set aside a preference is created by the bankruptcy statutes themselves. See Herget v. Central Nat’l. Bank & Trust Co., 324 U. S. 4, 65 S. Ct. 505, 89 L. Ed. 656, where it was clearly held that the two-year statute of limitations provided by 11 TJSC, § 29(e) applies to a cause of action to set aside and recover a preferential transfer. Resort to state statutes of limitations, such as the three-year limitation provided in Ark. Stat. Ann. § 37-206 (Repl. 1962), suggested by appellants, is foreclosed by that opinion, in sofar as actions to recover preferences are. concerned. The qualification in the federal statute allowing a longer period under applicable federal or state law applies only to causes of action accruing before the adjudication in baiikruptcy and not then barred by the applicable limitations statute.
In actions for recovery of preferential transfers, made fraudulent only by the statute itself, it has been held that the doctrine of Bailey v. Glover, supra, [also relied on in Austrian v. Williams, 80 F. Supp. 437 (S. D. NY 1948).] was not to be read into § 29(e). Wells v. Place, 92 F. Supp. 477 (N. D. Ohio 1950). On the other hand, there are decisions in Clayton Act cases holding that fraudulent concealment of causes of action created by federal statute tolls all applicable statutes of limitations. See Kansas City v. Fed. Pac. Elec. Co., 310 F. 2d 271 (CCA 8th 1962); Pub. Serv. Co. v. Gen. Elec. Co., 315 F. 2d 306 (CCA 10th 1963); Westinghouse Elec. Corp. v. Pac. Gas & Elec. Co., 326 F. 2d 575 (CCA 9th 1964). These decisions apply statements from the opinion in Holmberg v. Armbrecht, 327 U. S. 392, 66 S. Ct. 582. 90 L. Ed. 743, which might well be considered dicta.
Even if the doctrine should be held applicable, however, we do not find adequate factual basis to sustain appellants’ position. "Where there is sufficient information in the record to put the trustee in bankruptcy on inquiry, there is no fraudulent concealment. Greene v. Taylor, 132 U. S. 415, 10 S. Ct. 138, 33 L. Ed. 411. The. “Statement of Affairs” filed January 4, 1960, by ap-pellee on behalf of the corporation in the bankruptcy proceeding stated the following:
A financial statement had been furnished by the corporation to Peoples Exchange Bank in Russell-ville in 1959;
Bank accounts were maintained in the same bank, as well as in the Bank of Russellville and the Bank of Dardanelle;
The loan of $10,000 by the Bank of Russellville was repaid within a year immediately preceding the filing of the bankruptcy petition;
All papers and ledgers had been delivered to the trustee.
Had appellants or their accountant made inquiry at the Bank of Russellville at the time this document was filed, or within 22 months thereafter, they would have learned every fact that is in the record now. There seems to have been no difficulty in ascertaining that the payments on this loan were made by the corporation, once the inquiry was made. The books and records in the hands of trustee’s accountant, as set out earlier, also showed practically every fact necessary to institute this, action. It appears that they had been in the accountant’s hands for more than six months prior to the date of his report. One seeking to avoid the bar of the statute of limitation provided in bankruptcy statutes must show diligence on his part in seeking knowledge of the facts which are the foundation of the cause of action. Avery v. Cleary, 132 U. S. 604, 10 S. Ct. 220, 33 L. Ed. 469.
We have searched the record and find no act on the part of appellee by which he sought to conceal the facts from appellants. Some affirmative act on his part is required before we can say there was fraudulent concealment. Mere failure to reveal, in the absence of a duty to speak, is not sufficient. Williams v. Purdy, 223 Ark. 275, 265 S. W. 2d 534.
The judgment is affirmed.
Appellee contends. on cross-appeal that the chancery court erred in permitting this intervention. We deem it unnecessary to pass- on this question because an appeal was taken by the trustee and the brief was filed on behalf of both the trustee and the in-tervenor, the questions raised by them here being identical. | [
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Paul Ward, Justice.
This is a review of a refusal by the Circuit Court of White County to grant Carlond Hammond (Petitioner) a Writ of Habeas Corpus whereby he sought to evade extradition to the State of Louisiana. A brief statement of facts from which stems this litigation is set out below.
On May 30, 1967 the Governor of Louisiana signed requisition papers directed to the Governor of Arkansas asking for the return of Petitioner who was charged in 1964 with the crime of stealing $25,000 in Louisiana. On August 2, 1967 a hearing was held on the matter in the office of the Governor of Arkansas, and one week later the Governor of Arkansas issued a warrant to have Petitioner arrested by the sheriff of White County and placed in jail. Thereupon Petitioner applied for a Writ of Habeas Corpus in the Circuit Court of said county to obtain his freedom. A hearing was had, and on September 6,1967 the trial judge denied the petition and remanded Petitioner to the custody of the sheriff of White County.
On September 22, 1967 Petitioner filed this Petition for a Writ of Certiorari, and now urges three grounds for a reversal of the trial court.
One. It is first contended “the Governor of Arkansas improperly delegated all responsibility for determining the validity of the extradition papers”.
We find no merit in this contention which is based on the fact that Bob Scott (an agent or employee of the Governor) exalmined the requisition papers and found them adequate before the Governor signed the warrant of arrest.
Ark. Stat. Ann. § 43-3002 (Repl. 1964) provides that it is the duty of the Governor to have arrested and delivered to another state any person charged in that state with a felony who has fled from justice. Section 43-3004 provides that the Governor may call upon the Attorney General to investigate or assist in investigating the “demand” and report to him. Section 43-3007 provides that if the Governor decides the “demand” should he complied with, “he shall sign a warrant of arrest. ...”
We find nothing in the above statutes which forces a conclusion that the Governor must personally make the investigation or have it made by the Attorney General. It must be recognized that a governor has the right to rely on his agents or employees to make investigations and report their findings, and to rely thereon. This is consistent with 'his right to call on the Attorney General for assistance and advice if he deems it necessary. Obviously the legality of the Governor’s action in signing the warrant of arrest in this case is not dependent on the source of the information upon which he acted.
Two. It is next argued that “The documents of ‘demand’ do not show probable cause. . . .”
Demand documents refer here to certain documents executed in Louisiana setting out the facts relative to the accusations against Petitioner. It is necessary therefore to set out below a brief summary of these documents.
(a) Morris Lucia who is a resident of Louisiana, in an affidavit sworn to before a District Judge of said state, stated, in essence: On May 13, 1964 Joe Fassulo, whom I knew, introduced me to Carlond Hammond (Petitioner) who told me he knew a “person” who had $200,000 in bills of large denominations and desired to exchange them (at a 40% discount) for bills of smaller denominations; Petitioner stated the deal was legitimate since the “person” had previously been in trouble with the revenue agents and feared circulation of the large bills might renew the trouble; a week later I was informed by Joe that Petitioner had arranged for me to meet the “person” at a hotel in Opelousas to effect an exchange of bills; Joe and I went to the hotel where I was told the “person” would not negotiate per- sonallv 'with me; Therefore, I gave Joe $25,000 to deliver to the “person”; About twenty minutes later Joe returned and said Petitioner took the money and “disappeared into the night”. [On the same day af-fiant proceeded to have Petitioner charged with theft.]
(b) On June 16, 1964 the Governor of Louisiana issued a signed document stating that he was informed Petitioner had taken refuge in Arkansas; that he had (made an application to the Governor of Arkansas for the surrender of Petitioner, and had appointed an Agent to take Petitioner in custody. [All the above mentioned documents were forwarded to the Governor of Arkansas.]
For reasons, not made entirely clear in the record, the extradition proceedings were delayed until May 30, 1967 when the Governor of Louisiana made another application to the Governor of Arkansas, based on the documents previously mentioned.
Based on the above documents, it is our opinion that the trial court was correct, and that the extradition of Petitioner was justified and legal. Conceding that Lucia did not actually see Petitioner take his money, he did know and swear that Petitioner was an active participant in the scheme to deprive him of his money. This fact would make Petitioner a participant in the crime charged. Ark. Stat. Ann. § 43-3002 (Repl. 1964), in part reads:
“. . . it is the duty of the Governor of this state to have arrested and delivered up to the Executive Authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.”
The pertinent Louisiana law is clear. L. S. A. § 14:23 reads:
“The parties to crimes are classified as (1) Principals and (2) Accessories after the fact.”
L. S. A. § 14:24 reads:
“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. ’ ’
Three. Again we are unable to agree with the contention that this proceeding violates due process under the doctrine of res judicata. Petitioner here relies on the alleged fact that previously an attempt was made to ■have him extradited but failed because of a lack of sufficient evidence.
Conceding the above allegation to be true it would not, in our opinion, constitute res judicata. Black’s Law Dictionary defines “Res judicata” as: “A matter adjudged; a thing judicially acted upon or decided; a tiling or matter settled by judgment.” In Am. Jur. (Extradition) § 57, there appears this statement:
“Where a first application for extradition is refused on the ground that the evidence presented is insufficient, it leaves the proceeding in the same condition as in other cases of preliminary examination, and there may be a second inquiry. The release of a person on the ground of informality or mistake in the proceeding’s is not a bar to a subsequent arrest on perfected papers or legal proceedings.”
The case of Letwick v. State, 211 Ark. 1, 198 S. W. 2d 830, dealt with this issue on facts similar to those of this case, and the Court said:
“There is no question of former jeopardy in this case. Indeed the question is whether appellant shall be returned for a trial to the state where the offense is alleged to have been committed.”
The Petition is denied. | [
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Carleton Harris, Chief Justice.
Sammy Clark, appellant herein, was charged with the rape of a nine-year-old girl, and on trial, was found guilty, and his punishment fixed a,t imprisonment in the State Penitentiary for life. From the judgment so entered, Clark brings this appeal. For reversal, only one point is argued, vis., the court erred in failing to grant a mistrial on the motion of appellant when the state offered to call appellant’s wife to testify during the presentation of the state’s evidence. However, the motion for new trial also asserts that error was committed by the court in failing to give three requested instructions by appellant, and it is also alleged that the verdict was contrary to the law and evidence. We proceed to a discussion of these contentions, hut in reverse order.
The state’s evidence reflected that Clark requested a friend to drive him to the home of Anna Marsenburg for the purpose of picking up his stepchildren. This was done, and Clark got his stepdaughter, a child then nine years of age, who lived with her grandmother, Anna Marsenburg, together with her sisters, and the friend drove them to the home where Clark lived with the children’s mother, to whom he was married. On arriving at the house, Clark told the sisters to go outside, but directed the little nine-vear-old girl to stay inside. He then asked her to take her clothes off, but upon her refusal, appellant took them off. He then took his own clothes off, and-, according to the witness, choked her, and raped her. The little girl stated that she tried to push him off, and tried to got away, and that he hurt her; further, that she did not tell anybody, because she was afraid he would kill her.
The grandmother testified that she found her granddaughter’s bloody panties on a Tuesday (the alleged rape having occurred on the previous Sunday); that she questioned and examined the little girl, and observed that she was swollen and bleeding. A subsequent examination was made by a physician, Dr. Bill Floyd.
Dr. Floyd testified that the hymen had been ruptured and torn; that the child’s condition had originated probably from one to four days earlier, and that, in his opinion, a forceful penetration was the cause of the injury.
Clark admitted getting the children from the grandmother’s house, and taking them to his house, but he denied that he bothered the girl in any way. The evidence obviously, if believed by the jury, was more than ample to sustain the conviction.
It is asserted that the court erred in refusing to give an instruction, at appellant’s request, on assault with intent to rape. We do not agree. The evidence on the part of the state was that the act of intercourse was forcibly committed, and the evidence on the part of the defendant was simply that he did not molest the little g'irl in any way. It was not error to refuse the instruction. Whittaker v. State, 171 Ark. 762, 286 S. W. 937.
We think, however, that appellant’s requested instruction No. 1 should have been given. This was an instruction defining the offense of carnal abuse, the instruction telling the jury that, if there was reasonable doubt that Clark was guilty of rape, he could still be found guilty of the crime of carnal abuse. The difference in the two offenses is that rape is the carnal knowledge of a female, forcibly and against her will (or without her consent), while carnal abuse is the carnal knowledge of a female under the age of sixteen years. It is immaterial in the latter case whether consent is given or not. While the little girl testified- as to acts constituting rape, the jury could possibly have found, since she did not report it, that she consented. The offense of carnal abuse is included in a charge of rape where the female is under sixteen years of age. Warford and Clift v. State, 214 Ark. 423, 216 S. W. 2d 781. See also Willis v. State, 221 Ark. 162, 252 S. W. 2d 618.
Instruction No. 2, offered by appellant, was not proper; since counsel for Clark ánnounced at the beginning of the trial that he was waiving his plea of not guilty by reason of insanity; nor was there any evidence offered that appellant was insane.
The principal point relied upon by Clark for reversal relates to the trial court’s refusal to grant appellant’s motion for a mistrial when the Prosecuting Attorney offered to call Clark’s wife to testify during the presentation of the state’s evidence. The record reflects the following:
“Mr. Howard:
If your Honor please, I would offer to call this little girl’s mother who is married to this defendant, if the defense counsel would allow her to testify.
Mr. Trimble:
I move for a mistrial, Your Honor. That’s a prejudicial offer.
The Court:
Overruled. Save his exceptions. You can call her if you like, hut I won’t let her testify.
Mr. Howard:
I can’t use her if you won’t let her testify.”
"We think the motion for a mistrial should have been granted. Ark. Stat. Ann. § 43-2019 (Repl. 1964) provides :
“In any criminal action in the courts of this state a husband or wife may testify as a witness in behalf of the other when called as such witness by the other spouse, but cannot be called as a witness by the opposite party. ”
The state argues that Clark was not prejudiced by the act of the Prosecuting Attorney in attempting to call appellant’s wife as a witness against the defendant, and mentions the case of McDonald, v. State, 225 Ark. 38-279 S. W. 2d 44. There, the defendant’s wife was called by the state, Avas sworn, and seated in the witness chair. The record then reflects that the court asked defense counsel if he had a motion, but the record does not reflect what motion, if any, was made. The opinion recites :
“* * * (Discussion off the record.) By the Court: The Court will hold that Mrs. McDonald is incompetent to testify. By Mr. Lookadoo: I want to make an objection to this later. By the Court: Mrs. McDonald, you may stand aside and go hack to the witness room. Gentlemen of the Jury, the witness who is leaving the stand is the wife of the defendant, and the Court has held that a wife cannot testify against her husband except where she has been personally injured; the Supreme Court has held that this does not include children. All right, call your next witness.”
In holding that no prejudicial error occurred, we said:
“It appears that appellant made no objection to the court’s action and he is, therefore, in no position to complain for the first time here.”
It is thus clear that we did not hold that the action of the attorney for the state was not prejudicial, being unable to pass upon the point under the state of the record.
In the case before us, we think the act of the Prosecuting Attorney was prejudicial. It will be noted that our statute, heretofore quoted, goes a good bit farther than prohibiting a spojise from testifying against the other in a criminal action; it provides that the spouse “cannot be called [our emphasis] as a witness by the opposite party.” Of course, when an effort is made by the state to call one spouse to testify against the other, it would immediately appear to the jury that the called spouse considered the defendant guilty, held no sympathy for the accused, and would like to see the one on trial convicted. This could be particularly damaging where the offense was allegedly committed by a present husband against the wife’s child by a previous marriage. While the crime with which the appellant is charged is heinous and revolting, we think the offer to call the wife, mother of the alleged victim, the prosecution knowing that the statute prohibited her testimony, exceeded the bounds of fairness, so essential to an unprejudiced trial.
Because of the errors herein set forth, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.
FoglemaN, J., concurs.
The child testified that she was raped on the couch in the living room. Prom the record:
“Q.. Was he hurting you all the time that you were on this couch ?
A. Yes, sir.
Q. And all the time he was on this couch, was his private part in you?
A. Yes, sir."
The exception is found in the following section, 43-2020, which reads: “In any criminal prosecution a husha-nd and wife may testify against each other in all cases in which an injury has been done by either against the person or property of either.” | [
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John A. Fogleman, Justice.
Appellant seeks reversal of an order of the trial court quashing the process and dismissing the complaint in his action against ap-pellee for malicious prosecution. The transcript shows only that summons was issued and served upon appel-lee. Neither the form nor manner of service is disclosed'. There appears in the transcript a receipt for’ certified mail which was addressed to Frank Culberson, Culber-son-Stowers, Pampa, Texas. The receipt was signed for Frank Culberson by one Ulm Eads, purportedly as the agent of the addressee. Appellant asserts that service was proper under the provisions of Ark. Stat. Ann. § 27-339.1 (Supp. 1967). Appellee does not question that service was had in the manner and form required by that section, but contends that the section is not applicable and that the court’s action in granting its motion to quash was proper. Consequently, we will treat this case as if the record reflected service pursuant to this section and will determine this appeal on the question of applicability of the statute.
Appellant relies solely and entirely on the application of the above named statute. The pertinent portion thereof reads:
“(1) Any cause of action arising out of acts done in this State * * * by an agent or servant in this State of a foreign corporation may be sued upon in this State * * * by process served upon or mailed to the * * * corporation outside the State.”
Appellant’s complaint alleged that appellee caused a warrant of arrest issued in Gray County, Texas, to be sent by United States mail to the Sheriff of Craighead County, Arkansas, along with instructions from the defendant, by way of both telephone and mail, to place appellant under arrest and imprison him unless and until he paid over an indebtedness asserted by appellee to be due it.
Appellant argues that appellee, a foreign corporation without an agent for service of process in the State of Arkansas, was subject to service under this statute, and contends that the corporation’s use of the mails and the services of the telephone company in furthering its alleged malicious prosecution of appellant made the United States postal service and the telephone company his agents or servants in Arkansas and that the acts of these representatives performed in this state gave rise to appellant’s cause of action. Appellant also contends that the Sheriff of Craighead County was the agent of appellee in this matter. The complaint does not state whether the warrant was placed in the mails by appel-lee or by an officer of Gray County, Texas, and appellant admitted in oral argument that the identity of the person placing the warrant in the mails is undisclosed by the record.
A telephone company is a common carrier of communications. As such it must supply all who are alike situated and cannot discriminate in favor of or against anyone. Montgomery v. Southwest Arkansas Telephone Co., 110 Ark. 480, 161 S. W. 1060. Thus, its relationship to a user is hardly compatible with the relationship of principal and agent. In Campbell v. Bastian, 236 Ark. 205, 365 S. W. 2d 249, we cited with approval authorities on the relationship as follows:
‘‘* * * In the American Law Institute’s Restatement of the Law of Agency, § 1 Comment A, this appears:
‘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 liis control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control.’
In 2 Am. Jur. p. 13, ‘Agency’ § 2, this appears:
‘An agency may be defined as a contract, either express or implied, upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, and by which that other assumes to do the business and render an account of it.’
In Black’s Law Dictionary an agent is defined as: ‘A person authorized by another to act for him, one entrusted with another’s business.’ ”
We find that the essential elements of authorization and control are absent. We have also approved the definition of servant in the Restatement of Agency as an employee whose physical conduct is subject to the master’s right of control. Southern National Insurance Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487. The relationship of the telephone company is more nearly that of independent contractor. This relationship is created when there is no intent on the part of an employer to retain control or direction of the manner or methods by which the party contracted with shall perform the work and there is no direction relating to the physical conduct of the contractor or his employees in the execution of the work. Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S. W. 2d 959.
By the same tests, the United States mails could not be either the agent or the servant of appellee.
There is nothing to indicate that the warrant of arrest was not regular on its face, and both parties agreed on oral argument that it was to be so considered. None of the allegations of the complaint suggests that the sheriff followed the instructions of appellee or did anything except to perform his duty in the service of the warrant. Ark. Stat. Ann. § 12-1110 (Bepl. 1956) makes it the duty of the sheriff to execute all lawful process directed to him by legal authority. In so doing, he is the agent of the law, not of any private party. Griffin v. Thompson, 2 Howard (U. S.) 244, 11 L. Ed. 253 (1844); M’Ghee v. Ellis, 4 Littell (Ky.) 244, 14 Am. Dec. 124 (1823); Horton v. Maffitt, 14 Minn. 289, 100 Am. Dec. 222 (1869). In the absence of a showing to the contrary, there is a presumption that the sheriff performed his duty lawfully, correctly and in good faith. McCamey v. Wright, 96 Ark. 477, 132 S. W. 223; Matthews v. Bailey, 198 Ark. 703, 130 S. W. 2d 1006; Beaumont v. Faubus, 239 Ark. 801, 394 S. W. 2d 478.
Since neither the telephone company, the United States mails nor the sheriff can be said to be the agent or servant of appellee in the sense of § 27-339.1, there is no error in the court’s order quashing service thereunder.
The judgment is affirmed. | [
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J. Fred Jones, Justice.
Appellant, Herbert Vaught, brought suit against the appellee, Vernard Ross, to recover damages in the amount of $1,449.75 suffered in an automobile collision with appellee’s fourteen year old son, Bobby, who was driving appellee’s automobile. The complaint alleged that the negligence of Bobby was imputed to his father, Vernard Ross. Appellee demurred to this complaint and appellant promptly amended it and specifically pleaded that Bobby was driving the car with his father’s permission and that the negligence of Bobby was imputed to his father, Vernard Ross, under the provisions of Ark. Stat. Ann. § 75-315 (Supp. 1967), as amended.
The trial court, after hearing arguments of counsel, sustained the demurrer, from which comes this appeal.
Arkansas Statute Annotated § 75-315 (Supp. 1967), is as follows:
“ (a) The application of any person under the age of eighteen (18) years for an instruction permit or operator’s license shall he signed and verified before a person authorized to administer oaths hy both the father and mother of the applicant, if both are living and have custody of him, or in the event neither parent is living then hy the person o'r guardian having such custody or hy an employer of such minor, or in the event there is no guardian or employer then by any other responsible person who is willing to assume the obligation imposed under this Act [§§ 75-301 — 75-311, 75-315 — 75-321, 75-324— 75-348] upon a person signing the application of a minor.
(b) Any negligence or wilful misconduct of a minor under the age of eighteen (18) years when driving a motor vehicle upon a highway shall he imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused hy such negligence or wilful misconduct.
(c) If any person who is required or authorized hy Subsection (a) of this Section to sign and verify the application of a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct of said minor shall he imputed to such person or persons and such person or persons shall he jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a driver’s license may or may not have been issued to said minor. For purposes of this Act, a minor is hereby defined to be any person who has not attained the age of eighteen (18) years.
(d) The provisions of this Section shall apply in all civil actions, including but not limited to both actions on behalf of any actions against the person or persons required or authorized by Subsection (a) of this Section to sign the application in the manner therein provided.”
Appellant contends that “Subsection (c) clearly states that if the person required to sign the application for a minor under 18 failed to do so, he is liable as though he had signed the application, the only restriction being that the parent have knowledge that the minor is driving a vehicle,” and that since this was all alleged, the complaint is not demurrable and thus the trial court erred.
Appellee contends that “[the statute] provides that the ‘negligence or wilful misconduct’ is imputed to the ‘person who is required or authorized ... to sign and verify the application.’ In this case there is no allegation that an application for a driver’s license has been made, therefore, there is no one to whom the ‘negligence or wilful misconduct’ can be imputed by virtue of a signature” and thus the trial court properly sustained the demurrer.
We are of the opinion that the appellant is correct and that the trial court erred. Both appellant and appellee cite, as the only case relied on, our decision in Richardson v. Donaldson, 220 Ark. 173, 246 S. W. 2d 551 (1952). Only subsections (a) and (b) of § 75-315 were in effect when the decision in the Richardson case was handed down by this court. The Richardson case held, and rightly so, that negligence could not be imputed under § 75-315 to the father of a sixteen year old girl involved in a collision who did not have, and never had, a driver’s license, because subsection ,(b) imputed liability only “to the person who has signed the application of such minor for a permit or license.” Thus, the statute at that time clearly did not cover persons who had not signed an application. The Richardson case also stated:
“... [T]he negligence of a child cannot he imputed to a parent merely because of the parental relationship, in the absence of a statute so declaring.
. . . [W]e have no such statute, applicable to a case like the one at bar. ...” (Emphasis supplied).
After the Richardson case, the legislature passed Act 278 of 1955, Section 2 of which was digested as Ark. Stat. Ann. § 75-342.1 (Repl. 1957). This statute, § 75-342.1, was effectively the same as subsection (c) of the present § 75-315, with the exception that it did not apply where no driver’s license had been issued. Then in 1961, by Act 495 of 1961, the legislature repealed § 75-342.1 and re-enacted its provisions into subsection (c), also making subsection (c) applicable to a case where no driver’s license had been issued, and adding a new subsection (d) giving us our current statute, § 75-315.
Subsection (c) is clear and unambiguous. As it now stands, the negligence or willful misconduct of a minor is clearly imputed to any person required or authorized to sign and verify the application of a minor for a driver’s license or permit, whether he does so or not, if he shall cause, or knowingly cause, or permit such minor to drive a motor vehicle upon any highway.
The intention of the legislature, as well as the emergency it recognized, is clearly stated in the emergency clause to Act 278 of 1955, supra, which is now subsection (;c) of § 75-315, supra, when the legislature said:
“It is hereby determined that the present laws pertaining to the responsibility of parents for minors under the age of 18 who drive automobiles is inadequately defined and would permit a parent who violates the law by failing to sign his child’s driver’s license application to thus escape liability for such child’s acts while driving.”
Arkansas Statute Annotated § 75-342 (Repl. 1957) makes it a misdemeanor for a person to cause or knowingly permit his child or ward to drive a motor vehicle upon any highway in violation of any provision of the Uniform Motor Vehicle Operator’s and Chauffeur’s License Act, Ark. Stat. Ann. § 75-301, et seq. Subsection (c) of § 75-315, supra, also fills the void indicated by the statement “in the absence of a statute so declaring” as stated in the Richardson case, supra.
We conclude that the trial court erred in sustaining the demurrer and that this case should be reversed and remanded for proceedings not inconsistent with this opinion.
Reversed and remanded. | [
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George Rose Smith, Justice.
This is primarily a dispute between two finance companies about their security intérests in a dragline that was sold on credit by Southland Tractors, Inc., to the appellee J. T. Arnold, III. Both security agreements held by the rival finance companies are defective, that of Bankers Commercial Corporation not having met the filing requirements of the Uniform Commercial Code and that of General Electric Credit Corporation being a forgery. This is an appeal by GECC from a judgment holding that Bankers alone has a valid security interest in the dragline. Arnold, the debtor, cross appeals upon another issue.
On April 13, 1966, Southland sold the dragline to Arnold for $33,850.04. The contract of sale was in the form of a three-year lease which recited that Arnold had paid $5,000 as advance rental and would pay the remainder in 36 equal monthly installments. Arnold was given the option of purchasing the dragline at any time during the term of the lease by paying the $33,850.04, less the total amount of rents already paid. Under the Code teuch a lease is treated as a security agreement. Ark. Stat. Ann. § 85-1-201 (37) (Add. 1961).
On the same day Southland (a) duly filed a financing statement showing itself as the creditor and Arnold as the debtor and (b) assigned the lease contract .to Bankers for a cash consideration of more than $24,000.00. Bankers did not file anything to show its security interest; so Southland continued as the creditor of record.
About three months later Southland informed Arnold that it had arranged to refinance the debt with General Electric Credit Corporation. The identity of the creditor made no difference to Arnold, who readily signed another financing statement showing GE'CC' as the creditor. Southland then forged Arnold’s signature to a three-year lease, similar to the one held by Bankers, and assigned it to GECC. In that transaction GECC, whose manager realized that Southland was having fi nancial troubles, paid Southland $4,107.06 in cash and credited delinquent Southland accounts with $20,091.94. GECC’s manager had talked with Arnold by telephone to be sure that he had the dragline and that he understood the gross amount due and the size of the monthly payments. Neither Southland nor Arnold mentioned the outstanding contract with Bankers; so GECC’s manager (who had checked the financing statement of record) did not realize that Bankers had a security interest in the dragline. At GEGC’s request Southland terminated the earlier financing statement, as authorized by the Code. Section 85-9-404. Southland soon went into bankruptcy.
Arnold assumed that the debt had been refinanced, but he soon received demands for payment from both Bankers and GECC. Since that time Arnold has consistently taken the position that he will make his payments when he learns, which creditor is entitled to the money.
This action to replevy the dragline was brought by GECC against Arnold. Bankers intervened to assert its claim. The trial court, sitting* without a jury, upheld Bankers’s security interest, permitted it to accelerate the maturity of its entire claim, and ordered the property sold as in a foreclosure suit. The order of sale was superseded by GEC'C pending the appeal.
Upon the main dispute the trial court’s decision was right. Bankers holds a valid security agreement, admittedly signed by Arnold. Bankers’s failure to file any notice of its creditorship might have allowed later valid claims to take priority, but as between the two of them Bankers has an enforceable cause of action against Arnold.
By contrast, the only genuine instrument held by GECC is its financing statement. A financing statement, standing alone, does not create a security interest in the debtor’s property. It merely serves notice that the named creditor may have a security interest... Section .85-9-402, Comment 2; Meek, “Secured Transactions Under the Uniform Commercial Code," 18 Ark. L. Rev. 30, 40 (1964). Of course the forged lease assigned by South-land to GECC had no effect upon Arnold’s interest in the dragline. Hall v. Mitchell, 175 Ark. 641, 1 S. W. 2d 59 (1927).
Counsel for GECC insist that Bankers and Arnold have estopped themselves from contesting the GECC claim: Bankers by its failure to perfect its security interest and Arnold by his failure to mention the Bankers contract during his conversation with GEC'C’s manager. We need not speculate whether such an estoppel would run counter to the Code requirement that security agreements be in writing. Section 85-9-203. If Bankers was at fault in failing to file notice, GECC was also at fault in accepting the lease from, an assignor of doubtful solvency without verifying Arnold’s signature. Arnold’s good faith was attested by his own testimony. The issues of estoppel narrow down to disputed questions of fact, upon Avhieh there is ample substantial evidence to support the circuit court’s judgment.
On cross appeal Arnold is entitled to relief. Both GECC and Bankers sought to accelerate the maturity of their total claims, but their failure to reserve that power-in the contracts precluded them from exercising it. Farnsworth v. Hoover, 66 Ark. 367, 50 S. W. 865 (1899). At best Bankers may be entitled to damages resulting from Arnold’s failure to make his payments when due —the measure of such damages presumably being interest at the legal rate and certainly not being the rents to accrue during the remaining life of the lease.
Affirmed on direct appeal; reversed on cross appeal and remanded for further proceedings. | [
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Conley Byrd, Justice.
From a jury award of $4,278 as the just compensation due appellees Lillian and Nettie Howell for the taking of a 2.5-acre tract along the east side of 119 acres owned by them adjacent to the city of Paragould, appellant Arkansas Louisiana Gas Company brings this appeal, alleging as reversible error the following points:
I. The court erred in admitting unrecorded plats into evidence, and other instruments referring to an unrecorded plat.
II. The court erred in not permitting a continuance on appellant’s plea of surprise, or permitting the pleadings to be amended to conform with the proof.
III. The court erred by permitting speculative arbitrary and. fictitious testimony with reference to damage, and by failing to strike the testimony of witness Dennis T. Jarrett and Johnny A. Knight except for lands within right-of-way.
IV. The court instructed the jury erroneously as to the measure of damage to real property..
V. The verdict is excessive.
I.
On the issue of the unrecorded plat, the testimony showed that appellees’ 119 acres was south of and adjacent to the city of Paragould. A portion of the property was actually within the city limits. The northeast corner of their property abutted the southernmost terminus of Seventh Street, a north-south through street. Ap-pellees contended that since the 2.5-acre easement took the portion of the property abutting the southernmost terminus of Seventh Street, a subdivider would have to make a 24-foot jog in Seventh Street to reach the property, and that as a result of this jog or access the 39.29 acres ready for residential subdivision was damaged. A portion of the property 241.2 feet east and west by 135 feet north and south had been sold prior to the eminent domain action by a metes and bounds description with this addendum:
‘ • . . . which property is also described as Lots 1, 2 and 3 of ‘Block A of Howell’s Second Addition according to an unrecorded plat of Howell’s Second Addition, which Plat was prepared by Knight Laird and dated December, 1963.”
The unrecorded plat introduced into evidence is totally irrelevant to any of the issues involved. All the witnesses recognized that the portion of the property covered by the plat was suitable and ready for residential subdivision. All testimony treated the area on an acreage basis for valuation purposes.
Appellant contends that under Arkansas State Highway Comm’n v. Parks, 240, Ark. 719, 401 S.W. 2d 732 (1966), the introduction of the unrecorded plat constituted reversible error. With this we are unable to agree, for the record fails to show how or by what means or even innuendo the plat was used to measure the property owners’ damages. Since appellant’s own witnesses stated that the highest and best nse of the land included in the plat was for residential subdivision, and no attempt was made to evaluate damages on a per lot basis instead of a raw acreage basis, we can find no prejudice in the admission of the unrecorded plat and consequently hold the admission thereof to be harmless error.
II.
On the motion for continuance and the motion to amend the pleadings to conform to the proof, the record shows that the trial began on March 16, 1967, and that the testimony was concluded at 4:25 p. m., whereupon the court excused the jury until the next morning at 9:30. When court reconvened the next dav, appellant made a motion for continuance to give it time to locate its franchise agreement with the city of Paragould, and a motion to amend the pleadings to conform to the proof, whereby appellant would release from the eminent domain action a portion of tbe property on which the transmission line had not been constructed. Of course both motions were addressed to the sound discretion of the trial court, Norton & Wheeler Stave Co. v. Wright, 194 Ark. 115. 106 S.W. 2d 178 (1937), and Ark. Stat. Ann § 27-1160 (Repl. 1962), and we are unable to find any abuse of such discretion here.
III.
Appellant here contends that there is no substantial or proper evidence to sustain the damages assessed to the before and after value of the 39.29-acre tract. In particular, it stresses that witness Jarrett took 5 per cent from the before value to arrive at the after value. In this connection there is substantial evidence from, which the jury could find that the access to the property had been impaired, and on the whole record we are unable to say that there was no reasonable basis for the witness’s opinion as to the damages he assigned to the tract. The record shows no evidence of comparable sales with a similar impaired access.
IY.
The objection here is to the court’s instruction to the jury that the landowners were entitled to recover for the full market value of the 2.5 acres of land within the easement and in addition to recover damages, if any, to the remaining lands caused by the taking. In Arkansas Louisiana Gas Co. v. Burkley, 242 Ark. 662, 416. S. W. 2d 263 (1967), we pointed out that a corporation authorized to condemn land under our Constitution (article 12, § 9) is not entitled to deduct benefits to the landowner from the award to be given for the taking. Consequently, we hold that, when a private corporation takes property through the process of eminent domain, damages are properly awarded on the basis of the full fair market value for the easement taken, plus any damage occurring to the remainder of the property. Therefore it follows that the instruction of the court was proper.
V.
It is contended that the jury’s award jwas excessive. However, there is little discrepancy between the market values per acre for the 2.5-acre easement testified to by appellant’s witnesses and those of the landowners. Actually, this argument gets hack to the issue of whether or not the jog in the road constituted an impairment of the access, hut as we have already indicated, this was an issue for the jury and we are unwilling to say that the verdict is excessive.
Affirmed.
Harris, C. J., and BrowN, J., dissent.
FoglemaN, J., disqualified. | [
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John A. Fogleman, Justice.
Appellant seeks reversal of a judgment in favor of appellees for an alleged excessive amount exacted of appellees by it in connection with a transaction which appellees had contended was a usurious loan. Appellees contend that they borrowed $65,000 from appellant to enable them to purchase certain stock of Management Investment Corporation, a Missouri corporation of which they were the president and secretary respectively, and that this corporation in turn, owned all of the stock of Liberty Reserve Life Insurance Company. Appellees contend, that the loan was made on December 2, 1959, and by the terms of the loan agreement, they were required to repay $82,400 six months later which sum, they say, they borrowed from one Harold R. Smith in order to obtain release of the collateral. On the other hand, appellant contends that it purchased from appellee Hruska a negotiable note of Management Investment Corporation for $80,000 at a discount. Appellant further contends that Harold R. Smith purchased the note from it on June 2, 1960, along with collateral therefor, consisting of all of the stock of Management Investment Corporation and of Liberty Reserve Life Insurance Company, for a consideration of $82,000.
Suit was filed by appellee Hruska against appellant for the recovery of $17,400, alleged to be the interest he was required to pay in excess of the rate permitted by law. Eventually the case was tried, and upon a jury verdict on September 18, 1967, the court rendered its judgment in favor of appellees for the sum of $14,-800 with interest thereon from June 9, 1960.
In the interim between the filing of the complaint and trial, appellant filed a request for admissions, which was answered by appellees. They admitted that the note involved was for $80,000 and was executed by Management Investment Corporation and appellee Hruska; that it was not payable to appellant; and that it was the obligation of the corporation, along with appellees.
Subsequent to the filing of the response to the request for admissions, appellant filed a motion for summary judgment. This motion was based upon the pleadings and the answers to its request for admissions. Appellant contended that it was clear that it had purchased a note of Management Investment Corporation from Hruska at a discount and that the transaction did not constitute a loan and was not usurious. On the same date this motion was filed, appellees were granted leave to amend their complaint and filed a copy of the note. This copy revealed that the note bore a dateline at Baton Rouge, Louisiana, and was payable to “itself.” The name of the corporation was signed by Robert J. Hrus-ka, president. On the reverse side, endorsements of the corporation by Hruska as president and by Hruska individually appeared under a printed guaranty in favor of Fidelity National Bank of Baton Rouge, upon whose form the note was prepared and whose name as payee was stricken out. In the amended complaint, on which the case was ultimately tried, appellees alleged: that Management Investment Corporation owned all the stock of Liberty Reserve Life Insurance Company; that appellees owned a large portion of the capital stock of Management Investment and desired to purchase the balance of the outstanding stock; that on November 24, 1959, appellant obtained a Louisiana bank cashier’s check for $65,000 payable to the order of appellees and one Earl Shelton; that on December 1959, in Kansas City, Missouri, appellant agreed to loan this amount to appellees on condition that they pledge all of the stock of Management Investment Corporation as security and that a note for $80,000 bearing 6 pet. interest and endorsed by this corporation and Hruska individually be executed; that appellees paid appellant $82,400 on this note on June 1, 1960; that this amount was $14,800 in excess of the legal rate of interest. Thereafter, the cause was transferred to the Chancery Court of Baxter County, where the motion for summary judgment was denied and appellant required to plead to the amended complaint. The cause was then retransferred to Baxter Circuit Court where the motion for summary judgment was renewed and denied.
In response to interrogatories by appellees, appellant stated that on December 2, 1959, it purchased this note, which it claimed was alleged to be the property of Hruska, and paid $65,000 for it in Baton Rouge, Louisiana, with a check payable to appellees and Earl Shelton.
When the case was called for trial, appellant again renewed its motion for a summary judgment which was again denied. After the verdict, appellant moved for judgment notwithstanding the verdict, on the grounds that it was not supported by sufficient evidence.
Appellant lists four points for reversal which we will treat in the order asserted.
I.
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR SUMMARY JUDGMENT.
Appellant cites no authority in support of its position that it was entitled to judgment as a matter of law. We do not consider this point meritorious, however, because a trial on the merits was had after the repeated denials of the motion. It has been held that the denial of a summary judgment is not reviewable where the denial is followed by a trial on the merits. See Bell v. Harmon, 284 S. W. 2d 812 (Ky. 1955). We deem this to be an appropriate rule. We have pointed out that, in some respects at least, treatment of motions for summary judgment should be similar to that accorded motions for directed verdicts. Russell v. Rogers, 236 Ark. 713, 368 S. W. 2d 89. See, also, 6 Moore’s Federal Practice § 56.04[2] p. 2006. A motion for directed verdict at the conclusion of a plaintiff’s proof will not be considered on appeal where the defendant has thereafter offered evidence. Lytal v. Crank, 240 Ark. 433, 399 S. W. 2d 670. The obvious reason for this rule is that deficiencies in the evidence at that stage of the proceedings may well be supplied by evidence. Grooms v. Neff Harness Co., 79 Ark. 401, 407, 96 S. W. 135, 137; Fort Smith Cotton Oil Co. v. Swift & Company, 197 Ark. 594, 124 S. W. 2d 1. For the same reason, a final judgment should be tested upon the record as it exists at the time it is rendered rather than at the time the motion for summary judgment is denied.
II.
THE TRIAL COURT ERRED IN ADMISSION OF TESTIMONY WHICH WAS IRRELEVANT AND IMMATERIAL AND TENDED TO PREJUDICE THE JURY AGAINST THE APPELLANT.
Appellant contends that testimony of appellees, concerning an automobile driven by an officer of appellant and attendance of appellees at a football game as guests of officers of appellant, was irrelevant and immaterial and prejudicial in that the jury was led thereby to believe that appellant was a large, affluent company that “broke appellees’ company.”
Upon being asked if they were met in New Orleans by one Robert Love, prior to the transaction between the parties, Hruska replied that they were “with Mr. Moore’s Continental Lincoln.” He described the car as being equipped with a television. No objection was made to this testimony. Later appellant’s own attorney examined Menas about the type of automobile and the outcome of the football game. After Hruska had told of being taken to a country club where they met com pany officials for lunch and later of being taken by them to a football game, an objection that this testimony was immaterial and irrelevant was overruled'. Hruska then testified that discussions about the transaction were carried on intermittently during lunch and at the football game and thereafter at dinner at the country club. Inasmuch as the principal issue in the case was whether appellant made a loan to appellees secured by Mortgage Investment Corporation’s note and the pledge of stock, or whether appellant simply bought a note of Mortgage Investment at a discount, any and all negotiations leading up to the transaction were proper subjects of inquiry. Appellant suggests that since there was a written instrument, i. e., the note, this testimony was neither relevant nor material. We have long held that parol evidence is admissible for the purpose of showing the usurious nature of a transaction even though it might have a tendency to vary a written document. Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516; Heidelberg Southern Sales Co. v. Tudor, 229 Ark. 500, 316 S. W. 2d 716. This court has long taken the position that any evidence tending to show that the substance of a transaction was a scheme to evade usury laws, regardless of the. form thereof, should he admitted. Home Building & Savings Association v. Shotwell, 183 Ark. 750, 38 S. W. 2d 552. In 1886, in the case of Tillar v. Cleveland, supra, this court said:
“ * * * It would he strange if, upon the trial of such an issue, a court could not hear proof of all matters which throw light upon the situation and conduct of the parties, and the motives which influenced them.”
There has been no deviation from that idea since that time. We find no error here.
III.
THE VERDICT OF THE JURY IS CONTRARY TO A PREPONDERANCE OF THE EVIDENCE.
Appellant argues that there is no substantial evidence to support the theory that the transaction between the parties was actually a loan of $65,000 by appellant to appellees instead of a sale of a note by Hruska to appellant. Hruska testified substantially as follows: Menas brought Earl Shelton to discuss their need for money. Shelton claimed to be an actuary and consultant for American Physician’s Insurance Company and said he was in Missouri looking for a company for reinsurance and for the purpose of getting appellant into Missouri. Shelton expressed the thought that his company would make a loan to appellees. Pursuant to a tentative agreement with Shelton, appellees flew to New Orleans where they were met by a man named Love, who claimed to be assistant secretary of appellant. Love drove them to the home offices of appellant at Baton Rouge where they were met by E. P. Moore, executive vice president, one Avery, secretary, and Shelton. The loan was discussed along with the possibility that Liberty Reserve Insurance Company could reinsure risks if Hruska controlled both it and Mortgage Investment. This would permit appellant to write business in Missouri on a coinsurance or reinsurance agreement. They discussed the fact that the money was to be used by appellees to purchase the stock of two other stockholders in order that they might control both companies. Appellees asked for a loan for a year but appellant would only allow six months. These officers agreed to loan $65,000’ for six months at 6% interest. Appellees were returned to New Orleans in a company car and flew back to Kansas City on November 22, 1965. December 2 was the last day on which appellees could exercise their option to buy the stock. Shelton appeared in Kansas City on December 1st with a cashier’s check for $65,000 payable to appellees and Shelton. Shelton then demanded a “lug” of $15,000 and other concessions about the operation of the company and delivered an ultimatum that the demands would be met or there would be no mbney. Hruska refused on that day but felt compelled to accept the terms the next day. Shelton then drew up the papers which appellees signed and took the note and other papers and the stock of both the investment company and insurance company to Baton Rouge after delivering the check. When the note was due, appellees borrowed $83,-000 from one H. R. Smith, $82,400 of which was used to repay appellant. Management Investment Company had no reason to give him a note, but the corporation authorized the execution of the note.
The testimony of Menas was largely corroborative of that of Hruska. He said that when appellees did not accept the terms communicated by Shelton, they tried unsuccessfully overnight to get the money from other sources. He also said that there was no meeting of the board of directors of Mortgage Investment Corporation on either December 1st or 2nd.
This was sufficient evidence to support a finding that the real transaction was a loan by appellant to ap-pellees at a usurious rate of interest. This court said in Sparks v. Robinson, 66 Ark. 460, 51 S. W. 460:
“* * * The law shells the covering and extracts the kernel. Names amount to nothing, when they fail to designate the facts. We are of the opinion that the court was justified in concluding that the papers called bill of sale and sales tickets were nothing more or less than a shift for a usurious loan of money. ’ ’
A note payable to the order of the maker and. endorsed by him is void for usury when the difference in the consideration for the first negotiation and the face amount is more than the legal interest for the period between the date of negotiation and the date of maturity, if the parties to the loan intended to pay and receive a greater rate of interest than the legal rate. German Bank v. DeShon, 41 Ark. 331. Whether a particular transaction constitutes a loan or a bona fide purchase and discount is a jury question where the evidence is conflicting. Sallee v. Security Bank & Trust Co., 119 Ark. 484, 177 S. W. 1133. The Missouri law on this point seems virtually identical to that of Arkansas. It has been held there that a bona fide sale of notes, however great the discount, is not usurious, but where there is no sale in good faith but a mere loan, the fact that the note is made to one who, acting as a conduit, endorses it over to a third person who advances the money, knowing of the facts surrounding the execution, the procedure will not be sufficient to evade the usury laws. Anderson v. Curls, 309 S. W. 2d 692 (Mo. App. 1958). See, also, Quinn v. Van Raalte, 276 Mo. 71, 205 S. W. 59 (1918).
Appellant contends that since the note bears a Baton Rouge dateline, the Louisiana law should be applied. While there was conflict in the testimony and a finding that the note was executed in Louisiana might well have had adequate evidentiary support, Louisiana law cannot be applied in this case in any event for reasons hereinafter stated.
Appellant also suggests that the testimony of Hrus-ka is not substantial because of contradictory conclusions that may be found from his testimony and exhibits thereto. It is sufficient to say that his credibility and the weight to be given his testimony were proper matters for jury determination and have been resolved.
IV.
THE COURT ERRED IN ITS INSTRUCTIONS TO THE JURY AS TO WHICH LAW APPLIED.
Appellant’s attorney stated at the conclusion of all the evidence that appellant still contended that the law of Louisiana applied. Appellees then asked to be permitted to produce evidence as to the Missouri law and appellant’s counsel responded that the transaction ac-' tually took place in Louisiana. The court gave instructions based on Missouri law. No objection was made by appellant to any instruction. There is no reversible er ror on the part of the court in this action, for two reasons. In the first place, an instruction cannot he questioned on appeal in the absence of an objection. Ransom v. Weisharr, 236 Ark. 898, 370 S. W. 2d 598. Secondly, we cannot consider this contention because the Uniform Interstate & International Procedure Act requires that a party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this state must give notice in his pleading or other reasonable written notice. Ark. Stat. Ann. § 27-2504 (Supp. 1967). No such notice was given by appellant, even though all of its pleadings except an objection to process were filed after the effective date of the act. On the other hand, appellees pleaded Missouri law in their amended complaint. Although appellant denied the allegation with reference to the Missouri statute, there is no written notice of its reliance on Louisiana law. This requirement is a very useful and wise one. It is only fair that both the adversary and the trial court be advised of a party’s contention as to the applicable law where any question may arise. This should, be done in a manner so that the contention is clear before' the trial is undertaken and so that the appellate court can ascertain from the record that it was done.
CROSS-APPEAL
The trial court denied appellees’ motion for a reasonable attorney’s fee, from which appellees have taken a cross-appeal. The applicable Missouri statute provides that any person violating the act shall be subject to be sued for all sums of money paid in excess of the principal and legal rate of interest on any usurious loan “and shall be adjudged to pay the costs of the suit, including a reasonable attorney’s fee to be determined by the court. ’ ’ It seems clear that under the language of this statute, attorney’s fees are to be allowed as costs. See, also, Bruegge v. State Bank of Wellston, 74 S. W. 2d 835 (Mo. 1934). While appellees contend that in Missouri this is a matter of substantive, not procedural law, this is a matter for determination nnder Arkansas law and by Arkansas eonrts. St. Louis-San Francisco Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 31. See Leflar, Conflict of Laws (Student’s Edition, 1959) § 60, p. 110; 15A C. J. S. Conflict of Laws § 22(1), p. 527. The items of, and rig'hts to, costs are procedural and governed by the law of the forum. Bank v. Davidson, 18 Ore. 57, 22 Pac. 517 (1889); Security Co. of Hartford v. Eyer, 36 Neb. 507, 54 N. W. 838 (1893); Conte v. Flota Mercante Del Estado, 277 F. 2d 664 (2d Cir. 1960).
The right to costs is entirely dependent on statute in a case at law. Arkansas State Game & Fish Comm. v. Kizer, 222 Ark. 673, 262 S. W. 2d 265, 38 ALR 2d 1372; Grayson v. Arrington, 225 Ark. 922, 286 S. W. 2d 501; Arkansas State Highway Comm. v. Union Planters Nat'l Bank, 231 Ark. 907, 333 S. W. 2d 904. Attorney’s fees cannot be allowed as costs in suits except as provided by statutes. American Exchange Trust Co. v. Truman Special School Dist., 183 Ark. 1041, 40 S. W. 2d 770. We have held that entitlement to attorney’s fees on a suit brought in Arkansas on an insurance policy is a procedural matter and governed by Arkansas law. New Empire Life Ins. Co. v. Bowling, 241 Ark. 1051, 411 S. W. 2d 863. We find no Arkansas statute under which attorney’s fees might be allowed in a case such as this.
If the. statute providing for attorney’s fees is not to be considered as an allowance of costs, then it is a penal statute without extraterritorial effect and unenforceable in Arkansas. Arden Lumber Co. v. Henderson Iron Works & Supply Co., 83 Ark. 240, 103 S. W. 185; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208.
The judgment is affirmed on appeal and cross-appeal.
Menas became a party after the filing of the original complaint. | [
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J. Fred Jones, Justice.
This is an appeal by Old American Life Insurance Company from an adverse judgment of the Pulaski County Circuit Court in favor of Mrs. Dorcas Taylor, who was the plaintiff in the trial court.
On June 12, 1964, Southern Union Life Insurance Company issued a family group hospital and surgical benefit policy to the appellee, Mrs. Dorcas Taylor, and among other benefits the policy provided for payment for accidental injury resulting in death of any of the named insureds. Old American Life Insurance C'ompany assumed all the obligations of Southern Union to the holders of policies issued by Southern Union. James Taylor, one of the named insureds in the policy issued to his mother, Mrs. Taylor, sustained an accidental injury resulting in his death, and Mrs. Taylor filed claim for $2,000 under the policy. Old American paid $1,000 as the full amount due under the policy, and Mrs. Taylor, filed suit for $1,000, together with' interest, penalty, costs, and attorney’s fee. A trial before the judge, sitting as a jury, resulted in total judgment of $1,557 in favor of Mrs. Taylor and on appeal to this court Old American relies upon the following points for reversal:
“The evidence was insufficient to sustain the judgment of the court.
“The trial judge should not have considered opinion testimony. ’ ’
Only a fact question is actually presented in this case and that question concerns the validity of an addi tional provision added, in red type, to the face of the policy, as follows:
“All the benefits of this policy, with the exception of the daily room benefits shall be payable at the rate of 200% of the stated amounts.”
The appellant contends that this provision was a forgery, so the question boils down to whether this provision was in the policy when it was issued or whether it was added to the policy after the policy was issued.
The appellee, Mrs. Taylor, testified that her husband purchased the policy through an agent by the name of Delbert Standridge; that the policy was received through the mail and that the provision typed in red was on the policy when it was received. Mr. Taylor testified that he purchased the policy from Mr. Standridge who was part owner of a general insurance agency; that the policy was delivered through the mail; that it is now in exactly the same condition as it was when received, and that it has not been changed.
The evidence submitted by the appellee was heard by the court on June 2, 1967, and it was agreed that the remainder of the evidence would be heard on June 17. On June 17 appellant presented its evidence, and Mr. Kelly, former vice president and part owner of Southern Union Insurance Company testified that the policy was sold by Delbert E. Standridge as a writing agent and who is now in California; that T. Gr. Tubb of Beebe was president of Southern Union, that he saw Tubb a couple of weeks ago down town but has no personal knowledge of whether Tubb is in the state. Mr. Kelly testified that the portion of the policy typed in red is not a normal provision of policies issued by Southern Union and stated: “We don’t issue policies like this. We didn’t put this on there.” Mr. Kelly testified that Mr. Standridge was a general agent; that Miss Dutchy Wilson, the receptionist and secretary in the home office of Southern Union, ordinarily did the necessary typing on insurance policies, and that he is not sure where she is now unless she is at home. At page 35 of the transcript, Mr. Kelly testified as follows:
“A. Of course we keep a copy of the policy.
Q. Where is that?
A. Where is a copy of the policy?
Q. Yes, sir.
A. In the file.
Q. Whose file ?
A. Old American.”
Appellant did not offer the testimony of agent Standridge who sold the policy, nor the testimony of Miss Wilson who ordinarily did the typing on the policies. Neither did appellant offer in evidence the office file copy of the original policy or attempt to explain its failure to do so. We conclude that there was substantial evidence to sustain the’judgment of the trial court.
Some attempt was made on direct examination of the appellee as a witness at the trial, to qualify her as an expert on typing; on cross-examination she was questioned concerning her qualifications as an expert on typewriters, but the testimony elicited from her was not such testimony that would be confined to the knowledge of an expert in either field. On direct examination ap-pellee testified that when a piece of paper has been typed on and removed from a typewriter, it is difficult to return the paper to the machine and obtain proper alignment of margins and spacing between the lines; that the typing in question on the policy involved, seemed to her to have the proper margin alignment and the proper spacing between the lines. On cross-examination the appellee testified that the typewriter used had pica rather than elite type.
The knowledge revealed by the testimony of appel-lee as to the marginal alignment, spacing of lines, and pica rather than elite type on the typewriter used in preparing the policy, was knowledge common and well known to anyone who has ever used a typewriter and there is nothing in the record to indicate that the trial court gave any more weight to appellee’s opinion as to the alignment of margins and spacing of the lines than he did to his own observation from examination of the policy, so we conclude that the trial court did not err in overruling appellant’s motion to strike this testimony.
After the appellant had rested in the trial of this case, the appellee offered evidence in rebuttal that has given us considerable concern, especially in the light of our recent decision of Rushton v. First National Bank of Magnolia, 244 Arkansas Reports (Advance Sheets), opinion delivered April 1, 1968.
As rebuttal testimony, the attorney, who had conducted the trial for the plaintiff throughout the case, took the witness stand and under examination by another member of his firm, testified as a witness for their client. The testimony will not be set out in detail since no argument has been directed to it on this appeal, but the substance of this .rebuttal testimony was to the effect that the attorney had taken the insurance policy to the office of the appellant and that the officers of the appellant company had admitted owing the full amount of the $2,000.00 claimed by the appellee; and that they and their office employees were more or less apologetic for their error in not having already paid it. No objection was made by appellant to the offer of this testimony, and unlike the RusMon case, supra, the witnesses were not under the rule in the case at bar, nevertheless, we reiterate the admonition laid down in the RusMon case against an attorney testifying for his client in a case he is trying.
We conclude that there was substantial competent evidence to sustain the judgment of the trial court and that the judgment should he affirmed.
Affirmed. | [
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Paul Ward, Justice.
Callie L. Webb, appellant, was injured when she stepped on a grease spot on a board walkway. The walkway ran along the west side of, and was attached to, a building owned by Sonneman Trusts and in which Tom Pearson Jr. and Guy Pinkerton (also lessees) operate “Razorback Bowling Lanes” — all ap-pellees.
Appellant filed a complaint alleging, in essence, that: she slipped on a patch of grease, foreign to a public sidewalk, and fell, causing severe injuries; that defendants, being in complete control of the sidewalk, are guilty of negligence, viz, (a) in allowing the grease to be on the public sidewalk, (b) allowing the grease to remain on the sidewalk more than a reasonable period of time, and (c) allowing this dangerous situation to be created amounts to “wilful, wanton and malicious conduct toward the general public, and more particularly toward the plaintiff”. The prayer was for $28,000.-
To the above complaint appellees entered a general denial, and then filed a Motion for a Summary Judgment.
The matter was presented to the trial judge on affidavits and, in granting the same, he made findings as follows: (1) Appellant was not a trespasser or an invitee, but was a mere licensee; (2) The walkway was on the private property of Sonneman Trusts who owed appellant no duty other than to be free of wilful and wanton misconduct; (3) Since the Razorback Bowling Lanes was only a lessee it owed appellant no duty other than to exercise due care not to do anything to cause her injury after her presence on the premises was discovered. The trial court then held there was no material issue of fact to be resolved, and, by Order, dismissed the complaint. From such Order appellant now prosecutes this appeal.
A review of the testimony, as applied to previous decisions of this Court, convinces us that the findings and the decisions of the trial court must be affirmed.
The essence of the pertinent testimony of appellant is: She asked Mr. Sonneman about a month before the accident for permission to park in the rear of his building, and it was orally granted, and that she paid him nothing; the public has been using the sidewalk for years. The undisputed testimony .of Sonneman is: The walkway in question is a part of his building, located entirely on private property and is not now and never has been a public walkway.
It is clear, from the undisputed portion of the record,- that appellant, when injured, was on the private property of Sonneman Trusts and, this being true, she was a licensee. In the case of Knight v. Farmers’ & Merchants’ Gin Company, 159 Ark. 423, 252 S. W. 30, the rule is stated in these words:
“In all of our decisions on the subject — and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes the license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause his injury after his presence there is discovered.”
The above quotation was copied and approved in Garrett v. Arkansas Power & Light Company, 218 Ark. 575 (p. 586), 237 S. W. 2d 895.
In this case there is no evidence nor even any contention that appellant was injured because of any wilful or wanton negligence on the part of either of the appellees. In Cato v. St. Louis Southwestern Railway Company, 190 Ark. 231 (p. 233), 79 S. W. 2d 62, there appears the following pertinent statement:
“'Whether he be called a trespasser or licensee, the same rule of law applies, and that is that the only duty owing to him was not to wilfully or wantonly injure him and to exercise ordinary care under the circumstances to avoid injury to him after discovering his peril.”
There is, of course, no contention here by appellant that either, appellee saw her on the walkway before she was injured.
Affirmed.
F0GLEMAN, J., concurs. | [
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W. B. Putman, Special Justice.
This litigation involves the priority of liens among a purchase-money mortgage, a construction money mortgage, various mechanics’ and materialmen’s liens and a security agreement involving certain fixtures in thirteen different dwellings.
The defendant Long, a builder, had arranged for financing with Modern American Mortgage Company for approximately forty residences to be constructed primarily in Beverly Hills Addition to the City of Little Rock, Arkansas. On each lot purchased by Long, purchase-money mortgages were given in amounts varying from $2,750.00 to $3,200.00, and in addition, separate construction money mortgages in the amount of $10,-000.00 were given on each lot. Both the purchase and construction money mortgages and the notes which they secured were subsequently assigned in trust to the appellant, A. F. House. Construction was not begun until these mortgages were placed of record.
On ten of the thirteen residences in question, arrangements were made to disburse the proceeds of the construction money loans through Beach Abstract and Guaranty Company. Disbursements on the other three were through Standard Title Company. The procedure established required Long to submit to the disbursing agent each week a list of the laborers, mechanics and materialmen who were entitled to payment and the amounts thereof on each house. An officer of Modern American would then inspect the premises to determine whether construction had progressed sufficiently to justify the requested disbursement. If so, funds would he sent to the disbursing agent, and Long would execute a separate note for each disbursement. Individual checks would be issued to each laborer, mechanic or material-man in the amount shown on the list and delivered to them by Long.
Cross-appellant, Arkansas Louisiana Gras Company, had entered into a separate contract with Long to sell a heating and air-conditioning unit, a cooling tower, a kitchen range and oven and to install the duct work in each house. A blanket security agreement was executed on November 30, 1964, but was never recorded. Security agreements on individual lots were also executed as the goods were delivered, but these also were not recorded. It was not until December 27, 1965, approximately two months after construction had ceased and Long’s insolvency was generally known, that additional security agreements were executed and recorded.
The chancellor held that the language of the construction money mortgages did not unqualifiedly commit the mortgagee to make the advances so as to afford it priority over the mechanics’ and materialmen’s liens. He further held that the transaction between Arkansas Louisiana Gas Company and Long created a purchase-money security interest in collateral other than inventory which was not perfected within ten days after the debtor received possession as required by Ark. Stats. 85-9-312 (4) (Repl. 1961) in order to give it priority over conflicting security interests.
Accordingly, the chancellor established the priorities in the following order: (1) Purchase-money mortgage; (2) mechanics’ and materiálmen’s liens; (3) construction money mortgage; (4) the security interest of Arkansas Louisiana Gas 'Company. From this decree, A. F. Honse, Trustee, and Arkansas Louisiana Gas Company have appealed.
The pertinent language in each of the thirteen construction money mortgages in question is as follows:
“Grantee agrees that the acceptance and recordation of this mortgage hinds grantee, its successors and assigns absolutely and unconditionally to make said loans and advances. Such advances will be made as requested by grantor as such work progresses.”
It was the view of the trial court that this language was insufficient under our decisions requiring such a recitation to leave the mortgagee no option in the matter of making advances. See Lyman. Lamb Co. v. Union Bank of Benton, 237 Ark. 629, 374 S. W. 2d 820, and that the conduct of the parties left it to the discretion of the lender whether to make such advances. We are unable to agree with this conclusion.
The provision plainly recites that upon acceptance and recordation of the mortgage, the grantee (mortgagee) is “absolutely” and “unconditionally” bound to make the advances. Had the recitation stopped at the end of the first sentence, we presume there would have been no quarrel with’ it. If, therefore, there is any deficiency in the provision, it must be created by the last sentence which provides that “such advances will be made as requested by the grantor as such work progresses.” We do not believe that this language grants the mortgagee any option in the matter. On the contrary, whatever options there are rest with the mortgagor. If he causes the work to progress and requests the advances, the mortgagee has no choice other than to make them.
There is no necessary vice in a disbursement procedure keyed to the progress of construction. In Ash down Hardware Co. v. Hughes, 223 Ark. 541, 267 S. W. 2d 294, the construction money mortgage provided for advances to be made upon completion of each of a series of tourist cabins. Tbe unconditional nature of the commitment was sustained when attacked by a material-men’s lien holder seeking priority.
The precise language in question here was approved in Planters Lumber Co. v. Wilson, 241 Ark. 1005, 413 S. W. 2d 55, a case decided after the entry of the decree from which this appeal was taken. Although in that case the principal question was the priority of a construction money mortgage to the extent that funds secured by it were withheld as payment for the lot and for interest, this Court stated that the language of the mortgage absolutely and unconditionally bound the mortgagee to make advances as the work progressed.
We hold that the language in the construction money mortgages unconditionally required Modem American to make advances to Long and that they should take priority over the mechanics’ and material-men’s liens.
Arkansas Louisiana Gras Company has filed a cross-appeal asserting that the chancellor did not accord it the priority to which it is entitled. We believe this point is well taken. The trial court held that Ark. Stats. 85-9-312 (Repl. 1961), dealing with priorities among conflicting security interests in the same collateral, was determinative of the rights of Arkansas Louisiana Gas Company. It was, however, stipulated that the kitchen range and oven were fixtures, and the chancellor held that the heating-air-conditioning units and cooling towers became fixtures when installed. We are of the opinion that under these circumstances, the applicable statute is 85-9-313 which is the provision of the Uniform Commercial Code designed to establish priority of security interests in fixtures. The appropriate provisions of that statute are as follows:
“(2) A security interest which attaches to goods before they become fixtures takes priority as to the goods over the claims of all persons who have an interest in the real estate except as stated in subsection (4).
“(4) The security interests described in subsections (2) and (3) do not take priority over
“(c) a creditor with a prior encumbrance of record on the real estate to the extent that he made subsequent advances if . . . the subsequent advance under the prior encumbrance is made or contracted for without knowledge of the security interest and before it is perfected.”
Under this statute if Arkansas Louisiana’s security interest in the goods, although not yet perfected, attached to the goods before they became fixtures, it would take priority, as to the goods only, over the prior recorded mortgages to the extent that advances were made under these mortgages before the goods were affixed to the realty.
Ark. Stat. 85-9-204 (1) provides that a security interest attaches when there is an agreement that it attach and value is given and the debtor has rights in the collateral. The chancellor found that as between Arkansas Louisiana and Long, the security interest attached before the goods became fixtures.
All of the purchase money had been advanced before the goods became fixtures, and it is apparent from the record that some construction funds were advanced before and some were advanced afterward. In order to establish the extent to which Arkansas Louisiana is entitled to priority as to its goods which became fixtures, it will be necessary to determine in each case how much money had been advanced under the construction money mortgages before the goods became fixtures and how much was advanced thereafter.
It is likewise our holding that the materialmen’s liens will take priority over Arkansas Louisiana’s attached but unperfected security interest in the goods only to the extent that labor or material was supplied after the goods became fixtures.
It is argued that this permits a “secret lien” and results in inequities to the other lien holders. The answer to this is that there is no inequity in prohibiting a secured creditor from looking to security other than that upon which he relied when he decided to advance the money. Arkansas Louisiana’s priority of security interests affects only the goods which became fixtures and not the remaining realty and improvements. Ark. Stat. 85-9-313 (5) provides for the removal of the fixtures from the real estate in circumstances of this kind upon the posting of adequate security for the payment of damages resulting from the removal.
Appellant House argues, however, first: That Arkansas Louisiana’s security interest attached at the time of the execution of the blanket security agreement on November 30, 1964, and that all the mortgage funds were advanced after that date; and, second: That this issue was raised by Arkansas Louisiana for the first time on appeal. We consider both of these arguments to be without merit. A security interest cannot attach under Ark. Stat. 85-9-204 (1) until value is given and the debtor has rights in the collateral, and, in any event, it is important only to determine whether the security interest attached before the goods became fixtures. The significant time in determining the extent of priority is the time the goods were affixed to the real property, for it is only after this has been done that a prior mortgagee may be induced to make further advancements by seeing the fixtures in place.
Arkansas Louisiana Gas Company pleaded that its lien was superior to that of appellants and prayed that the Court determine the nature and extent of its rights in the property. We consider this to he sufficient to raise the issue at the trial level.
Appellee Monarch Mill & Lumber Company, a ma-terialmen’s lien holder, argues that the appeal should be dismissed because appellant A. F. House had no beneficial interest in any of the notes and mortgages assigned to him, and cites Ark. Stat. 27-801 which requires every action to he prosecuted in the name of the real party in interest.
It is true that House held only the hare legal title to these instruments, that he gave no consideration for them and that they were assigned to him merely for reasons of convenience. We do not agree, however, that this deprives him of standing to prosecute this action. House held these instruments as an assignee in trust. Ark. Stat. 27-804 provides that the trustee of an express trust may bring an action without joining with him the person for whose benefit it is prosecuted.
One of the primary purposes of “real party in interest” statutes is to prevent defendants from being harassed by different suits arising from the same cause. See Pitts v. Crane, 114 Ore. 593, 236.P. 475. The real party in interest, therefore, is generally considered to .be that person who can discharge the claim on which suit is brought and not necessarily the person ultimately entitled to the benefit of the recovery. There can be little doubt that an adjudication of the rights of A. F. House as trustee of these notes and mortgages will be equally binding on his assignor, Modern American Mortgage Company.
The cases cited by Monarch, holding that in a suit to foreclose a deed of trust both the trustee and the owner of the indebtedness are necessary parties, are distinguishable. When a deed of trust is used as a security device, the trustee holds the security and the beneficiary holds the indebtedness. Clearly they must both be par ties to an action to foreclose the security and satisfy the indebtedness. Snch a split ownership does not exist in this case, however, .poellant House owned legal title to both the notes and the mortgages.
This case must be reversed and remanded for determination of the amounts advanced under each construction money mortgage prior to and after the goods were affixed to the realty in question, for similar determinations in connection with the mechanics’ and ma-terialmen’s liens, and for establishment of priorities of liens on the fixtures and on the remaining real property in accordance with this opinion.
FoglemaN and Byrd, JJ., disqualified.
LeRoy Autrey, Special Justice, joins in the opinion. | [
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Lyle Brown, Justice.
This is a suit brought by the appellants, Walter H. Wright and wife, to establish a boundary line on the south portion of their property, plus other incidental relief. The appellees, Ralph Murr, Jim Donnohue, and Jack E. Brannon, landowners adjoining the Wrights, filed a general denial and pleaded that the cause be dismissed for want of equity. After presentation of the appellants’ case in chief, which consisted solely of Mr. Wright’s testimony and ten pictures as exhibits, the chancellor sustained a demurrer to the plaintiffs’ evidence.
The appellants purchased and took possession of a tract of real estate in Madison County on September 12, 1959. The deed conveyed all the land lying in the SE^4 of the NE14, Sec. 17, Twp. 17 N., R. 26 W. In addition it stated that the land was approximately forty acres. In their complaint the appellants claim title to all lands under fence by adverse possession for more than seven years. In February 1967 Ralph Murr and some helpers moved the fence on the southern boundary. Over the protests of the appellants they ran a new fence along the south end of the land but north of the old fence line.
During the course of the trial Mr. Wright testified to the following material facts: When he bought the land in 1959 it was entirely fenced; he bought “all that was within fence”; it was fenced “hog tight”; he immediately moved on the land and'took possession, claiming up to the fences; and his possession was peaceful and uninterrupted save one incident. In 1963 while cutting timber on the now disputed strip, appellee Jim Donnohue told appellant that the land was Donnohue’s and to stop cutting. Appellant complied. The appellant stated on cross-examination, “I told Jim’s mother that if they were their logs, I’d pay for them. If they were proven to be their logs. ’ ’
Pictures were offered during the trial to establish the old fence line and to show the changes that have since occurred. The exhibits were admitted into evidence without objection.
The question here presented is whether the chancellor erred in sustaining appellees’ demurrer to the evidence. The case of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225 (1950), states the rule as follows:
“What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question may arise either in equity cases, where the chancellor is the arbi ter of the facts, or in cases tried at law without a jury, where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima f acie case. . . The minority view, which permits the trial judge to weigh the evidence is well stated in Porter v. Wilson, 39 Okla. 500, 135 P. 732.”
In Werbe this court adopted the majority view.
The chancellor erred in sustaining the demurrer. The trial court took cognizance of the weakness of appellants’ prima facie case. That fact should not necessarily be fatal. In Werbe the court states, “ . . .in many instances the plaintiff’s prima facie ease must necessarily be somewhat weak, for the reason that only the defendant himself may be able to supply details needed to complete the picture.” Also, the chancellor stressed the fact that Wright stopped cutting timber when Jim Donnohue interrupted him. Wright said, “I’ll pay for them. If they were [are] proven to be their logs.” Such a statement could just as easily be interpreted to mean that he was not conceding Donnohue’s claim but merely using discretion in having the question settled peaceably and judiciously.
Finally, the chancellor noted in his remarks 'the failure of the appellants to show identity between the tract bought and the fenced land. The complaint only alleged adverse possession, so record title was not an issue. A similar fact situation occurred in O’Neal v. Ross, 100 Ark. 555, 140 S. W. 743 (1911):
“When lots 6 and 8 were purchased by the defendants, they were enclosed, and he claimed to the fence between the property he purchased and that now owned by the plaintiff. He claimed to a lino visible and known, and his actual possession was coextensive with that boundary. The testimony on the part of the defendant shows that he took possession of the land under the claim and belief that it was his own, and has held it by adverse possession for the statutory period of seven years.”
In that case the court found the property was held to the fence line with the intention that it was the boundary rather than the description recited in the deed.
We find the appellants’ evidence did establish a prima facie case for the purpose of requiring appellees to go forward with their proof.
Reversed and remanded. | [
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Carleton Harris, Chief Justice.
Appellees, Joe A. Mayo and wife, are the owners of a 240-acre farm in Phillips County, Arkansas, consisting of two tracts. Arkansas Power and Light Company, appellant herein, condemned a right-of-way, 1,572 feet in length and 125 feet in width, containing 4.51 acres, the right-of-way being off the northeast side of Tract No. 1, and the west side of Tract No. 2. In determining the amount of damages to be awarded appellee, the jury returned a verdict in the amount of $4,059.00. Appellant brings this appeal on the ground that the court committed error in its instructions as to damages.
The instructions complained of are the Defendants’ Instruction No. 1, and the Court’s Instruction No. 1, which reads as follows:
Defendants’ Instruction No. 1
“You are instructed that Arkansas Power & Light Company acquires by this Condemnation Proceeding the power to make such use of the 4.51 acre right-of-way across the property of the Defendant as its present and future needs require for the purposes for which the right-of-way is condemned, and Arkansas Power & Light Company is liable to the landowners as though the lands were taken in fee simple or absolute title.”
Court’s Instruction No. 1
“The jury is instructed that in determining the amount of just compensation to be paid the Defendants in this case, you are to determine from the evidence in this case the fair market value of the whole farm, considering it as a unit immediately before the taking and then determine the fair market value of the whole farm, considering it as a unit immediately after the taking and the difference between the fair market value before and after the taking is the amount of the just compensation you should award.”
Appellant objected to the giving of the last instruction, and offered its own instruction as follows:
“You are instructed that the compensation to which the defendants are entitled in this cause is the fair market value of the lands within the right-of-way determined as of the date of taking, together with the difference, if any, in the fair market value of the remainder of the lands immediately before and immediately after the taking.”
This instruction was refused by the court.
The company argues that the court clearly committed error in that the two instructions given, taken together, in effect directed the jury to compensate ap-pellees twice for the same land. We think there is merit in appellant’s argument, at least, to the extent that the jury may well have been misled by the two instructions.
In Baucum v. Arkansas Power and Light Company, 179 Ark. 154, 15 S. W. 2d 399, which also involved a right-of-way easement, this court held that compensation for the full market value of the land taken by condemnation is recoverable, and that damages to lands other than that taken is the difference, if any, between the market value of such land before construction and after construction. This rule was reiterated in Arkansas Louisiana Gas Company v. Burkley, 242 Ark. 662, 416 S. W. 2d 263.
In the case before us, Defendants’ Instruction No. 1 told the jury that the power and light company was liable to the landowners as though the lands were taken in fee simple or absolute title, i. e., the company was liable for the full value of the 4.51 aeres embraced in. the condemned strip. Obviously, the Court’s Instruction No. 1 also includes the value of the strip condemned, as well as compensation for damages to the remainder of the farm. We recognize that the first instruction may have been intended only to point out that the jury must consider the lands as being absolutely taken, instead of the company only acquiring an easement, but we are of the view that the two instructions,' taken together, could have been quite confusing. Certainly, it is doubtful that members of a jury, untrained in the law, would fully understand that the method of fixing damages was covered entirely in the Court’s Instruction No. 1, and that Defendants’ Instruction No. 1 was not meant to be used for that purpose (if indeed such is the case). Actually, the proffered instruction by appellant more clearly expresses the law than the Court’s Instruction No. 1, albeit- that instruction, standing alone, was correct in stating the measure of damages.
As pointed out in Dr. Pepper Company v. DeFreece, 234 Ark. 450, 352 S. W. 2d 579, we cannot say, with certainty, that the jurors were confused under the instructions and because of that fact gave judgment for a larger sum than would otherwise have been granted (the appellant thus being prejudiced), but we are less sure that they were not.
The judgment is reversed, and the cause remanded for proceedings not inconsistent with this opinion.
Foglemah, JoNes and Byrd, JJ., dissent. | [
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John A. Fogleman, Justice.
Chicago , Rock Island and Pacific Railway Company appeals from a judgment awarding Asa Julius Lockwood $75,000 as damages for personal injuries suffered while performing his duties on May 12, 1964, as a hrakeman employed by the company. Only two points are relied on for reversal. They are:
I.
The trial judge erred when he permitted appellee to interject and substitute a new, is sue in the litigation by amending the complaint at the close of plaintiff’s [appellee’s] testimony.
II.
The $75,000.00 verdict is excessive.
We will discuss these in the order listed.
I.
Appellee made the following allegations relating to appellant’s liability:
“That at the time aforesaid the handle of one of the handbrakes and the brake machinery on said train which Plaintiff, as such brakeman, was required to operate was imperfectly constructed, defective and unsafe; that said imperfection, defectiveness, inadequacy and unsafeness could have been by said Defendant discovered and known by the use and exercise by it of ordinary care and diligence, and were at the time aforesaid known to the Defendant; but the same were unknown to the Plaintiff.
# # *
That the negligent acts complained of herein by the Defendant have damaged the Plaintiff, ASA JULIUS LOCKWOOD, in the sum of $150,000.00.”
There was no evidence of negligence on the part of appellant. At the conclusion of appellee’s evidence, his attorney, before resting, made a motion that the complaint be amended to conform to the proof — specifically to state that appellee’s injuries proximately resulted from violation by appellant of 45 USCA § 11, which required appellant to equip its cars with a hand brake that would perform properly when used in the usual and customary manner.
The amendment was allowed by the trial court, over appellant’s objection that pleading the Safety Appliance Act, which had not previously been referred to, injected a new and different theory and basis of liability into the case. Appellee had testified that on the occasion of his injury he was going to get up on a pole car and set a hand brake. In order to do so, he mounted a little platform on the end of the car and took hold of the brake handle preparatory to swinging around on the platform. He took hold of the brake handle with his right hand and turned loose of a grab iron on the side of the car which he held with his left hand. Thereupon his entire weight was thrown on his right hand and the brake handle snapped, causing him to fall to the ground. After the fall, he still had the broken brake handle in his hand. Appellee stated that he had never performed this duty in any other way, had never seen it done in any other way, and that as far as he knew, this was the normal, customary manner in which it was done.
There was no motion for a continuance hy appellant, nor is there any contention hy appellant that the evidence was not sufficient to support a verdict under the Federal Safety Appliance Act. No evidence was offered hy appellant.
Title 45, USCA § 11 requires that all railroad cars he equipped with efficient hand brakes. This act does not impose an absolute liability, but it does impose an absolute duty, and a carrier is not excused from liability by any showing of care, however assiduous. Myers v. Reading Co., 331 U. S. 477, 67 S. Ct. 1334, 91 L. Ed. 1615 (1947); Brady v. Terminal R. Ass’n., 303 U. S. 10, 58 S. Ct. 426, 82 L. Ed. 614 (1938). Even though a complaint alleges negligence consisting of failure to warn an injured employee, failure to inspect and failure to furnish the employee with a safe place to work, without mentioning this section of the statute, the railroad’s absolute duty is brought into the case if there is evidence which shows a brake to be inefficient. Long v. Union R. Co., 175 F. 2d 198 (3d. Cir. 1949). In such a case, allegations of negligence are considered surplusage. Colwell v. St. Louis-S. F. Ry. Co., 335 Mo. 494, 73 S. W. 2d 222 (1934). The only burden on a plaintiff is that he prove by direct or circumstantial evidence either a specific defect or the failure of the brake to function efficiently on normal, ordinary operation. Selby v. Chesapeake & Ohio Ry. Co., 11 Ill. App. 2d 395, 137 N. E. 2d 657 (1956).
Under the Arkansas Civil Code, a plaintiff is only required to state the facts constituting his claim or cause of action. Ark. Stat. Ann. §§ 27-1101, 27-1113. The statement of facts constitutes the cause of action. Albersen v. Klanke, 177 Ark. 288, 6 S. W. 2d 292; Grytbak v. Grytbak (on rehearing), 216 Ark. 674, 227 S. W. 2d 633, 635; Taylor v. Taylor, 224 Ark. 328, 273 S. W. 2d 22. All that is necessary is that the complaint state a cause of action within the jurisdiction of the court. Crowder v. Fordyce Lbr. Co., 93 Ark. 392, 125 S. W. 417. It is not necessary to plead a federal statute in order to have the benefit of it, so long as allegations constituting a cause of action thereunder are made. St. Louis I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S. W. 874 (reversed on other grounds) 228 U. S. 702, 33 S. Ct. 703, 57 L. Ed. 1031).
Under Ark. Stat. Ann. § 27-1160 (Eepl. 1962), a court may at any time, in furtherance of justice and on such terms as may be proper, amend any pleading by conforming it to the faets proved, when the amendment does not substantially change the claim or defense. Under the circumstances existing here, the trial judge did not abuse the discretion vested in him by this section of the civil code. The amendment permitted here effected a less substantial change than was involved in El Dorado Pipe & Supply Co. v. Penguin Oil Co., 174 Ark. 843, 296 S. W. 713, wherein reversible error was found in refusal to permit the amendment under this section. There the amendment would have changed the action from a suit to charge a surety on a note to one on open account with an allegation that the. defendant received the benefit of certain property sold by plaintiff. The amendment was requested on the basis of plaintiff’s offer of proof that the property was sold for the benefit of the defendant at whose request plaintiff accepted a note made by a third party to whom defendant traded the property. In that case the defense of ultra vires asserted in defendant’s answer to the original complaint would have been eliminated by the amendment.
In the case at bar, the appellee alleged and offered evidence of facts which constituted a cause of action un der the Safety Appliance Act. Appellant has not indicated any defense of which it was deprived by the amendment or any evidence which it might have offered in defense of the amended complaint which would not have been admissible under the issues raised by the original complaint. If appellant had ashed for a continuance, the burden would have been upon it to show to the satisfaction of the court how it had been misled to its prejudice. Williams v. Bullington, 195 Ark. 253, 111 S. W. 2d 507. Since prejudice to appellant has not been shown and is not apparent, we cannot say that the trial judge abused his discretion in granting the amendment incorporating into the pleading an allegation not essential to the recovery sought.
We consider cases cited by appellant to be distinguishable. In cases such as Patrick v. Whitely, 75 Ark. 465, 87 S. W. 1179, and Bridges v. Harold L. Schaefer, Inc., 207 Ark. 122, 179 S. W. 2d 176, the amendments refused would have permitted recovery based on contracts or agreements different from those asserted in the original pleading, or would have included elements of damage not recoverable under the original pleading. The amendments in Butler v. Butler, 176 Ark. 126, 2 S. W. 2d 63, and Price v. Price, 215 Ark. 425, 220 S. W. 2d 1021, would have added allegations supporting new and different issues not raised by the facts alleged in the original complaint. Defendants in the two latter cases would necessarily have had to offer evidence of facts materially different from that which would have been admissible on the issues made by the original pleadings. Such is not the ease here.
n.
Appellant’s argument that the verdict is excessive is based largely upon these contentions:
1. Appellee’s 1966 earnings were $2,124.00 greater than his earnings in 1962, the year prior to that in which his injury occurred.
2. No loss of future earnings is anticipated.
3. Appellee’s work hours would cause fatigue independent of his injury.
4. Appellee had injured his back on two previous occasions.
5. The medical testimony giving appellee a 22%% disability rating based on limitation of motion does not support the verdict in view of the doctor’s statement that appellee had made excellent recovery after his surgery and appellee’s demonstrated ability to perform his job.
In considering whether this verdict should be set aside as excessive, we note that there was testimony before the jury tending to show the following facts:
Appellee had a hard fall, from which he suffered “unbearable” pain in his back. He was in discomfort while in traction for ten days. His left leg became drawn and would not straighten out. The effects of a myleo-gram were so painful that he couldn’t raise his head for two days. He went through quite an ordeal after a second myleogram and disc removal surgery in May 1964. When he went to work for a few trips, after this surgery, his back kept getting worse until he felt like “an old rusty spike” had been driven in him. A spinal fusion done in June 1965 was very painful and thereafter for about six weeks he could “hardly bat his eyes.” For sometime after the injury, he couldn’t sit or stand still and couldn’t sleep or stay in bed. Often he would get up laround midnight and spend the rest of the night on a couch, lying on the floor, or sitting up and drinking coffee. His trouble sleeping continued for about two years. His wife had to help him dress and undress for a time after the injury and again after surgery. He wore a corset after the injury and was in traction for a ten-day period before any surgery was done. He wore an uncomfortable brace for a while after the disc removal and a “chair-back” brace for two or three months af ter the fusion. He was in hospitals undergoing traction, therapy or surgery on six different occasions total-ling about 70 days. He was “scared to death” when surgery was suggested. For a long time he was without much hope, his mental outlook was bleak and he was despondent because of his inability to work. He and his family had financial problems. His disposition changed from that of an easy-going, “life of the party” individual to a short-tempered and impatient one. This has affected his relationship with his wife and family. Prior to his injury, he was a very active person, participating iii fishing, swimming, baseball and other activities with his children. In spite of their invitations, he cannot now continue these activities. A fine father-son relationship has been destroyed by his inability to spend most of his off-duty time with his son as he formerly did. For two years he was unable to do anything when not at work except sit or lie down. There were long periods of time when he could not drive an automobile and he cannot sit comfortably in one now. He will experience some pain in the future, depending upon his activities. Lockwood’s medical bills totaled $4,245.86, of which appellant paid $2,800.00. A balance of $855 is due Dr. Logue.
Appellee’s job at the time of the injury was on a run from El Dorado to Crossett. His pay rate at that time was $19.03 for an eight-hour day, plus certain overtime pay. This run involves a nine to ten-hour day. His earnings were:
1961 — $7,697 1962 — $ 7,992
1963— 6,958 1964— 1,179 (Including 3 weeks vacation pay)
1965— 1,659 1966— 10,116
Only a few months after his injury Lockwood became entitled by seniority to the job on the El Dorado-Winnfield, Louisiana run on which he returned to work on November 17, 1965. During the time he was unable to work, his pay rate increased to $21.06 for eight hours, plus overtime pay. He worked nine to ten hours on the Orossett run,, but the hour range on the Winn-field run is twelve to sixteen. If he had been able to work in 1964 and 1965, he would have made $11,000 to $12,-000 on the higher pay scale.
After appellee returned to work in November 1965, he found it necessary, because of the condition of his back, to miss at least one trip every two weeks until the fall of 1966. He also missed a week or ten days during the month preceding the trial for the same reason. Had it not been for these absences, he could have made $12,-000 or $13,000 in 1966.
Lockwood has a high school education. He has never done anything except work for the railroad. He has a limitation of motion in bending and a minor weakness of his leg. His permanent disability of the body as a whole resulting from the fall is 22%%. He now avoids one of the duties of his job — lifting 300-pound frogs after a car derailment. He also avoids getting on certain types of railroad cars because of his inability to bend in order to get a hand hold. On. his present job, his back bothers him after he stands on the ground “switching.” The longer he continues this, the worse it hurts. On some days the pain is great enough to bring tears to his eyes, and he has to lie down in the caboose of the train between stations. Just bending, squatting or sitting down is painful. The present run is too heaw a job for him. He has continued on this job because of his financial needs and in order to see if he could do the job. If he leaves the Winnfield run, he cannot get back on the Orossett run until there is an opening. His doctor has advised him to do a minimum of strenuous work and to get off his present job. It is his doctor’s opinion that the duties associated with Lockwood’s work for appellant are beyond his phvsical capacity. The doctor has recommended that appellee change jobs because it is his opinion that one who has this history of back trouble and surgery should not expose himself to the rigors of full-time railroading. In the opinion of this doctor, this injury to the spine and resultant spinal fusion will probably cause the back to age more quickly and may accelerate the onset of arthritis. Further, after a fusion, jumping on and off a train will increase the chance of his having disc trouble in the upper spine. If appellee can continue at his present work, he will be eligible for retirement at age 65 or, if able, he could continue to work until age 70. A person his age at the time of the trial has a life expectancy of 31 years.
Appellee is drawing payment for 40% disability from shrapnel wounds about the head, shoulders and arms suffered during World War II. He has been drawing this compensation since the injury. He was employed by appellant after his world war service. He also suffered back injuries in February of 1961, and in the spring of 1963. He had osteopathic treatment in June, July and August 1963, for the 1963 injury. Neither injury was disabling, and he was never caused to miss a day’s work because of either back injury or his military disability. None of these injuries or their results had interfered with the performance of his duties.
While the jury award is extremely liberal, we cannot say that it is so excessive as to shock the conscience of the court, when we review, in the light most favorable to appellee, the evidence of pain, suffering and mental anguish suffered and to be suffered, earnings lost and to be lost, and the nature, extent, duration and permanency of the injury.
The judgment is affirmed.
Jones, J., dissents in part.
This is a part of the act known as the Federal Safety Appliance Act. | [
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Paul Ward, Justice.
This appeal comes from a Chancery Court order setting aside the Commissioner’s sale of land in a foreclosure suit.
Miles Guy and his wife (appellees) executed a note for $550 to Lucie Lee Robbins (appellant), and to secure payment they also executed a deed of trust on Lot 4 in Block 6 in Waters’ Addition to the City of Pine Bluff. Upon default, appellant filed suit against appel-lees, securing a judgment for $537.14 (including costs) and also an order to sell the security. At the Commissioner’s sale, appellant bought the property for the amount of the judgment. The trial court confirmed the sale, and ordered the property turned over to appellant, who later sold it to a third party.
At the same term of the Chancery Court appellees filed a Motion to set aside the sale on the ground that the price paid by appellant was inadequate. After hearing testimony on behalf of both parties the court granted appellees’ Motion, holding “that the property herein sold for an inadequate price”. The court then canceled the sale to appellant and ordered a resale of the property by the Commissioner after giving proper notice, hence this appeal.
Appellant now seeks a reversal on the ground of insufficient evidexice to sustain the action of the trial court in setting aside the sale, and we agree.
There is no contention by appellees that there was any irregularity, any mistake, or any fraudulent conduct in the entire proceedings. That being the state of the record before us, the trial court erred in setting the sale aside.
In Free v. Harris, 181 Ark. 644, 27. S. W. 2d 510, the Court, on facts similar to those in this case, said:
“Mere inadequacy of consideration, however gross, unaccompanied by fraud, unfairness or other in equitable conduct in connection with the sale, is of itself insufficient to justify the court in setting the sale aside and refusing confirmation.”
# # #
“It is of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and without collusion or misconduct, and at least when the price offered is not unconscionably below the market value of the property. ’ ’
In Union & Planters’ Bank & Trust Company v. Pope, 176 Ark. 1023, 5 S. W. 2d 330, there appears this language :
“'While this court has held that mere inadequacy of price will not justify a chancery court in refusing to approve a sale and deprive a purchaser of the benefits of his purchase, yet, if a purchaser has been guilty of any unfairness or has taken any undue advantage, the sale will be regarded as fraudulent, and the party injured will be permitted to set aside the sale.”
The above cited cases have never been overruled.
Our attention has been called to the case of The Security Bank of Branson, Missouri v. Speer, 203 Ark. 562, 157 S. W. 2d 775, where this Court held that during the same term, at which a judgment or order is rendered, it remains subject to the plenary control of the court, and may be vacated, set aside, modified or annulled. However, in the case of Summars v. Wilson, 205 Ark. 923, 171 S. W. 2d 944 where the Speer case was cited, this Court either interpreted the Speer decision to hold or reversed it to hold that while the trial court had the power to set aside its judgments or orders (in term time) it could do so only by exercising sound discretion. There we said:
“Judicial sales are not to be treated lightly. The courts should not reject a sale and refuse a confirmation for captious reasons, hut only in the exercise of sound discretion. The trial court is vested with sound judicial discretion in these matters; and the appellate court, in reviewing the action of a trial court to see if there has been an abuse of discretion, does not substitute its own decision for that of the trial court, but merely reviews the case to see whether the decision was within the latitude of decisions which a judge or court could make in a case like the one being reviewed. Just as the law’s standard of conduct is the ordinary, reasonable, prudent man, so in reviewing the exercise of discretion, the test is whether the ordinary, reasonable, prudent judge, under all the facts and circumstances before him would have reached the conclusion that was reached. ’ ’
In any event, we now choose to follow the rule announced in the Summars case.
We cannot agree with appellees’ contention that the low price paid for the property ($537.14) was unconscionable and therefore justified the court in setting the sale aside. This is on the basis that the property was worth $1,000, but the testimony does not justify that figure. It is true that appellees’ attorney testified (over strenuous objections) that he believed the property was worth $1,000. Another witness, who was contacted by appellees to secure a loan and who examined the property, stated that he would advance $1,000 provided it would be used to pay off the judgment and the balance used to improve the house. Another witness, who had recently inspected the property, valued the property at not more than $575.
Appellees say the trial court should be affirmed because appellant failed to comply with Rule 9 (d) of this Court. We do not find this to be the case. Appellant’s brief contains an abstract of all material parts of the pleadings, the testimony and the decree. The Rule requires only such matters that “are necessary to an understanding of all questions presented to the court for decision”. This requirement has been met by appellant.
It is our opinion that the trial court erred in setting aside the sale and in ordering a resale.
The decree of the trial court is therefore reversed.
Smith, J., concurs.
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Lyle Brown, Justice.
This case orginated as a suit to quiet title to a 483-acre farm in Lincoln County. Elena Taliaferro, widow of M. M. (Mac) Taliaferro, brought the action for herself and the two minor children, claiming under Mac’s will. The trial court upheld tbe will and cancelled that portion of a “Release Deed and Agreement” executed by Mac which was in conflict with the devise. Mary T. Tarver and James H. (Buck) Taliaferro, Mac’s sister and brother, appeal.
Mrs. Pearl Taliaferro had four living children, M. M. (Mac), James H. (Buck), Sandy, and one daughter, Mrs. Mary T. Tarver. For the sake of brevity, we shall often refer to the parties by their first names, as did most of the witnesses. The Mother owned substantial properties, mostly farms, in Jefferson, Lincoln, and Cleveland Counties. She was advanced in years. The children were all grown and living in the same general area. The family ties were closely intact. The Mother decided to divide a substantial part of her holdings, by deed, among her four children. She deeded three farms, one to each of the sons. The “big farm” in Lincoln County, the only property here involved, was deeded to Mac. The other two farms were approximately one-fourth the size of the “big farm.” In order to more evenly balance the gifts, and at the same time give something of equal value to Mary, the Mother had prepared fifteen interest-bearing notes, each in the sum of $1,000, payable annually. The notes were payable to Mary and were executed by Mac. The deed of the “big farm” to Mac reserved a lien to secure payment of those notes. The Mother had the attorney insert Mary’s name as a grantor in the deed, presumably because she thought it would better secure Mary’s notes.
The deed and notes were executed respectively by the Mother and Mac in an attorney’s office in May 1956. It is not known with certainty whether the deed was then delivered to Mac or whether it was left in the at torney’s office pending Mary’s signature. The Mother, Mac, and the attorney are deceased. In fact, the Mother died within three months. Shortly after her death, and on November 15, Mary signed the deed in the same attorney’s office. It was recorded the same day.
A second instrument of importance now comes into the case. At the time Mary executed the deed to the 483 acres, Mac instructed the attorney (according to Mary) to draft another instrument. It was styled “Release Deed and Agreement.” It was prepared in a matter of days and Mary and Mac returned to the attorney’s office and signed it on November 27, along with Mac’s wife, who relinquished her dower rights. The instrument had two purposes. The first part of the instrument conveyed lands in Jefferson County in which Mac owned a child’s part. The remaining portion of the instrument, which we will refer to as “Agreement,” related to the 483-acre farm in Lincoln 'County. The provisions of the “Agreement” are unique. They provided that should Mac die prior to the retirement of the fifteen one-thousand-dollar notes held by Mary, the unpaid notes would be cancelled and title to the “big farm” would become vested jointly in Mary Tarver and Elena Talia-ferro, Mac’s wife. On the other hand, should Mac live out the fifteen years and retire the notes, title would vest in Mac and Elena, rather than in Mary and Elena.
Mac Taliaferro’s will is the next instrument of significance. For some eight years after the described instruments were executed, Mac lived on and cultivated the “big farm” without incident. He timely paid each note that became due. He executed a will dated April 5, 1965, at a time when he was apparently suffering a terminal illness. Notwithstanding the “Release Deed and Agreement” we have described, Mac bequeathed the farm in trust for the benefit of his wife and children. The trustee was directed to pay one-third of the income to Mac’s wife until her remarriage or death, and the balance to his two children. Upon death or remarriage of the wife, title would vest absolutely in the children. Mac designated his sister, Mary Tarver, as trustee to serve without bond.
Mary Tarver qualified as executrix and trustee and administered the estate for more than a year. Some thirteen .months after her appointment, Mary filed, her first and final accounting. In those instruments she listed the “big farm’.’ and recited that Mac’s estate owned a one-half interest in those lands, not the entire interest recited in his will. The owner of the other interest was not named but it is undisputed that Mary was asserting that she in fact owned the other interest under the terms of the “Release Deed and Agreement.” Her accounting to the court was for a one-half interest.
Mac’s widow, Elena, filed an objection to the accounting and at the same time filed this suit to quiet and confirm title in her husband’s estate. It was the opinion of the trial court that Mary was estopped from claiming any interest in the farm under the terms of the “Agreement” which Mac executed in her favor. Of course it is her contention that since seven of the annual notes had not been paid when Mac died, she therefore became vested with a one-half interest. These factors are advanced in.support of the trial court’s finding:
(a) Mary Tarver’s petition for appointment as executrix recited that the deceased owned the 483-acre tract; (b) with court approval Mary leased the entire acreage in her capacity as executrix; (c) the “Agreement,” if valid, would have passed title directly to Mary and Elena, hence no interest in the land would have been included in Mac’s estate; (d) Mac ignored the “Agreement” when he made his will, and his nomination of Mary as executrix and trustee would indicate a common understanding between Mary and Mac about the status of the “Agreement”; (e) Mary Tarver never surrendered, or tendered, the seven unpaid notes; (f) when Mary filed the estate tax return she showed a one-half interest to be vested in Mac’s estate, contrary to the pro vision in tlie “Agreement” which, would have vested the title in Mary and Elena jointly; (g) the estate was administered for thirteen months before Mary formally asserted her claim to one-half interest; (h) Mary was acting in a fiduciary capacity and the logical procedure would have been to assert her own rights rather than follow a pattern indicating that she made no claim under the “Agreement”; (i) had Mary been claiming any interest it is unreasonable to believe that she would not have so advised her counsel, whereupon he certainly would have adjusted her course of action; and (j) the attorney was aware of the “Agreement.”
Let it be emphasized that we are not here dealing with the law of estoppel in the strict sense. Estoppel involves the conduct of both parties. The fault of one party induces the other to detrimentally alter his position. The problem at hand may be more likened to a waiver. Specifically, by accepting the trusteeship under the will and proceeding to act, did Mrs. Tarver waive her right to claim under the “Agreement”?
In resolving Mary Tarver’s rights in this premise we are not aware of a controlling case in our own jurisdiction. The basic relationship between the trustee and his beneficiaries is thoroughly discussed in Hardy v. Hardy, 222 Ark. 932, 263 S. W. 2d 690 (1954). As concluded in Hardy, the law demands of the trustee a high standard of loyalty in his fiduciary capacity. The reason for that well accepted rule is stated in Bogert, Trusts, 2d Ed. § 543 (1960), as a recognition that it is practically impossible for the same person to act fairly in two capacities and on behalf of two interests in the same transaction. “If one of the interests involved is that of the trustee personally, selfishness is apt to lead him to give himself an advantage.” Bogert concludes that the courts deem it wiser to invoke a hard and fast rule against such service (absent prior approval of the court) rather than attempt ‘ ‘ to separate the harmless. and the harmful by permitting the trustee to justify his representation of two interests.”
Perry, Trusts and Trustees, Vol. 1, § 433 (1929). states the rule thusly:
“Under no circumstances can a trustee claim or set up a claim to the trust property adverse to the cestui que trust. Nor can ho deny his title. If a trustee desires to set up a title to the trust prop-ery in himself, he should refuse "to accept the trust. ’ ’
To the same effect see 90 CJS Trusts § 181; Power v. Jones, 333 P. 2d 34 (Calif. 1959); and Loring, Trustee’s Handbook (5th Ed. 1940) §. 18, stating that if the trustee has an adverse interest when he accepts the trust, that interest cannot be set up against the trust. We hold that Mary is precluded from claiming an interest in the “big farm” under the title purportedly passed to her by the “Agreement.”
The chancellor approved the lien created by the deed from Mrs. Taliaferro and Mary to Mac and represented by the seven notes unpaid at the time of Mac’s death. That finding is not here questioned, and of course we do not disturb it.
Appellant James H. (Buck) Taliaferro contends Mac’s deed was not effective because it was not delivered during the life of the grantor mother. Buck reasons that since Mac’s title fails, the- latter remained in posession as a co-tenant of his brothers and sister, entitling Buck to a one-fourth interest in the property.
With respect to Buck’s contention, any defect in the delivery of the deed would be immaterial because it is clear to us that Mac’s title ripened by adverse possession. Mac’s deed was recorded November 15, 1956, at which time he was occupying the land with his family. There he continued to reside until his death in 1965. During those years a well was put down; the old house was replaced with a new one; abandoned tenant houses were razed and out-buildings were erected; land was cleared; timber was sold; the taxes were paid by Mac; and Mac was commonly recognized in the community as being the owner. Buck lived in the same area and frequently passed the farm. Buck testified that his mother related that she was giving the “big farm” to Mac and the latter was to pay Mary $15,000. Further, he testified that he considered Mac to be the owner. Under all those circumstances it became unnecessary for Mac to specifically exclaim to the world that he was holding adversely. Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96 (1938).
Finally, Buck contends that the “post-mortem execution and delivery of the deed” was concealed from him and that concealment should defeat a claim of adverse possession. There are two answers to that proposition. First, the record does not disclose whether the deed was left in the attorney’s office when Mrs. Talia-ferro executed it, or whether Mac took it home and put it in his safe. Second, there is not a scintilla of evidence that Mac made an intentional concealment. Mac’s good faith is not seriously questioned even by Buck. Intentional concealment is a prerequisite to the sustaining of Buck’s premise. Landman v. Fincher, 196 Ark. 609, 119 S. W. 2d 521 (1938).
Numerous points not here recited are raised by the parties; however, the rulings herein make it unnecessary to resolve the other issues-.
Affirmed.
Harris, C. J., and Byr», J., not participating. | [
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Carleton Harris, Chief Jnstice.
This is an appeal from a decree of the Sebastian County Chancery Court dismissing appellant’s complaint with prejudice after the latter failed to offer any proof, or go forward with the evidence on the day set for trial. In November, 1965, appellant, Carl W. Widmer, instituted suit in the Sebastian Circuit Court against the Fort Smith Vehicle and Machinery Corporation, appellee herein, alleging that appellee had, through their employees and agents, entered illegally upon his farm, and removed a certain John Deere disk harrow, which belonged to him, having been purchased by appellant on June 12, 1962. According to the complaint, this purchase had been financed in part with an equipment note of that date, which was later marked, ‘‘Paid,” by the First National Bank of Fort Smith on March 12, 1963. It was alleged that the value of the disk harrow at the time of the wrongful taking was $980.00, and that the yearly rental value of same was $300.00; further, that after obtaining posses sion of this machinery, appellee had unlawfully converted and disposed of the same, and appellant had sustained actual damage in the amount of $1,702.00. Punitive damages were also sought in the sum of $2,500.00.
Appellee answered, denying that Widmer owned the harrow or that it had been wrongfully taken; it was asserted that on June 12, 1962 the company sold the disk harrow to appellant, and also a grain drill, but that on March 12, 1963, Widmer purchased a John Deere drill with fertilizer attachment, agreeing to pay the sum of $7,700.00; that there was still a balance of $757.11 on the June note, and the drill purchased on the June date was traded in on the new drill; further, that as a matter of accommodation, the disk harrow was placed in a new contract, and combined with the purchase made in March, 1963, a new note being executed for the balance then due in the total amount of $1,602.10. Thereafter, according to the answer, the company proceeded to cancel the note of June 12, 1962. It was further stated that on December 8, 1963, appellee proceeded to take possession of the equipment under a provision of the March 12 contract which permitted it to do so if there was default in the payment of any installment due on the note, or if the company deemed itself insecure. According to the answer, there was a default, and the company acted in accordance with the agreement. A counterclaim was filed, stating that the drill and disk, after being repossessed, were sold, but the company sustained a loss in the amount of $750.00 for which it was entitled to judgment.
Widmer responded to this answer, and counterclaim, by alleging that appellee had fraudulently and materially altered the contract and note after their execution without his knowledge and consent by adding the John Deere disk harrow to these later instruments; that appellee held no valid agreement or note as to the disk harrow, the indebtedness for that particular machinery having been paid under the note of June 12, 1962. Ap pellant filed requests for admissions, all of which were answered, and either admitted or denied. Thereafter, interrogatories were served on appellee on July 5, in effect asking for the reasons for the denial of a number of the requests for admissions. Another set of interrogatories was filed on July 8, asking for additional information, and still again, interrogatories were filed on July 15. Appellee filed a motion to quash these interrogatories, asserting that they had been propounded simply for the purpose of annoyance, expense, embarrassment, and oppression.
The court granted this motion as to the interrogatories of July 5 and July 8, and also as to those of July 15, except as to interrogatories No. 3 and 4, which .the court directed appellee to answer not later than September 8. This was done, and appellee also took a non-suit as to its counterclaim. Widmer then filed a motion for summary judgment, and appellee filed a motion to transfer the cause to equity, alleging there was a need for reformation of the contract. The court entered its order, finding that there appeared to be discrepancies in the written instruments as to the description of the property purchased and the due dates for payments; that the terms of the contract needed to be more clearly defined, and the case ivas transferred to the Chancery Court.
There, appellant moved for a summary judgment, and filed an affidavit in support of same. Appellee responded, stating that a mutual mistake had been made as to due dates in the contract, but that irrespective of this fact, appellee had been given the right under the contract and note to repossess the property, should appellant be in default. It was prayed that the motion for summary judgment be denied, and that the instruments be reformed to reflect the true intentions and transactions of the parties. On August 16, the Chancellor denied the motion for summary judgment, holding that there were genuine and material issues of fact raised by the pleadings, and by the statement of the parties, and that the matter could only be resolved by a trial. On September 11, the case was called for trial, at which time Mr. Widmer stated that he did not choose to call any witnesses or testify in his own behalf but would instead stand on his motion for summary judgment, with affidavit attached. Counsel for appellee, when asked if he desired to place a witness on the stand, replied that, since the motion for summary judgment had been previously overruled by the court, the appellant had the burden of establishing a prima facie case based on evidence, and this not being done, appellee was entitled to judgment. When appellant again stated that he would stand on his motion, the court granted defendant’s motion, and subsequently signed a decree dismissing appellant’s complaint. From that decree, appellant brings this appeal.
For reversal, it is first argued that the trial court erred in not deeming all requested admissions of fact contained in request for admission of facts dated February 25,1966, as admitted. Appellant points, out that no sworn statement denying the requested admissions was ever served on appellant. Admittedly, the original was signed and sworn to, but the signing of the copy was apparently overlooked — we say overlooked, because there would have been no reason to sign the original and purposely fail to sign the copy. The offer was made by appellee to sign and verify the answers before the case was disposed of. We find no merit in appellant’s assertion. In Kingrey v. Wilson, 227 Ark. 690, 301 S. W. 2d 23, the appellant submitted a request for admissions which appellee answered within the time designated, but not under oath. The trial court however, allowed appel- lee to verify her answers to the questions at the beginning of the trial, and this court refused to declare eripr, stating, “In so doing, the court was clearly acting within its discretion.”
It is nest asserted that the trial court erred in not requiring all interrogatories which were presented to appellee to be answered. We do not agree. Part of these interrogatories were apparently for the purpose of having appellee enlarge upon its answers to the requests for admissions, and the court, on the third group of interrogatories, did require appellee to answer two of them, but granted appellee’s motion to quash the rest. Ark. Stat. Ann. § 28-355 (Repl. 1962) gives the court, on motion of the party interrogated, the authority to enter whatever protective order justice may require, i. e., an order may be entered ‘ ‘ to protect the party from annoyance, expense, embarrassment, or .oppression.” In Widmer v. Fort Smith Vehicle mid Machinery Corporation, 244 Ark. 626 (April 15, 1968), we said:
“The purpose of discovery procedure is to simplify the issues at the actual trial and is not intended to take the place of the actual trial, nor is it intended to relieve the plaintiff of the burden of proving the allegations of his complaint in a civil case.”
In Widmer v. Modern Ford Tractor Sales, 244 Ark. 696 (April 22, 1968), we held that the trial court vdid not abuse its discretion in quashing appellant’s interrogatories, and we are unable to say, in the present instance, that there was any abuse.
Finally, it is urged that the trial court erred in not granting appellant’s motion for summary judgment. Mr. Widmer points out that, though he filed an affidavit, no counter-affidavit was filed by appellee.
We cannot pass on the question of whether the summary judgment should have been granted, for this is not an appealable order. In the Kentucky case of Bell v. Harmon, 284 S. W. 2d 812, the court rendered a comprehensive discussion on this subject, as follows:
“The Federal courts seem to assume that an order denying a motion for summary judgment is not reviewable because not appealable. [Citing authorities.] Clearly such an order, being interlocutory, is not appealable. See Clay OR 56.03, Comment 7. However, though not independently appealable, certain interlocutory orders are reviewable in conjunction with a final judgment; e. g., an order overruling a motion for a directed verdict ; an order granting a new trial. Thus the determination that an order denying summary judgment is not ap-pealable does not necessarily resolve the question of whether such an order may be reviewed when properly presented.
“However, we think sound reasoning supports the conclusion that an order denying summary judgment should not be reviewed on appeal. (In passing it may be noted that an order granting such judgment is a final order and is of course forthwith appealable.)
“Summary judgment procedure is not a substitute for a trial. It is a time saving device, and the motion should only be sustained if the court is fully satisfied that there is an absence of genuine and material factual issues, and all doubts are to be resolved in favor of the party opposing the motion. * * *
# # #
“Our refusal to review an order denying a summary judgment can in no sense prejudice the substantive rights of the party making the motion since he still has the right to establish the merits of his motion upon the trial of the cause. If the contrary were held, one who had sustained his position after a fair hearing of the whole case might nevertheless lose, because he had failed to prove his ease fully on an interlocutory motion.
“We therefore decline to consider the possible error in the denial of defendant’s motion for summary judgment. * * *”
In our own case of Douglas v. Citizens Bank, 244 Ark. 168, 424 S. W. 2d 532 (February, 1968), we stated that an order denying a motion for summary judgment is merely interlocutory, and is not appealable.
In connection with his argument relative to the trial court’s failure to grant the summary judgment, appellant says that since appellee asked for a reformation of the contract, the burden shifted to appellee to go forward with the proof, and the court was in error in directing that Widmer go forward with his evidence. This argument is erroneous. In the first place, appellee has denied the allegations in plaintiff’s complaint, i. ev that Widmer was the owner of the disk harrow, that it illegally entered or trespassed upon Widmer’s lands, or that it wrongfully and unlawfully converted same to its own use. Since these allegations were denied — and since the court refused to grant the motion for summary judgment — it became incumbent upon appellant to present the evidence upon which he relied for recovery. Following this, the burden would have shifted to the appellee to go forward with his evidence relative to reformation of the contract. There is also another reason why the point is without substance. No objection was made to the trial court’s directive to Widmer to proceed with his proof. Nor did appellant point out to the court that, in his (appellant’s) view, the burden was on the appel-lee to go forward, but rather twice stated that he would stand on his motion (for summary judgment). In other words, the issue of who should first proceed with the proof was not raised before the Chancery Court. We have said many times that an issue cannot properly be raised for the first time on appeal. Banks v. Jones, 239 Ark. 396, 390 S. W. 2d 108, and cases cited therein. If appellant desired a review of the merits of the case, he should have proceeded to offer evidence instead of standing on his motion for summary judgment. As stated in Widmer v. Modern Ford Tractor Sales, supra:
“* * * Knowledge of how to prepare and file the various instruments permissible under our civil code is, of course, an elementary necessity in the practice of law, but a thorough knowledge of the office of the instrument, and when and why it should be used, is indispensable in the proper preparation and trial of a lawsuit. A knowledge of how to proceed in the trial of a lawsuit after a motion has been granted or denied, or after requests for admissions have been complied with, refused, or ignored, is more important in resolving differences by a fair and impartial trial in a court of law than is the knowledge of how to prepare and file such motions or requests. ’ ’
Affirmed.
The full proceedings of September 11, 1967, are as follows:
“The Court: Let the record show that the parties are present and represented by counsel, with Mr. Carl W. Widmer appearing in person on behalf of himself as his own attorney. Upon announcing ready for trial the plaintiff states that he does not choose to call any witnesses or to testify in his own behalf but does desire to stand on his Motion for Summary Judgment, with Affidavit attached or in support thereof and the matters set out in his Motion. In other words, the Plaintiff desires to stand on the pleadings which he has filed in this case. Is there anything further that you wish to offer, Mr. Widmer?
Mr. Widmer: Nothing at this time.
The Court: Mr. Thompson, in behalf of the defendant, Fort Smith Vehicle and Machinery Corporation, do you choose to call a witness at this time or put on any testimony?
Mr. Thompson: Your Honor, it is our understanding that plaintiff’s Motion for Summary Judgment has been overruled previously by this Court and further, that plaintiff, in a situation such, as this, has the burden of establishing a prima facie case based on the evidence. Having chosen to do neither of these, we would at this point ask the Court to grant the defendant a verdict as to plaintiff’s Complaint.
The Court: Mr. Widmer, do you wish to respond to counsel’s statement?
Mr. Widmer: No. We will stand on our Motion.
The Court: All right. Both of you gentlemen are aware that we have had a pre-trial conference in this matter since it was transferred to the Chancery Court from the Circuit Court on Motion of the defendant, which was acquiesced in by the plaintiff. Subsequently, on August 11, 1967, this Court, after the pre-trial conference and full discussion and review of the pleadings with you gentlemen, the Court rendered a pre-trial memorandum which each of you were furnished a copy of, and you do have a copy of it?
Mr. Widmer: Yes, sir.
Mr. Thompson: Yes.
The Court: The Court again set forth the chronological filing of the pleadings and brought the matter up to the day of the conference. You will note in this Opinion or this pre-trial memorandum that it was the Court’s opinion, based on the review of the file, the plaintiff’s Motion for Summary Judgment which the Court has under consideration, considered all matters in the case and the Court was of the opinion that this Motion for Summary Judgment of the plaintiff’s should be denied and overruled, the Court feeling- that there were general and material issues of fact raised in this case by the statement of counsel or parties for themselves in this instance, and in view of this, this Motion should be denied. This was done and has been done. In view of this statement of counsel for defendant’s position in this case, do you have anything further that you might want to offer at this time, Mr. Wid-mer?
Mr. Widmer: No, I believe we will just stand.
The Court: All right then, the defendant’s Motion for a Verdict in this case will be granted. The defendant may draw a Precedent accordingly. | [
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Paul Ward, Justice.
This is an appeal by Charles Estep and Paul Cryar from a conviction for burglary and grand larceny.
When appellants were arraigned in circuit court on August 18, 1967 they entered pleas of not guilty, and the court appointed Attorney Carl Stewart to defend them. The case was then continued and set for trial on September 5, 1965.
On the last mentioned date the following occurred: (a) Lawrence Hamilton who was also charged along with appellants, and who was sixteen years old, pleaded guilty and was sent to the Arkansas Industrial School. He is not involved here, (b) Appellants asked that they be furnished a copy of a confession of guilt signed by Estep on August 18, 1967, and that the hearing be set for a later date. The trial court granted both requests, and set the hearing for September 28, 1967.
During the trial the State offered to introduce in evidence the previously mentioned confession of Estep, which appears in the record as the State’s Exhibit No. 1. At this point appellants objected to the introduction of the exhibit, but were overruled. Then appellants noted their exceptions to the ruling of the court, and further stated: “And we ask, and I make this motion out of the presence of the jury, that it be ascertained by investigation that the testimony of these witnesses, whether or not this was a free and voluntary statement”. This motion was overruled by the court, and appellants again saved their exceptions. In overruling appellants’ exceptions the court said: “Its a question of fact. The jury will consider all of the facts. Proceed.” The exhibit was introduced in evidence, and the trial was continued. The trial resulted in a jury verdict of guilty on both counts, and sentences were fixed at not more than five years — to run concurrently.
For a reversal appellants urge four separate points. We will, however, discuss at any length only one point.
We have concluded the trial court erred in failing to determine, out of the presence of the jury, the vol-untariness of Estep’s confession. In reaching this con- elusion we deem it unnecessary to discuss the decision of the U. S. Supreme Court cited by both parties, because we think Ark. Stat. Ann. § 43-2105 (Supp. 1967) is controlling in this case. It reads:
“Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the volun-tariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.”
The above section was cited and approved in Mullins v. State, 240 Ark. 608, 401 S. W. 2d 9.
In view of the above, the case must be reversed and remanded for a new trial.
We have examined carefully the other alleged errors and find no merit in any of them.
Reversed and remanded.
FoglemaN, J., concurs. | [
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J. Fred Jones, Justice.
This cause is submitted here on certiorari from the Pulaski County Circuit Court, First Division.
The record before us is meager indeed, but the petitioner and the respondent agree in their briefs, that on December 5, 1967, the petitioner, Lynn A. Davis, while serving in the capacity of director of the Arkansas State Police, appeared before the Pulaski County grand jury, in response to a summons, and refused to answer a question propounded to him by, or on behalf of, the grand jury while it was in session.
The record does reveal that the foreman, the secretary, and the chairman of the Law Enforcement Committee of the grand jury, together with the prosecuting attorney, appeared with Davis before the trial judge in chambers, and upon inquiry as to the purpose of the appearance in chambers, the foreman of the grand jury stated:
“["W]e can’t get any place because of the Colonel here just refuses to give us any information whatsoever, and he makes a statement that he don’t intend to, and we feel like we have gone as far as we can go.”
The court then inquired as to the nature of the information sought by the grand jury, and the foreman of the grand jury continued,
“ [H]e says he has an informant but he is not willing to give us the informant or anything to go on at all. It’s all hearsay so far.”
The trial court inquired of the foreman of the grand jury whether the question propounded to Davis was in connection with the investigation the grand jury had under consideration at the present time, and the grand jury foreman answered in the affirmative. The prosecuting attorney stated to the court that it had been pointed out in the record that Davis had information to the effect that another person had personal knowledge and legal evidence presentable in court to the effect that a person —Kenneth Brown — was operating a gambling house, and that the only way the evidence could be obtained was through the disclosure of the person’s name which Davis refused to divulge. The prosecuting attorney then requested the court reporter to read the information from the notes taken before the grand jury, but this was not followed through.
At the close of these discussions in chambers, the pertinent parts of the record are as follows:
“THE COURT: Well now, as I understand it, and all of the Grand Jury has all agreed, and the Colonel here also agrees, that the question asked him, and that he refused to answer was: What was the name of his informant? And, now the Court wants to ask you. I have decided that it is material, and I think under Section 43-916 I can propound the same question to you, and of course, if you refuse to answer you will be in contempt of this Court, and be dealt with contempt. Now, what is the name of your informant ?
COL. DAVIS: I refuse to name the informant for fear of life or property.
* # *
THE COURT: * * * I am going, to have to hold you in contempt and send you to jail until you change your mind.”
Davis was then committed to the Pulaski County jail to he held until such time as he purged himself by answering the question propounded to him.
Grand juries have the “duty to inquire into all public offenses committed within the jurisdiction of the court in which they are impaneled, and to indict such persons as they find guilty thereof.” (Ark. Stat. Ann. § 43-908 Repl. 1964.) But, “the grand jury can receive none but legal evidence....” (Ark. Stat. Add § 43-918 [Repl. 1964].) (Emphasis supplied.) There is nothing in the récord before us that would reveal the nature of the investigation being conducted by the grand jury, or what information, if any, the grand jury desired, or hoped to obtain, from the individual whose identity Davis refused to reveal. The context in which the question was propounded to Mr. Davis is not in the record before us. The record does not reveal what the evidence of Davis’s informant would have been, and the record does, not reveal what, if anything, Davis had indicated it would be, if he did so indicate. Consequently, not knowing what Davis had testified that his unknown informant knew or could offer in the way of evidence, we have no way of determining whether it; would have been legal evidence which the grand jury could receive. In fact, the record here places us in the same position Davis’s testimony placed the grand jury as expressed by its foreman — it does not give us anything to go on at all.
Ark. Stat. Ann. § 43-916 (Repl. 1964) under which Davis was held in contempt and committed to jail, is as follows:
“When a witness, under examination, refuses to testify, or to answer a question put to him by the grand jury, the foreman shall proceed with the witness into the presence of the court, and there distinctly state the refusal of the witness, and if the court, upon hearing the witness shall decide that he is bound to testify or answer the questionypropound-ed, he shall inquire of the witness if he persists m his refusal, and if lie does, shall proceed with him as in cases of similar refusal in open court.” (Emphasis supplied.)
The statute does not set out to what extent the witness is to be heard before the court shall decide whether or not he is hound to testify or answer the question propounded, but surely the statute contemplates more than simply hearing the witness refuse again to answer the same question propounded to him in the grand jury room, without first ascertaining the nature of the information the question is designed to produce.
Our grand jury system is derived from the common law of England, and during the more than one-hundred years it has been in operation in Arkansas, this appears to be the first case before this court in which contempt proceeding's have been instituted against a police officer for failure to answer a question propounded by a grand jury. Indeed, we have found no cases indicating that a police officer has ever before refused to answer a question propounded to him by a grand jury.
As a usual procedure, the prosecuting attorney presents evidence to the grand jury based on information furnished him by investigating officers and the prosecuting attorney and police officers are usually on the sanie side in seeking indictments for criminal law violations and in presenting information or legal evidence to a grand jury for that purpose.
The petitioner, Davis, and the prosecuting attorney argue extreme views in opposite directions. The petitioner contends that as a police officer, he has an absolute privilege to refuse to reveal to a grand jury the source of any information he may have or obtain in connection with law violations. The prosecuting attorney contends that a police officer is bound to answer any and all questions propounded to him by a grand jury including the name of informers in all situations. We do not agree with either contention.
The privilege of a police officer in refusing to reveal the source of his information in criminal investigations (“informer privilege”) is recognized as .based on public policy under certain circumstances, the availability of which, depends upon the facts and circumstances of each particular case. Roviaro v. United States, 353 U. S. 53, 62 (1957); McCray v. Illinois, 386 U. S. 300 (1967); State v. Edwards, 317 S. W. 2d 441 (Mo. 1958); Application of Heller, 53 N. Y. S. 2d 86 (N. Y. 1945). Therefore, the privilege claimed by Davis in the case at bar is not an absolute privilege, but is qualified by the facts and circumstances of the particular case. In order, therefore, to determine whether Colonel Davis should have been required to answer the question, it is absolutely essential that we know something of the background, i. e., the nature of the inquiry which led up to this particular question. In other words, there are circumstances under which the question “What is the name of your informant?” should have been answered. To the contrary, under different facts and circumstances, the privilege could have been claimed.
The only background given this court is in the statement made in the judge’s chambers by the prosecuting attorney, in which he stated:
“Your Honor, it’s been pointed out in the record that this information which Col. Davis has is to the effect that a person has personal knowledge and legal evidence presentable in Court to the effect that a person under consideration by the Grand Jury at this time—
Kenneth Brown.
Was operating, a gambling house and Col. Davis has refused to divulge the name of the person who is possessed with this information, and it has been pointed out to Col. Davis that his statement regarding what the information that this person has is hearsay information and not presentable in Court, and the only way the evidence can be obtained is through the disclosure of a person’s name.” (Emphasis supplied.)
It will at once be seen that this statement contains several conclusions. The prosecutor states that the unidentified person has “legal evidence” and he twice uses the expression, “to the effect.” This, of course, is simply an interpretation of the alleged evidence by the prosecutor — and we are unable to tell from this record whether this interpretation was correct. We have no idea what Davis claimed the informant is supposed to have known. Did he go to Brown’s premises on an unrelated matter and observe gambling while there? Did he participate in gambling on Brown’s premises (which would make him an accomplice) or was he told by others that Brown was engaging in this illegal enterprise, and he then passed this information on to Davis? Was it Davis’s own testimony or the information Davis testified that the informant had, that the prosecuting attorney considered ‘'hearsay information”? These are examples of questions that have a direct bearing on the issue of whether the privilege could be rightfully claimed.
A statement could have been placed in the record by the foreman of the grand jury or the prosecuting attorney, with the assent of Davis (a stipulation), indicating the nature of the investigation that led to this particular question, or the foreman of the grand jury could have testified as to the facts which prompted the question propounded to Mr. Davis. He might have testified that Davis had stated that his informant saiu gambling in progress-, or he might have testified that Davis claimed that his informant heard that gambling was going on. In any event, the implications of the question “What is the name of your informant?” would be discernible in the setting the question was asked, and we would have some basis for determining whether the question would constitute or produce legal evidence which the grand jury could receive and which Davis was bound to give.
It may well be that tbe circuit judge bad other information not in the record before us, in making his determination that the question was material. This is somewhat indicated by the prosecuting attorney’s opening statement, “Your Honor, it’s been pointed out in the recordSubsequently, the prosecutor said to the court reporter, “Would you read the information.” [Apparently referring to the alleged information held by the informant.] The reporter replied. “It will take some time to read back in my notes.” And this was as far as the matter went. At any rate, no record is before us.
Even if the record was such that we could conclude that the question should have been answered, the answer should have been given in the secret confines of the grand jury room and, not in the judge’s chambers or in open court. Answers given to questions propounded by a grand jury are not public records and their secrecy is protected by statute. (Ark. Stat. Ann. § 43-928 [Repl. 1964]).
The statute § 43-916, supra, provides that upon hearing the witness, if the court should decide that he is bound to answer the question propounded by the grand jury, that the court ‘ ‘ shall inquire of the witness if he persists in his refusal.” That is as far as the statute goes pertaining to the question and answer, and that is as far as the court should go pertaining to the question and answer. The statute does not direct the court to propound the same question in semipublic court chambers or in completely public open court, calling for the same answer the grand jury sought, and which the witness refused to answer in the secret confines of the grand jury room, and the reason for this is obvious. The statute does not set out what the court shall do if the witness does not persist in his refusal, but certainly in that event, the witness should be returned to the grand jury room where the question is to be answered and the jury’s investigation continued.
From the record 'before us we are unable to say that Davis was guilty of criminal contempt in refusing to answer the question propounded to him, so the summary order of the trial court holding Davis in contempt is hereby set aside.
Byrd, J., dissents. | [
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Paul Ward, Justice.
On September 27,1966 an automobile owned by Carew W. Sanders, Jr. (appellee), driven by Ms son, collided with an automobile owned and driven by James A. Coudret (appellant) at a street crossing in Mountain Home, Arkansas. The damage done to appellee’s car amounted to $117.50 — as later stipulated.
On March 30, 1967 appellee notified appellant that if he did not pay the above mentioned amount within sixty days he would file suit for double the amount plus attorney fees and costs — pursuant to the provisions of Ark. Stat. Ann. § 75-918 (Repl. 1957) which reads:
“In all cases wherein loss or damage occurs to property resulting from motor vehicle collision amounting to two hundred ($200.00) dollars or less, and the defendant liable therefor shall, without meritorious defense, fail to pay the same within sixty days after written notice of the claim has been received, such defendant shall be liable to pay the person entitled thereto, double the amount of such logs or damage, together with a reasonable attorney’s fee which shall not be less than fifty dollars ($50.00) and court costs. This liability, which is limited to damage to property, attaches when liability is denied and suit is filed.”
When appellant failed to pay appellee filed a complaint on August 1, 1967, alleging the collision wás caused by appellant’s negligence. Appellant denied the allegation of negligence, and stated: (a) he had a meritorious-defense and (b) said statute is unconstitutional.
The trial resulted in a jury verdict in favor of ap-pellee, fixing the damages at $117.50. Based on the verdict, the trial judge ordered appellant to pay appellee the suip of $235, being double the amount of the verdict, together -with all costs of this action, plus attorney fees in the amqunt of $200. Appellant here seeks a reversal on the two points presently discussed.
One. The trial court erred in giving appellee’s requested Instruction No. 7, which reads:
“When vehicles are approaching an intersection from different streets the driver of a motor vehicle must yield the right of way to another driver who in the exercise of ordinary care has already entered the intersection.
“If vehicles are approaching an intersection from different streets at such relative speeds and distances from the intersection that both vehicles will enter the intersection at the same time, then the law requires the driver of the vehicle on the left to yield the right of way to the vehicle on the right.
“A violation of these rules governing the approach to an intersection although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in this case.”
We are unable to agree with appellant’s contention. "When Instruction No. 7 was offered by appellee the only objection made by appellant was that “there is no evidence before the jury from which they could find that the defendant (appellant) was approaching the intersection, but was in fact in the intersection before a reasonable and prudent person would have realized the danger existed”. The record does not support appellant’s evaluation of the evidence.
Dean Sanders (the son of appellee) was driving ap-pellee’s car in an easterly direction along 13th Street, and appellant was driving his own car in a southerly direction along Maple Street which intersected 13th street. Dean testified, in effect, that when he was about thirty feet west of the intersection he saw appellant’s car (to the left) about twenty feet north of the intersection. The testimony further shows Dean was traveling about twenty five miles per hour and appellant was traveling from twelve to fifteen miles per hour. This testimony, we think, justified the court in giving the instruction.
Two. Appellant here contends the court erred in refusing his requested Instruction No. 1. We deem it unnecessary to copy in full the instruction which covers three pages in appellant’s brief. Set out below is a summary of what we consider to be the essence of the offered instruction:
You are instructed that appellant had a “meritorious defense” if he believed in good faith, acting as a reasonable prudent person and based on the surrounding facts, that he was in fact free of negligence.
Put another way — appellant is contending it should be left to the jury to say whether or not he believed he was free from negligence.
The answer to appellant’s contention is found in Ford v. Markham, 235 Ark. 1025, 363 S. W. 2d 926. There, in construing the same statute here involved, this Court said:
“Thus the want of a meritorious defense relates not to the issue of ultimate liability but to the failure to pay the claim within 60 days after notice. Apparently the phrase was inserted in the statute to provide for instances when the defendant had a valid reason for not making payment within 60 days, such as the failure of his liability insurance carrier to process the claim within that time or the occurrence of some unavoidable casualty that prevented the defendant from meeting the 60-day deadline.”
The Markham opinion is, we think, sonnd and in harmony with onr holding in Missouri State Life Insurance Co. v. Fodrea, 185 Ark. 155 (p. 157), 46 S. W. 2d 638. The Court there was considering § 615 C. & M. Digest, which authorized assessment of 12% damages and attorney’s fee. Appellant contended “no damages and attorney’s fee should he assessed where defense is made in good faith and refusal to pay is based upon an honest and fairly debatable difference of opinion as to the law involved”. In answer to the above contention the Court said: “We do not agree with appellant in this regard, and we think the Supreme Court of the United States has decided the question adversely to appellant’s contention”. — citing cases.
The judgment of the trial court is affirmed, and appellee is awarded $250 attorney’s fee.
Affirmed.
Browk, FoglemaN and Byrd, JJ., concur. | [
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Carleton Harris, Chief Justice.
T. & C. Construction Company was the owner of Lot 8, Heritage Subdivision, in Conway. This lot, along with others, was subject to a mortgage held by Capitol Savings and Loan Association, such instrument providing that any lot which was subject to the mortgage would be released by payment of $2,000.00 toward retirement of the debt. Lot 8 was sold by T. & C. Construction Company on January 31, 1966, to John W. Fent and wife, the consideration being $2,900.00. First National Bank of Conway, appellant herein, loaned the amount of the purchase price to the Fents, this indebtedness being evidenced by a note for that amount, signed by Fent and his wife, and by the president of T. & C., George Shaw, Jr. Two thousand dollars of this loan was paid at that time to release the lot from the Capitol Savings and Loan Association mortgage, and the $900.00 was paid to T. & C. by deposit to its account. The bank officer who handled the transaction knew the specific purpose for which the $2,900.00 would be used.
On February 2, 1966, the Fents executed a mortgage to the bank on Lot 8, which recited an obligation on the bank’s part to lend $12,900.00 to be used solely in the construction of a residence on this lot, funds to be advanced from time to time as the work progressed. The bank recorded the mortgage, and did, over a period of time, advance $10,000.00, which the Fents used to pay the general contractor. Thereafter, the Fents encountered financial difficulties, and Conway Sheet Metal Company, Inc., appellee herein, and other sub-contractors, filed suits to foreclose materialmen’s and laborers’ liens, and the bank sought to foreclose its mortgage. On trial, the court found the bank’s mortgage to be a valid construction mortgage upon the property in question, prior and superior to all asserted liens. A few months later, following our decision in the case of Planters Lumber Company, Inc. v. The Wilson Company, Inc., 241 Ark. 1005, 413 S. W. 2d 55, appellee filed a motion to vacate the judgment, and on March 24, 1967, still within term time, the Chancery Court set aside and vacated the order of distribution which it had earlier entered, insofar as it pertained to the relative priority of appellee’s claim. The cause was thereafter submitted upon the stipulation of the parties, and the court, on May 19, entered a new decree in which it held, as follows:
First, that all costs should be paid; second, that First National Bank should be paid the sum of $13,-666.98,'representing the $10,000.00 actually advanced for construction purposes, the $2,000.00 advanced in discharging Lot' 8 from the mortgage in favor of Capitol Savings and Loan, and $1,666.98, representing interest, costs, and attorney fees provided for in the note and mortgage held by the hank. Third, the court held that appellee should be paid the sum of $1,133.49, it having established its right to a lien upon the property in the amount of $1,472.06.
“* * * Said lien claimant is entitled to share pro rata in any sums remaining in the hands of said commissioner after payment of the two aforementioned prior claims upon said funds, pro rata and to the same extent as if all other lien claimants remained parties to this action, in which event Conway Sheet Metal Company, Inc., would be entitled to receive a total of 77 % of its aggregate lien claim of $1,472.06.”
Finally, the decree directed that, since other lien claimants had not moved to set aside the original decree, any balance of funds remaining would be paid to the bank to apply on the indebtedness owed it by the Fents and George Shaw, Jr. From the decree so entered, the bank brings this appeal. Appellee cross-appeals from that part of the decree which awards the bank a first lien upon the property involved for any amount above the $10,000.00 actually advanced for construction purposes, plus interest, costs, and attorney fees therein.
The priority given the bank on the $10,000.00 advanced by the bank for construction is not questioned, the mortgage having been recorded before construction was begun, the bank being obligated to advance that amount, and admittedly having done so. Therefore, the only items involved in this litigation are the $2,000.00 advanced for release of the lot, and the $900.00 which was used to pay the balance due the seller of the lot. Appellant asserts that it is entitled to the entire $2,-900.00, and appellee asserts that it is entitled not only to priority over the $900.00, but also to priority over the $2,000.00.
The question then is, “Can a construction money mortgagee, who is obligated under the mortgage to ad- vanee a certain sum of money solely for construction purposes, divert a part of the funds to some other purpose, and still claim (as to the funds diverted) the protection that would he afforded had the entire amount been used for construction? Appellant relies in large measure, upon Ashdown Hardware Company v. Hughes, 223 Ark. 541, 267 S. W. 2d 294, and argues that the controlling circumstance is the purpose for which the money was borrowed.
Hughes is easily distinguishable from the case at hand in that there, the portion of the money which was to be used to retire an already existing mortgage was given particular mention in the new mortgage, same providing that the grantors were justly indebted to the lender of the-money in the amount of $4,500.00; the instrument further recited, “And this mortgage likewise secures an additional advance to be made by the mortgagee in the total sum of Five Thousand, Five Hundred dollars * * * .” This last amount was to be used for the construction of tourist cabins. In the instant case, according to the mortgage given, the entire $12,900.00 is “to be used solely for and in the construction of a residence upon the lands hereinabove described, and Grantee has agreed to make said loan for such purposes, and Grantors are justly indebted to Grantee for advances made or to be made hereafter by Grantee to Grantors from time to time for such purposes, aggregating the principal sum aforesaid* * *. Grantee agrees that the acceptance and recordation of this mortgage binds Grantee, its successors and assigns, absolutely and unconditionally to make said loan in advances. Such advances will be made as requested by Grantors as such work progresses.”
The distinction is at once apparent, for in Hughes, materialmen and laborers could quickly ascertain that, though the entire amount loaned by the mortgagee was $10,000.00, only $5,500.00 was to be used for construction.
In Planters Lumber Company, Inc. v. The Wilson Company, Inc., supra, we held that where a lender withheld certain sums from the amount of construction funds stated in the mortgage, inter alia, the cost of the lots, he could not claim priority in those amounts withheld. Appellant endeavors to distinguish the ease before us from Wilson by pointing out that there, The "Wilson Company owned the lots, and did not advance any money for the payment of same, nonetheless holding out the price of the lots, while here, the bank actually did advance the $2,900.00, which was used for the purchase of Lot 8. It may be, from the standpoint of equity, that appellant, in the present case, is in a better position than Wilson— but the principle which is controlling is exactly the same. Actually, Wilson, to some extent, modified earlier holdings in that the following principle is announced: Where a construction money mortgage recites that a certain amount of money will be advanced for construction — it must be used for that explicit purpose if the mortgagee is to have priority over lien holders. Certainly, this is only fair. A materialman or laborer, who plans to furnish materials, or labor, on a particular job is entitled to know how much money the lender is bound absolutely and unconditionally to advance as work progresses. As stated in Wilson:
“With this information gleaned from the record, an alert materialman might desire to make another financial check as the work progresses; namely, to check with the disbursing agent to get the total expended for construction. ’ ’
It might also be mentioned that the purpose clauses in Wilson and the present case are practically identical. Appellant asserts that a decision adverse to their side of the case “cannot help but result in great harm to the building industry and the well-being of the state, as the impact of this decision will be felt for many years to come. That is the primary reason for this appeal.” We are unable to agree with this statement, for there is more than one way that the hank can give itself absolute protection. One has already been mentioned in this opinion, in referring to the Hughes case. We see no great difficulty in having the mortgage recite that a portion of the money (giving the amount) has, or will he, used to pay off an existing indebtedness. Complete protection for the full amount (advance for retirement of indebtedness and construction advances) is thus afforded.
In accordance with what has been said, it follows that the court erred in giving the bank priority on any amounts advanced in excess of the $10,000.00 used for construction. The decree is therefore affirmed on direct appeal (involving the $900.00), and is reversed on cross-appeal (as to the $2,000.00), and the cause is remanded with directions to enter a decree not inconsistent with this opinion. It is so ordered.
FoglemaN, J., dissents. | [
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Lyle Brown, Justice.
The trial court affirmed a finding of the Workmen’s Compensation Commission that appellee, Walter Brooks, was totally disabled. The employer-appellant, Arkansas Best Freight System, Inc., controverted any disability in excess of fifty per cent to the body as a whole, that being the highest medical disability in evidence. Appellant contends there is not sufficient competent evidence to warrant an award based on total and permanent disability. The attorney’s fee is also questioned.
On the issue of degree of disability we shall examine the facts in the light most favorable to the Commission’s findings. Brooks was fifty-two years old at the time of the accident. He attended school some two or three years and thinks he “made it through the second grade. ’ ’ For thirty-six years he had been a truck driver, sixteen years for ABF. He sustained injuries in an accident on February 28, 1962, while operating a tractor-trailer unit. Principally the lower back and neck were injured. Because of the injuries he was able to' work only intermittently under medication from the time of the accident until late in October. Surgery was performed in' early November. The vertebral laminae on one side were removed; because of the “hour-glass constriction” at the L-3 and L-4 interspaces it was performed bilaterally; a ruptured intervertebral disc at the right L-4 inter-space was removed, as well as the disc at L-3. His medical and hospital expenses have been approximately $3,-000. While he was under therapy after the operation he was advised by the doctor to try driving. He went out on a few runs for ABF but stated that the pain was unbearable even under medication. Since those experiences he has not been able to do any physical labor. He tried to run a power lawnmower in the summer of 1966 but was unable to do so. In early 1967, he testified, he lifted his granddaughter, who weighed about seventeen pounds, and the strain placed him in traction. He says he is presently unable to drive his own car. He has been on medication continuously since the accident. A few( hours in a sitting position causes pain and causes the right leg to go to sleep. Bed' rest is required twice daily.
Brooks and two other truck drivers of long experience described the usual duties of truck transport operators. Besides actual driving they load and unload freight at terminals along their route; they change trailers, which involves rolling “the dolly wheels down and get the pin open on the fifth wheel”; sometimes it is a two-man job; the turning of corners with a heavy load requires substantial physical exertion; some trips take up to fifteen hours, including driving, loading, and unloading.
Two surgeons, one an orthopedic and the other a neurological surgeon, estimated Brooks’ disability. The latter perfor|med Brooks’ surgery. He estimated Brooks’ disability to be 25 per cent to 30 per cent to the body as a whole and stated that the disability prevented claimant from driving a transport truck and performing the incidental duties. As to functional disability the orthopedist assessed 25 per cent and estimated “that for additional matters this might be doubled to 50%.” The additional disability was described as “psychophys-iological, ’ ’ a term used to describe a reaction by the patient based on both his emotional and physical state. The doctor found no evidence of malingering. He was further of the opinion that Brooks would be running a risk if he lifted more than forty or fifty (pounds.
The pronouncement in Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685 (1961), settled the law with reference to non-scheduled injuries. “Loss of the use of the body as a whole” involves two factors. The first is the functional or anatomical loss. That percentage is fixed by medical evidence. Secondly, there is the wage-loss factor, that is, the degree to which the injury has affected claimant’s ability to earn a livelihood. As stated in Mann v. Potlatch Forests, 237 Ark. 8, 371 S. W. 2d 9 (1963), the second element is to be determined by the Commission, based on medical evidence, age, education, experience, and other matters reasonably expected to affect the earning power. We might add that whether an injured claimant can be trained to perform other work is ofttimes a factor.
Actually, the rule in Edens is far from new to jurisprudence. It is stated that “Arkansas was one of the last states to give consideration to loss of wages or diminution of earning capacity as an element in determining awards for disability.” It is by far the majority rule, as pointed out by Prof. Robert R. Wright in “Compensation for Loss of Earning Capacity,” Ark. L. Rev. 269 (1965).
Had a jury reached the same conclusion as did the Commission, we could not say there was no substantial evidence to support it; That is the test. Considering the medical testimony, age, experience, and education (all of which have been described), we hold the Commission’s findings to be substantially supported.
The remaining question concerns allowance of the attorney’s fee. For thirty-nine weeks ABF paid temporary total disability. Then for 124 weeks Brooks was paid for permanent partial disability based on 27% per cent permanent partial disability to the body as a whole. Under date of October 19, 1966, ABF gave notice of suspension of compensation. That was the proper expiration date if its liability did not exceed the formula based on 27% per cent disability. Objection was made either by the claimant or by his attorney and the matter was set for hearing. One week before the hearing, counsel for ABF advised Brooks’ attorney that ABF would accept an evaluation of 50 per cent permanent partial disability. It is ABF’s contention that it has never controverted 50 per cent partial; Brooks contends that it controverted any amount over 27% per cent partial. The Commission found that ABF had in fact controverted any disability exceeding 27% per cent. For 124 weeks ABF contended that was the maximum disability and suspended payments when it had met that liability. After Brooks employed counsel to protect his rights, and just one week before the scheduled hearing, ABF raised the figure to 50 per cent. ABF’s suspension of payments amounted to a declaration that it considered its obligation completed and intended to pay no more. Brooks protested. Therefore the issne was joined. Dr. Stanton advised ABF under date of June 6, 1966, that he fixed the medical disability at 50 per cent. Notwithstanding, ABF continued to make payments on the basis of 27% per cent until October, at which time notice of final payment was given. We cannot say the Commission erred.
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Carleton Harris, Chief Justice.
This is a child custody case. Appellant, James Paul Daniel, 22 years of age, is a member of the United States Air Force. He was married in 1962 to appellee, Patsy Marie Daniel, at a time when he was 17 years of age, and she was 16. When barely 18, appellant joined the Air Force, and has been in the service since that time. Two little girls were born to the marriage, Paula Marie, 4 years of age, and Pamela Sue, 2 years of age. In July, 1966, Daniel was sent to Vietnam, where he was stationed until the last of April, 1967. In December, 1966, according to the evidence, appellant ceased receiving mail from his wife, but after a month, he received a letter from her asking for a divorce. James was told by Patsy, according to his evidence, that she loved another man. Subsequently, appellant filed an action, seeking a divorce and custody of the children, but later withdrew the petition for divorce, and confined his suit to a prayer for custody of the little girls. His wife filed a counter-claim for divorce, custody of the children, and support and alimony. After hearing evidence, the court denied a divorce to ap-pellee, hut held that appellant had failed to show that his wife was unfit to have custody of the minor children, and such custody was awarded to Patsy. The court further directed that the sum of $125.00 per month be paid for child support. From the decree so entered, appellant brings this appeal. For reversal, it is first asserted that Mr. Daniel should have been awarded custody of the children, and it is also argued that the amount awarded for support was excessive.
After a close study of the record, we have reached the conclusion that the Chancellor’s findings should not be disturbed. Appellant testified that, when lie, by virtue of his military duties, had to leave his wife, a mobile home which had been purchased by the parties was left parked at her mother’s house, the monthly payments being $60.75 ... a 1962 Comet automobile was also left with her. He said that, after being in the service two months, he made an allotment, and after going to Vietnam, he sent her practically all of his money, except about $10 a month; that this, for some period of time, amounted to about $500.00 per month. The witness stated that, when he reenlisted in August, 1966, he received a bonus, and sent her $850.00, but that, despite receiving these amounts of money, the mobile home had been lost due to her failure to make payments. Appellant testified that, after returning home, he went to his wife’s apartment, knocked on the door, and a man, J. C. Foreman, came to the door; that the two little girls were standing in the apartment, calling the man “Daddy.” Daniel said that the door was slammed in his face, but, after his continual knocking, it was opened again, and the man said that he was a repairman. Appellant is presently stationed at the Larado Air Force Base, and he testified that he was applying^ for a transfer to the Blytheville Air Base; that, if the transfer is approved, he will he able to go to Cash, where he will live with his parents, after finishing his regular work day at Blytheville. He desires that the custody of the children be given to him, and he stated that his parents would keep the children. Daniel said that, despite all that had happened, he would still be willing to talk with his wife about a reconciliation.
Grover Gent testified that he was the employej of a man named J. C. Foreman (who had worked for him for two months), and that Patsy Marie Daniel would generally bring Foreman to work. He said that she reg-ulai’lv would pick Foreman up when he finished his work about 11:00 P.M. W. E. Cooksey, manager of an apartment house in Jonesboro, rented appellee an apartment, and he said that Mrs. Daniel informed him that she had a husband and two children, and that her husband worked at Berry’s truck shop.
A brother and brother-in-law of appellant testified that they had observed Patsy in the car with J. C. Foreman, appellee having her arms around Foreman. The brother-in-law stated that appellee was a messy housekeeper, and that the children were not taken care of: “Their clothes was dirty, their faces was dirty and their hair wasn’t combed, and dirty dishes setting around, setting on the floor.” His wife agreed with this testimony, and said that the children were not properly dressed in the winter. She also said that appellee spent all afternoon with a “preacher.” Appellant’s mother, 51 years of age, and father, 67 years of age, testified that they owned a farm near Cash, had plenty of room to keep the children, and would be glad to do so. Both testified that their daughter-in-law neglected the children.
Appellee testified that it had been necessary for her to work at various times after her marriage to appellant; that she worked at the sandwich department at the base, and worked at a drive-in as a-'car hop. According to her testimony, she turned all checks over to her husband, prior to his going overseas. The witness stated that the trailer was repossessed after she had gone to Little Rock to try and find work. According to Patsy, the couple had become heavily involved in debt, because of purchases made, including the automobile, and $800.00 worth of furniture. She said that most of the money was spent in paying debts, including payments to the bank for money which her husband had borrowed. She denied that she did not care for the children properly, denied that she had an affair with the minister heretofore referred to, and denied that she had had improper relations with Foreman. She said that her husband had accused her of being intimate with several men; that he mistreated the children, having whipped them with a leather belt. Patsy’s mother, Mrs. Simms Decker, during a period when her daughter was working, kept the children from the last of December, 1966, until Mav, 1967.
Counsel for appellant urges that we give this case a real de novo hearing, and suggests that, all too often, we rely upon the findings of the trial court, commenting that the Chancellor had the opportunity to observe the litigants, and that we will not reverse his findings unless they are clearly against the preponderance of the evidence. Counsel is correct in stating that we do rely, in large measure, upon the findings of the trial court, and we are convinced that this is the better practice; though it is repetitious, we do think that the trial court is in a better position to render fact findings than this court, and we have commented that this is particularly true in a child custody case. In Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500, we said:
“* * * The Chancellor saw and heard the witnesses, and all the parties to the litigation, and evidently saiv the child, as the testimony reflects she was present. We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i. e., to observe these litigants and determine from their manner, as well as their testimony, their apparent interest and affection, or lack of affection for the child.”
There can be no entirely satisfactory conclusion of a contested child custody case. We, of course, are prone to be sympathetic with the position of the appellant, who is serving his country, and has been in Vietnam, and it does appear that his wife has not spent her time grieving over his absence. However, it. is noticeable that there is no evidence of appellee drinking, carousing, or frequenting undesirable places. Likewise, there is no actual evidence of adultery between appellee and Foreman, though he seems to have had a close association with appellee; the Chancellor, we think stated it correctly, when he said:
“Gentlemen, it is just this simple. She had a complaint for a divorce on the grounds of general indignities on his part and she has utterly failed to show anything at all. Any claim of infidelity, she denies, but there is sufficient conduct to put a reasonable person on notice that she might be guilty of it. I will have to deny her divorce and I will give her custody of the children. There is no showing that she is not a fit and proper person to have custody of the children and that will be my decree.”
It will also be observed that the evidence was not entirely one-sided, though there is no testimony that would indicate that appellant was guilty of intimate relations with other women. At any rate, whatever our thoughts in the matter, the fact remains that this court lias, many times, said that children of tender years will not be taken from a mother solely because of her infidelity to the husband. Harris v. Gillihan, 226 Ark. 19, 287 S. W. 2d 569, and cases cited therein.
We have many times said ,(,in fact, so many that a citation of authority is unnecessary) that the paramount consideration in child custody cases must always be the welfare of the child. In taking this rule as the guiding star, we cannot say that the court was wrong in awarding custody of the little girls to their mother. Appellant’s mother is 51 years of age, and his father is 67, and appellant himself did not seem to feel that his mother was a proper person to have the custody of the children. This is evidenced by the fact that appellant Avrote a will just before he Avent to Vietnam providing that if anything happened to him and his wife, appel-lee’s mother Avas to haAe the care of the two children. He also admitted that he had, both by mail, and in talking to his Avife, stated that his mother was not the proper one to have custody of the two little girls, though he said that this was based on the fact that his wife “told me about some things that my parents done.” It might also be added that, though appellant states that if he or his parents be given custody of the children, he would apply for a transfer to the Blytheville base, there is no assurance that the transfer would be granted.
It is also argued that the award of $125.00 per month is excessive. Let it be remembered that this money is not being paid for the benefit of the wife, but rather the decree makes it plain that the amount is for child support. With living costs mounting each day, we are unable to agree Avith appellant that this amount is excessive. It also appears that $105.00 of this sum will be paid by an allotment from the government, that amount being provided for children. It thus appears that appellant will actually be called upon to pay only $20.00. Of course, under a change of circumstances, appellant can always move to modify the provisions of the decree.
Appellee’s counsel is allowed an additional fee of $100.00 for services in connection with this appeal.
Affirmed.
Appellee gave notice of a- cross-appeal, but same has apparently been abandoned, since, in her brief, she urges that the decree should be affirmed.
She was subsequently employed at Dobbs House in Little Rock.
Appellant testified, “I may have lightly, but I didn’t beat them.” | [
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Paul Ward, Justice.
This is an appeal from a chancery decree which held two grantors mentally incapable of executing a deed. Other issues are also raised. The background facts set out below are not in dispute.
Facts. On October 27, 1961 J. H. Peters and his sister executed a deed to J. S. Kirkpatrick and his wife conveying to them a house and lot at 1408 Bishop Street in Little Rock. The purchase price was $4,000, of which $2,000 was paid in cash and the balance in monthly installments secured by a vendor’s lien. The Kirkpatricks substantially improved the property and then went into possession.
On September 22, 1964 the Kirkpatricks conveyed, by deed, the property to Housing Authority of Little Rock for $10,000, less the amount due the Peterses. When the Authority offered to pay the Peterses they refused to accept the money and satisfy the lien.
When the Authority filed suit to remove the lien on the property held by the Peterses they alleged that at the time they executed the deed to Mr. and Mrs. Kirkpatrick they were of unsound mind and incapable of doing so. Thereupon the court appointed Murt J. Donahue guardian ad litem for Elizabeth Peters and Mrs. E. J. Epps as guardian ad litem for J. H. Peters.
The issues of mental incapacity were presented to the Chancellor who held both Elizabeth and J. H. Peters were incompetent to execute the deed to Mr. and Mrs. Kirkpatrick, and canceled the same. Numerous other issues were also raised at the trial and decided by the court, but these issues need not be discussed since we have concluded the trial court erred in canceling the deed in question. The decisive issue therefore is wlietlier the court’s finding’ of incompetency is supported "by the weight of the evidence.
The rule for testing the mentality required of a person before he can execute a valid deed, in the absence of fraud, duress or undue influence, has been well established by many decisions of this Court. In Pledger v. Birkhead, 156 Ark. 443 (p. 455) 246 S. W. 510, there appears the following statement:
“If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument.”
The exact statement copied above was approved in Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009. In Donaldson v. Johnson, 235 Ark. 348, 359 S. W. 2d 310, a Mrs. Donaldson, 81 years old and suffering from “diabetes, arteriosclerosis, leukemia, secondary uremia and other diseases of old age”, executed a deed to her daughter for “$1.00 and other valuable consideration”, and then died nine days later. A son sued to cancel the deed on the grounds that the daughter “exercised undue influence on Mrs. Donaldson to secure the deed and also that Mrs. Donaldson was incompetent to execute the deed”. This Court in rejecting the above grounds, stated:
“The proof before the chancellor fails to show undue influence or lack of mental capacity at the time the deed was executed.” (Emphasis added.)
In the case here under consideration we think the weight of evidence does support a finding that Elizabeth and J. H. Peters did have sufficient capacity to retain in their memory, without prompting, the extent and condition of their property, to whom it was conveyed, and for what consideration at the time of the conveyance. Since practically all the testimony pertained to the mental incapacity of Elizabeth, we will examine only that part of the testimony.
Elizabeth and her brother, J. H., lived on the property for many years; they dealt with a realtor in selling to the Kirkpatricks; they refused two previous offers before accepting $4,000 on October 27, 1961. Then they purchased a home in the country where they desired to live. After the Kirkpatricks had made substantial improvements they sold to the Housing Authority for $10,000. The extent of the improvements is not revealed. It was established that Elizabeth’s actions were peculiar or unusual in that neighbors heard her make loud noises and often saw her scantily dressed— probably the result of drinking to excess. The essence of the testimony offered to show Elizabeth’s incapacity to execute the deed is set out below.
A Mrs. Mayes, who knew her in 1960, said she was some times incoherent, didn’t go to church, but was normal at times, and she knew nothing about her condition when the deed was made. Mrs. Nally knew her for twenty-seven years, but not since 1959, and knew nothing about her capacity when the deed was made. Mrs. Myers knew her but hadn’t seen her since 1955. Her guardian ad litem knew nothing about her from the year 1951 until after the sale was made. Dr. Elizabeth Fletcher, who saw her briefly in 1953, wrote a letter in 1958 having her committed to the State Hospital for a short time. The doctor was not positive that she actually saw her at that time. Dr. McMillan interviewed her at the time the deed was made when she applied to the welfare department for a job, and didn’t think she was suited for gainful employment. He didn’t have any record pertaining to mental incapacity, and he was not a psychiatrist.
On the other hand, five or six witnesses testified Elizabeth was at times normal and mentally competent, and that she fully understood all about the transaction with the Kirkpatricks. Moreover, at the time of the negotiation when the question of her mental capacity was raised, interested parties arranged for a hearing in Probate Court before Paul X. Williams (then a chancery judge on exchange) who pronounced her mentally competent.
We therefore hold that, under legal rules previously mentioned, the weight of the testimony does not support the finding Elizabeth Peters and J. H. Peters were not, at the time the deed was executed, mentally competent. In view of this conclusion it is not necessary to decide the other issues raised on appeal.
The decree of the trial court is reversed, hut it will have jurisdiction to take further necessary action consistent with this opinion.
BrowN, J., concurs.
Byrd, J., disqualified. | [
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Tom Glaze, Judge.
This is an appeal from a Chancery Court decree wherein it wa held that the appellees and the general public had acquired an easement by prescription over a roadway through open and unenclosed timberlands owned by the appellant, Simon Zunamon. These lands are operated by appellant, Chicago Mill and Lumber Company, in furtherance of its timber interests in Desha County. Chicago Mill had leased a part of this land (which involved the roadway in question) to appellant, Melinda Bar Hunting Club. In March, 1979, the Melinda Cliib members caused a cable to be placed across the roadway, blocking public access to it. The appellees filed suit seeking an injunction to remove the cable, contending that the road was a public road acquired by prescription. Zunamon and Chicago Mill defended the suit, claiming that they gave blanket permission for the public to use the road, and that the permissive use of the roadway prevented the creation of an easement by prescrip tion. From an adverse decision, Zunamon and Chicago Mill contend on appeal that the appellees did not present sufficient proof that an easement by prescription had been created. Moreover, they also appeal from the lower court’s decision which granted public prescription rights on land other than the roadway owned by Zunamon.
The controlling law of the case before us is stated in Fullenwider v. Kitchens, 23 Ark. 442, 266 S.W. 2d 281 (1954). The court in Fulenwider, after it reviewed the leading .prescription right cases in Arkansas, stated the law as follows:
A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear, in our opinion, that no real conflict exists. All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to this interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right. (Emphasis supplied.)
Zunamon and Chicago Mill argue, and we believe correctly, that the original prescription in favor of a permissive use cannot be rebutted solely by evidence showing the road was used by the public over an extended period of time. However, the appellants’ argument also seems to include that some person or persons were required to communicate to Zunamon or Chicago Mill that they intended to use the roadway adversely. This is not true. The length of time and circumstances under which the roadway was opened and used is sufficient to establish an adverse use. McGill v. Miller, 172 Ark. 390, 288 S.W. 932 (1926). Again, the court in Fullenwider made it clear what kind of knowledge was required to show an adverse claim wherein it held:
In our opinion . . . the weight of the testimony supports the finding of the Chancellor that appellee and her predecessors in title used road “B” for more than seven years after appellants and their predecessors in title knew or should have known that the road was being used adversely. [Emphasis supplied.]
From the foregoing, we must now decide if the appellees presented sufficient evidence to show the public openly and continuously used the roadway in question for seven years or more, and if the facts arid circumstances surrounding the usage were such that Zunamon and Chicago Mill knew or should have known it was adverse. We conclude the evidence before the trial court was sufficient to support its decision that the road became a public easement by prescription.
There was testimony that the road was in existence as early as 1913 or 1914 and was used by people coming out from a steamboat landing located on the Arkansas River. Appellee, Dobson, testified that this road was travelled by wagons, buggies and automobiles as long as sixty-six years ago. There was evidence offered by several witnesses that the roadway had been maintained by private citizens as well as the county, which included grading and gravelling the road. There were maps introduced as exhibits which clearly show a discernable road which spans over a one and one-quarter mile area and is approximately thirty feet in width. In the case of Burdess v. Arkansas Power & Light, 268 Ark. 147, 597 S.W. 2d 828 (1980), cited and relied upon by appellants, the court denied a public easement existed in part because there was no discernable roadway and the passageway sought was no more than an unimproved timber trail. The facts before us are clearly distinguishable from those in Burdess. Finally, witnesses called by appellants and appellees at this action agreed that the roadway was used by log hauling concerns, fishermen, hunters and campers.
The facts and circumstances shown by the foregoing evidence and testimony alone is sufficient to establish the appellees’ right to a public easement over the roadway in question. Additionally, however, it is the testimony of the appellants’ witnesses which makes our decision conclusive on the issue before us. Oscar Locher, age 69, and manager of Chicago Mill since 1929, testified he was aware of private logging concerns and other people using the road for fifty years, and there was never an attempt to prevent people from using it until March, 1979. Mr. Wilkins and Mr. Beatty, members of the Melinda Bar Hunting Club, testified they were familiar with the road for thirty-two years and seventeen years, respectively, and they, too, were aware of the public’s use of the road. Both Wilkins and Beatty agreed that their Club had placed two “Keep Out” signs on trees on each side of the road for a five year period, but again no action was taken until 1979 to bar the public from using the road. In summary, although several representatives of the appellants knew and were aware of the public’s open and continued use of the roadway for at least fifty years, the appellants never denied access to anyone. The long length of time that the road was used by many people is, in itself, pertinent evidence of adverse use. Weigel v. Cooper, 245 Ark. 912, 436 S.W. 2d 85 (1969).
The appellants’ second point raised on appeal is that the Chancellor erred in granting public prescription rights to a thirty foot strip of land from the road to the river, two hundred yards south of the Missouri-Pacific Railroad bridge. Much of the evidence we have already reviewed above involves testimony of witnesses who related that the road was used by the public to get to the Arkansas River.
Consistent with our decision that the one and one-quarter mile long, thirty foot wide roadway is a public easement, we also hold that the evidence in the record is sufficient to support the Chancellor’s grant of the additional thirty foot passageway from the road to the Arkansas River. Appellants direct our attention to the case of Clarke v. Montgomery County, 268 Ark. 181, 597 S.W. 2d 96 (Ark. App. 1980), and argue that there is no authority for extending public prescription rights to a parking area or “landing” for the entry of boats into the Arkansas River. Our Court, in Clarke, held only that prescription easement rights are limited to public thoroughfares used for travel purposes, and there was no authority for extending public prescription rights to a parking area used sporadically by members of the public. In the case at bar, the Chancellor granted a passageway from the road to the Arkansas River, air of which was consistent with evidence which was before the trial court. This passageway was merely an extension of the prescriptive roadway used by the public to gain access to the river. Such use was established for travel and other purposes as early as 1913.
In accordance with the conclusions we reached above, the trial court’s decree must be affirmed.
Affirmed.
Corbin, J., not participating.
Appellees’ complaint was first filed against the Hunting Club as the Melindy Hunting Club. The Melinda Bar Hunting Club filed a Motion to Dismiss and the appellees amended their complaint to reflect the correct name of the Club. | [
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John F. Stroud, Justice.
On November 29, 1977, the .1977 Ford pick-up truck owned by appellants and being driven by Lillian York, one of the appellants, was hit from the rear by a vehicle knocked into her by a school bus driven by appellee. Alleging that the collision resulted from appellee’s negligence and that Lillian York suffered severe and permanent injuries, appellants filed suit claiming a total of $39,000 in damages, which included $4,000 for damages to the truck and $10,000 sought by Ricky York for his wife’s medical bills and his loss of consortium. Trial was held on February 7, 1980, during which appellee was allowed, over appellants’ objection, to bring out evidence of the existence of insurance coverage on appellants’ truck. The jury found for appellants and judgment was entered in the amount of $2,062 for appellant Lillian York and $1,000 for appellant Ricky York. Appellants bring this appeal and allege that the trial court erred in allowing appellee to intentionally adduce evidence of the insurance coverage on their pick-up. Finding no error in the ruling of the trial court, we affirm the judgment.
The sole question here is whether a defendant may bring out the existence of collision insurance coverage when the plaintiff testifies that he could not afford to have all of the damage to his vehicle repaired. Both parties acknowledge that, generally, it is improper in automobile accident cases for either party to introduce or elicit evidence of the other party’s insurance coverage. This court has often held that the unnecessary injection of the existence of insurance into a case is reversible error. Pickard v. Stewart, 253 Ark. 1063, 491 S.W. 2d 46 (1973); Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291 (1959); Pekin Stave & Manufacturing Co. v. Ramey, 104 Ark. 1, 147 S.W. 83 (1912). We have also said that the injection of insurance coverage is not proper unless it is relevant to some issue in the case. Pickard, supra; Industrial Farm Home Cas. Co. v. McDonald, 234 Ark. 744, 355 S.W. 2d 174 (1962).
On direct examination Mr. York testified as to the various repairs done to his vehicle, but he also stated that damage done to the frame, shock absorbers and front end alignment was still uncorrected. He said the repair bill was between $550 and $600, but that in his opinion the difference in value of the truck before and after the accident was $3,000. Mr. York stated on cross-examination that the repairs done were all that he could afford and there was work to be done that he would have had done if he had been able to afford it. At this time a discussion was had in chambers, wherein counsel for appellee sought leave of the court to bring out on further cross-examination the existence of Mr. York’s collision insurance to controvert his testimony that the truck had not been fully repaired due to a shortage of personal funds, when in fact insurance proceeds could have been used to cover the repairs. After each side presented its position on this question, the trial court ruled as follows:
I do believe that this party [appellant] is attempting to use the insurance exclusionary rules to take advantage of the rule that we exclude the evidence of insurance in cases, and I am prone to allow the defense attorney to go in the insurance with him because of that. The rule was put there for a purpose so as not to influence unduly one way or another a jury, but it should nto be used in an effort to mislead a jury or to give any kind of undue advantage to a party’s testimony and certainly a party shouldn’t be allowed to use that rule to his own benefit contrary to what the truth of the matter was.
Counsel for appellee then proceeded to question Mr. York concerning the collision insurance coverage he had on his truck, and he admitted that whatever damages were sustained in the accident, he could have had paid under that insurance policy with the exception of $100 due to the $100 deductible provision in his policy.
We do not think the trial court erred in allowing counsel for appellee to cross-examine Mr. York about his insurance coverage. Mr. York’s testimony on direct examination that he could not afford to have the truck fully repaired was misleading to the jury, invited the rebutting questions, and made them relevant to the issues in the case. Finding no error in the ruling of the trial court, we affirm the judgment.
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Robert L. Brown, Justice.
The appellants, who are records personnel with the Arkansas Department of Correction and the Department itself, raise two issues in this appeal: 1) whether the Pulaski County Circuit Court lacked jurisdiction to amend its judgment to run its sentence consecutively to previous sentences; and 2) whether the Jefferson County Circuit Court erred in computing parole eligibility based on time served in a federal institution. We affirm in part and reverse in part and remand.
On July 2, 1975, appellee Warded Washington was convicted in Pulaski County Circuit Court of possession of heroin and intent to deliver heroin. He was sentenced to fifteen years and five years, respectively, to be served concurrently. On that same date, Washington was also convicted in federal court of the offense of delivering heroin, arising out of the same incident, and sentenced to fifteen years. He was subsequently incarcerated in the Federal Correctional Facility in Texarkana, Texas. His state sentences were to run concurrently with his federal sentence so that a day served in the federal institution would also reduce his state sentences by a day.
In 1987, while on parole from the federal institution, Washington forged several checks, which resulted in two state court convictions. On August 22, 1988, he was convicted in Jefferson County Circuit Court of second degree forgery and was sentenced to fifteen years to be served concurrently with the remainder of his 1975 state sentences and consecutively with the remainder of his 1975 federal conviction. His parole was revoked due to this conviction.
On May 9, 1989, Washington was convicted in Pulaski County Circuit Court of second-degree forgery and sentenced to thirty years to be served concurrently with the 1975 state sentences and consecutively with the 1975 federal sentence. At this time, Washington had thirteen months and twenty-three days left to serve on his 1975 state convictions, which meant that the sentences would expire on July 2, 1990. He was still imprisoned in the federal facility.
On June 20, 1990, Washington completed his federal sentence and was taken, for the first time, to the Arkansas Department of Correction. Shortly after arriving at the Department, Washington petitioned the Pulaski County Circuit Court to amend his 1989 sentence to run that sentence consecutively to his 1975 state convictions. On September 10, 1990, the circuit court entered an order amending the original sentence and granting Washington the relief requested.
On February 8,1991, Washington filed a petition for writ of mandamus and declaratory judgment in Jefferson County Circuit Court, requesting that the 1975 sentences, the 1988 sentence in Jefferson County, and the 1989 sentence in Pulaski County be considered as consecutive sentences which would allow cumulative treatment under our decision in Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984). He then petitioned for an amended order from the Pulaski County Circuit Court to run the 1989 sentence consecutively to the 1975 state sentences. When Washington did so, however, he failed to tell that court that he had been convicted in Jefferson County for forgery and sentenced to fifteen years in 1988. Because of this, the Pulaski County Circuit Court’s order of September 10,1990, did not run the 1989 sentence consecutively to the Jefferson County sentence. In order to correct the matter further, Washington made an oral motion to the Pulaski County Circuit Court to amend its order to include the fact that its 1989 sentence should also run consecutively to the 1988 Jefferson County sentence. The Pulaski County Circuit Court then issued the requested amended order on February 13, 1992.
After issuing that amended order, the Jefferson County Circuit Court decided the petition in Washington’s favor under Bosnick v. Lockhart and calculated his total sentence as a single commitment for sixty years with one-third to serve for parole eligibility under then-existing law, which was Act 50 of 1968. The Department has now appealed from the circuit court’s order.
The Department first contends that the Pulaski County Circuit Court lacked jurisdiction to amend its 1989 sentence and run it consecutively to the 1975 Arkansas judgments. The circuit court amended its judgment in response to Washington’s motion which was made within 120 days after the conviction was affirmed. The circuit court noted in its order that its first sentence was a legal sentence, imposed in an illegal manner and that it could be corrected if the motion requesting relief was filed within 120 days of affirmance by the appellate court. Here, Washington’s motion to correct the sentence was filed 96 days after affirmance. But a mere filing of the motion does not suffice. The statute clearly reads that the correction of a sentence imposed in an illegal manner must occur within 120 days “after receipt by the court of a mandate issued upon affirmance •. . . .” See Ark. Code Ann. § 16-90-111 (Supp. 1991); see also Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989).
It is clear that a circuit court only retains jurisdiction to correct or modify a sentence for this 120 day period, and that after the sentence is placed into execution, the court loses jurisdiction. See Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). Here, however, the record is silent on when the mandate was received by the court. The record does reflect that the order correcting the sentence was issued on September 10, 1990 — 145 days after the affirmance of the sentence on April 18, 1990. The mandate, though, could not be issued sooner than seventeen days after that affirmance under Supreme Court Rule 22, and since a motion for reconsideration could have delayed the mandate even further, we cannot say with any certainty that the Pulaski County Circuit Court’s first order running the thirty-year sentence consecutively to the 1975 state sentences was outside of the 120 day time limit for jurisdiction. By failing to show when the circuit court received the mandate, the Department simply failed to prove facts sufficient to sustain lack of jurisdiction in that court.
We, further, do not agree with the Department that the applicable statute used by the Pulaski County Circuit Court to assess consecutive punishment was inappropriate. See Ark. Code Ann. § 16-93-607(e)(1) (1987). That statute reads:
When any convicted felon, while on parole, is convicted of another felony, the felon shall be committed to the Department of Correction to serve the remainder of his original sentence, including any portion suspended, with credit for good-time allowances. Upon conviction for the subsequent felony, the court shall require the sentence for the subsequent felony to be served consecutively with the sentence for the previous felony.
It is true that the statute speaks in terms of revoking parole and returning to the Department of Correction. We can discern no material difference, though, between parole from a state sentence and parole from a federal institution where the defendant is serving state time concurrently with the federal sentence. Since this is the case, the Pulaski County Circuit Court’s order providing that its thirty-year sentence should run consecutively to the 1975 state sentences was not in error.
We do not agree, however, that the Pulaski County Circuit Court had jurisdiction to issue its second amended order dated February 13, 1992, running the thirty-year sentence consecutively to the Jefferson County Circuit Court’s sentence of fifteen years for forgery. The circuit court offered the following rationale for retaining jurisdiction:
However, due to the specific finding that there was a fraud perpetrated upon this Court and by the express waiver of any procedural defect announced on the record by this defendant in the aforementioned hearing in Jefferson County and by the express waiver on behalf of the state of Arkansas by and through its Assistant Attorney General Olan Reeves, this Court is of the opinion that it may enter its amended order as set forth herein.
That amended order, however, was clearly outside of the 120 days from the date the circuit court received the mandate, and waiver of the parties cannot confer subject matter jurisdiction. Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987). Nor can Washington’s failure to advise the Pulaski County Circuit Court of his Jefferson County conviction be a basis for retention of jurisdiction. Hence, by the time of its second amended order the circuit court had lost jurisdiction to change its original sentence. Accordingly, to the extent that the Jefferson County Circuit Court’s supplemental order dated March 16, 1992, which calculates parole eligibility, relies on the Pulaski County Circuit Court’s invalid amended order, it is reversed.
The Department next contends that because Washington served time for the 1975 state offenses in a federal institution as opposed to the Department of Correction, he could not receive credit for state parole eligibility purposes while so serving. Again, we disagree. Suffice it to say, Washington was serving his state time for the 1975 convictions concurrently with federal time for the same offense in a federal institution. This is not a situation such as we had in Brown v. Lockhart, 288 Ark. 483, 707 S.W.2d 304 (1986), where an inmate sought to calculate parole eligibility using a prior federal conviction. Because the state and federal sentences were being served simultaneously in the present case, it was appropriate for the Jefferson County Circuit Court to calculate eligibility based on the 1975 convictions irrespective of whether Washington was physically present in the Arkansas Department of Correction.
The Department finally argues that the 1975 state sentences had expired by May 9, 1989, when Washington was sentenced to thirty years by the Pulaski County Circuit Court. But that is incorrect. The 1975 state sentences had not expired on May 9, 1989, as the Pulaski County Circuit Court’s order correctly points out. On that date, Washington had thirteen months and twenty-three days left on the 1975 state sentences, for an expiration date of July 2,1990. The circuit court subsequently corrected its 1989 sentence to run it consecutively to the 1975 state sentences. It did not err in doing so.
In sum, we cannot say, based on the proof before us, that when the Pulaski County Circuit Court first corrected its original thirty-year sentence to run that sentence consecutively to the 1975 state sentences, it acted outside of the 120-day period for extending jurisdiction. That court was, however, without jurisdiction to run that same sentence consecutively to the 1988 Jefferson County Circuit Court sentence of fifteen years because it did so clearly after the 120 days had expired. Otherwise, the Jefferson County Circuit Court was correct in stating the formula for parole eligibility under Bosnick v. Lockhart, supra, and Act 50 of 1968.
Affirmed in part. Reversed in part and remanded for an order consistent with this opinion. | [
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George Rose Smith, Justice.
Pilkington brought this action to recover for personal injuries and property damage sustained when his pickup truck ran into a heavy roller being used by the defendant Riley, a road contractor, in resurfacing part of Highway 81 north of Monticello. The jury, in response to interrogatories, apportioned the total negligence as 100% in Pilkington and none in Riley, none in Riley’s employee, Ethel Winston, and none in Curtis Vincent, a third-party defendant brought in by Riley. The appeal comes within our jurisdiction as a tort action. Rule 29 (1) (o). We find no merit in any of the five points argued for reversal.
On the afternoon of the accident Riley and his crew were rolling hot asphalt on the east half of the highway, that half being closed to traffic. Riley had stationed flagwomen to the north and to the south, who were to control the one-way traffic and to communicate with each other by means of walkietalkies. According to some of the testimony, which was disputed, there were signs to the south warning motorists of “Flagman Ahead” and “Fresh Oil.” A heavy rain had been falling before the accident. As the raindrops hit the hot asphalt they vaporized, creating a heavy fog that completely obstructed the vision of approaching motorists. Inside the fog Riley’s crew had temporarily stopped work, but the roller was left standing in the northbound traffic lane.
The plaintiff Pilkington, going north, was pulling a camper that impaired his ability to stop quickly. He testified he did not see any warning signs. He did see the fog from about a half mile away. He was driving about 40 miles an hour and following Vincent’s Volkswagen at a distance of 75 or 80 yards. He saw the Volkswagen disappear in the fog and could not say that he applied his own brakes before also entering the fog. Vincent had collided with the roller, and Pilkington did too. Pilkington had not seen the Volkswagen run a flag person off the road.
Ethel Winston, the flagwoman on the south, testified that she was standing in the center of the road, flagging traffic, when the Volkswagen came up “driving like wild.” She tried to flag it down, but had to get out of the way and fell backwards into the ditch by the highway. Her testimony indicates that she did not get back up on the highway in time to flag down Pilkington.
First, in a pretrial proceeding the trial judge sustained Riley’s motion that the investigating state trooper not be permitted to testify that ten or twelve minutes after the accident he asked the flagwoman on the north side where the other flag person was, and the flagwoman said she didn’t have radio contact: “I do not know where she’s at.” The trial judge, in overruling Pilkington’s motion for a new trial, thought that the trooper’s testimony should have been admitted, because the flagwoman’s statement was a present sense impression within Uniform Evidence Rule 803(1). Ark. Stat. Ann. § 28-1001 (Repl. 1979). The judge decided, however, that the error was harmless, because Riley did not contend that the flagwoman on the south was flagging traffic when Piikington reached her station. We agree with the trial judge, not only because the possible error was harmless but also because what happened ten minutes after the accidents, when traffic in both directions might have been at a standstill, raised collateral issues not shown to have a direct bearing upon the case.
Second, the court gave AMI 603, telling the jury that the fact that accidents occurred is not of itself evidence of negligence on the part of anyone. Pilkington’s objection was that “the evidence is very clear that an unavoidable accident is not what could’ve occurred here.” AMI 603, however, is not an unavoidable accident instruction. AMI 604 was such an instruction, but it was withdrawn with the publication of AMI Civil 2d in 1974. AMI 603 is a correct statement, that the occurrence of an accident is not of itself evidence of negligence on the part of anyone. Since the jury found negligence on the part of Piikington, no prejudice could have resulted.
The remaining three arguments center upon the trial court’s denial of Pilkington’s motion for a new trial. In a memorandum opinion overruling the motion the trial judge found that the verdict was not influenced by emotion or prejudice, that the finding that Piikington was negligent was supported by the evidence, but that the finding that Riley was not negligent was not supported by the evidence, because Riley was negligent in leaving the roller on the highway when work was stopped. The judge concluded, however, that the jury’s error was one of degree and did not alone justify the granting of a new trial. Since he could not find as a matter of law that any verdict assigning 50% or more of the fault to Piikington would be against the preponderance of the evidence, the motion for a new trial was denied.
We find no flaw in the trial judge’s reasoning. It was his duty to set aside the verdict if, but only if, he found it to be against the clear preponderance of the evidence. Thudium v. Dickson, 218 Ark. 1, 235 S.W. 2d 53 (1950). In passing upon the motion for a new trial the judge necessarily had to weigh the testimony to determine its preponderance. He did not, however, attempt to fix the percentages of comparative negligence. He merely concluded that any verdict assigning 50% or more of the negligence to Pilkington would not have been against the preponderance of the evidence. In the circumstances, there being no counter-judgment for Riley against Pilkington to be taken into account, the trial judge was right in denying the motion for a new trial.
It is also argued that the trial judge should have addressed the issue of whether Pilkington’s negligence might have been less than the combined negligence of Riley, Winston, and Vincent. See Walton v. Tull, 234 Ark. 882, 356 S.W. 2d 20, 8 A.L.R. 3d 708 (1962). We think the judge did reach that issue by his willingness to sustain any verdict assigning at least 50% of the fault to Pilkington. Moreover, Pilkington’s trial brief in support of his motion for a new trial did not raise this issue, nor did the motion itself. It cannot be raised here for the first time. Finally, the appellant concedes that we need not consider his remaining point if we uphold the denial of a new trial.
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Per Curiam
This case was erroneously placed on our docket as an appeal. The only document filed with this court is a letter from the father of the claimant Mark Wooten requesting an extension of the deadline for filing a petition for review with this court. Thus, there has been no appeal in this case.
We deny the request for extension for two reasons. First, we have no authority to extend the 15-day deadline for filing petition for review as prescribed in Ark. Stat. Ann., § 81-1107(d)(7)""(Supp. 1979)- Secondly, the o'nly evidence presented by claimant’s father with respect to his authority to act for the claimant was a power of attorney giving him authority to purchase and sell personal property on behalf of the claimant. It did not authorize him to represent the claimant in the manner purported in the letter. | [
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Robert H. Dudley, Justice.
This petition for a writ of prohibition was filed by Prairie Implement Company, Inc., one of the codefendants below, asking us to prohibit the Circuit Court of the Southern District of Prairie County from entertaining a suit brought by Margaret McMullen. Prairie Implement argues that the writ should be issued because venue does not properly lie in the county in which the suit is pending. We deny the writ.
The law governing venue is clear. Since the adoption of our Civil Code in 1869 our statutes have defined certain local actions and directed that all other actions be brought in the county of the defendant’s residence. See Ark. Code Ann. § 16-60-116 (1987). The separate districts of a county must be treated as separate counties. Smith v. Waggoner, 212 Ark. 345, 205 S.W.2d 465 (1947). We have said repeatedly that the purpose underlying our venue laws is to fix venue in the county of the defendant’s residence unless for policy reasons, there is a statutory exception. Atkins Pickle Co. v. Burrough-Uerling-Brasuell Consulting Eng’rs, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982); Wernimont v. State ex rel. Little Rock Bar Ass’n., 101 Ark. 210, 142 S.W. 194 (1911).
The respondent’s brief mentions the fact that venue is not the same as jurisdiction, suggesting that an appeal would be the only remedy available to petitioner. Indeed, we have made this distinction when there is a dispute of fact. For example, in Safeway Cab & Storage Co. v. Kincannon, 192 Ark. 1019, 1021, 96 S.W.2d 7, 8 (1936), we wrote: “If petitioners preserve their objections to the jurisdiction of their persons in the trial of this cause, and an adverse verdict and judgment go against them or either of them, then, if erroneous, it may be corrected on appeal.” In addition, there are many cases in which we have said that the only purpose of the writ of prohibition is to prevent a lower court from exercising a power not authorized by law when there is no other adequate remedy available. We have said a writ of prohibition is never issued to prohibit an inferior court from erroneously exercising jurisdiction, but rather is issued only where the lower court is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Our most recent expression of these principles can be found in Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 141 (1991). A very early case, which thoroughly discusses the remedy of a writ, states that it is limited to cases in which subject-matter jurisdiction is lacking. Williams, Ex Parte, 4 Ark. 537 (1843).
This court understands that venue is a procedural matter, not a jurisdictional one. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). This distinction is made clear in our holdings that, absent an objection, a trial court has the power to render a binding judgment even though venue was not proper. See Gland-O-Lac v. Creekmore, 230 Ark. 919, 327 S.W.2d 558 (1959). Even though lack of venue is not the same as lack of jurisdiction, we treated venue the same as jurisdiction-over-the-person for many years in determining whether a writ of prohibition should issue. Perhaps our reasoning has been based more on history than in logic.
In early years we held that if a defendant filed a motion objecting to venue or a motion to quash invalid service, and the trial court ruled against him, an appeal to this court served to enter his general appearance in the case no matter how erroneous the trial court ruling might have been. Benjamin v. Birmingham, 50 Ark. 433, 8 S.W. 183 (1887). For example, in Waggoner v. Fogleman, 53 Ark. 181, 13 S.W. 729 (1890), in a short but illustrative two-sentence opinion, we held that the judgment in the trial court was void for lack of service, but “the appellant having entered her appearance by the appeal is now in court, and no further service is required” upon remand. This unreasonable rule was severely criticized by the court in Chapman & Dewey Lumber Co. v. Means, 191 Ark. 1066, 88 S.W.2d 29 (1935), and finally overruled in Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937). Perhaps in response to the harshness of such a rule, and because, with such a rule, an appeal could not afford an adequate remedy, we began to allow defendants to seek prohibition after they had objected to venue, even though it was not truly an objection to jurisdiction. Today, we continue to follow our precedent, and we will grant the writ when, on undisputed facts, a trial court erroneously finds that venue is proper. Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989); Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983); Beatty v. Ponder, 278 Ark. 41, 642 S.W.2d 891 (1982); International Harvester v. Brown, 241 Ark. 452, 408 S.W.2d 504 (1966); Monette Road Improvement Dist v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920). Accordingly, we will consider issuing the writ in this case.
Petitioner, Prairie Implement Company, Inc., does not maintain a place of business in the Southern District of Prairie County, nor does it have a principal office there, nor was it summoned there. The allegations of the complaint are that Margaret McMullen, in her own capacity and as the personal representative of the estate of Buddie McMullen, sued Ford Motor Credit Company, Ford Life Insurance Company, and Prairie Implement Company, Inc. She alleged that on October 19, 1989, Buddie McMullen “agreed to purchase,” through an installment sales contract, a Ford tractor from Prairie Implement and that the purchase was conditioned upon Buddie McMullen’s obtaining life insurance from Ford Life Insurance Company in an amount equal to the purchase price of the tractor. Prairie Implement acted as agent for Ford Life Insurance Company and took an application for the life insurance policy, and Buddie McMullen agreed to pay the premium on the credit life insurance, which was to be financed along with the purchase price of the tractor.
The complaint additionally stated that a representative of Prairie Implement later informed Buddie McMullen that the credit life application was incomplete, that more information about his health was needed, and that Buddie McMullen supplied this information. The complaint further states that on November 14, 1989, almost a month after the agreement to purchase was signed, “[EJmployees of Prairie Implement informed McMullen’s son, Emil, that they had contacted Ford Credit, and that credit life coverage was in place for McMullen.” The next morning, November 15, Buddie McMullen died, and his son Emil immediately notified Prairie Implement. The allegations of the complaint additionally state that in a letter dated November 14, but post-marked “November 15, 1989 p.m.,” Ford Life Insurance rejected Buddie McMullen’s application for credit life insurance, and, subsequently, Ford Life refused to pay any benefits to the estate of Buddie McMullen. Paragraph 9 of the complaint states: “The refusal of Ford Life to make payment under the credit life policy constitutes a breach of contract.” Paragraph 10 is as follows: “In justifiable reliance upon the misrepresentations by Prairie Implement, Ford Credit and Ford Life, and as a result of the aforesaid breach of contract,” the plaintiff has been damaged in the amount of the amount due under the “installment sales contract.” The plaintiff contends that the foregoing complaint states a cause of action both in contract and in tort.
All three defendants moved to dismiss for lack of venue, and, separately and additionally, Ford Life moved for summary judgment because it claimed there was no life insurance policy in effect. The trial judge, the highly regarded, but now deceased, Judge Cecil Tedder, denied the motion to dismiss in the only order entered in this case, finding that venue was proper as to Ford Life under a special venue statute involving the alleged breach of the contract of insurance because it was “the insured’s residence.” See Ark. Code Ann. § 23-79-204(a) (Repl. 1992). In the same order, the trial court concluded that, since venue was properly established for the breach of contract against one of the defendants, venue was also established for the breach of contract action against the other defendants, Ford Motor Credit Company and Prairie Implement. In addition, in the same order, the trial court granted summary judgment in favor of Ford Life and dismissed with prejudice the plaintiffs complaint against Ford Life. The record does not show that Prairie Implement presented any other motions to the trial court, or that there were any other orders.
In this petition for a writ of prohibition, the petitioner Prairie Implement argues that since venue of the contract cause of action rested entirely upon the service upon the insurance company and since that cause of action against the insurance company was dismissed with prejudice, venue was no longer proper against the other nonresident codefendants. See Universal CIT Credit Corp. v. Troutt, 235 Ark. 238, 357 S.W.2d 507 (1962); Ark. Code Ann. § 16-60-116(c) (1987). Because of that, Prairie Implement argues that it was left standing as a nonresident who had been individually sued under the contract cause of action, and venue does not lie against a nonresident in a contract cause of action. The argument may be well taken, but we do not decide the issue. While the record does show that the petitioner filed a second objection to venue and alleged this ground, the record does not show that the argument was presented to the trial court, or that the trial court ruled on it.
The trial court, in its only ruling in this case, also held that the complaint alleges misrepresentation and that Rule 18(a) of the Arkansas Rules of Civil Procedure permits the joinder of independent multiple claims so that the tort action could be joined with the contract action against the defendants. If the contract action can no longer be maintained against the defendants, however, the misrepresentation claim could not either unless there is some independent basis for venue in Prairie County. A venue statute provides that “any action for any type of fraud” may be brought, among other locations, in the county in which the plaintiff resides. Ark. Code Ann. § 16-60-113(b) (1987).
In the petition in this court, petitioner Prairie Implement argues that plaintiff McMullen did not make sufficient factual allegations to state a cause of action for fraud. Rule 9 of the Arkansas Rules of Civil Procedure requires that “the circumstances constituting fraud ... be stated with particularity.” We have said, “The facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation ... by which another is misled, to his detriment; and these, or some of them, must be alleged and proved.” Beam Bros. Contractors v. Monsanto Co., 259 Ark. 253, 263, 532 S.W.2d 175, 180 (1976) (quoting McIlroy v. Buckner, 35 Ark. 555 (1880)). We have clearly set out the five elements that must be alleged to state a cause of action for fraud. See Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 306, 835 S.W.2d 872 (1992). While the argument that the complaint fails to state a cause of action for fraud may be well taken, we do not decide the issue. The record discloses that after the trial court’s only ruling in this case, the petitioner filed a second objection to venue and in it for the first time pleaded that the complaint failed to state facts upon which relief can be granted. However, the record does not show that the motion was presented to the trial court, or that it was ruled upon by the trial court.
In sum, we do not decide either of petitioner’s arguments for the writ because they were not raised below. We are aware that the petitioner labels this an original action in this court, and the petitioner might argue, on rehearing, that it is not necessary in an original action to have raised the issues before the trial court when the facts are undisputed. In some original actions the argument might be valid, but not when the petition is based on lack of venue. Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920).
Petition denied. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of first degree murder, Ark. Stat. Ann. § 41-1502 (Repl. 1977), and sentenced to forty years imprisonment. We find merit in the contention raised by appellant’s appointed counsel and appellant pro se that, on the record here, the court erred in overruling appellant’s motion to suppress as evidence the rifle seized from him upon his warrantless arrest.
In December, 1978, Mrs. Martin and her paramour, Arthur Stuckey, were awakened at her house at 2 a.m. by a banging on her door. Someone outside was heard calling appellant’s name, begging him to leave the two alone. (Appellant and Mrs. Martin had previously lived together, and she had a child by him.) A shot was fired through her bedroom window. Stuckey got his rifle and returned the fire. Mrs. Martin attempted to get her children into the kitchen. When her seven year old son broke loose and ran to a window, she followed him there, at which time she saw appellant’s brother in a car and heard him ask appellant to “leave those folks alone.” She then saw appellant standing by a tree in the yard. At that point appellant fired a shot and Mrs. Martin’s son fell fatally wounded. The appellant left and Mrs. Martin and Stuckey then took the children with them to the police station where they reported the shooting.
The sheriff, who lived in another town, was called to assist in the investigation. When he arrived he went to the crime scene, and the chief of police, with three other policemen, went to appellant’s nearby residence at ap proximately 4:10 a.m. As they arrived they met appellant’s brother, who advised them that the door was locked from the inside. They observed appellant through a window in a lighted room, laying on a couch asleep, with the stock of a gun visible underneath the couch. They forced the door open, handcuffed appellant, and effected a warrantless arrest. They seized the gun, which was introduced at trial. A firearms examiner testified that two shells found in the yard of Mrs. Martin’s house were fired from this gun. The court granted appellant’s motion to suppress his statement as being involuntary due to appellant’s intoxication at the time it was made, which was shortly after his arrest. However, the court denied appellant’s motion to suppress the gun, finding the warrantless seizure was incidental to the arrest.
The primary issue before us is whether or not the gun was admissible in evidence. The state relies upon Rules of Criminal Procedure, Rule 12.5 (Repl. 1977), as justifying a valid seizure incidental to the warrantless arrest of appellant. See also Rules of Criminal Procedure, Rule 4.1 and 14.3 (Repl. 1977). However, since the trial of this case and the filing of the briefs here, the U.S. Supreme Court has resolved this unsettled issue in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980), decided April 15; i.e., ‘whether and under what circumstances an officer may enter a suspect’s home to make a warrantless arrest.’ There the court held that the Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits, absent exigent circumstances, a warrantless, nonconsensual entry into a suspect’s home to make a routine felony arrest even when it is accomplished under statutory authority and with probable cause. In other words, the threshold of one’s home cannot reasonably be crossed without a warrant in the absence of exigent circumstances. Although the defendant must nonetheless stand trial, the exclusionary rule prohibits introduction of any evidence seized pursuant to such an arrest where the validity of the warrantless seizure depends upon a valid arrest. See also State v. Block, 270 Ark. 671, 606 S.W. 2d 362 (1980).
Exigent circumstances may exist, for example, in the area of warrantless searches when a suspect is fleeing or likely to flee, when the search is of a movable vehicle, when evidence or contraband is threatened with removal or destruction or when there is a danger of harm to the arresting officers. See Coolidge v. New Hampshire, 403 U.S. 443 (1971); Johnson v. United States, 333 U.S. 10 (1948); and Michigan v. Tyler, 436 U.S. 499 (1979). In Payton, the police, as here, acting under statutory authority and with probable cause, broke into a murder suspect’s home to make a warrantless arrest and then seized a shell casing in plain view. The New York courts held the nonconsensual entry was justified by state statutes; therefore, the evidence seized was admissible. However, as indicated, the U.S. Supreme Court held the evidence inadmissible.
Here, appellant, a local residents, was found asleep in his residence, the door locked, approximately two hours after the alleged offense. The trial court, as in Payton, found the evidence admissible based upon it being seized incidental to an arrest. Our Rule 14.3, supra, authorizes an officer, in an emergency situation, to enter and search without a warrant premises or a vehicle when there is probable cause to believe an individual therein is in imminent danger of death or serious bodily harm; or items therein are imminently likely to burn or explode causing death, serious bodily harm or substantial destruction of property; or if objects subject to seizure, if seizure is delayed, will be used to cause death or serious bodily injury, then the officer may enter and conduct a search to prevent death, bodily harm or destruction of property. We hold, in the light of Payton, that sufficient exigent circumstances are not demonstrated on the record presented. Therefore, we remand the cause to the trial court to conduct an evidentiary hearing to determine if exigent circumstances existed. If none existed, then appellant is entitled to a new trial. We have considered other arguments made by appellant’s counsel and appellant pro se and find no merit in them.
Remanded.
Purtle and Stroud, JJ., dissent. | [
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Darrell Hickman, Justice.
This is an Employment Security Division case that was certified to us by the Arkansas Court of Appeals because it concerns interpretation of an Arkansas statute.
There is only one issue presented in this appeal and it is purely a question of law. Does Arkansas law provide for partial unemployment benefits where a worker is unemployed for part of the work week and is unavailable for work when work is offered during the remainder of that week? The Board of Review found that partial payments were not authorized because the employee was not “available” for.work the rest of the week. The circuit court agreed and we affirm the judgment.
The facts are not in dispute. Leona Lanoy was employed by the Morrilton Plastics Company in Morrilton, Arkansas, where her regular work week was five days. The first four days of the week in question Lanoy was available for work but was laid off due to a lack of work. On Friday, October 6th, she reported for work but after an hour and forty-five minutes received a telephone call regarding the death of her brother and she left work.
Lanoy argues that Ark. Stat. Ann. § 81-1103(m)(l)(B) made her eligible to draw unemployment compensation for the week ending October 7th regardless of whether she was “available” for work on Friday or not. The appellee, Charles L. Daniels, Director of Labor, relies on Ark. Stat. Ann. § Sill 05 (c) and argues that partial payments are not authorized by Arkansas law where the worker is not “available” for work during an entire week. Since Lanoy was not available for work on Friday, it is argued that she was not entitled to that week’s unemployment benefits.
This is presented to us as a purely legal question. The Central Arkansas Legal Services has filed an amicus curiae brief supporting Lanoy’s appeal. It is not disputed that responsible state agencies have consistently interpreted the availability provision of the Arkansas law as requiring that claimants be available for work or in the labor market during the entire work week for which they claim benefits in order to be eligible for unemployment benefits for that week.
Whether Lanoy had good reason for leaving her job Friday is not in issue. The appellant concedes for purposes of appeal that the question is not what happened on Friday but whether benefits may be paid for the four days of unemployment.
We conclude that the Arkansas law does not provide for partial benefits under these circumstances. Throughout the Arkansas statutes a week is referred to -as the measuring time for benefits. For example, § 81-1105 says, “An insured worker shall be eligible to receive benefits with respect to any week only if the director finds that . . .” [Emphasis added.] Ark. Stat. Ann. § 81-1104(c) is styled, “Weekly benefits for unemployment” [Emphasis added] and states: “For all claims filed on and after July 1, 1971, any insured worker who is unemployed in any week as defined in Section 2 (m) [§ 81-1103(m)] and who meets the eligibility requirements of Section 4 [§ 81-1105] shall be paid with respect to such week . . .” [Emphasis added.] The next paragraph, styled “Duration of benefits,”, also speaks of weekly benefit amount.
The appellee argues that § 81-1105(c) controls because it says “Such worker is unemployed, physically and mentally able to perform suitable work and is available for such work.” [Emphasis added.] The appellant concedes that she was not available on Friday but argues that this situation is not con trolling because Ark. Stat. Ann. § 81-1103(m)(l) reads:
[A]n individual shall be deemed ‘unemployed’ with respect to any week during which he performs no services and with respect to which no wages are payable to him, or with respect to any week of less than full time work if the wages payable to him with respect to such week are less than 140% of his weekly benefit amount.
We cannot read out of the statute the availability requirement. Even though a worker can get compensation for a week during which the worker performed some work under some circumstances, a worker is not “unemployed” by law unless available for work. The appellant argues Ark. Stat. Ann. § 81-1103(m)(l) and a liberal interpretation of the statute would permit us to order at least pro-rata benefits.
We conclude that the situation cannot be stretched, even with a liberal interpretation, to fit the appellant’s case. This is especially true in view of a long-standing policy against such a practice.
Affirmed.
Purtle and Hays, JJ., dissent. | [
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George Rose Smith, Justice.
In June, 1979, the appellant Lockett, represented by counsel, pleaded guilty to a charge of robbery. The court, without imposing sentence, placed him on probation for four years, one of the conditions being that he obey all federal and state laws. Less than a year later the State sought revocation of the probation on the ground that Lockett had again committed robbery, taking more than $2,500 while armed with a deadly weapon. After a hearing at which Lockett was again represented by counsel the court revoked Lockett’s probation and imposed a 15-year sentence for the original offense. In appealing from the order of revocation Lockett argues he was denied the limited due process that the Supreme Court holds to be essential in such a proceeding. Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972).
At the revocation hearing Officer Bobby Brown testified that Lockett, after having been warned of his rights, signed a confession describing how he had lain in wait for the robbery victim, had struck him from behind with an iron bar, and had fled with the money. The officer testified that Lockett identified his accomplices and later took the police to a ditch where the crowbar was and gave information that led to the recovery of money and checks. Lockett testified that the confession was not true, that he signed it after having been slapped around by the officers, that he found the money after having seen an unidentified man drop it in a ditch, and that just before his arrest he had decided to turn the money “back in.”
Lockett’s arguments for reversal have no substance. The due process requirements specified in Morrissey have since been embodied in our Criminal Code, including the court’s holding that relevant evidence may be introduced at a revocation hearing regardless of its admissibility at a criminal trial. Ark. Stat. Ann. § 41-1209 (Repl. 1977). Here counsel argued below, after both sides had rested, that the State should have called as witnesses all persons who were present when Lockett confessed. We have recognized such a requirement at an in-chamber Denno hearing, but our reasoning centered on the State’s burden of proving voluntariness, not on due process. Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973). Neither the Supreme Court decisions nor the Criminal Code requires a completely comprehensive hearing as a minimum basis for the revocation of probation. Fundamental fairness, with an opportunity to be heard, is all that the probationer is entitled to demand.
There was no denial of Lockett’s right to confront the witnesses against him. That right applies only to witnesses who testify; it does not compel the State to produce every possible witness. Hoover v. State, 262 Ark. 856, 562 S.W. 2d 55 (1978). Finally, had Lockett requested a written statement of the court’s basis for revoking probation, as Section 41-1209 (2) contemplates, it could have been readily supplied. The failure to object to the omission precludes consideration of the point on appeal. Wickes v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); Hawkins v. State, 270 Ark. 1016, 607 S.W. 2d 400 (Ark. App., 1980).
Affirmed. | [
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Frank Holt, Justice.
Appellant was convicted of second degree murder for the death of his 80 year old father and sentenced to 20 years imprisonment. He interposed the defense of not guilty by reason of insanity.
Appellant first asserts that the trial court erred in excluding the testimony of Dr. Charles Avery, appellant’s first cousin, as to appellant’s mental condition. Dr. Avery, a general practitioner, was presented as a nonexpert witness. See Ark. Stat. Ann. § 28-1001, Rule 701 (Repl. 1979). Appellant’s counsel asked him what his opinion was of the appellant’s mental condition on different occasions. To each question the state objected and the objections were sustained by the trial court. Appellant contends it was reversible error to exclude this testimony because it was relevant evidence and an important link in the chain of evidence establishing his insanity defense since Dr. Avery had contacts with appellant at crucial times when the other experts called to testify did not.
It is well established that a nonexpert witness may testify as to the sanity of a defendant if a proper foundation is laid; however, the trial court should exclude the opinion testimony of a nonexpert witness whose association with the accused and opportunities for observation for a sufficient length of time are not adequately shown. Little v. State, 261 Ark. 859, 554 S.W. 2d 312 (1977); Raprich v. State, 192 Ark. 1130, 97 S.W. 2d 429 (1936); and Davis v. State, 182 Ark. 123, 30 S.W. 2d 830 (1930). The trial judge will be reversed only if he has abused his discretion in passing upon the preliminary question of competency. Raprich v. State, supra. See also Rule 701, supra.
Here, Dr. Avery observed the appellant one time, the night of November 7, 1978, when appellant was committed to the state hospital. The next time he saw appellant was a year later or on the date of the alleged offense when he was examining appellant’s father in the hospital. While appellant was in jail, he talked to him by phone and prescribed medication for his nerves. Dr. Avery did not consider the telephone call or the brief contact at the hospital to be examinations. We cannot say that the trial court abused its discretion in excluding the opinion of the nonexpert witness.
The appellant also questions the sufficiency of the evidence. He argued that the state failed to prove the elements of second degree murder. Ark. Stat. Ann. § 41-1503 (Repl. 1977). He insists that his acts did not constitute murder but a bizarre and irrational act on the part of an emotionally unstable person. In essence, appellant is rearguing his insanity defense, urging that if he killed his father, he did not do so with the degree of rationality inherent in the term “purposeful” or “knowing” conduct, citing Ark. Stat. Ann. § 41-203 (Repl. 1977). Appellant recognizes that this court, upon reviewing the evidence as to a defense of insanity, will not attempt to determine where the preponderance of the evidence lies, but will affirm the judgment if there is substantial evidence to support the verdict. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979).
Here, appellant, 36 years old, was living with his elderly parents. His mother testified that upon arriving home in the early morning hours, about 3 a.m., December 23, 1979, appellant began arguing with them about not having had a door repaired. The appellant began beating his father with his fists, then hit his mother over the head with a mop handle. He then pulled the mattress on top of his father and jumped up and down on it. He tore his father’s underwear off and again jumped on the mattress. His mother interceded and shortly after her husband “fell over to one side.” Appellant them attempted to revive his father with mouth-to-mouth resuscitation, but he was pronounced dead on arrival at the hospital. The medical evidence was that the deceased had suffered multiple bruises and contusions of the chest and hands and a brain contusion and hemorrhage. Cause of death was asphyxia due to compression of the chest and obstruction of the respiratory passages. There was other testimony that appellant had physically abused his parents for about two months. Appellant testified his father had fallen, pulling the mattress off the bed onto himself, and appellant accidently stepped on it while trying to remove it from his father.
Appellant’s estranged wife, his father-in-law, mother-in-law, and his mother testified to appellant’s strange and aberrant behavior on different occasions expressing the opinion there was something wrong with him. A psychiatrist testified that he diagnosed appellant as suffering from paranoia schizophrenia. Appellant testified that sometimes he did not know the difference between right and wrong. Other than this testimony, there was no testimony that appellant lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct, the elements of legal insanity. Ark. Stat. Ann. § 41-601 (Repl. 1977). A clinical psychologist called by appellant testified he suspected appellant was a latent schizophrenic, that he was highly disturbed and potentially dangerous, but this witness had not made a determination of legal insanity because he had not been consulted for that. A state hospital psychiatrist considered appellant to be without psychosis and to possess the capacity to conform his actions to the requirements of the law and to have an adequate appreciation of the criminality of his conduct at the time he examined appellant. He agreed appellant needed treatment for a personality disorder.
The issue of insanity and culpability was a fact question for the jury to resolve. There is amply substantial evidence to uphold the jury’s verdict that appellant knowingly caused his father’s death under circumstances manifesting extreme indifference to the value of human life.
Affirmed.
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George Rose Smith, Justice.
The appellees owned a rectangular tract of commercial property having a 300-foot frontage on Caraway Road, a principal commercial thoroughfare in the city of Jonesboro, and extending back 600 feet from the frontage line. In December, 1981, the Highway Commission brought this action to condemn about three tenths of an acre, in the shape of a right triangle lying along the frontage for 117 feet and running back along the adjacent side for 223.9 feet. The Commission deposited $33,900 in court, which the landowners withdrew. At the trial in January, 1984, the jury fixed the value of the condemned tract at $90,000.
On direct appeal the Commission argues that the valuation testimony of the landowners’ two expert witnesses should have been stricken because there was no fair and reasonable basis for their conclusions. Ark. State Hwy. Comm’n v. Cook, 257 Ark. 98, 514 S.W.2d 215 (1974). It is argued that the witnesses erroneously relied upon sales of smaller tracts that, owing to their size, were not comparable as a matter of law.
We disagree. The witnesses considered prior sales of some 13 smaller tracts in the Caraway Road area. They explained how they had made adjustment for differences in time (to give effect to inflation), in area, and in frontage. The witnesses explained in detail how they had arrived at their valuation. We find no abuse of the trial court’s discretion in allowing the testimony in question. As we said in Ark. State Hwy Comm’n. v. N.W.A. Realty Corp., 262 Ark. 440, 557 S.W. 2d 620(1977):
It is the well established rule that the decision of the question whether the conditions surrounding another tract of land or its sale are sufficiently similar to the circumstances of the pending case and the land involved to admit evidence of its sale price as evidence of the value of the land in question rests largely in the discretion of the trial court.
Similarity in the size of the two tracts is seldom exact, requiring adjustments by the expert witness, and it is only one of the factors to be considered. See Cook, supra. We cannot say as a matter of law that the sales relied upon below were so lacking in comparability as to be irrelevent or misleading. That being true, the experts’ opinions were admissible, their weight being for the jury to decide.
On cross appeal the landowners argue that the trial court’s allowance of interest at the rate of only 6% per annum upon the $56,100 difference between the Commission’s deposit and the amount of the verdict is so inadequate as to amount to a taking of their property without just compensation.
To support their contention the landowners proved that during the period between the Commission’s entry on the land in 1981 and the return of the verict in 1984, money could be invested in bank certificates of deposit at 11.5% interest and borrowers were required to pay interest at rates ranging from 13.5% to 18%. The trial judge felt that he was bound by the statute which governs Highway Commission condemnations and allows interest at 6% from the date of surrender of possession to the date of payment. Ark. Stat. Ann. § 76-536 (Repl. 1981). That statute, we have held, was not superseded by a general law increasing to 10% the interest rate allowable on judgments in general. Ark. State Hwy. Comm’n. v. Scott, 264 Ark. 397, 571 S.W. 2d 607 (1978).
The landowners’ position in the case at bar is right. As a matter of just compensation and due process under the federal and state constitutions, a landowner cannot be denied interest on the unpaid part of the award during the time he is deprived both of the use of the land and of the money representing its value. Housing Authority of the City of Little Rock v. Rochelle, 249 Ark. 524, 530, 459 S.W. 2d 794 (1970); Ark. State Hwy. Comm’n v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953). In Stupenti we quoted from a Supreme Court case holding that the landowner is not limited to the value of the property at the time of the taking; he is also entitled to such an addition as will produce the full equivalent of the value as if paid contemporaneously with the taking. Interest “at a proper rate” was held to be a good measure by which to ascertain the amount to be added. Jacobs v. United States, 290 U.S. 13 (1933). Since a constitutional right is involved, the interest rate to be allowed may exceed that specified by statute. Redevelopment Agency of City of Burbank v. Gilmore, 198 Cal. Rptr. 304 (Cal. App. 2 Dist. 1984); State by Spannaus v. Carney, 309 N.W.2d 775 (Minn. 1981); Edwareds v. Ark. Power Light Co., 638 F.2d 1149 (8th Cir. 1982), Arnold J., concurring. Our holding in Scott, supra, is distinguishable, for there the constitutional issue was not raised, the landowner’s contention being based on the statutes.
We conclude that the trial judge was mistaken in limiting the allowable interest rate to 6%. That statutory limitation cannot be constitutionally applied in the circum stances of this case. We need not remand the cause for a determination of the proper rate of interest to be allowed, for the landowners’ counsel conceded during the oral argument that the proof does not support more than 10% per annum, which is also the rate allowable by statute on judgments. We accordingly modify the judgment on cross appeal to allow 10% simple interest and remand the case for the entry of a judgment conforming to this opinion.
In closing, we observe that the appellant’s abstract of the record is deficient in two respects, though not so flagrantly so as to warrant an affirmance on that ground. First, counsel have properly abstracted in narrative form the testimony of the landowners’ expert witnesses on direct examination, but their extensive cross examination has been improperly copied in question and answer form. Second, no diagram of the tract in question has been reproduced as contemplated by Rule 9 (d), making it unnecessarily difficult for the court to have a clear understanding of the testimony.
Affirmed on direct appeal, modified on cross appeal. | [
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David Newbern, Justice.
This is a criminal case in which the sentence was for more than 30 years. Our jurisdiction arises from Supreme Court and Court of Appeals Rule 29(1) (b).
John Welsey Scott was found guilty of rape in violation of Ark. Stat. Ann. § 41-1803(l)(c) (Repl. 1977), and of carnal abuse in the first degree in violation of Ark. Stat. Ann. § 41-1804(1) (Repl. 1977).
Rape, as defined in Section 41-1803(1 )(c) is a class Y felony, Ark. Stat. Ann. § 41-1803(2) (Supp. 1983) and, if the sentence is not to life imprisonment, carries a maximum imprisonment term of 40 years. Ark. Stat. Ann. § 41-901(l)(a) (Supp. 1983).
Carnal abuse in the third degree is a class C felony, Ark. Stat. Ann. § 41-1806(2) (Repl. 1977), which carries a maximum sentence to imprisonment of 10 years, Ark. Stat. Ann. § 41-901(d) (Supp. 1983).
Evidence showed the defendant began a sexual relationship, including intercourse, with his step-daughter when she was eleven years old and continued it until she was thirteen. The jury fixed the punishment at 40 years for rape and 10 years for first degree carnal abuse. At the close of the evidence the state’s counsel asked that the sentence be to consecutive prison terms. At that point defendant’s counsel asked for ‘‘an opportunity for a pre-sentence report,” to which the judge repied that “having heard during testimony the background of the [d]efendent,” he had “sufficient facts” and that the “motion for a pre-sentence report” was denied.
The only point raised on appeal is a contention that the judge abused his discretion in “refusing to consider a presentence report.”
It is not clear from the record or the briefs whether the appellant’s counsel was asking for a continuance to permit him to have a report prepared or moving the court to have a pre-sentence investigation conducted pursuant to Ark. Stat. Ann. § 41-804 (Repl. 1977). Presumably it was a motion for a continuance, as Section 41-804 authorizes a pre-sentence investigation if punishment is fixed by the court, and not if punishment is fixed by the jury as in this case. See Ark. Stat. Ann. § 41-802 (Repl. 1977), 30 Ark. L. Rev. 222, 227-228 (1976).
The only case cited by the appellant is Killman v. State, 274 Ark. 422,' 625 S.W.2d 489 (1981), which held that it was not error for the trial judge to refuse to permit evidence of mitigating circumstances to be presented to the jury, as evidence in mitigation goes to the court which must consider possibilities of probation or suspension of the imposition of a sentence.
Beed v. State, 271 Ark. 526, 609 S.W. 2d 898 (1980), was more like this case. It was tried to a jury which fixed the punishment, and the court sentenced the appellant there to long, consecutive terms of imprisonment. Although the conviction was reversed on other grounds, with respect to the appellant’s point objecting to failure to have a presentence investigation or report to determine any mitigating circumstances this court said:
The resort to presentence investigation is discretionary with the trial court. Since the court made a life sentence, a 50 year sentence and a 10 year sentence run consecutively, it might have been the better practice to first have a presentence investigation, but we find no abuse of the trial court’s discretion in this case. [271 Ark. at 548, 609 S.W.2d at 913].
See also Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).
As in the Beed Case, given the nature of the offense and the punishment fixed by the jury, it would have been better practice for the court to have permitted the appellant to prepare and submit a pre-sentence report. In deciding the prison terms were to run consecutively, the trial court made reference to the evidence he had already heard. It thus appears he exercised his discretion and did not just mechanically make the sentences consecutive. Acklin v. State, 270 Ark. 879, 606 S.W.2d 594(1980). Nothing in the recordshows an abuse of that descretion.
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P. A. Hollingsworth, Justice.
The appellant is the owner of land in Sebastian County, Arkansas, Section 30, Township 6 North, Range 31 West. The appellee is the lessee of a mineral lease on the land owned by the appellant. Appellant, the plaintiff in the trial court, seeks the remedy of cancellation of the lease and an accounting of all proceeds arising from the production of natural gas on the property in question. The cause of action is based on the pooling clause of the lease limiting the lessee to pooling lands up to a maximum of 660 acres. The appellee admits that the total acreage pooled comprised 726.92 acres but asserts that this was done pursuant to an order of the Arkansas Oil & Gas Commission and that compliance with the order is not a breach of the lease. Both parties moved for a summary judgment and the trial court granted the appellee’s motion. This appeal is from that order and is before us under Sup. Ct. R. 29 (1) (n). We affirm.
This case presents a question of first impression in Arkansas. The principal issue is a question of precedence in a case of conflict between an express provision in an oil and gas lease and regulations of the Arkansas Oil & Gas Commission.
The trial judge made the following findings of fact. The appellant owned about 38.86 acres in Section 29 and about 91 acres in Section 30 for a total of 129.86 acres, all of which was leased together. In 1970, Ferguson Oil Company acquired the leasehold interest and drilled and completed a producing gas well in Section 29 but not appellant’s land. This production resulted in the Excelsior field being established by the Commission in an area that included Section 29 and Section 30. The Commission also issued Field Rules, Units, and Production Allocations pertaining to the Excelsior field. In 1979, Westland Exploration Co. applied to the Commission for integration of appellee’s leasehold interest in a drilling unit in Section 30. The integration resulted in the drilling unit of 726.92 acres.
The trial court held that the parties by their lease instrument contemplated and provided for such conflicts by having a “governmental regulations” or “force majeure” clause in the lease and that the pooling clause applies to voluntary pooling only. The Commission’s order created a drilling unit which exceeded the acreage limitation for voluntary pooling and created a conflict with the lease’s pooling clause. This conflict was resolved by the governmental regulations clause in favor of the commission order. The court found that the lease is therefore valid and there is no breach.
The two paragraphs of the lease which are the center of this dispute read as follows:
[THE POOLING CLAUSE:]
Lessee, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease or any portion thereof with other land, lease or leases in the immediate vicinity thereof, when in Lessee’s judgment it is necessary or advisable to do so in order to properly develop and operate said lease premises so as to promote the conservation of oil, gas or other minerals in and under and that may be produced from said premises, such pooling to be of tracts contiguous to one another and, to be into a unit or units not exceeding 45 acres each in the event of an oil well, or into a unit or units not exceeding 660 acres each in the event of a gas well; or Lessee may, at its option and without Lessor’s joinder, pool or combine the acreage covered hereby, or any portion thereof, with other land, lease or leases so as to establish a cooperative or unit plan, or plans of development which would include land owned by the United States, regardless of size of such unit, following certification of such plan or plans by the Secretary of the Interior. . .
[THE GOVERNMENTAL REGULATIONS (FORCE MAJEURE) CLAUSE]
... All express or implied covenants of this lease shall be subject to all Federal and State Laws, Executive Orders, Rules or Regulations, and this lease shall not be terminated, in whole or in part, nor lessee held liable in damages, for a failure to comply therewith, if compliance is prevented by, or if such failure is the result of, any such Law, Order, Rule or Regulation, (emphasis added).
A covenant has been defined as an agreement calling “for the performace or nonperformance of some specified duty” which “may constitute an agreement to do or not to do a particular act.” 20 Am Jur 2d Covenants, Conditions, Etc., § 1 (1965). Under this definition, the Oil & Gas Commission’s regulations are the equivalent of covenants since they call for the performance of a specified duty — pooling the lessee’s interest in the drilling unit with other lands. In the force majeure clause the parties provided that covenants in the lease were subject to all state and federal laws and regulations. The clause is therefore applicable to the Commission’s regulations as well.
The appellant’s second argument is that there is no conflict between the commission order and the pooling clause. Rather he maintains the issue is who had the right to commit the acreage owned by appellant after reaching the 660 acre limitation in the pooling clause. He argues that this question and the question of who owns the right to the production from the remaining 66.92 acres is between the lessor and the lessee. We disagree. The Commission, through its regulations, ordered the land in question pooled, and the force majeure clause protected the appellee’s compliance with that order. The responsibility for the size of the unit rests with the Commission rather than with the lessee. The trial court properly held under the Arkansas Conservation Act (Act 105 of 1939) the creation of the 726.92 acre drilling unit was a valid exercise of the State’s police power.
The appellant’s third argument is that the trial court erred in finding the pooling clause only applicable to voluntary pooling. The appellant maintains that the appellee’s actions were voluntary in that he joined the integrated unit of his own accord, and that the trial court erred in finding the pooling to be compulsory.
The integration order was not obtained by the appellee; rather it was sought by a third party — Westland Exploration Co. In its order granting the integration, the Commission held that they had the “authority to grant said Petition and. force pool and integrate the unleased mineral interests of said named parties,” and that “therefore, it is ordered that . . . [a]ll of the oil and gas leasehold interests in the above described unit be and are hereby integrated into one unit. . . ” (emphasis added).
In Bibler Bros. Timber Corp. v. Tojac Minerals, 281 Ark. 431, 664 S.W.2d 472 (1984), the Oil & Gas Commission granted a compulsory pooling order requested by a third party. The court found that there was no voluntary pooling by the lessee in those circumstances. The court quoted a Louisiana case to the effect that:
voluntary pooling by the lessee would be within the contemplation of the parties, being expressly provided for in the lease. Conversely, a forced unitization and pooling order by the Commissioner would not be within the ambit of the intention of the parties. . . because no provision for such action existed in the lease.
Here, too, the Commission’s order made the pooling compulsory.
There is no doubt that when a pooling or unitization agreement is imposed by compulsory process, the provisions of the agreement prevail over any inconsistent lease provision. 4 Williamn, Oil & Gas Law § 670.3 (1981); 4 Kuntz, Oil & Gas, § 48.3(k) p. 223 (1972): Annotation, 37 ALR2d § 2[f] (1954).
The appellee’s actions therefore did not constitute a breach of the lease.
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John I. Purtle, Justice.
Appellant, one of two defendants, was on the losing side of a jury trial. His motion for a new trial, based upon juror misconduct, was denied by the trial court. Appellant argues on appeal that the trial court erred in failing to grant a new trial. We agree with the appellant.
The facts of this case reveal that Wilbur and Peggy Hileman purchased a double wide mobile home from Big Three Mobile Homes, Inc. The home was manufactured by D.A. Langston, d/b/a D.A. Langston Enterprises (appellant). The Hilemans paid $32,904.38 for the structure. Shortly after the building was assembled the roof commenced to leak and the floors buckled. The appellant made several attempts to correct the defects but was unable to satisfy the appellees who sued Big Three who in turn brought in the appellant as a co-defendant. During the trial Big Three was let out on a motion for directed verdict. The jury verdict in favor of appellees was $35,000 to which the court added $7,082 for attorney’s fees and court costs.
After the trial the appellant learned that the president of Big Three had been seen talking with the jury foreman during the trial. Appellant alleged the jury foreman was also observed during the recess, showing other jurors pictures, and pointing out things to them which had been introduced as exhibits during the trial. Allegedly the foreman had been seen talking to a witness for the plaintiff during every recess during the two day trial. Based upon this evidence the motion for a new trial was made and overruled by the trial court. After entry of judgment the motion was renewed and after a hearing was again denied.
At the first recess during the trial the court instructed the jury not to discuss the case with each other or anyone else. The court also instructed the jury: “Please have no conversation with the attorneys, with anyone who is a party in the case or with anyone who is believed by you to be a witness in the case.” He specifically told the jurors they could “smile” or “greet” each other but no other conversation would be allowed. Further conversation, he said, would result in correction by the court. The same type of instruction was given at the end of the first day. There seems to be no dispute that the trial court properly and correctly admonished the jury and that the foreman more or less openly disregarged the admonition of the court.
At the hearing on appellant’s motion for a new trial the foreman denied he was discussing the case while talking to the witness and he denied discussing the case with other jurors or with the owner of Big Three. However, any conversation with a witness violated the court’s admonition.
The single issue before this court is whether the trial court erred in refusing to grant a new trial. The standard in making this decision is whether the trial court abused his discretion in overruling the motion. We hold that he did. Moody Equipment & Supply Co. v. Union National Bank, Adm’r, 273 Ark. 319, 619 S.W.2d 637 (1981). In Moody we upheld the granting of a new trial by the trial court on account of a witness anda juror flirting during the trial. We stated that the latitude of the trial court’s discretion increased proportionately as the situation presented to him a question that could not be as well presented to us by the printed record. In the present case we have it all in the printed record. The admonition was for the jurors not to discuss the case with anyone. They were also specifically told not to talk to the lawyers, parties or witnesses. Even though the foreman and the witness may not have talked about the case the conversation was in open and direct contradiction of the instruction by the court. The conversation between the juror and the witness in Moody concerned the juror’s remarks about the witness’s “pretty blue eyes” and the witness asking the juror if he could come by to see her sometime. The conversation in no manner concerned the issues of the trial. Nevertheless the trial court felt there was the appearance of impropriety and granted a new trial. This court affirmed the order granting a new trial.
After the hearing on the motion for a new trial the court very reluctantly turned down the motion for a new trial. In doing so the court stated: “I’ll tell you once again, and for the record, I myself am suspicious of what occurred. It was in direct conflict with the court’s instructions to the jury. . .on numerous occasions.” The trial court contemplated contempt proceedings involving the juror but instead considered the fairness and reasonableness of the verdict and decided to deny the motion for a new trial.
It is a well established principle that “justice ought not only to be fair, but appear to be fair.” Arkansas State Hwy. Comm. v. A.L. Young, 241 Ark. 765, 410 S.W.2d 120 (1967). When we consider the conduct of the jury foreman and the two witnesses we must conclude that in the present case there was at least the appearance of unfairness. Under the special circumstances of this case we are of the opinion and can say with confidence that the trial court markedly abused his discretion. By this decision we do not imply that we are departing from the established principle that we will uphold the trial judge unless there is an abuse of discretion. Moody, supra. A jury verdict is not to be set aside arbitrarily and without reasonable cause. Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W.2d 585 (1961).
Reversed and remanded.
Hickman, J., dissents. | [
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P. A. Hollingsworth, Justice.
In 1957, Kate G. Cammack, now deceased, conveyed forty acres of land within the City of Little Rock to the Board of Trustees of the University of Arkansas. A separate contract delivered simultaneously with the deed stipulated among other matters that the Trustees would develop the property into the University’s “Cammack Campus.” Appellants, the sole devisees and heirs at law of Mrs. Cammack, contend that Mrs. Cammack’s gift resulted in a charitable trust and that the Trustees have so unreasonably delayed fulfilling the terms of the trust that it has now become impossible and impracticable to carry out its purpose. Therefore, the appellants contend, the forty acres should be divested from the University and given to them.
From the decree of the Chancery Court ordering title to the property to remain in the Board of Trustees for the University of Arkansas, subject to the performance of certain trust obligations with the Trustees given until January 1, 1997, to demonstrate their good faith intentions, the appellants appealed. The appellees in their cross-appeal, state that the trial court should have dismissed the appellants’ claim under Ark. Const, art. 5, § 20. The appeal is before us pursuant to Rule 29 (l)(f) as it involves an injunction directed to state officials. Also Rule 29 (4) is applicable because an issue of significant public interest is involved.
We reach a limited decision today that does not allow the University of Arkansas Trustees to ignore their commitments to donors. The appellees, University of Arkansas Trustees, request that we hold this suit cannot be maintained under Ark. Const, art. 5, § 20. It declares, "The State. . .shall never be made defendant in any of her courts.” We view our cases as allowing actions that are illegal, are unconstitutional or are ultra vires to be enjoined. The legislature designates the Board of Trustees of the University as the corporate entity capable of being sued. Ark. Stat. Ann. § 80-2804 (Repl. 1980) and § 64-1907 (Repl. 1980). We have recognized that officers of state agencies may be enjoined from acts which are ultra vire,s, in bad faith or arbitrary. Toan, Comm’r. v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980); Arkansas State Game and Fish Comm’n v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974); and Harkey v. Matthews, 243 Ark. 775, 422 S.W.2d 410 (1967). The chancellor’s finding that he had jurisdiction to enjoin the action of the University of Arkansas Trustees under the facts of this case is consistent with views we have previously expressed.
Appellants maintain that they are entitled to a judgment by default. The facts are as follows: Appellants filed the complaint on August 7, 1979, and appellees filed a timely special appearance and motion to dismiss. The trial court overruled the motion on August 29, 1980 and requested precedents from both parties for a proposed order. After receiving copies of precedents from both parties, the chancellor entered his order on November 17, 1980, overruling appellees’ motion to dismiss and giving appellees twenty-five days from notice of the order to answer. Due to circumstances in the clerk’s office, the appellees did not receive a copy of the order. On February 4, 1981, counsel for appellants notified counsel for the appellees that the order had been entered and volunteered to send a copy to him. Counsel for appellees never received a copy of the order and did not file an answer within twenty-five days of notice by appellants’ counsel that the order had been entered. A responsive pleading was filed by appellees on April 10, 1981. The chancellor denied the motion of appellant for default judgment. We have held in Burns v. Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980), that:
It is within the sound discretion of the trial court to grant or deny a motion to set aside a default judgment, and the question on appeal is whether there has been an abuse of that discretion. Default judgments are not favorities of the law and should be avoided when possible, (citations omitted).
Furthermore, ARCP Rule 55 provides that a default judgment should be entered when a party “fails to appear or otherwise defend.” Here, the appellees defended when they filed their motion to dismiss. This holding is also consistent with Ark. Stat. Ann. § 27-1160 (Repl. 1979) which provides that, “The court must in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” There was no prejudice to these appellants by the appellees’ delay in filing their answer.
The appellants also contend that the trial court’s finding that it is not yet impossible to carry out the wishes of Mrs. Cammack is clearly against the preponderance of the evidence. The appellants base their argument on the fact that Edward Stone, the architect selected by Mrs. Cammack, has since died. The chancellor held:
While it is no longer possible to employ Edward Stone to perform the architectural work, the charitable purpose of the trust was not to provide employment for Mr. Stone. Mrs. Cammack realized Mr. Stone’s services might not be available and the availability of Mr. Stone was not essential to the fulfillment of the trust.
The chancellor’s findings will not be reversed unless they are clearly erroneous. Hughes v. Gibbs, 282 Ark. 488, 669 S. W.2d 451 (1984). We do not find that the chancellor’s holding was clearly erroneous.
We next address the cross-appeal of the appellees and their contention that the chancellor erred in concluding that Mrs. Cammack, with the deed and accompanying agreement, created an express charitable trust for a particular, not general, charitable purpose. It is undisputed that there is no mention in the agreement or in the deed of a reversionary interest. Restatement (Second) Trusts § 349 (b) provides that a charitable trust may be created by “a transfer inter vivos by the owner of property to another person to hold it upon a charitable trust.” Section 413, comment 1 concerns the failure of a charitable trust. It provides that:
if the settlor manifested an intention to restrict his gift to the particular charitable purpose designated, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, the trust fails and the trustee holds the property upon a resulting trust for the settlor or his estate.
The chancellor found that Mrs. Cammack clearly limited the use of the property to the educational and cultural program of the University. This was the specific charitable purpose. Therefore, the chancellor correctly held that if the Board fails to demonstrate its good faith intentions to develop the Cammack property by 1997, the property shall revert to the appellants. It was within his discretion to establish the 1997 deadline to best effectuate the charitable purpose of Mrs. Cammack’s gift.
The lower court felt that it is time to decide this case on the merits and quoted an excerpt from our decision in Foot’s Dixie Dandy v. McHenry, Adm’r. 270 Ark. 816, 607 S.W.2d 323 (1980):
Justice Holmes made the remark many years ago that “Men must turn square corners when they deal with the government.” Rock Island, Arkansas & Louisiana R.R. v. United States, 254 U.S. 141, 143 (1920). Years later, two commentators added the logical corollary to Holmes’ remark: “It is hard to see why government should not be held to a like standard of rectangular rectitude when dealing with its citizens.” McGuire & Limet, Hobson’s Choice and Similar Practices in Federal Taxation, 48 Har. L. Rev. 1281,1299 (1935). We agree with both ideas.
We agree and affirm on the direct appeal and cross-appeal.
Affirmed.
Hubbell, C.J., concurs.
Dudley, J., and Special Justice Albert Graves Sr., dissent.
George Rose Smith, J., not participating. | [
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John I. Purtle, Justice.
The trial court declared a mistrial when it apparently decided the verdict returned by the jury did not express their true intent. Both plaintiffs and defendant appeal, each arguing that the court should reform the verdict to conform with their own conclusions. We hold that under the circumstances of this case the trial court properly exercised its discretion in declaring a mistrial and placing the matter back on the trial docket.
Appellee sued the appellants and a third party as a result of injuries she received from a fall on allegedly unlighted common ground of the condominiums where she resided. The third party made a separate settlement and was released from the lawsuit prior to the trial. By amended complaint appellee alleged negligence and breach of contract of repair and maintenance by Dwight Blissard, Jr. and Blissard Management and Realty, Inc. (appellants) who managed the condominium which appellee rented. The answer and counterclaim alleged contributory negligence and assumption of risk. The trial court permitted appellee to argue damages based upon breach of an. oral contract between her and appellants. At least one instruction was given on a negligence theory (AMI 301). Instructions on ordinary care and assumption of risk were also given.
The verdict returned by the jury was as follows:
We, the Jury, find for the Defendant, Dwight Blissard, Jr. and Blissard Management & Realty, Inc. on the Complaint of the Plaintiff, Bettye Kremer, and for Bettye Kremer, the Plaintiff, on the complaint of the Defendant, Dwight Blissard, Jr. and Blissard Management & Realty, Inc. . _ , .
It is readily apparent that the verdict is subject to more than one interpretation. The writing on the left hand side was not noticed until after the jury was dismissed. Immediately thereafter three members of the jury panel went into the court chambers and informed the judge that they were confused by the verdict form but wanted to make the award as it was written on the side. Both parties requested that the verdict be reformed by the court but they did not agree on the proper manner of reformation. Eventually the court entered the mistrial and both parties appeal.
Appellants contend the verdict should be amended to reflect the figures written in on the left side of the verdict and that they should be given credit for the amount paid by the third party. This amount being greater than $5,000, the appellants would owe appellee nothing. In the alternative, appellants argue that the notations on the verdict form should be disregarded as meaningless surplus. The appellee wants the verdict reformed but wants the $500 deducted from the $5,000, thereby leaving a verdict in favor of the appellee in the amount of $4,500.
It is the practice of this court to accept as correct the decisions of the trial court which the appealing parties do not show to be wrong. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977). Neither party has really argued that the trial court did not have discretion to declare the verdict invalid. They have each argued instead that the court did have discretion to reform the verdict in their favor. Perhaps this could be treated as arguing that the court abused its discretion. The parties each claim the case was tried under different theories. There is reason to believe AMI 301 was inadvertently given because the court restricted appellee’s argument to breach of contract. However, we do not reach these issues because we decide the matter on the issue of the discretion of the court.
For a very long time we have held that a court retains control over its j udgments during the term at which they are made. When a judgment is set aside during the term, the parties are put back in the position they were in before the judgment was entered. Underwood v. Sledge, 27 Ark. 295 (1871). During the term a judgment remains subject to the plenary control of the court and may be vacated, set aside, modified or annulled upon application or upon the court’s own initiative. Stinson v. Stinson, 203 Ark. 888, 159 S.W.2d 446 (1942). The power of the courts to modify or set aside a judgment during the term it was entered [now 90 days: ARCP Rule 60 (b)] exists as an inherent power and outside of any rule or statute. Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980).
Neither party having shown the trial court abused its' discretion in declaring a mistrial and returning the case to the trial docket, we uphold the trial court’s action.
Affirmed on direct and cross appeal. | [
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Darrell Hickman, Justice.
This case arises out of the October 29,1982, armed robbery of Al Florn and his family at their home near Mountain Home, Arkansas. Jerry McFarland and Richard Soest, the appellants, and Mike Mc-Cracken, the state’s chief witness, were charged with burglary, robbery and theft of property, in connection with the incident. McFarland, Soest and McCracken were charged in other counties with a number of similar crimes during the same time period. One involved the robbery and kidnapping of James Pate, a Jacksonville, Arkansas, pawn shop owner, and another involved Forrest Wood, a businessman in Marion County. McFarland and Soest were convicted of burglary, robbery and theft of property in connection with the Horn robbery. McFarland was sentenced to 60 years. Soest had six prior convictions and was sentenced as a habitual criminal to 90 years in prison. On appeal they make eight arguments concerning procedural matters. We find no prejudicial error and affirm their convictions.
A1 Horn, a dealer in precious metals, was robbed at his rural home, which is a mile from the Missouri border. He, his wife, and his teenaged son were bound and gagged by two masked men. The men stripped them of their jewelry, took Horn’s briefcase, and threatened Horn with death if he did not reveal the location of his safe and the combination. The thieves were unable to open the safe and forced Horn to open it. The men took approximately $7,500 in cash, a 1901 five dollar gold piece, several rings, including a “snake” ring, a diamond cluster ring, and Mrs. Horn’s solitaire diamond engagement ring. Horn’s money clip was taken and at least five firearms were stolen, including a 410 shotgun, a wallet derringer, and a Colt revolver. A Puma hunting knife was stolen, as well as jeweler’s eyepieces, vials of diamonds, many other pieces of jewelry, and scrap gold. Also taken were various coins. The robbers left in Horn’s silver Honda automobile. The victims could not identify their robbers beyond describing their builds.
After James Pate was robbed and kidnapped in Jacksonville on January 11, 1983, the authorities were able to determine through tire tracks that McCracken might have been involved. The investigation led to Baxter County. McCracken and McFarland were both questioned and ultimately arrested. When McFarland was arrested he was wearing a wristwatch, which belonged to James Pate.
McCracken gave a number of statements to the authorities. Just two days before trial, a bargain was struck that, in exchange for his testimony in the A1 Horn case, he would receive only a 10 year suspended sentence and a $2,500 fine for that crime. He testified that he planned the robbery of Horn with McFarland, who owned a game machine business arid an interest in a local restaurant. McFarland called McCracken the morning of October 29, 1982, and asked him to meet him and his “buddy” at J 8¿ J Sales, which was the building McFarland used for his game machine business. The buddy was Richard Soest. It was decided that they would rob Horn that day. McCracken drove his blue and white Chevrolet truck. He let Soest and McFarland out near Horn’s home at approximately noon so that they could be there when Horn’s son came home from school. They then waited for Mr. and Mrs. Horn to arrive home from their shop in Mountain Home. McCracken was to return to an appointed place nearly between 7:00 and 7:15 p.m. to pick them up. He testified that when Soest and McFarland left him they had a gorilla and “spiderman” mask, two pistols, brown jersey gloves and duct tape. McCracken returned to the spot about 6 p. m. About an hour and fifteen minutes later, Soest and McFarland drove up in a small silver car and told him to follow them. He followed them into the woods and they threw a pillow case into the back of the truck. McCracken said McFarland had on a gorilla mask which he took off and threw away. According to McCracken, McFarland said he had thrown a 410 shotgun into the woods. The three returned to J & J Sales and emptied the pillow case. Inside were a brief case, several pistols, scrap gold, coins and other things. McCracken said that he saw no jewelry. He was told they did not have time to go through it and it was hidden in a video game machine. McFarland told McCracken that they had not gotten anything else and paid him $300 for driving.
McCracken testified that in the early part of December, he accompanied McFarland to Cabot and sold some items of jewelry to Bill Pitchford, McFarland’s stepbrother. Pitch-ford gave McFarland a check, which he cashed that day. Then Pitchford took them to Jacksonville where McFarland sold James Pate a solitaire diamond ring that was later identified as Mrs. Horn’s. McFarland told Mr. and Mrs. Pate that the ring belonged to Mrs. Don House who was ill. The Pates bought the ring for $800 and a rifle. The Pates corroborated this testimony. The Pates also testified that McFarland came back a few days later and sold them a ring, which was identified as the Horns’ cluster ring, and several gold coins, among which was a 1901 gold piece. He also had other rings and a vial of diamonds.
A search of McFarland’s home was made and found were a Puma hunting knife, stacks of bills, Horn’s money clip, jeweler’s eyepieces, vials of pennies, Lincoln head pennies, foreign coins, a brown jersey glove, a pillow case, and a Halloween gorilla mask. At J & J Sales, in video and pinball machines, were found numerous weapons, many of which had their serial numbers removed. Among them were Horn’s wallet derringer and a Colt pistol. Horn’s car was found six or seven miles from his home on the day of the robbery and a spiderman mask and a Halloween, ghoul-type, mask were found'nearby.
McFarland testified that McCracken had ill feelings towards him. He said that he was a bookie and that McCracken had a gambling debt to him of over $8,000 in early October. He said that when McCracken was pressed to pay it, he brought him the stolen merchandise that was found in his possession. He readily admitted that he assumed the merchandise was stolen and that he knew of the Horn robbery. He admitted possessing the rings and coins and sellimg them to the Pates. He denied that he had told the Pates the solitaire ring belonged to anyone. He testified that he did not sell anything to Bill Pitchford and that McCracken had sold him the jewelry. He testified that Bill Pitchford made out the check in payment for the scrap gold to him simply because Pitchford owed him some money and McFarland cashed the check and paid McCracken his part from the sale of the gold. He said a stack of one thousand one dollar bills was part of his payoff from McCracken. He also testified that on October 29, 1982, he had worked at his restaurant in the morning, worked on a friend’s plumbing in the afternoon, and spent the entire evening at the restaurant. Soest’s defense was essentially an alibi also.
At the Horn’s home was found a piece of paper with the writing, “4 times to left.” There was testimony that indicated one of the robbers might have written down part of the combination to Horn’s safe. According to a handwriting expert, the writing was made by Soest. Hairs taken from the spiderman mask were matched with Soest’s.
Although no argument is made as to the sufficiency of the evidence or as to sufficient corroboration of McCracken’s testimony, this recitation of facts is necessary to an understanding of the arguments made.
The major point for reversal concerns evidence heard by the jury of other crimes with which McFarland and Soest were charged. A motion in limine was granted ordering that no mention be made of the other crimes. It was agreed there would be no such mention. It was a difficult case to try for all involved simply because of the tangle of facts which concerned the crimes that were to be kept from the jury.
The appellants complain about several statements made. One occurred when McCracken was asked on cross-examination about his plea bargain, and he responded by describing the agreement, but then said: “I am still charged in Baxter County and Pulaski County, like the others.” The defense moved for mistrial. There is no evidence that this was a deliberate statement nor can we say that the offhand remark prevented the defendants from getting a fair trial. The trial judge, in his discretion, denied the motion for mistrial and observed that the defendants’ names had not been mentioned nor any crimes. Mistrial is a drastic remedy and one which must be let to the discretion of the trial judge. Nolen v. State, 278 Ark. 17, 643 S.W.2d 257 (1982). We find no prejudicial error. Price v. State, 268 Ark. 535, 597 S.W.2d 598(1980).
The other issue with regard to evidence of other crimes is more complicated. The state’s case against the appellants depended on the credibility of McCracken and James Pate, and the defense concentrated on attacking their credibility. The jury had to choose whom to believe. When McCracken was arrested, he gave several statements regarding his role in the various crimes. On cross-examination the defense, at least twice, attempted to point out inconsistencies between his testimony and the prior statements. Yet these statements were given in connection to other crimes as well as to the Horn robbery. The state naturally complained that its hands were tied in trying to rehabilitate McCracken because of the motion in limine, and that the defense was forcing McCracken to perjure himself.
Then, when James Pate was being cross-examined, he was asked if he knew Soest. Rather than mention his robbery, Pate answered “I better not say that.” When asked if he had ever been in the shop, Pate answered, “No sir, let me say no. I don’t know what to do on that. Do I have to answer it.” Again the complaint was made that the defense’s tactics were forcing the state’s witness to perjure himself. At a recess the state made this objection:
Your Honor, let the record reflect that the state objects to the kinds of questions asked of the last witness. It places them in the untenable position of the witness having to perjure themselves because of the nature of the question asked. Mr. Soest was in an armed robbery that occurred on the 10th or 11th of January, 1983 and that caused the pause of the witness and his answer in which he had to say no, rather than answer the question truthfully under the prior directives of this Court not to mention any other offenses.
Soest’s attorney: I didn’t anticipate that response, your Honor, as soon as I realized we were getting into that area, I got off of it.
The Court: This is two or three times that this has come up. The next time I may let the witness go ahead and answer.
The same thing transpired when the defense was attempting to impeach McCracken. The following took place in chambers:
State’s attorney: Your Honor, the problem Mr. Mc-Cracken has in answering the question just posed to him by [Soest’s attorney] is that [Soest’s attorney] has indicated the $150 cash on this statement has to do with the A1 Horn case when in fact, the problem with that is, if the Court will read this $150 cash has to do with another robbery that was being discussed and the figure involved with respect to the A1 Horn thing is at the bottom of the next page and it says $150 to $200 and when [Soest’s attorney] alluded to this figure the witness was unable to answer that question because it relates to another robbery.
The Court: That is what the Court understands.
State’s attorney: I don’t know how to deal with this before the j ury. It is the same thing time and time again, to make him look like a fool in iron t of the j ury when he is just completely unable to answer those kinds of questions under the orders of the Court.
The Court: That is what the Court understands and that is the reason we are taking this recess.
Soest’s attorney: If he is saying he got $150 to $200 he should have pointed to this statement down here. All I can say is I just saw this statement for the first time here in the courtroom. That was the result of a rather hurried reading, your Honor. I will not again refer to that $150 at the top of the page.
The Court: I think the jury understands the inaccuracies here. We are getting awfully repetitive.
Until McFarland was cross-examined late in the trial, the state had avoided the mention of the other crimes, although as illustrated, it caused considerable difficulty. On cross-examination McFarland was asked whether he was wearing a wrist watch taken from Pate in an armed robbery. Then McFarland was asked whether he was in possession of fire arms stolen from Pate. This is the other evidence that the appellants claim prevented them from receiving a fair trial. In our judgment the questions were fair because the entire theory of the defense was that McCracken was lying about the robbery and the circumstances of McFarland’s possession of the stolen property, especially that taken to Cabot and Jacksonville. While McFarland admitted that he was guilty of possessing stolen property and being a bookie, he contended that he was totally innocent of burglary and robbery and a victim of McCracken’s vengeance and the Pates’ mistaken memory. The defense tried several times to use the facts of the other crimes to impeach witnesses and then used the motion in limine to protect their own witnesses. As the trial court aptly stated:
There’s just been several instances where you haven’t phrased your question right which has caused problems with the witnesses being able to respond or take tactical advantage for the defense, and it’s solely because of the reason this Court has kept the existence of multiple other charges against these same defendants from being presented to this jury. The rule is for a shield and not for a sword and you all are using it for a sword.
Unif. R. Evid. Rule 404(b) provides that other crimes may be admissible to show absence of mistake and that is the theory the state argues is applicable here. But it is our judgment that the evidence of possession of other stolen items was admissible to impeach McFarland’s testimony. The state’s case depended on whether the jury believed McFarland or McCracken and their versions of the possession of the stolen property and its sale. The defense cannot tie the state’s hands with regard to any mention of what occurred in Jacksonville, while being allowed to present any version whatsoever as to McFarland’s possession of the stolen property. McFarland admitted he possessed stolen property but tried to paint himself as completely innocent of any other involvement. We find no prejudicial error. The peculiar, complicated facts, which unavoidably involve several crimes, and the theory of the defense, dictate our conclusion.
Numerous allegations of error are made regarding the trial court’s rulings on discovery. The state furnished the defense with a detailed list of the evidence that they intended to use in July of 1983, two months before the September 19 trial. A pretrial hearing was held September 2 concerning discovery and other matters. On that date a motion for continuance was made and the court stated:
Gentlemen, this matter was set for trial in May, continued on defense motion. It was set for trial in July and was continued on defense motion . . . [I]f you are going to use three attorneys, or four attorneys, there is always going to be conflicts that the attorneys are going • to have and I suppose the more attorneys that you bring into the case, the more conflicts, but this Court has got no time for a time to slot this trial in until the latter part of January. That’s where my schedule is. And I have already granted two continuances in this matter, so we are going to go to trial in this case on the 19th of September.
The defense complained that the following items were not furnished to them pursuant to the discovery order: all of Soest’s handwriting exemplars, results of the test on Soest’s hair by Steve Cox, a report concerning the stolen weapons, the plea agreement between the state and McCracken, results of McCracken’s polygraph test, a witness whose name did not appear on the witness list provided the defense, telephone records of Soest and McFarland, and a federal form used by pawn brokers when purchasing weapons.
The state conceded that it had not delivered all the examples of the handwriting of Soest taken in connection with analyzing the note which read “4 times to left.” It was the posture of the defense that it could not adequately prepare for the trial and get its expert to make these comparisons without these handwriting samples. There is no prejudice since the state said it would limit its offer of proof and omit from evidence any testimony based on examples which were not furnished. It should also be pointed out that evidently what the defense wanted were samples of Soest’s handwriting which were obviously available to the defense. Furthermore, no proffer is reflected in the abstract that the defense had a handwriting expert that would testify if he were present.
A criminal investigator for the state, Jim Carr, sent hair samples taken from several suspects to the state laboratory for tests. He got the results over the phone and took notes from the call. He testified that he was told the results were positive with regard to a match between hairs from the spiderman mask and hairs taken from John Dillard. It was the posture of the defense that these notes should have been admitted because they were exculpatory. The state said that it had no tests that it could have given the defense and was able to satisfy the trial court that no actual test results were officially made by the state. The trial court ruled that this was hearsay evidence and inadmissible. We cannot say, based on this record, that the court was clearly wrong. Furthermore, the testimony was allowed, only the notes were excluded.
The defense moved for a continuance, because it was not made aware of plea negotiations regarding McCracken. The court stated that it could find no prejudice because of surprise because the defense knew since July that McCracken would be a witness for the state. No agreement was reached until Friday before trial and the defense was informed of the particulars on Monday, the first day of trial. Inasmuch as the defense knew that McCracken would testify, no prejudice has been demonstrated.
Objection was made to the admission of numerous telephone records of McFarland, but it was not disputed by the defense that these records were in the state’s files and available to them from July. The defense could have had them for the asking. It was the posture of the defense that the state should have the records duplicated and sent to them in response to the order of the court. The court observed several times that, in its judgment, the defense chose to remain ignorant regarding a good deal of the evidence of the state. We must agree that the record bears out the trial court in this judgment.
Numerous guns, seized from McFarland’s place of business, were introduced into evidence and several of them had their serial numbers removed. McCracken testified that he had seen McFarland filing off the serial numbers on several of the guns. The defense argued that it had not been informed that tests were going to be performed upon the weapons which would reveal the serial numbers. According to the testimony of one expert, it was established that a .38 pistol was one of those taken from Horn. He could not say regarding a .22 derringer, although it was generally identified as a weapon taken from Horn. The record reflects that the defense was furnished the report on the weapons two weeks before trial, and we find no prejudicial error. Nor do the appellants show how they could possibly be prejudiced by introduction of the federal form used by pawn brokers when buying and selling weapons. Furthermore, the form was withdrawn from the jury after the objection.
McCracken testified that he made an anonymous call to the sheriff’s office in Gainesville, Missouri, telling them that the Horns had been robbed, were tied up and should be released. The state had listed as a witness to corroborate this statement the telephone operator at the sheriff’s office. Instead, another person, who was present at the office and heard the call, testified. Objection was made that this was a violation of the rules of discovery. No objection was made until after the close of the testimony and the defense has not demonstrated in any way how they were prejudiced.
As McCracken was being cross-examined by the defense, it was revealed that he had been given a polygraph examination. Objection was made at this point, because the defense had requested copies of all statements by McCracken and they had not been furnished with the results of the polygraph. The state was able to convince the court that they did not have the questions nor the results of the polygraph and did not consider it a statement. The defense was given at least three statements that McCracken had made to the authorities, which were inconsistent, and it was able to present the inconsistencies to the jury. McCracken admitted that he had lied to the police when he made these statements. We find no prejudice.
Another argument is that the trial court erred in allowing Mrs. Horn to testify that she was sexually assaulted during the robbery, because neither of the appellants had been charged with sexual assault. We have had similar questions arise in cases where, during the course of one crime, an assault of some kind or another is inflicted upon the victim. We have found the testimony to be relevant as a circumstance connected with the particular crime being tried. The evidence is necessary to present a clear picture of the crime and its aggravated nature. Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981); Butler v. State, 261 Ark. 369, 549 S. W.2d 65 (1977); Banks v. State, 187 Ark. 962, 63 S. W.2d 518 (1933).
The appellants contend that the trial court abused its discretion in admitting evidence that was not connected to the crime with which they were charged. One item introduced was a gorilla mask found at McFarland’s home. The appellants argue that this was unnecessary and irrelevant because two masks were found by Horn’s car, a spiderman and a ghoul-type mask, which were the type described by Horn as being worn by the robbers. However, McCracken testified that McFarland was wearing a gorilla mask when he returned from the Horns’. His credibility was crucial to the state and the fact of McFarland’s possession of that mask bolstered his credibility. Furthermore, Horn testified that one of the robbers was wearing a hairy Halloween mask. Rulings as to relevance are within the trial court’s discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). Here, since these items matched McCracken’s description, there was no error.
The appellants next contend that the trial court erred when it allowed the state to ask McFarland why he was in possession of a sawed-off shotgun. In support of their contention, the appellants state that no shotgun was reported stolen and that no one testified that a shotgun was used in the robbery. The record disputes both assertions. McCracken testified that McFarland and Soest discussed throwing a shotgun into the woods after the robbery. Horn reported a shotgun stolen. McCracken also testified that he saw McFarland altering firearms. The record does not reflect whether the shotgun referred to in the question was Horn’s. But McFarland denied any knowledge at all of any of the stolen items found at his place of business and inquiry into his possession of a shotgun could be considered relevant to bolstering Horn’s and McCracken’s testimony. Again, this was a discretionary ruling for the trial judge, and we find no error.
The next argument concerns the victim of another crime, Forrest Wood, visiting with potential jurors outside the courtroom prior to voir dire. Mr. Wood, a prominent businessman in the next county, was robbed and the appellants were charged with the crime. The defense moved for a mistrial. The court then questioned the jurors and excused any which might conceivably have been prejudiced by talking to Mr. Wood. There was no evidence at all that Wood mentioned his robbery. Wood left the courtroom until the trial began. The defense asked the prospective panel if anyone knew Mr. Wood and one woman answered that she did. She was excused by the trial court. The appellants have not been able to demonstrate that their case was prejudiced by this incident.
In connection with this matter, the appellants argue that they did not receive a fair trial because one of the j urors, Mrs. Elaine Albertson, failed to respond when asked if she knew Forrest Wood. After the trial began the defense moved for a mistrial because they had learned that she was the secretary in an insurance agency that had processed Wood’s claim after he was robbed. Shortly after the trial began, Mrs. Albertson was questioned out of the hearing of the jury. She readily admitted knowing Mr. Wood and that she had processed his claim. She denied knowing that the appellants were accused of the crime and no evidence was presented that she did. The defense did not ask her why she had remained silent when the jury panel was asked if they knew Forrest Wood. After the trial, two affidavits, identical in their wording, were filed by the appellants which stated that Mrs. Albertson’s employer and Wood were both officers in a Yellville Savings and Loan, that Mrs. Albertson admitted reading the Baxter County newspaper, that the paper always mentioned the Forrest Wood and A1 Horn cases together, and that Forrest Wood had been present throughout the trial.
The trial judge was satisfied that a mistrial should not be granted. The record does not reflect that Mrs. Albertson lied and in this regard we have to give deference to the trial court. This is not like the case of Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983), where a juror said that she knew nothing of a case and yet had sat in on the defendant’s first trial. Perhaps Mrs. Albertson should have answered affirmatively when the panel was asked if anyone knew Wood, and we cannot say why she did not. However, later she was certainly candid about the matter. Indeed, the defense could have asked her whether she had heard the question and why she remained silent in order to better demonstrate error.
Whether a juror or jury is impartial is a judicial question addressed to the sound discretion of the trial court, and a manifest abuse of the discretion must be demonstrated by the appellants. Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976). The appellants in this case have been unable to demonstrate an abuse of that discretionary authority, which was their burden. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).
Four search warrants were issued by the Baxter County Municipal Judge in connection with McFarland’s property. The appellants filed a motion to suppress because the warrants were not returned to the issuing officer in accordance with A.R.Cr.P. Rule 13.4 and because three of them could have been executed at any time during the day or night. A.R.Cr.P. Rule 13.2 requires that warrants shall provide that they be executed between the hours of 6 a.m. and 8 p.m., unless the issuing officer finds that it needs to be executed at night for various stated reasons. Only one search could clearly be characterized as a nighttime search. It took place at 12:30 a.m. The affidavit supporting the warrant stated that the items were in danger of imminent removal. That is a ground for a nighttime search. Murray v. State, 215 Ark. 46, 628 S.W.2d 549 (1982). Another search took place between 7:30 and 8:30 p.m. We find no merit to the contention that this violated Rule 13.2. Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977).
The issuing officer testified that he did not get the warrants back as required by Rule 13.4. He said, however, that he directed the prosecutor to file them with the circuit court. We find no substantial violation when viewed in light of Rule 16.2(e) which provides in pertinent part:
Determination. A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state.
The failure to return the warrants to the issuing officer was not willful and caused the appellants no prejudice. In view of recent United States Supreme Court decisions, we have no difficulty in deciding that these searches were reasonable. United States v. Leon, _U.S._, 104 S.Ct. 3405 (1984); Massachusetts v. Sheppard, _U.S. _, 104 S.Ct. 3424 (1984).
An argument is made that the state implied to the jury that the defendants had the burden of proof in the case. An investigator was asked on cross-examination if he had taken fingerprints and hair samples from the various pieces of evidence. The inference seemed to be that the officer and others had not proceeded as vigorously in seeking suspects as they might have once they had evidence against those on whom they had already focused the investigation. The defense mentioned several times during the trial that several other men undoubtedly had the kind of reputations and similar physical descriptions which could point suspicion as to their participation in the crime. After this cross-examination, the prosecutor asked on redirect “Have any of the lawyers for Mr. McFarland asked to have the items from the home and business of Mr. McFarland available to them to test for fingerprints or hair samples.’’ At most, the question was harmless error in view of the complexity of the trial, the overwhelming evidence against the appellants, and the problems which both the state and the defense encountered in seeing that a fair trial was given to these defendants.
We find that the appellants did receive a fair trial.
Affirmed. | [
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John I. Purtle, Justice.
The Arkansas Court of Appeals modified the original order in this case [Jones v. Bransford, 270 Ark. 664, 606 S.W.2d 118 (Ark. App. 1980)] and remanded it to the Faulkner County Probate Court for additional proceedings. The trial court ordered the estate to be distributed in accordance with what the court thought was the mandate of the Court of Appeals. The estate and three heirs appeal. Other heirs cross appeal. Both sides argue the trial court applied the wrong formula in ordering distribution. In view of the rule that the law of the case is established by the first appeal (in the Court of Appeals in this case) we disagree with both arguments and affirm the order of the trial court.
Lyde Allinder Robins died in Faulkner County, Arkansas, in 1964. Her will was admitted to probate along with a codicil which made a major change in the will. The original will basically provided: (1) payment of debts and expenses; (2) payment of specific bequests; and (3) distribution of the balance of the estate into four equal shares. The codicil revoked one of these four shares and replaced it with a bequest of 12% of the net value of the estate after payment of costs, taxes, and expenses. The appellees (four grandsons) were to share equally in this codicil bequest. The codicil resulted in that portion of the estate between 12% of the net estate and 25% of the residue not being disposed of in the will or the codicil.
On the first appeal the Court of Appeals held that appellees (four grandsons) were entitled to receive their specific bequests (12% of the net estate, after expenses, etc.) before the three daughters received their 25% each of the residue. The grandsons (sons of the deceased daughter of testator) had originally been designated to share the other fourth of the residue after expenses and specific bequests were paid.
On remand the probate court distributed the estate as follows: 1) costs, expenses and debts; 2) 12% payment of the net estate to the appellees; 3) payment of other specific legacies; 4) 25% of the residue to each of the three daughters or their estate; and 5) the balance of the 25% residue which was originally bequeathed to the appellees passed intestate to the heirs at law.
We hold that the 12% bequest to appellees is a specific bequest in accordance with the law of the case. Griffin v. State, 276 Ark. 266, 633 S.W.2d 708 (1982). Therefore, it was proper for the trial court to take the specific bequest in the codicil from the entire estate after payment of the expenses, costs and taxes.
Generally speaking, specific legacies do not bear interest other than the increase which develops from the thing given. Atkinson, Law of Wills (2nd. ed. 1953). Arkansas Stat. Ann. § 62-2907 (b) (Repl. 1971) states: “[u]nless otherwise provided in the will, a specific devise of property shall be construed to include income or increment accruing to such property while in the hands of the personal representative.” Income or increment growth while the property was in the hands of the personal representative was a question of fact to be decided by the trial court. The court below found there was no such growth or interest. The court further found that the executrix started making disbursements to the appellees in 1965 and that the entire 12% of the estate had been distributed. Appellees were awarded 6% interest on their intestate share commencing on October 5, 1980, which was the date of the Court of Appeals’ decision holding that the 12% bequest was specific rather than residuary and that they took part of the residue as heirs at law. Arkansas Stat. Ann. § 62-2907 (a) (Supp. 1983) provides for interest on general legacies; however, until 1975 this statute expressly provided that general legacies “shall not bear interest.” Appellees were not general legatees. They were specific legatees and also heirs at law receiving by the lapse of part of the estate into intestacy. Neither were the appellees residuary legatees. They were heirs to the intestate part of the residual portion of the estate and specific legatees to the 12% bequest in the codicil. In addition to the decision being the law of the case, we think the Court of Appeals was correct in holding that the 25% of the original residue was effectively revoked by the codicil and was otherwise not disposed of by the will or the codicil.
All fact findings by the trial court must be sustained because no record of any factual testimony has been abstracted and briefed by either party. Apparently no stenographic report of any hearing after remand was made.
Affirmed on direct and cross appeal.
Hubbell, W., C.J., not participating. | [
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Hart, J.
The appellants, Henry Pickett and Wilson Pickett, were indicted in the Calhoun Circuit Court for murder in the first degree, committed by killing Charles Abbott, and on change of venue to Union County they were tried and convicted of murder in the second degree. Their sentence was fixed at a period of 21 years in the State Penitentiary. An appeal has been duly prosecuted to this court.
The evidence on the part of the State is correctly abstracted by the Attorney General as follows: On the 8th day of December, 1908, Henry Pickett went to the store of Bunk Abbott, and told him that he had a bale of cotton at the gin for him. Bunk Abbott told Henry Pickett that it was all right; that he would go down there and get the cotton. And Abbott asked Pickett what did he do with the seed, and when Pickett replied that the seed were at' the house Abbott told him that he owed him the cotton and seed, and then it would not pay his account. Bunk Abbott told his brother, the deceased, Charlie Abbott, to go down and tag the cotton. Henry Pickett, Charley Abbott and Wilson Pickett, a brother of Henry Pickett, left the store together. Bunk Abbott knew the reputation of the two negroes, and when he saw Wilson Pickett leave with them, he went down to where they were to load the cotton. After the cotton was loaded, the two Pickett negroes went to the house. In a very short time a conversation took place between Henry Pickett, who was sitting at the time on the porch at his house, and Bunk Abbott, who was at or near the gate.
According to the testimony of Bunk Abbott and Plard Green, a negro boy who was there at the time, Bunk Abbott told Henry Pickett to go down and unload the cotton. Henry said he was not going. Bunk told him they would have to have a settlement. He told Bunk to go off, that he did not want to talk with a drunk man. Bunk asked him if he thought he was drunk, and he told him that he had his account, and put his hands in his pocket to get the account. Henry replied, “To hell with you,” and immediately stepped into the house, and came back, and commenced shooting. Bunk and Charlie Abbott then approached the house, and also began firing. Hard Green saw Wilson Pickett in the house during the shooting, and Ira Newton, who was about 100 yards away, testified that he saw “the darkey” at the corner of the room at the “D” of the house run into the house immediately after he had heard some shots. A little bit later Newton saw both negroes come from around the house. One was carrying a single-barreled shotgun, and the other a rifle. As they passed Newton, they were asked if any one got hurt. Henry said that he was shot in the leg, and Wilson said “they come and got our cotton.”
The negroes fled the country, and were finally captured at Monroe, La.
Bunk Abbott was shot in the arm and in the chin. The shot struck the back of his arm near the wrist bone, and came out on the inside of his arm, near the elbow. Charlie Abbott was shot in the left arm, and a load of squirrel shot penetrated his breast over the heart. There were forty-four squirrel shot holes in his breast covering a space of about six inches.
The circumstances in regard to the killing, as testified to by the defendant Henry Pickett, is as follows: “I am one of the defendants. We had been to town that day, and did not have any dinner, and I was hungry, and I went in the kitchen, and asked my wife how near supper was ready, and she replied that it would be ready in a few moments, and I went back and sat down on the porch, and Mr. Abbott says: “Henry, come out here and get in this wagon, and go back to town with me.’ I said: ‘Mr. Abbott, you have plenty of help without me.’ He says: “Damn that! This is your cotton, and I want you to go back to town and unload it. I started to tell him something, and he said again: ‘Come out here.’ I started to go out there, and then concluded I had better stay where I was, and said to him that I had better stay where I was, as he did not look right. He says: “You damned son of a bitch, come out of there!” And I told him I was not coming, and he said: ‘If you don’t come out of there, I am coming in there.’ He said: ‘You may think I have no right to come in there, but I will show you.’ I said: T have got nothing to say about that.’ He then pulled his gun out and started in. He got about half way between the gate and the doorsteps where I was sitting. I was still sitting there, and he had the gun in his hand. I did not think he was going to shoot me, and I just stayed there. I stayed there until he stepped up to me, and when he gets up to me he says: ‘By God, you get up and come out of here.’ I sat there just a second, and then I gets up and whirls right quick in the house. He then shoots at me three or four times, may be five, and then he started in the bouse. Mr. Bunk was running in this way shooting, and Mr. Charlie was shooting this way (indicating). My children and my wife were scared nearly to death. My children was running around after me hallooing and screaming. And they were just shooting every way. My wife had been cleaning up and scrubbing that day. I ran to the corner where I generally kept my gun, and I did not find it, and I ran to the bed and found my gun where they had put it while they were cleaning up. I grabbed my gun, and began shooting at them. I did not have but one shell, and-I shot it, and then I ran back and got my rifle, and began shooting at them. I shot both the shotgun and rifle. My brother did not shoot at all. He had nothing to do with the difficulty. I did not have any pistol that day; never owned one in my life. After the shooting I ran out of the back door and into the field where we saw Mr. Porter. We then went off into Louisiana. My family consists of a wife and three children. The oldest is 14 years, the middle one two years, and the youngest 10 months old. They were all in the house running around, scared to death. The reason I did not go back to town with the wagon was that my wife’s mother was about to die.”
The testimony of Wilson Pickett is substantially the same as that of Henry Pickett.
Counsel for appellant correctly contends that the court erred in refusing to instruct the jury on voluntary manslaughter. The facts in the present case bring it squarely within the principle announced in the case of Allison v. State, 74 Ark. 444. Mr. Justice Riddick, speaking for the court said:
“In each case, then, the question of whether it is proper to submit to the jury the question of the defendant’s guilt of any particular grade of offense included in the indictment must be answered by considering whether there is evidence which would justify a conviction for that offense. In this case there was evidence that tended to show that the defendant shot Baldwin because Baldwin cursed him and then attempted to draw a pistol upon him in a threatening manner. The presiding judge .may have concluded that if the jury believed this evidence they should acquit, and that therefore this evidence did not justify an instruct tion in reference to manslaughter. But the jury may have accepted a part of this evidence as true and rejected other portions of it as untrue. They may have concluded that the defendant shot under the belief that he was about to be assaulted, but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances. It is not always necessary to show that the killing was done in the heat of passion to reduce the crime to manslaughter; for, where the killing was done because the slayer believes that he is in great danger, but the facts do not warrant such belief, it may be murder or manslaughter, according to the circumstances, even though there be no passion. Or, when the slayer, though acting in self-defense, was not himself free from blame, the crime may be only manslaughter. Wallace v. United States, 162 U. S. 466. The mere fact that a man believes that he is in great and immediate danger of life or great bodily harm does not of itself justify'him in taking life. There must be some grounds for such belief, or the law will not excuse him for taking the life of another. But if the slayer acts from an honest belief that it was necessary to protect himself, and not from malice or revenge, even though he formed such conclusions hastily and" without due care, and when the facts did not justify it, still under such a case, although such a belief on his part will not fully justify him, it may go in mitigation of the crime and reduce the homicide to manslaughter. Stevenson v. United States, 162 U. S. 313.
So in the present case the jury, exercising its right to accept such portions of the testimony as it believed to be true and to reject that believed to be false, might have found that there was not only provocation by words, but that there was an overt act on the part of deceased and his brother. In short, the jury might have found that the defendants shot first, but that they did so under the belief, formed too hastily and negligently, that Bunk Abbott was reaching for his pistol when in reality he was only coming in for the purpose of having a settlement with the defendants. As there was at least some substantial evidence upon which the jury might have found the defendants guilty of voluntary manslaughter, the defendants had a right to an instruction on that question!
Inasmuch as there must be a reversal on account of the failure to instruct on manslaughter, we. shall take occasion to caution the court in regard to the form of instruction No. 4. To say the least of it, the instruction was ambiguous. It might be construed to make the guilt or innocence of the defendants dependent upon the existence of reasonable grounds of belief that they were in danger, regardless of how the danger appeared to them. Burton v. State, 85 Ark. 48; Hoard v. State, 80 Ark. 87; Magness v. State, 67 Ark. 599; Smith v. State, 59 Ark. 132.
Counsel for appellants also insist that t'he oral instruction given in regard to the credibility of witnesses was erroneous because it warranted the jury in disregarding testimony which it believed to be true if it came from a witness whom the jury believed had sworn falsely to some other material fact. While the instruction might have been couched in clearer language, we do not think it susceptible of that construction. It, in effect, told the jury that, if they believed a witness had sworn falsely in part and truthfully in part, they should reject that portion which they believed to be false and accept that part they believed to be true. It is, therefore, not in conflict with the rule announced in the case of Bloom v. State, 68 Ark. 336, and of Frazier v. State, 56 Ark. 242.
Counsel for appellants next contend that there is no evidence connecting Wilson Picket with the killing. We cannot agree with their contention in this respect. There was evidence tending to show that both defendants were in the house during the time of the shooting, and that two guns were used. Both the defendants left immediately after the shooting, each carrying a gun.
For the error in refusing to instruct the jury on man- • slaughter, the judgment is reversed, and the cause remanded for a new trial. | [
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Battre, J.
On the 6th day of November, 1908, appellants, J. E. Edland and J. B. Ullathorne, were arrested and tried before a justice of the peace of Big Lake Township, in Mississippi County, Arkansas, for having ■ hunted within the Chickasawba District of that county, in violation of. section 3599 of Kirby’s Digest, they being non-residents. They appealed to the circuit court of Chickasawba District, and were again convicted; and they then appealed to this court.
They concede that, if section 3599 of Kirby’s Digest is in force in Mississippi County, they were properly convicted.
Section 3599 of Kirby’s Digest is as follows; “It shall be unlawful for any person who is a non-resident of the State of Arkansas to shoot, hunt, fish or trap at any season of the year.”
The question is, is this statute in force in Mississippi County?
Section 3599 of Kirby’s Digest is section four of an act entitled “An act to protect the game and fish of the State and provide for the appointment of game wardens,” approved April 24, 1903. Section eleven of that act was as follows: “That all laws or parts of laws in conflict herewith are hereby repealed, and this act shall take effect and b'e in force from and after its passage; provided, that the provisions of this act shall not apply to the county of- Mississippi.”
Appellants contend that this provision is still in force in Mississippi County. But it was repealed by an act entitled “An act to amend section 11 of Act No. 162, approved April 24, 1903, entitled ‘An act to protect the game and fish of the State, and to provide for the appointment of game wardens;’ ” approved April 19, 1905, which is as follows:
“Be it enacted by the General Assembly of the State of Arkansas: Section 1. That Section eleven of Act No. 162, approved April 24, 1903, entitled ‘An act to protect the game and fish of the State, and to provide for the appointment of game wardens/ be amended so that the provisions in said section exempting Mississippi County be, and the same is hereby repealed, and that section be amended so as to read as follows:
“Section 2. That all laws and parts of laws in conflict herewith are hereby repealed, and this act shall take effect and be in force from and after its passage.
“Section 3. That all laws and parts of laws in conflict with this act be, and the same are hereby repealed, and this act shall take effect and be in force from and after its passage.”
The figure 2 in the last clause of section one is evidently a rhistake. It should be n. It (last clause) was not an independent section, but a part of section r.
The -effect of the amendment of section 11 of the act of April 24, 1903, by the act of April 19, 1905, was to so change the former act as to make it read in the same manner it would have read and to give it the same effect it would have had if it had been originally -enacted as amended, that is, as it would have read with the proviso to section eleven stricken out. Henderson v. Dearing, 89 Ark. 598; Mondschein v. State, 55 Ark. 389; Hempstead County v. Harkness, 73 Ark. 600.
Section 3599 of Kirby’s Digest is in force in Mississippi County.
Judgment affirmed. | [
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Erauenthal, J.
This is a replevin suit brought by the
plaintiff, P. B. Campbell, against the defendant, the Guión Mercantile Company, for the recovery of one hundred cross ties. It was instituted in a justice of the peace court, and an appeal was taken from the judgment of that court to the circuit court; and in that court a jury returned a verdict in favor of the plain-’ tiff for the cross ties.
The evidence tended to prove that about December 10, 1907, the plaintiff entered into a contract with one Sonchersee by which the latter, in consideration of certain supplies furnished him by the plaintiff, agreed that he would sell to plaintiff all the cross ties which he cut and made on his land and would deliver them to plaintiff at that place in the woods; and they agreed that plaintiff should pay twenty-four cents for each cross tie. The plaintiff furnished to him supplies amounting 'to $17.80, and thereafter in the same month Sonchersee, under the above agreement, delivered to plaintiff in the woods on the land the 100 cross ties in controversy; and the plaintiff then hauled and placed them on the railroad right of way. The plaintiff did not sell the cross ties, on account, as he claimed, of no immediate demand for same, and he did not pay the balance of the purchase money to Sonchersee, and still owes said balance. Thereafter, on January 1, 1908, Sonchersee sold the ties to defendant, who paid him therefor.
It is urged by the defendant that a sale is not complete as long as anything remains to be done between the buyer and seller in relation to the goods, and on this principle the sale to plaintiff under the evidence was not complete. Under the evidence on the part of the plaintiff, the only thing that remained to be done between him and Sonchersee was for plaintiff to pay him the remainder of the purchase money; the ties were sold and delivered to plaintiff. As is said in Beller v. Black, 19 Ark. 573: “The purchase money may remain to be paid, and yet the sale may be complete, if the goods be delivered.” The title to personal property will pass and the sale be complete if it is the intention of the parties to transfer the title on the one part and to accept same on the other, and in pursuance thereof a delivery is made, even though something remains to be done; as., for example, the fixing of the quantity or exact value of the property or the payment of the purchase money. Chamblee v. McKenzie, 31 Ark. 155; Gans v. Holland, 37 Ark. 483; Shaul v. Harrington, 54 Ark. 305; Lynch V. Daggett, 62 Ark. 592; Priest v. Hodges, 90 Ark. 131.
However, in this case, under the evidence on the part of the plaintiff, the price was agreed upon, and the plaintiff simply owed to Sonchersee a balance of the purchase money. Under that evidence the sale was complete, and the title to the ties was in plaintiff. After that Sonchersee could not transfer a good title to the ties to defendant. Jetton v. Tobey, 62 Ark. 84.
The issue in the case, therefore, was whether Sonchersee had sold and delivered the ties to plaintiff. The court presented that issue to the jury by instructing them, in substance, that before the plaintiff could recover it devolved on him to prove by a “preponderance of the evidence that Sonchersee sold and delivered the ties in controversy to the plaintiff.”
The defendant requested the giving of certain instructions which were refused. - But those instructions were fully covered by the ones given on the part of the plaintiff, or were inapplicable to the evidence adduced in the case.
The court permitted certain witnesses to testify to the statements made by Sonchersee and plaintiff in making their alleged contract of sale in December; and defendant urges that this tes timony was incompetent because the statements were made in the absence of defendant. But these conversations related to the sale at or about the time it was made and prior to the delivery of the ties by Sonchersee to the plaintiff. Such testimony was competent. Phipps v. Martin, 33 Ark. 207; Seawell v. Young, 77 Ark. 309.
The statements or declarations of a vendor are only inadmissible in evidence if made subsequent to the sale and delivery of the property, to such vendee, and in the absence of the other claimant. Humphries v. McCraw, 9 Ark. 91; Finn v. Hempstead, 24 Ark. 111; Smith v. Hamlet, 43 Ark. 320; Crow v. Watkins, 48 Ark. 169; Hughes Bros. v. Redus, 90 Ark. 149.
We find no prejudicial error in the trial of this case. The verdict of the jury being sustained by the evidence, the judgment is affirmed. | [
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Battue, J.
On the 29th day of January, 1908, the trial court overruled the appellants’ motion for a new trial, and gave them six months within which to file a bill of exceptions. On the 30th day of July, 1908, at 58 minutes past 11 o’clock p. m., they filed a bill of exceptions. It was then too late, and their bill of exceptions 'formed no part of the record, and there is nothing presented to us for consideration, the questions in the case being such as could be presented only by a bill of exceptions.
Judgment affirmed. | [
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Wood, J.
Appellant appeals from a judgment of the Washington Circuit Court convicting him of the crime of murder in the second degree. He was indicted for murder in the first degree. The indictment was in apt language, and correctly charged the offense. The evidence for the State tended to show that appellant on the 6th day of September, 1908, shot and killed one J. W. Murry from ambush. It was shown that Murry a few weeks prior to the killing had accused appellant of stealing watermelons, had cursed appellant, calling him vile names, and had threatened to kill appellant; that this abuse filled appellant with rancor, which on the day of the killing caused him to say that he was going to “get his gun and make him take it back or kill him.” There were circumstances tending to show that appellant while lying in wait killed Murry as he passed along the highway. Such was the theory of the State.
On the other hand, there was evidence tending to prove that appellant met Murry in the public road, and requested him to retract the abusive language he had formerly used toward appellant; that he refused to do so, but made a motion as if to draw a weapon, whereupon appellant shot and killed him instantly. The jury passed upon the conflicting theories to be deduced from the evidence, and it suffices to say that a verdict for murder, even in the first degree, would not have been 'disturbed by this court. There was some evidence to justify the court in submitting to the jury the question as to whether appellant was seen at the time he fired the fatal shot, and this the court did in proper instructions. There was no evidence to warrant the court in submitting the question as to whether appellant was acting under an insane delusion in taking the life of Murry. There is no proof of delusional insanity in the record, and the trial court properly rejected prayers for appellant seeking to have suoh issue presented.
Bob Curtis, a talesman, stated on his voire dire that he had a “fixed opinion” as to the defendant’s guilt formed from reading newspaper articles and talking with persons who purported to give the facts in the case. The court over the objection of appellant held that Curtis was a qualified juror. The appellant excepted to the ruling, and peremptorily challenged the juror.
Conceding that the answers of the juror prima facie rendered him incompetent, and that, in the absence of further examination into his competency, the court should have excused him'for cause, still there is no showing in the record that appellant had exhausted his peremptory challenges. It does not appear, therefore, that appellant was prejudiced by the ruling of the court. It does not appear that by the ruling of the court appellant was compelled to accept some juror that was unsatisfactory to him. The appellant, not having exhausted his peremptory challenges, waived any error the court may have committed in not excusing the juror for cause. York v. State, post p. 582; Glenn v. State, 71 Ark. 86; Caldwell v. State, 69 Ark. 322.
Counsel for the State denounced the defendant in argument as an “assassin and cold-blooded murderer.” The language, at most, could only have been accepted by the jury as the opinion of the zealous prosecutor from his viewpoint of the evidence. The jury had heard all the evidence, and they were sworn to form their opinion from the evidence and the law applicable thereto. It is not probable that a sensible jury would mistake the denunciation of zealous counsel for proof in the case, and be misled thereby to appellant’s prejudice. Such arguments are in bad form, but it is not error to permit them, especially under facts and circumstances such as are detailed in this record. Kansas City S. Ry. Co. v. Murphy, 74 Ark. 256. From the standpoint of the State, such opinions as the prosecutor expressed were reasonable and legitimate deductions, to be drawn from the evidence.
The court permitted witness Carson, the deputy sheriff and jailer, to give his opinion as to the sanity of appellant while he was in jail, where no foundation had been laid for such opinion. But the court cured any error in this by instructing the jury not to consider such opinion in making up their verdict. Carr v. State, 43 Ark. 99; Johnson v. State, 60 Ark. 45.
It may be conceded'that the confession of appellant, made to the deputy sheriff Todhunter and constable Boaz after they had taken him into custody, was, under the circumstances detailed by them, not a voluntary confession, and that therefore the court erred in permitting evidence of such confession to go to the jury. But we see nothing in the confession, as shown by the testimony of these witnesses, that was prejudicial to appellant. The deputy sheriff, after taking appellant into custody, told him that “it looked like there was a pretty hard case against him.” To this appellant replied, “Charley Buck shot a man and got off with five years, and got off with about five months.” Appellant urges that this “testimony tended to create in the minds of the jury a belief that this appellant thought lightly of human life, and believed that he could kill a man and get off with a few months as Buck had done.” But the testimony could not reasonably have so impressed the'jury. For it was but the expression of a hope on the part of appellant that, although his case might seem to the deputy sheriff to be a a “pretty hard one,” yet, in view of the light punishment Buck had received for killing a man, appellant might also hope to be similarly dealt with. It must be borne in mind, that appellant was claiming that he acted in self-defense. In view of this claim, it was but reasonable for him to express the belief, in answer to the deputy’s question, that he, appellant, might not fare any worse than Buck had done for killing a man. We do not see that this part of his confession could have prejudiced him. Taking the confession as a whole, it did no more than to connect appellant directly with the killing.
The testimony of witness June Lawson shows that appellant confessed to the killing before he was .arrested, and before he made the confession to the officers. It is not contended*that the confession to June Lawson was involuntary. Appellant also, on the witness stand, confessed to the killing.
That is all that the confession to the officers tends to show. So we are convinced that, although this confession might not have been free -and voluntary, evidence of it, in the light of the testimony of June Lawson and of appellant himself, could not have been prejudicial.
Appellant insists that the court erred in dismissing the duly elected sheriff and his sworn deputy, Carson, and -in designating Combs, a bystander, to summons the jury to try the case; and insists that the motion asking for the discharge of the sheriff and Carson did not contain sufficient allegations for said motion to be considered by the court, and the evidence adduced was not sufficient to justify the court in denying the sheriff and his deputy, Carson, the right to summons the jury to try the appellant, and in giving to Combs, a bystander, the right to summons said jury. Section 2350 of Kirby’s Digest provides: “The court may, for sufficient cause, designate some other officer or person than the sheriff to summon jurors, the officer or person designated being first duly sworn in open court to discharge the duty faithfully and impartially.” The prosecuting attorney moved the court to designate some one other than the sheriff to select tales-men to serve as jurors after the regular panel had been exhausted, setting up, among other things: “That J. C. Reed, sheriff of Washington County, is so biased and prejudiced in favor of the defendant in the above-entitled cause that said .sheriff will not summon a jury free from bias and prejudice.” It was also alleged that “J. C. Reed, sheriff, was related in some degree by affinity or consanguinity to the defendant.” The court, after hearing evidence on the motion, granted it, and designated J. G. Combs, sheriff.
It will serve no useful purpose to review the evidence adduced on the hearing of the motion. The trial judge must necessarily have large discretion in determining what is “sufficient cause.” in order to carry out the salutary purposes of this statute. The Degislature did not designate what would constitute a “sufficient cause,” but wisely left that to the discretion of the trial courts. We find no abuse of the discretion in the present case of which appellant can complain. The jury was duly selected, and it is nowhere shown that any juror selected by the special sheriff was prejudiced against appellant.-
We have examined the objections to the rulings of the court in the giving and refusing of prayers for instructions. It could serve no useful purpose to discuss these at length. The charge as a whole is clear, consistent, and exceptionally free from error. It covers accurately every phase of the evidence, and announces familiar principles that have been often repeated in many decisions of this court.
The appellant has had a fair trial. The judgment is therefore affirmed. | [
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Wood, J.
First. Neither the original, nor what is designated as the “amended and substituted complaint” states a cause of action based on a contract of agency between appellant and appellee.
Treating this “amended and substituted” complaint as an amplification of the original, the first and second paragraphs thereof allege facts which show that between the 10th and 15th of September, 1902, appellee purchased stock of the Bank of Little Rock for which he paid $10,750.00; that on the 25th of September 1902, appellee, at the price he paid; “verbally” sold to appellant forty -per cent, of the stock, amounting to $4,300, which sum remains unpaid. The appellee alleges in the first part of the first paragraph of his amended and substituted complaint: “that some time prior to the summer of 1902 he had, under verbal arrangement with George W. Caruth and the defendant, Chas. S. Stifft, made some two or three years previous, purchased from various parties for the joint benefit of himself, the said George W. Caruth and the defendant all of the outstanding capital stock of the Bank of Little Rock that could be secured at a satisfactory price, which stock was from time to time divided among said parties in the proportion of one-third to each.” But there is no allegation that the stock bought by appellee, in September, 1902, was purchased under the “arrangement” above mentioned. On the contrary, the allegation “that Geo. W. Caruth, one of the parties, had notified plaintiff and defendant that he did not care to participate further in the purchases” shows that the former arrangement for a joint purchase bv the three had come to an end, and that any purchase of stock made by appellee thereafter could not have been under that “arrangement.”
The second paragraph of the “amended and substituted complaint” shows that on September 25, 1902, appellant was contending that he was entitled to a half interest in the stock purchased by appellee after Caruth had withdrawn, and that appellee was contending that appellant was only entitled to one-third thereof under the arrangement that had formerly existed between the three; that appellee “yielded to the importunity of defendant [appellant], and consented verbally that his percentage of said stock should be increased from 33 1-3 to 40 per cent.” Now, there is no allegation, either in the original or the “amended and substituted complaint, that appellee purchased the stock of T. K. May and of Tones and Barrieras, as the agent of appellant. There are no allegations that the purchase was made in pursuance of a contract whereby appellee was to make the purchase as the agent or partner of appellant. There are allegations to the effect that, after the purchase of the stock had been made and appellant had learned thereof, he insisted that he was entitled to a half interest in the purchase, and that appellee could not purchase the stock for his own benefit to the exclusion of appellant; and that appellee contended that appellant was not entitled to a half interest, and that appellee did not hold for appellant’s benefit more than the one-third that he was entitled to under the arrangement existing between appellee, appellant and Geo. W. Caruth. But these allegations of what were the contentions and differences of-the respective parties as to the proportion in which the stock that had. been purchased should be divided fell far short of alleging any definite contract of agency by which appellee was to purchase and had purchased stock for himself and appellant. But, even if it could be inferred from these uncertain allegations that appellee had purchased stock as an agent of appellant, the same allegations and those following show that in the disposition of the stock purchased by appellee he and appellant dealt with each other not as principal and agent but as strangers. Appellee asserted dominion of the stock purchased, and let appellant have the shares, not because he was bound, but because he chose so to do.
After setting forth their respective contentions as above, the allegation is that appellee (plaintiff) “yielded to the importunity of defendant, and consented verbally that his percentage, of said stock should be increased from 33 1-3 to 40 per cent.” Following this is the allegation that: “Plaintiff had, at the time of the purchase of said stock,, arranged with the Mississippi Valley Trust Company of St. Louis to advance him the purchase price of said stock upon his personal note, with the stock pledged as collateral, at six per cent, interest, and plaintiff informed defendant at the conference of said arrangement, which was satisfactory to the defendant, it being agreed that defendant would not be called upon to pay for his proportion of the stock purchased until the plaintiff was required to take up said notes.”
Principal and agent can not deal with each other in the manner indicated by the above allegations. Such allegations can not be molded in the mold of a declaration upon a contract of agency, but are consistent only with a declaration for cause of action based on a sale. So we conclude that the first and second paragraphs of appellee’s pleadings state facts which constitute nothing more nor less than a verbal sale of stock made by appellee to appellant on the 25th day of September, 1902.
It is well established that a parol contract for the sale of corporate stock (other conditions existing) is within the statute of frauds. Mayer v. Child, 47 Cal. 142; North v. Forrest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430; Colvin v. Williams, 5 Am. Dec. 417; Tisdale v. Harris, 37 Mass. (20 Pick.) 9; Board- man v. Cutter, 128 Mass. 388; Fine v. Hornsby, 2 Mo. App. 61; Bernhardt v. Walls, 29 Mo. App. 206; Hightower v. Ansley, 54 S. E. 939; Cooper v. Bay State Gas Co., 127 Fed. 482; Tompkins v. Sheehan, 53 N. F. 502; Smith on Law of Frauds § 373 and note.
The statute was properly pleaded in defense, and the proof brought appellee’s claim, as set up in the first and second paragraphs of his original and substituted complaint, within the operation of its terms. Sec. 3656, Kirby’s Digest.
So much for appellee’s pleadings. The uncontroverted evidence shows that appellee purchased the stock of May and Fones, not for himself and appellant, but for himself alone. He bought it in sharp competition with appellant and one Heisman, and he held and disposed of it, not as the agent and representative of some one else, but as the absolute owner. This is the only legitimate conclusion from all the evidence upon the subject. It could serve no useful purpose to discuss it in detail.
Second. The third paragraph of appellees’ complaint, as finally amended, stated a cause of action based upon an account of appellant with the Bank of Little Rock evidenced by a charge ticket carried by the bank as cash which became the property of appellee when he purchased the assets of the bank at the sale thereof made by the receiver under the orders of the court.
The questions as to whether or not the facts alleged in this paragraph were true were all submitted to the jury upon correct instructions, and there was evidence to sustain the verdict except as to the amount that should be recovered.
In his amended complaint appellee alleges as follows:
“Plaintiff further represents that at the time of the aforesaid conference with the defendant, on or about the 25th or 26th of September, 1902, he represented to the defendant that he could also purchase the stock of W. A. May, which amounted to the face value of about $4,250, for about the same price as that paid for the stock of T. K. May, his father, and asked the defendant whether he should purchase it. The defendant was anxious to secure the stock, and agreed verbally that if plaintiff could secure it at about the same price he would pay for it when the draft with the stock attached was presented. Plaintiff represents in that connection that he secured said stock from W. A. May for himself and defendant, under the arrangement aforesaid, to be apportioned as aforesaid, 60 per cent, to himself and 40 per cent, to defendant, for the sum and price of $2,422.”
Under these allegations appellee could not recover more than forty per cent, of the amount for which he sued, because according to his own showing sixty per cent, of the amount was his debt to the bank, or rather to appellant when he paid it. In view of the allegations made by appellee, it was wholly unnecessary for appellant to plead this as a setoff, in order to get the benefit of it. The verdict therefore on the third count, under the pleadings and proof, could not have been for more than $969, with interest thereon at the rate of six per cent, per annum from the date of the transaction, September 29, 1902; to the date of the verdict.
The judgment will be modified by reducing it to that amount, and as modified affirmed, on the.cause of action stated in the third paragraph.
The court should have directed the jury to return a verdict for the defendant (appellant) on the cause of action stated in the first and second paragraphs of the complaint as “amended and substituted.” For this error the judgment based upon the cause of action alleged in these paragraphs is reversed, and the cause as alleged therein is dismissed. | [
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McCueeoch, C. J.
Defendant, Charles Sexton, was indicted for the crime of rape, alleged to have been committed by having-carnal knowledge of one Maud Bethel forcibly and against her will; and on trial therefor he was convicted of assault with intent to commit rape, his punishment being fixed by the jury at confinement in the penitentiary for three years. Maud Bethel testified that the defendant, on the day named in the indictment, came to her home and forcibly and against her will had sexual intercourse with her. The defendant denied this, and testified on the contrary that he had never had sexual intercourse with Maud Bethel, either with or without her consent. The jury settled the issue by their verdict, which the evidence was sufficient to sustain. The tendency of the evidence was to show that the defendant was successful in his attempt and committed the crime of rape, if he made any assault at all on the girl; but the jury released him from the penalty of the higher crime and found him guilty only of the lower crime of assault with intent to. commit rape; and he cannot complain of this leniency. Benton v. State, 78 Ark. 284; Price v. State, 82 Ark. 25.
The defendant objected to the introduction of certain testimony by the State, and saved his exceptions to the ruling of the court in admitting it. The first exception insisted on here is that to a portion of the testimony of a witness named Birmingham. This witness was in the neighborhood where the offense is alleged to have been committed, and testified that, after having heard that the offense had been committed, he went over to see the girl, and, after having heard her complaint, went with her father to procure a warrant for defendant’s arrest. The portion of his testimony quoted by counsel for defendant as objectionable is as follows:
“O. Where was it she made the complaint? A. At Riley Milligan’s. Q. Who was present? A. Riley Milligan and Riley’s wife. Q. In getting a complaint from her at that time, were Riley Milligan and his wife present at the time? A. That she gave me the complaint? Q. Yes. A. Yes, they were both present. Q. If qitestions were asked her concerning this affair, who asked them? A. Riley Milligan. (Objected to by defendant, overruled, exceptions saved.) Q: Where were you ait tire time, and where were these other parties at the time she made the complaint ? A. I was at Riley Milligan’s in the house, or on the little porch between the houses, rather, and they were there, too. Q. What was done in reference to.this matter? (Objected to by defendant.) Q. In other words, was the process issued or ásked for for the apprehension of this defendant? (Objected to by defendant, overruled and exceptions saved.) A. Yes, sir. Q. Where did you go after that? A. I went back to the meeting ground and learned that the boy had his gun and was gone. (Objection sustained.) Q. What did you go to the meeting ground for? A. I went over there for church and to see if he (defendant) was there, and he was gone. I had understood that he was going over there to meeting.”
Further statements along the same line were made by the witness, but the above serves to show the part objected to by the defendant. The basis of defendant’s objection to this testimony is that, in effect, it was allowing the witness to state that the girl in making her complaint to him gave the name or description of her assailant, and that on the strength of it the witness at once caused a warrant of arrest to be issued for the defendant’s apprehension. Such is not, we think, the effect of his statements. He merely stated that she made complaint in his presence, and that immediately thereafter he went with her father to procure a warrant. His testimony does not show that he obtained from her information as to her assailant’s identity, for he expressly stated that before he went to see the girl he had already heard about the commission of the crime, and had been over to defendant’s house to see him. This court, in.a similar case, said:
“The rule on the subject is that the officer making the arrest, as in this case, should testify on the stand no further as to his reason for seeking and arresting the criminal than that there was an outcry or information furnished him in other ways of the commission of the crime, and that thereupon he proceeded to search for and apprehend the criminal. Whatever information he may obtain as to the description and identity of the alleged criminal is for his use in making the arrest, but not for his use as a witness ; for it is -but hearsay after all.” Davis v. State, 63 Ark. 470.
In Williams v. State, 66 Ark. 264, Judge Riddick, speaking for the court, stated the law on the subject to be as follows: “It is competent, on a charge of rape, for the State to show that, the prosecuting witness made complaint of her injury, but the particular facts stated by her are not admissible on direct examination. They may be brought out by defendant on cross examination; and if the defendant denies that the prosecuting witness made complaint, and undertakes to impeach the testimony on that point, then the particular facts stated by her may be proved by the prosecution, in order to confirm her testimony that she made complaint.” To the same effect, see Skaggs v. State, 88 Ark. 62.
We are of the opinion that the testimony admitted in'this case does not offend against the rules of law stated in the cases cited above, and that no error was committed in this respect.
The next assignment of error is as to the admission of the testimony of the witness Tom Wilson concerning an alleged remark made about the girl, Maud Bethel, four or five months before the crime is said to have been committed. The testimony objected to is as follows:
"I had defendant under arrest, and we passed where the girl and three smaller children were in the field playing. As we passed, we spoke to the girl, and he said, ‘There is a girl I would like to get hold of — I’ll be damned if I don’t ruin her.’ I asked him if he thought he could ruin her, and he said, ‘If I didn’t, I would come damn near it.”
This testimony is first objected to on the ground that it is not shown definitely that the remarks applied to the prosecutrix; but we are of the opinion that it is shown by the testimony of this witness that, under the circumstances,' the remarks must have applied to this girl. He evidently was referring to a girl of sufficient age for sexual intercoursé, and the others in the party were small children,.to whom the remarks could have had no application.
We think also that the testimony was competent as tending to corroborate the testimony of the prosecutrix; for the remark of the defendant was a declaration as to the sinister purpose which he harbored at that time, and the girl’s testimony tends to show that he afterwards put his atrocious design into execution. She stated that the defendant came to her house on an occasion about two weeks before he ravished her, and said he wanted to “scuffle with her,” but that she declined, and he went away without attempting to do anything; and that at the time he ravished her he came again to the house, and when he came in said. “I’ve got you now,” and threw her down on the bed and ravished her. He denied- that he had ever had intercourse with her, or had ever tried to do so, or had ever made any improper proposals to her.
The only other assignment of error is as to the matter brought out by the prosecuting attorney on cross examination of Riley Milligan. Maud Bethel testified that on the evening of the day the defendant ravished her she went to Milligan’s house, where her father was at work, and there spent the night; that she told Milligan and his wife ¡that night of the outrage perpetrated on her, and fold her father the next day. Milligan was called to the witness stand by the defendant and testified in chief that Maud and her father spent the night in question at his house, but that she made no statement to him that night concerning the assault on her; that the next morning he heard her ask her father if Mr. Sexton, defendant’s father, had paid him any money. The defendant had attempted to prove by other witnesses that Maud and her father were trying to extort money from the Sextons to prevent prosecution; and the prosecuting attorney was permitted to show by Milligan on cross examination that he received information through his wife that night of the alleged assault on the girl by defendant, and that he told the girl’s father of it that night and advised him to have the defendant arrested; that the girl’s father, when told of the outrage, threatened to get his gun and kill the defendant. We think this was legitimate cross examination. The witness had stated in his examination in chief that the witness and her father had spent the night in his (Milligan’s) home without anything being said about the assault; and that the next morning they were heard talking about getting money from defendant’s father. The cross examination developed the fact that the witness received that night full information concerning the outrage, and communicated it to' the girl’s father, whose indignation was aroused to a high pitch, and that the witness advised the prosecution of the defendant.
We are unable to discover anything in the testimony which was prejudicial to the defendant except the contradiction of his witness Milligan, and that was legitimate.
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FrauSnthau, J.
The plaintiff, Sammy Biggs, by his next friend, Sallie Biggs, instituted this suit against the defendant, the St. Louis, Iron Mountain & Southern Railway Company, before a justice of the peace, for the recovery of his wages as an employee of said railroad company and for penalty for the nonpayment thereof. On November 6, 1907, a judgment was rendered by the justice of the peace in favor of the plaintiff for the sum of $10.8.25. From this judgment an appeal was taken by the defendant to the circuit court. Upon a trial before a jury in the circuit court the evidence tended to establish the following facts:
Sammy Biggs was a minor about 16 years old. His father was dead, and he was living with his mother, Sallie Biggs, upon a small farm. Through the farming season he worked on the farm for his mother, making his home with her, during which time she maintained ’him. For a year or two prior to the time he worked for the defendant, when he was not engaged in. farming, he worked out for other people, and made his own contracts for his services, and collected his wages, and retained all such earnings as his own property. This was done with the knowledge of his mother; and, while he did not have her express consent in thus working out for himself for others, she did not make any objection thereto. He had thus worked for himself under the employment of one of defendant’s foremen named Hall for the two years next prior to his employment in this case, and he had worked under the foreman Hall for the defendant, and had collected his wages, and retained all such earnings as his own, with the knowledge of his mother and without any objection from her. On August 25, 1907, he was hired by I. A. Copple, one of defendant’s foremen, and worked for the defendant for two or three days, when he was discharged. He demanded his wages, and his foreman gave him a written statement, called an “identification ticket,” which set forth that Sammy Biggs had worked for defendant during the month of August, 1907, and the amount which as per the pay roll was due him. The amount thus due him was $3.50. At the time of giving him the identification ticket the foreman told him to go for the receipt of the money due him to the depot agent at Delaplaine, which was a station of defendant where a regular agent was kept. And the testimony tended to prove that Sammy Biggs agreed to receive his check or money at that station. Within seven days thereafter he applied to the regular agent at Delaplaine for the payment of his wages, but that official claimed that he had not received it. He applied a number of times to the agent thereafter for payment of his wages, but with like result. He then instituted this suit on October 25, 1907. On December 4, 1907, an attorney of the defendant went to see the mother of plaintiff and paid to her $5.10, and took from her the following receipt:
“My name is Sallie Biggs. I am the mother of Sam Biggs, who is 15 years old. His father is dead, and he has no guardian but me. I have this day received from St. Louis, Iron Mountain & Southern Railway Company five dollars and ten cents in full for wages and interest on same due my son from thp railway, about which there is a lawsuit in John Tate’s J. P. court. December 4, 1907. her
“Sallie X Biggs.
'“Witness to mark: mark
“Fred R. Suits.”
In addition to the above, the defendant, prior to the day of the trial in the circuit court, paid to the constable the costs of the case in the court of the justice of the peace.
The court thereupon directed the jury to return a verdict in favor of the defendant, which Was' done. The plaintiff prosecutes this appeal from that judgment.
It is contended by the defendant that, inasmuch as S'ammy Biggs was a minor, his wages belonged to his mother, and that it had paid to her the amount of such wages as evidenced by said receipt; and that therefore there was nothing due for said wages at the time of said trial in the circuit- court. It is true that, as a general rule, the father is entitled to the services and earnings of his minor child; and that the widowed mother is entitled to these services and earnings to the same extent as the father. That is founded on the universal right of the parent to the custody and control of the child and his duty of maintenance and education of the minor child. But the parent may permit his minor child to make his own contract and to receive and own his wages. The parent has the right to give to his infant son his time and the fruits of his labor, and in such case the minor is under the law entitled to such earnings. The parent may relinquish his right to the services and earnings of the child expressly; but this relinquishment may also be implied from the circumstances. And this relinquishment may be found to have been made where the parent allows the child to make his own contracts and to collect and retain his earnings. Bobo v. Bryson, 21 Ark. 387; Fairhurst v. Lewis, 23 Ark. 435; Vance v. Calhoun, 77 Ark. 35; Smith v. Gilbert, 80 Ark. 525; Kansas City, P. & G. Ry. Co. v. Moon, 66 Ark. 409; Rodgers on Domestic Relations, § 485; 29 Cyc. 1626; Dierker v. Hess, 54 Mo. 246.
And where the parent has thus relinquished his right to the earnings of the minor, the right of action to recover such wages is in the child, and not in the parent; and such right of the child continues until it is revoked. This relinquishment by the parent of the minor’s services and earnings may be revoked by the parent. Vance v. Calhoun, 77 Ark. 35; Rodgers on Domestic Relations, § 485; 29 Cyc. 1627.
But where the parent has permitted the child to contract for himself and to receive his wages, he cannot revoke this license after the wages have been earned, so as to acquire rights in the wages already earned. Under such circumstances, the parent is precluded from asserting a claim to such wages. Rodgers on Domestic Relations, § 487; Torrens v. Campbell, 74 Pa. St. 470; Campbell v. Campbell, 11 N. J. Eq. 268.
In the case of Tennessee Mfg. Co. v. James, 91 Tenn. 154, Lurton, J., says: “The father may permit the minor to take and use his own earnings. This is called emancipation, and' emancipation will be a defense to the father’s suit for the minor’s wages. It may be express or implied; ***** for the whole minority, or for a shorter term. * * * * Emancipation will not enlarge the minor’s capacity to contract; it simply precludes the father from asserting his claim to the wages of his child. If one employ a minor with notice of the non-emancipation of the infant, it will be no defense to the father’s suit for the wages that the child has received them. On the other hand, payment to the father will be no defense to the minor’s suit, if the employer knew of the fact of emancipation.” See also note to case of Wilson v. McMillan, 35 Am. Rep. 117.
In the case at bar we are of the opinion that there was sufficient evidence to go to the jury for that body to pass on the question as to whether the parent' in this case had given to the minor son the right to make this contract for his labor and collect and appropriate to his own use the earnings arising from such labor. If she did, then the son had a right to enter suit therefor, and the mother could not then revoke her license to him to have such earnings, so as to collect the same 'herself and deprive him of the right to recover them. In this case the mother consented to and did act as next friend for the minor, and did as such next friend enter suit for the wages in the name of and for the benefit of the minor, and thus recognized his right to recover same for himself. The defendant had knowledge of this by the institution of this suit and the recovery of the judgment before the justice of the peace. After this judgment was thus recovered, the defendant, with this knowledge, made payment to the parent, and thereafter pleads such payment against the suit of the minor. If Mrs. Sallie Biggs had emancipated her son to make the contract for the wages and to collect same, she had no right thereafter to revoke that license as to these earnings and collect them. And, under such circumstances, a payment by defendant to her would not be a defense to this suit.
Mrs. Sallie Biggs as next friend instituted this suit for the minor. As such next friend, she had no authority either to compromise this case or to receive any money belonging to the minor. The minor had recovered judgment against the defendant for $108.25, and she received therefor $5.10. She could not as next friend defeat the minor by any such compromise or settlement. Her only and entire authority as next friend was to prosecute the suit, and in the progress of the case she could take no action that would be binding on the minor except with the consent of the court. In this case she appears to have made receipt in her own name and right, and not as next friend; but if the receipt could be considered as made by her as next friend, it would not be a defense to this action. Evans v. Davies, 39 Ark. 235; Rankin v. Schofield, 70 Ark. 83; Wood v. Claiborne, 82 Ark. 514; 22 Cyc. 661-663.
It is next urged by the defendant that the plaintiff did not request his foreman or the keeper of his time to have the money due him or a valid check therefor sent to a station named by him where a regular agent was kept; and for that reason is not entitled to any penalty. This suit for penalty was brought under the act of the General Assembly of Arkansas, approved April 24, 1905, and which amends section 6649 of Kirby’s Digest. Acts 1905, p. 538. That act malees the above request or notice necessary to a recovery of a penalty. Wisconsin & Ark. Lbr. Co. v. Reaves, 82 Ark. 377; St. Louis, I. M. & S. Ry. Co. v. Bailey, 87 Ark. 132; St. Louis, I. M. & S. Ry. Co. v. McClerkin, 88 Ark. 277.
But the evidence in this case tended to prove that the foreman at the time of the discharge told the plaintiff that the money due him would be sent to the depot agent at Delaplaine, and that the plaintiff agreed to that place for receiving payment. This was equivalent to a request on the part of plaintiff to have the money due him sent to that station.
The above questions were controverted questions of fact, and were within the province of the jury to determine.
Under proper instructions there was sufficient evidence adduced in this case to sustain a verdict of the jury in favor of the plaintiff, should such a verdict have been returned.
The court therefore erred in directing a peremptory verdict in favor of the defendant.
The judgment is reversed; and the cause remanded for a new trial. | [
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McCulloch, C. J.
The heirs of Nick Kupferle, deceased, owned a tract of land in Saline Coitnty containing 120 acres, and appellant Reichardt had possession and control of it as their agent. Reichardt as such agent entered into the following written contract with appellee Howe:
“Little Rock, Ark., Jan. 18, 1908.
"contract For three years’ lease.
“Party of the first part, Louis Reichardt, agent for the Nick Kupferle estate, and C. W. Howe, party of the second part, hereby agree to fence the following land, to-wit, * * * * with a four-foot barb and woven wire fence, and build thereon a four-room box and ceiled house, barn and all outhouses, and dig well, and also agrees not to cut any timber except where he clears and improves the land, only for lumber and fence posts to be used on said land, said lease to expire December 31, 1910.
“C. W. Howe.” '
“Louis Reichardt, Agt. Nick Kupferle Est.”
The description of the land was omitted at the time, with the understanding that it should be supplied later, but this was never done. Howe took possession of the land and built a wire fence, enclosing about sixty-five acres. He then entered into a written con tract with appellee Craine for the sale of all the merchantable timber on the tract, and Craine located a sawmill on the place for the purpose of sawing up the timber. Howe proceeded to cut timber on the land and deliver it to Craine at his mill. He cut and removed a considerable portion of the timber from the land, delivering it to Craine under his contract of sale, and appellant instituted this suit in equity against both Howe and Craine to restrain them from continuing to cut timber. A temporary injunction was granted by the chancellor at the commencement of the suit, but was dissolved on the final hearing, where the complaint was dismissed for want of equity.
Appellant contends, arid so alleges in his complaint, that he only intended to lease thirty acres of the land to Howe. There is an 'old clearing of about ten acres on the tract, and appellant claims that this, together with twenty acres more, was only to be included in the lease. On the contrary, appellee Howe insists that the whole tract of 120 acres was embraced in the lease. The testimony is, we think, about evenly balanced on this issue. It consists mainly of testimony of appellant and Howe, with very little corroboration of either. Both of them are in a measure interested; and, as the chancellor accepted the testimony of Howe, we cannot say that the preponderance is against the conclusion reached.
It is insisted that, as the writing failed to describe the land, it was insufficient to constitute a contract between the parties, and that the whole transaction amounts to no more than a verbal contract, and the statute of frauds is pleaded against it. We conclude, however, that, as there was actual possession taken by Howe under the contract, and valuable improvements made by him at considerable expense, the case was thereby taken out of the operation of the statute. The lessee under those circumstances is in equity entitled to specific performance of the contract. Brockway v. Thomas, 36 Ark. 518; Pledger v. Garrison, 42 Ark. 246; Railway Company v. Graham, 35 Ark. 294; Phillips v. Jones, 79 Ark. 100.
If the version of appellee Howé be accepted as to the transaction in question, he took possession of the whole tract of 120 acres under the agreement and with the consent of appellant. The reason why the operation of the statute of frauds is avoided by part performance is that it would be fraud to deny the benefits of the contract to the party who has in part performed it; and where there has been performance of a part, he is entitled in equity to require the other contracting party to perform the whole contract. Justice could not be done by giving the party the benefit of that part of the contract only which he has performed. Proof that the contract has been partly performed is sufficient to prevent the operation of'the statute of frauds and to supply the omitted description; but the remaining part of the contract stands for itself, and the rights of the parties must be controlled by it.
The contract does not purport to convey the timber nor to confer upon Howe the right to sell 'it. His right to .use the timber is expressly limited to so much-of it as is needed “for lumber and fence posts to be used on said land.” He is by the terms of the contract permitted to cut timber upon the lands so far as it is necessary to remove it for the purpose of clearing the land, but only to that extent; and this does not give him the right to cut the timber where it is not done for the purpose of clearing the land, nor does it give him the right to sell the timber, even after he has cut it for the purpose of clearing the land. The title to the timber never passed to Howe. Pie was not permitted to use any part of it except so much as was necessary for lumber and fence posts on the land. The owners of the land had the right, at any time after they had entered into this contract, to cut and remove the timber themselves, except so much as was necessary for lumber and fence posts for improvements to be made by Plowe on the land. Of course, the provision of the contract giving Howe the right to cut the timber for the purpose of clearing the land implied the right to destroy it in order to get it out of the way, so that the land might be cleared if the owners refused to take it off. But he had no- right to cut the timber for the purpose of selling it, or to refuse to turn it over to the owner after he had cut it in order to clear the land.
The testimony in this case convinces us that Howe cut the timber for the purpose of selling it, and not for the purpose of clearing the land. The evidence does not show that he was proceeding with any degree of diligencerto clear the land, after he had cut the timber, but on the contrary it shows that the matter of clearing the land was a secondary one with him. The testimony establishes the fact that Howe was insolvent, and unable to respond to appellant in damages. • We are therefore of the opinion that the chancellor erred in dismissing the complaint.
The decree is reversed, and the cause remanded with directions to enter a decree in favor of appellant, enjoining the appellee from removing any more timber from the land, except for the purposes indicated in the contract as construed in this opinion. | [
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Robert L. Brown, Justice.
This appeal arises from a rape conviction where the appellant, Myrl Fox, received a sentence of 60 years imprisonment. The victim was his stepdaughter, A.B., who was 14 years old at time of trial. He challenges his conviction on two grounds: (1) insufficiency of the evidence, and (2) refusal of the trial court to order the release of an unfounded report of sexual abuse made by A.B. Both arguments are without merit, and we affirm.
In 1983, the appellant married Paula Fox, who had a daughter, A.B., by a previous marriage. According to A.B., Fox began sexually abusing her from the time she was six or seven years old and continued to do so until the time that she notified the State Department of Human Services in 1991. After making the charge against Fox, she recanted, and DHS designated the charge to be unfounded.
In August of 1991, A.B. made a second allegation of sexual abuse against Fox to DHS. This allegation was also investigated but this time it was determined to be founded, and an information charging the appellant with rape was subsequently filed. The State contended that the appellant had been sexually molesting A.B. over a period of time beginning January 1,1983, and ending on July 28, 1991.
The appellant filed a motion for discovery requesting all materials discoverable pursuant to Ark. R. Crim. P.17.1 through 17.4 and a later motion to compel. In particular, the appellant sought an order requiring the State to provide copies of all prior allegations of sexual abuse that A.B. had made against him as well as all documents concerning investigations by SCAN or any other agency and the results of those investigations.
The court conducted a hearing on the appellant’s motion to compel at which the appellant argued that he needed access to the DHS files and especially to any reports stating that a complaint filed by his stepdaughter was determined to be unfounded. He claimed that his stepdaughter had made at least two allegations against him which DHS had determined to be unfounded. The appellant contended that additional unfounded reports would be exculpatory evidence.
Following the hearing, the trial court directed DHS to disclose all reports, both founded and unfounded, concerning allegations of abuse made by A.B. Fox then filed a motion to dismiss the charges against him for prosecutorial misconduct, alleging that the State had failed to comply with the court’s order. The State responded that DHS had produced all founded reports and that unfounded reports were not discoverable under Ark. Code Ann. § 12-12-506 (b) (Supp. 1991). The State then filed a motion to reconsider full disclosure of the DHS files.
The court conducted a second hearing on the appellant’s motion to dismiss and the State’s motion to reconsider and denied the appellant’s motion to dismiss for prosecutorial misconduct. The court reversed itself and declined to order disclosure of unfounded reports to the appellant.
Trial in this matter began on August 13,1992. A.B. testified that the appellant started touching her in the vaginal area when she was six or seven years old, although she could not recall the precise time that Fox first touched her. She said that the appellant began to have sexual intercourse with her and to force her to engage in oral sex when she was ten or eleven years old. She said she did not want to have intercourse or oral sex with him but that she was frightened. She said that she had to have sex with the appellant in order to get permission to leave the house. Though she did not recall the first time that she had sex with the appellant, she did recall the last time that she did.
A.B. testified that Fox once tried to get her friend, S.E., to touch his penis. She also testified that when she told her mother about this, her mother told her to forget it. She admitted that her mother and the appellant were planning to move away from Little Rock in August of 1991 and that she did not want to go. A.B. further stated that a guest in her uncle’s home, Michael Caldwell, once made sexual overtures to her.
On cross examination, A.B. admitted that she lied to Jan Painton, a case worker with the DHS, in July of 1991, when she recanted on the first charge made against Fox. She denied that she made up these allegations so that she would not have to leave Little Rock and testified that she wanted to stay in Little Rock to be with her great-grandfather (her biological father) because he was ill.
S.E. testified that Fox had asked her to touch his penis when she was about ten years old. S.E. also testified that on one occasion the appellant watched pornographic movies in front of her and A.B. and that he “played with himself’ while watching these movies. S.E. testified that she had seen the appellant make A.B. “touch him,” which was a reference to sexual contact.
Ms. Ida Heer, A.B.’s great aunt, testified that she was present when A.B. told her mother that Fox was having sex with her. She confirmed that Paula Fox told her daughter to forget about it. Ms. Heer also testified that A.B. did not want to leave Little Rock.
Jan Painton, the investigator from DHS, testified that she investigated two claims of abuse made against Fox by A.B. The first claim, made in July of 1991, was determined to be unfounded. The second claim made in August of 1991 was determined to be founded. Ms. Painton described the second report as founded because it concluded that the appellant had indeed been sexually molesting A.B.
A.B.’s mother, Paula Fox, testified on behalf of the appellant and stated that Ms. Painton came out to visit them before the family started talking about moving from Little Rock. She said A.B. never told her that the appellant was having sex with her until she told A.B. that they were moving back to Texarkana. Mrs. Fox also denied ever hearing that her husband asked S.E. to “touch him.” Mrs. Fox did admit that she did not know if the appellant molested A.B. but that she would not put it past him. Mrs. Fox testified that she asked A.B. if anything of a sexual nature was occurring with the appellant and that A.B. denied that there was.
A.B.’s uncle, Raymond Fox, testified that she would confide in him but stated that she never told him Fox was molesting her. He further stated that A.B. once accused a man named Michael Caldwell, who was a friend who was spending the night with him, of attempting to molest her. He added that Caldwell told him that A.B. had been in his room. Michael Caldwell then testified that once when he spent the night at the home of Raymond Fox, A.B. was there and that during the night she came into his room and tried to get in bed with him.
The jury found Fox guilty of rape. Three of the appellant’s prior convictions were entered into evidence, and the appellant was sentenced as a habitual offender to sixty years in prison.
I. SUFFICIENCY OF THE EVIDENCE
The appellant’s first allegation of error is that there was insufficient evidence to sustain his conviction. When considering whether the evidence was sufficient, we view the evidence in the light most favorable to the appellee, and the judgment will be affirmed if there is substantial evidence to support the conviction. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is evidence that is of sufficient force and character that it will compel a conclusion one way or another with reasonable certainty and will induce the mind to go beyond mere suspicion or conjecture. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1991).
We have consistently held that the testimony of the rape victim, standing alone, is substantial evidence to sustain a rape conviction, and there need not be corroboration. Stewart v. State, 297 Ark. 429, 762 S.W.2d 794 (1989); Roper v. State, 296 Ark. 292, 756 S.W.2d 124 (1988); Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987). In this case, A.B. testified that the appellant began sexually abusing her when she was six or seven years old, that he instructed her how to hold and rub his penis, and that he began having sexual intercourse with her and requiring her to have oral sex with him when she was ten or eleven years old which continued until July 1991. In addition, she testified that she did not want to have sexual relations with the appellant but was frightened and that the appellant would use coercion such as refusing to give her permission to leave the house if she refused.
Additional evidence to support the conviction predominates. Pat Heer testified that she was present when A.B. told her mother that the appellant had been sexually abusing her. Ms. Heer said that Mrs. Fox told A.B. to “forget about it.” S.E. also testified that Fox had tried to get her to touch his penis and that she had seen him make A.B. “touch him” which, from the context, meant sexual contact. In addition, Mrs. Fox testified that she did not know whether the appellant was molesting A.B. but that she would not put it past him.
The appellant also questions the credibility of A.B. and argues that her lack of believability militates against affirmance. Credibility determinations are made by the jury, and we will not disturb them on appeal when there is substantial evidence to support the jury’s verdict. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992); see also Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Stewart v. State, supra. A.B.’s testimony was plainly determined to be credible by the jury. The appellant’s sufficiency argument is without merit.
II. RELEASE OF UNFOUNDED REPORT
The appellant’s second claim of error is that the trial court erred by not allowing him access to unfounded as well as founded reports of sexual abuse in the DHS files. The appellant argues that the court’s ruling that he was entitled only to founded reports was contrary to the holding in Pennsylvania v. Ritchie, 480 U.S. 39 (1987),as well as a misinterpretation of Ark. Code Ann. § 12-12-506 (b) and (f) (Supp. 1991).
We first consider the statute in question which reads in part:
(a) Reports made pursuant to this subchapter, shall be confidential and may be used or disclosed only as provided in this section. . . .
(b) If the allegations are determined to be unfounded, the report may be used only within the department for purposes of the administration of adoption, foster care, children’s protective services programs, or child care licensing programs. There can be no further disclosure of this information.
(f) The department shall not release data that would identify the person who made the report or who cooperated in a subsequent investigation unless a court of competent jurisdiction orders release of the information for good cause shown. However, the information shall be disclosed to the prosecuting attorney or law enforcement officers on request.
Ark. Code Ann. § 12-12-506 (Supp. 1991).
We do not read the statute to require the disclosure of unfounded reports. It is clear to us that the General Assembly intended by § 12-12-506(b) for unfounded reports to be used solely within the confines of DHS and that further disclosure was prohibited. That directive in § 12-12-506(b) could not be more precise or unambiguous, and it is axiomatic that we glean legislative intent from the clear language of the pertinent statute. Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). Moreover, reading the statute as a whole, we are convinced that the release of information contemplated by § 12-12-506(f) does not relate to unfounded reports.
We further conclude that the appellant’s reliance on Pennsylvania v. Ritchie, supra, is misplaced. Like the instant case, the defendant in Ritchie was also facing a sexual abuse charge brought by his daughter, and he had subpoenaed all records from the state agency. The trial court denied the request and the Supreme Court of Pennsylvania reversed, holding that the defendant had the right to examine all reports in dispute. The United States Supreme Court then affirmed the state supreme court in part and reversed it in part. In affirming a remand for further proceedings regarding a full disclosure of files, the Court said:
Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes. (Citing authority.) Rather, the Pennsylvania law provides that the information shall be disclosed in certain circumstances, including when CYS is directed to do so by court order. (Citing authority.) Given that the Pennsylvania Legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is “material” to the defense of the accused.
480 U.S. 57-58.
What distinguishes the facts of Pennsylvania v. Ritchie from the case at hand is that the Arkansas General Assembly has established a clear state policy against the release of unfounded reports, as already discussed, by enacting Ark. Code Ann. § 12-12-506(b). Because this is the case, we do not consider Pennsylvania v. Ritchie to be controlling. Rather, the Court in that decision took pains to state that it was holding as it did due to the absence of a state policy in Pennsylvania to the contrary. Here, such a state policy exists.
As a corollary point, we note that in the instant case Fox was well aware of the fact that A.B. had made an unfounded report to DHS against him in July 1991, since he received a letter to that effect. He was also aware that the reason the report was deemed unfounded was that A.B. recanted her accusation of sexual abuse. She then renewed the allegation the following month. The jury was also fully apprised of these developments through the testimony of A.B. and Jan Painton.
We read § 12-12-506(f) as a clear expression of state policy prohibiting the disclosure of unfounded reports. Accordingly, we conclude that the trial court did not err in refusing to order DHS to violate this policy.
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Robert H. Dudley, Justice.
The City of Clarksville owns electric, water, and waste water utility systems and operates those utilities through the Clarksville Light and Water Commission. CL&W impounds water, produces potable water, and transmits and distributes the water to retail customers inside and outside its city limits. In addition, Clarksville sells treated water at wholesale rates to six other nearby water utility distribution systems. Those six water distribution systems, in turn, provide water to retail customers located in their respective territories. The six water distribution systems that purchase water wholesale are the six appellants, East Johnson County Water Association, Horse-head Water Users Association, Ludwig Water Users Association, and the Cities of Lamar, Coal Hill, and Hartman. Clarks ville increased the rate it charges the six distribution systems for water. The sale of water to the six appellants is governed by contracts that, in the material part, provide any “increase or decrease in rates shall be based on a demonstrable increase or decrease in the costs of performance hereunder.” (Emphasis supplied.) This case primarily involves a dispute over whether Clarksville has demonstrated an increase in the costs of performance sufficient to justify a rate increase to $1.56 per thousand gallons of water.
Since the date the contracts were initially signed Clarksville has made various improvements to its water system, and, in both 1985 and 1988, increased the rates it charged the six appellants. The 1988 wholesale rates resulted in an average charge of 78 cents per thousand gallons. In 1989, Clarksville commissioned a rate study to determine the cost of water after additional improvements were constructed. The improvements were to be made with the proceeds of a proposed 1990 bond issue. After the study, in February 1990, Clarksville enacted an ordinance that raised the rates for all customers effective April 15, 1990. This new rate structure resulted in an average wholesale price to the six appellants of $1.56 per thousand gallons of water. The six appellants refused to pay this higher rate and, instead, continued to pay the previous rate of $.78 per thousand gallons.
Clarksville filed suits in circuit court against the six appellants and sought monetary judgments for the difference in the rate paid and the rate charged for water supplied after the effective date of the ordinance and, in addition, sought a declaratory judgment that the ordinance setting rates was valid. Appellants counterclaimed for alleged breaches of the contracts, and three of the appellants sought a modification of provisions in their contracts that limited the quantity of water to be supplied.
The cases were consolidated and tried to the court. The trial court’s letter opinion found that Clarksville had met the burden of showing a demonstrable increase in the cost of performance of $1.56 per thousand gallons. Consequently, the trial court gave monetary judgments against the six appellants for the difference between the old and new rates. However, the trial court did not give a declaratory judgment on the validity of the ordinance. The six appellants appeal, and Clarksville cross-appeals. We affirm the monetary judgment on direct appeal and reverse, in part, on Clarksville’s cross-appeal.
The first assignment of error by the six appellants is that the trial court erred in using the “reasonableness” standard provided in Ark. Code Ann. § 14-234-110(b)(1) (1987) to approve the rate increase. The cited statute provides that “[w]ater may be supplied to nonresident consumers at such rates as the legislative body of the municipality may deem just and reasonable.” We recently interpreted this statute in a case involving Fayetteville providing wholesale water to the Mount Olive Water Association, and we affirmed the trial court’s determination that increased rates were “just and reasonable” under the provisions of the statute. Mt. Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). However, in that case, the contract provided that Fayetteville “in its sole discretion has the right to increase or decrease the rates and charges,” and, therefore, the statutory reasonableness standard was the only standard governing the rate increase. The case at bar has the contractual standard that any “increase or decrease in rates shall be based on a demonstrable increase or decrease in the costs of performance hereunder.” Clarksville did not argue that the statutory reasonableness standard governed and does not make such an argument in this appeal. It is evident from the trial judge’s letter opinion that he was well aware the contract provisions governed because, in material parts, the letter provides:
This first issue we are concerned with is whether the increase in water rates by Clarksville is based on a demonstrable increase in the cost of production.
... I conclude that Clarksville has met the burden of showing a demonstrable increase in the cost of production.
I now consider the amount. The decision on the amount is not predicated on the credibility of witnesses since I feel they were all very knowledgeable and thorough. It is based more on what the Court considers the more proper methodology. . . .
Stated another way, I am convinced the methodology and figures produced by Clarksville are more realistic than those of the defendants. . . .
I am not going to recite all the evidence that supports Clarksville’s contention that its cost of production has increased, except to say I feel it is ample to sustain the contention a raise is justified and the average rate of $ 1.56 per thousand gallons is reasonable.
In sum, it is evident that the trial judge used the language of the contract as the standard for the rate increase, and did not use the “reasonableness” standard of the cited statute.
In several sub-arguments under this same assignment of error the appellants contend that even if the trial court attempted to use the “cost of performance” standard, it erred by using “reasonableness” standards of methodology. These sub-arguments concern various costs that the trial court allowed in determining the cost of performance. The facts leading to the sub-arguments are summarized as follows. Clarksville introduced the testimony of James Ulmer, the consulting engineer who conducted the rate study. He testified a “cash basis” rate analysis reflected a cost of $2.49 per one thousand gallons of water, and that a “utility method” of determining the cost of production, which would include a 1.5 times interest earning ratio, reflected a cost of $2.00. Clarksville also introduced the testimony of Stephen Merchant, an economist with experience in utility rate matters, who testified that Clarksville had to meet the debt service requirements imposed by the public bond markets in order to obtain financing for its waterworks improvements. The trial court found Clarksville’s figures to be “realistic” and ruled that the rate set in the ordinance, $1.56 per one thousand gallons, was based on an increase in the cost of performance.
The six appellants do not dispute that a cash basis rate study would accurately reflect the cost of performance, but rather they contend that the trial court erred in refusing to exclude certain costs from the cash basis analysis, and, because it did not exclude those cash costs, the trial court in effect reverted to a reasonableness standard. They contend the trial court, as a matter of law, should have excluded a number of such cash costs.
The six appellants’ first sub-argument is that the trial court erred in allowing Clarksville to accrue too much expense through funded depreciation. Clarksville’s expert witnesses testified that the rate of depreciation should be even more rapid than the rate used because new federal and state standards for water purity often made waterworks equipment obsolete years before it actually wears out. On the other hand, appellants’ witnesses testified that a longer useful life should have been assigned to various assets. This was a matter of credibility of witnesses, and was a matter for the trial court to weigh. Clearly, it was not an error of law in the methodology used.
Appellants’ second sub-argument about methodology is that the trial court erred in allowing Clarksville to include in “general and administrative expenses” an expense item that CL& W pays to Clarksville. The expense item is 5 percent of gross income. A contract must be interpreted in accordance with the law in' force and effect at the time of the contract formation. McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955). The statutes governing municipal waterworks that were in effect at the time these contracts were made are presumed to be a part of the contracts and, at the least, provide guidance in interpreting the contracts. At the time these contracts were entered, section 14-234-114 of the Arkansas Code Annotated of 1987 was in effect, and it provides that municipal water systems are authorized to pay a sum equal to 5 percent of gross income to the municipality in “lieu of taxes, in return for police, fire, and health protection . . . and other services furnished the waterworks system by the municipality.” Thus, the expense item was a valid expense in the lawful cost of performance of the contracts.
Appellants’ next sub-argument is that the trial court erred in allowing a part of $127,648 per year “debt service coverage” for the revenue bonds issued by Clarksville. This figure amounts to 130 percent of the amount necessary to pay the current principal and interest. Testimony described this as the amount deemed necessary in the bond trust indenture for the city “to provide sufficient revenue to pay the bonds and to provide a cushion or coverage or additional security for the bond holders.” The cushion was also referred to as a sinking fund. There was no testimony to indicate that this cushion or additional security will go to anything other than the retirement of the revenue bonds. Again, the contract must be interpreted in accordance with the law in force at the time of the making of the contract. Section 14- 234-214 of the Arkansas Code Annotated of 1987 provides that rates for resident and nonresident customers of a municipal waterworks system must be adequate to pay the principal and interest on all revenue bonds and to make such payments into a revenue bond sinking fund as may be provided by a bond trust indenture. In addition, a witness qualified in the field of municipal bonds testified that this debt service requirement was imposed by the commercial market of public bonds and further testified that if Clarksville did not agree to the sinking fund, it could not compete in that market for funds at a reasonable rate. Accordingly, the trial court did not err as a matter of law in holding that the debt service coverage was a valid expense in the cost of performance of the contract.
Appellants’ final sub-argument is that the trial court erred in the computation of the allowable interest expense on the bonds. Their argument is valid in part, but it does not cause us to reverse. At some time in 1990, Clarksville received the money in exchange for the revenue bonds it issued. The improvement projects were not completed at the time, and so it was not necessary for Clarksville to expend all of the money at that time. As a result, Clarksville had a period of time that it was able to invest these funds, perhaps in United States Treasury obligations, and receive interest in return. One witness testified that Clarksville invested the money it obtained from issuing the bonds and, in return, received $362,000 in interest before it had to use the money to pay the contractors and suppliers. This interest received by Clarksville was not deducted from the cost of the interest it expended on the outstanding revenue bonds. The trial court allowed all of the interest Clarksville expended on the revenue bonds, but did not offset that with the interest it received. To this extent the trial court’s ruling was in error. However, we do not reverse because of it. According to the exhibit abstracted on this issue, Clarksville claimed in 1991 an expense of $ 127,646 for debt service coverage on the 1990 bonds. According to the exhibit, if the interest received from Clarksville’s investment of the bond funds were offset against this amount, the allowable expense for debt service coverage for that year would have been only $33,432. However, according to appellants’ witness, this difference in interest would have only reduced the cost of water by 39 cents per thousand gallons. Clarksville’s cash rate analysis showed a cost of $2.49 per thousand gallons of water, and even if the trial court had deducted the 39 cents, Clarksville’s proof was still sufficient to show that the rate of $1.56 was justified under the contracts as equal to or less than the cost of performance. In addition, this offsetting interest income to Clarksville was a one- year phenomenon. It had not occurred when the ordinance setting the rate was enacted, it will not occur again, and it did not and will not reduce the cost of performance in any year other than the year it was received.
In summary, we hold that the trial court did not err in the methodology it used in finding that the rate of $1.56 per one thousand gallons of water is justified under the contract. This holding is confirmed in a practical way. The 1990 capital improvements cost approximately $10,000,000, and the six appellants, through the rate increase, will pay 8'/: percent of those overall capital costs, but will use 29 percent to 33 percent of the water produced by the system.
Appellants’ second assignment of error involves the quantity provisions of the contracts with three of the six appellants, the Horsehead Water Users Association, the Ludwig Water Users Association, and the City of Hartman. Each of these long term contracts provide that Clarksville will make available potable water in “such capacity as may be required by the Purchaser not to exceed_gallons per month.” In the contract with appellant Horsehead the blank is filled in with the figure 5.4 million. It is undisputed that when the contract was executed, in 1978, Clarksville had a duty to make up to 5.4 million gallons of potable water available to appellant Horsehead. The contracts with Ludwig and Hartman contain the same provision, with a different number of gallons specified. The CL&W, which operates the utility, has recently sold an amount of water to each of the three appellants that is in excess of the figures contained in the original contracts. The three appellants contended below that the original contracts were modified by the conduct of the parties and their course of performance under the contract. The trial court ruled against the contention, and the three separate appellants assign the ruling as error. The ruling of the trial court was correct.
The contracts are between the City of Clarksville and the three separate appellants. Section 14-234-108 of the Arkansas Code Annotated of 1987 provides that these contracts must be between the city owning the producing system and the city or association purchasing the water. It must be authorized by city ordinances, or if one of the purchasers is an association then by resolution, and the contract “shall be signed by the mayor of each contracting municipality and by the chairman of the board of each contracting improvement district.” Ark. Code Ann. § 14-234-108 (1987). These contracts were with Clarksville, and not with CL&W, the entity that operates the utility for Clarksville. The City of Clarksville has not delegated any legislative powers to CL&W. See Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963). Thus, it is the City rather than CL&W that has the authority to enter into or modify the contracts, and the conduct of CL&W in supplying water in excess of the amounts specified did not have the effect of modifying the contract.
Appellants alternatively contend that, even if CL&W did not have the authority to modify the contracts, the trial court’s ruling was still in error because Clarksville ratified the modification. Ratification of a contract must be by the principal or by an authorized agent. City of Greenbrier v. Cotton, 293 Ark. 264, 737 S.W.2d 444 (1987). There was no evidence to indicate that Clarksville authorized CL&W, or any of its employees, to modify these contracts.
Another alternative argument propounded by appellants is that Clarksville is estopped to deny the modification. Estoppel may be applied against a city, but its application will be rare indeed. In Miller v. City of Lake City, 302 Ark. 267, 789 S.W.2d 440 (1990), we stated that a city cannot be estopped by the unauthorized act of one of its officers. There was no evidence that Clarksville authorized any employee to modify the contracts. As a result, even if one of the CL&W employees stated that the three appellants could have water in excess of the amount provided in the contracts, the City would not be estopped from enforcing the quantity provision of the contract. We affirm the ruling of the trial court on the alternative arguments.
Appellant Horsehead Water Users Association separately makes the third assignment of error which involves an alleged modification of the term, or length, of its contract. On January 25, 1978, Clarksville and Horsehead entered into a contract for a term of ten years. Horsehead received a loan for the construction of its system from the Farmers Home Administration. Before the Farmers Home Administration would loan the money, it requested that Horsehead seek to have the term of the contract extended from ten to twenty years. Subsequently, the superintendent of Horsehead went to the executive officer of CL&W, Otis Cude, and suggested the requested change. At some time later the “ten” in the contract was lined out and “twenty” was handwritten in its place. Beside the handwriting were the initials O.R.C., which are Otis Cude’s initials. The trial court ruled this was not a valid modification of the contract. Separate appellant Horsehead assigns the ruling as error.
Parties are free to modify a contract between them, but it is essential that both parties agree to the modification and its terms. Leonard v. Downing, 246 Ark. 397, 438 S.W.2d 327 (1969). Here, there is no evidence that one of the parties, Clarksville, approved the modification, and there was no evidence that Cude was authorized to act for the City. Consequently, the trial court’s ruling was correct.
The foregoing three assignments of error are all of the points advanced by the appellants. None of the points require reversal, and, accordingly, we affirm on direct appeal.
Clarksville, on cross-appeal, makes four assignments of error. The first of these is that the trial court erred in refusing to enforce an implied declaratory judgment in Clarksville’s favor. The argument is meritorious. Clarksville filed suit for the money due under the new rate and, in addition, asked for a judgment declaring the validity of the municipal ordinance setting the rate at $1.56 per thousand gallons of water. The trial court, by granting the money judgment at the rate set in the ordinance, impliedly declared the ordinance valid. However, the trial court declined to formally enter such a declaratory judgment. The result is that Clarksville has a money judgment to the date of the trial. The six appellants filed a supersedeas bond for this amount. However, since the date of trial the appellants have been paying at the rate of only 78 cents per thousand gallons of water, not at the rate of $1.56, and, under the trial court’s ruling, Clarksville will have to continue to file suits to collect the additional deficiencies that will accrue. The ruling was in error. We reverse on this point of cross-appeal and remand for the trial court to enter and to enforce a declaratory judgment.
Clarksville’s second assignment of error involves the trial court’s refusal to award prejudgment interest. Again, the assignment has merit. In Atlanta Exploration, Inc. v. Ethyl Corp., 301 Ark. 331, 784 S.W.2d 150 (1990), we wrote that the test for awarding prejudgment interest is:
whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action. If such a method exists, prejudgment interest should be allowed, because one who has the use of another’s money should be justly required to pay interest from the time it lawfully should have been paid. Where prejudgment interest is collectible at all, the injured party is always entitled to it as a matter of law.
Id. at 339, 784 S.W.2d at 153-54 (citationsomitted). Clarksville met this test, and prejudgment interest should have been allowed. We reverse and remand on this point of cross-appeal.
Clarksville’s third assignment, which involves separate cross-appellee City of Hartman, is also meritorious. Clarksville and Hartman entered into a forty-year water supply agreement on February 23,1968. In one part of this case, Clarksville moved for a partial summary judgment declaring that the forty-year term was void as a matter of law. The trial court denied the motion for partial summary judgment and later ruled that the forty-year term was valid.
Section 14-234-108 (b)(2) of the Arkansas Code Annotated of 1987, which has been in effect since 1949, authorizes municipalities to sell water to other municipalities and provides that the “contract may be for a term of not exceeding twenty (20) years.” The Cities of Clarksville and Hartman had no authority to into a contract that was contrary to the general laws of the state. Morrilton v. Comes, 75 Ark. 458, 87 S.W.2d 1024 (1905). A contract by a city that is contrary to the general law of the state is void. Id. Cross-appellee Hartman does not deny the foregoing law, but rather contends that federal law preempts state law because the Farmers Home Administration loaned money to Hartman to build its system. We need not decide whether federal law preempted state law at any time because the Farmers Home Administration is no longer involved in financing the Hartman system. It has sold the notes without recourse, and no authority is cited that federal law would preempt state law in such an event.
Clarksville’s final assignment on cross-appeal is that the trial court erred in refusing to award it a 10 percent penalty against all six cross-appellees in accordance with the 1985 city ordinance that increased the rates. The provision in the ordinance is penal in nature and must be strictly construed, and a trial court will be granted a reasonable amount of discretion in denying or allowing such penalties depending on the circumstances. Lamar Bath House, Inc. v. City of Hot Springs, 229 Ark. 214, 315 S.W.2d 884 (1958). The trial court did not abuse its discretion under the circumstances of this case. The contract, which initially determined the rates, did not provide for a penalty. The contract provided for modification of the rates through city ordinance when the cost of performance increased or decreased. The validity of the ordinance was dependent proof of cost of performance of the contract. We need not decide whether a penalty could lawfully be subsequently added to the cost of performance, because; even if it might be, the trial court did not abuse its discretion in refusing to penalize the appellants for raising a valid justiciable question. In sum, on cross-appeal, we reverse and remand in part, and affirm in part.
Affirmed on direct appeal; reversed and remanded in part and affirmed in part on cross-appeal.
Glaze, J., concurs on direct appeal. | [
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Donald L. Corbin, Justice.
Appellant, Claude Wallace, was convicted by a jury of two counts of rape, two counts of kidnapping, and one count of burglary and sentenced to two consecutive life sentences plus one hundred sixty (160) years in prison and a fine of fifteen thousand dollars ($ 15,000). Appellant raises five points on appeal.
On June 8, 1991, two sisters, M. W., who was twelve years old, and A. C., who was seven years old, were raped by a man who entered their home during the early morning hours.
Appellant first argues the trial court erred by refusing to suppress the in-court identification by M. W. because of a tainted pre-trial identification procedure.
We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. In making that determination, we first look at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. It is the appellant’s burden to show that the pretrial identification procedure was suspect.
Dixon v. State, 310 Ark. 460, 468-69, 839 S.W.2d 173, 178 (1992) (citations omitted).
The identification to which appellant objects was made within an hour of M. W.’s escape from her attacker. A police officer was taking M. W. to the hospital to be examined and took M. W. to view appellant on the porch of the house where he was found. Appellant was surrounded by police officers and was the only black male on Ihe porch. The officer asked M. W. to look at appellant and determine whether he was the one who raped her. When she viewed appellant, M. W. identified him as her attacker. While we find this identification procedure was probably impermissibly suggestive, that does not end our inquiry.
Even if the identification technique used is impermissibly suggestive, an in-court identification is admissible if the identification in question is reliable. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992).
[I]t is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Further, we do not reverse a trial court’s ruling on the admissibility of an identification unless it is clearly erroneous, and we do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification.
Id. at 482, 839 S.W.2d at 8 (citation omitted).
Having found the pretrial identification procedure impermissibly suggestive, we must determine whether there were sufficient aspects of reliability surrounding the identification to permit its use. The factors used in measuring reliability are: (1) the opportunity of the identifying witness to observe the accused at the time of the criminal act; (2) the lapse of time between the occurrence and the identification; (3) any inconsistencies in the description given by the witness; (4) whether there was prior misidentification; (5) the facts surrounding the identification; (6) and all other matters relating to the identification process. Dixon, 310 Ark. 460, 839 S.W.2d 173.
We turn now to the facts of this case and address each of these factors:
1. The opportunity to view. M. W. was in the same room with her attacker for approximately four hours, during which time she testified he forced her to kiss him and to have oral, vaginal and anal sex with him. M. W. testified that while her head was covered most of the time with a shirt, she did remove the shirt at one point when it was getting light and she got a look at her attacker’s face.
2. The lapse of time. M. W. was taken to view appellant less than an hour after she escaped from her attacker.
3. The accuracy of the description. M. W. described her attacker as a tall black male, with short hair, wearing blue jeans either without a shirt on or with a blue t-shirt. M. W. also told police that appellant would have vomit on him because he had thrown up during the rape and she had also thrown up. Appellant is a tall black male with short hair. When police found appellant less than an hour after M. W. escaped, he was wearing blue jeans with a dried substance on them which was later determined to be vomit. Appellant was not wearing a shirt when the officers found him lying on the couch in the house, but put on a blue t-shirt which was lying near the couch when officers asked him to get dressed.
4. Prior misidentification. M. W. never identified anyone other than appellant as her attacker.
5. The surrounding facts. When M. W. viewed appellant, he was the only black male present and he was surrounded by police officers. M. W. was driven by appellant’s residence by a police officer to see if she could identify appellant.
6. Other matters. Two days later M. W. picked appellant out of a photo line-up composed of six photographs of black males with similar build and hair as appellant. While M. W. initially picked two photographs that might be her attacker, she narrowed it down and picked appellant. M. W. also said at the time of the photo line-up she was positive it was appellant who raped her. Under the circumstances of the case, we cannot say M. W.’s in-court identification was unreliable. Thus, the trial court did not err in refusing to suppress M. W.’s in-court identification.
Appellant next argues there was no probable cause to arrest him. While an invalid arrest may call for the suppression of a confession or other evidence, it does not entitle the defendant to be discharged from responsibility for the offense. O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984). Appellant has not alleged that any evidence should have been suppressed as a result of his allegedly illegal arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution nor as a defense to a valid conviction. United States v. Crews, 445 U.S. 463 (1980).
Appellant’s third argument on appeal is that the trial court erred when it refused to grant a mistrial because the courtroom deputies left handcuffs and a metal detector on a table which appellant alleged was in view of the jury. A mistrial is an extreme and drastic remedy which should only be granted when there has been an error so prejudicial that justice cannot be served by continuing the trial. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). There was no such error in this case.
The hearing in chambers reveals that the handcuffs and metal detector were left on a side table which was being used by appellant and his counsel to prepare for trial. The trial judge stated he didn’t even think the jurors were able to see the handcuffs and metal detector and denied the motion. We have held that brief encounters between a defendant in restraints and jurors is not necessarily prejudicial. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Here, there is no evidence the jury saw appellant in restraints, only that the jurors may have seen handcuffs and a metal detector on a table across the room from appellant. The trial judge has the discretion to take security measures. Handcuffs and metal detectors are commonly used security measures. In this instance, there is no evidence the presence of the handcuffs and metal detector on a table across the room from appellant was prejudicial. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 111 S. Ct. 1123 (1991).
Appellant next argues it was error for the trial judge to allow A. C.’s mother to accompany her to the witness stand while she testified. Appellant objected to A. C.’s mother accompanying her to the witness stand because she might “nod her head or grab [A. C.’s] hand.” Although appellant alludes in his argument to the fact that A. C.’s mother was holding her while she testified, there is no evidence of this in the transcript. The only discussion in the transcript concerned A. C.’s mother “accompanying” her to the witness stand.
We first note that under Ark. R. Evid. 616 A. C.’s mother had the right to be present in the courtroom during the trial. Ark. R. Evid. 616; Kester v. State, 303 Ark. 303, 797 S.W.2d 704 (1990). Appellant contends it may have been possible for A. C.’s mother to communicate non-verbally with her, but there is no evidence such communication occurred and the mother was instructed by the trial judge not to make any comments. Whether it was improper for the trial judge to allow the victim’s mother to accompany her to the witness stand is of no consequence since appellant has not shown that any prejudice resulted. Prejudice is not presumed and we do not reverse absent a showing of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
For his last argument on appeal, appellant argues the trial court erred in not dismissing the charges against him for violation of the speedy trial rule. Ark. R. Crim. P. 28.1(b) requires trial to be held within twelve (12) months of appellant’s arrest, excluding necessary periods of delay authorized by Ark. R. Crim. P. 28.3. Here, it is undisputed the time for trial commenced running on June 8, 1991, the date of appellant’s arrest. The trial began on July 13,1992, 35 days after the speedy trial period.
Once it has been determined that a trial is held after the speedy trial date has expired, the state has the burden of showing that any delay was the result of appellant’s conduct or was otherwise legally justified. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). We note that Ark. R. Crim. P. 28.3(i) requires the trial court to enter written orders or make docket notations specifying the reasons for the delays and the specific dates or number of days to be excluded. Id. Here, the court made no such written orders or docket notations. However, the court’s failure to make such notations does not result in automatic reversal. Id. When a case is delayed by the accused and that delaying act is evidenced by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i). Hubbard, 306 Ark. 153, 812 S.W.2d 107.
Appellant in this case filed a motion for psychiatric evaluation on July 29,1991. This motion was granted on October 4, 1991, and an order for commitment to the Arkansas State Hospital not to exceed thirty days was filed on that same day. Appellant was evaluated by Tom Heisler, Ph.D., at the Craig-head County Jail on April 13, 1992. Ark. R. Crim. P. 28.3(a) provides:
The following periods shall be excluded in computing the time for trial:
The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.
Thus, thirty (30) days can be excluded from the time period during which the trial court was deciding appellant’s motion for psychiatric evaluation. That leaves only an additional five days for which the state must account. The time period from October 4, 1991, to April 13, 1992, is also excludable since this delay resulted from appellant’s request for a psychiatric evaluation. Ark. R. Crim. P. 28.3(a). Thus, the state has met its burden and the trial was held within the speedy trial requirements.
Under Ark. Sup. Ct. R. 4-3(h), the record has been reviewed concerning the rulings made against appellant by the trial judge during the trial, and we find no error. For the reasons stated above, we affirm. | [
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Jack Holt, Jr., Chief Justice.
Appellants are three chancery judges in the Second Judicial District of Arkansas, which includes Greene County. Appellees, Monroe Auto Equipment Co. and Darling Store Fixtures, are manufacturing companies doing business in Greene County. On April 1, 1991, appellants filed an “administrative order” in Greene County addressing the procedure to be followed by employers remitting child support payments for their employees subject to income withholding, which reads:
1. All child support payments made by an employer for an employee under income withholding are ordered to make the checks payable to the custodial parent. These checks are then to be forwarded to the Circuit Clerk’s office for distribution to the proper person or agency.
2. All employers are ordered to withhold the administrative fee of $12.00 annually on all employees who pay support on a monthly basis and $24.00 for those who pay on a weekly or semi-monthly basis. These checks are to be made payable to the Circuit Clerk of Greene County, Arkansas.
This order was issued in response to the appellees’ practice of submitting lump sum checks to the clerk of the court with an itemized list of the amounts withheld from each employee for child support. Its effect was that businesses had to discontinue sending single checks representing a lump sum and instead submit an individual check to the court for each employee owing child support.
Appellants later filed the same order in the other counties of their judicial district. In July 1991, both appellees filed petitions for writs of quo warranto in this court asking that we determine by what authority the chancellors had issued the administrative orders and whether or not such orders were void and unenforceable on the basis that they were in conflict with state and federal law. We denied these petitions without prejudice to allow the issues to be raised on subsequent appeal. No further action was taken in this regard.
On December 10,1991, appellees filed a petition for declaratory judgment in circuit court arguing that the administrative order was void and unenforceable because it was in conflict with 42 U.S.C. § 666(b)(6) and Ark. Code Ann. § § 9-14-222(d)(9) and 9-14-228(b) (Repl. 1991). Circuit Judge David Burnett granted petitioners’ motion for summary judgment finding that the circuit court does have jurisdiction over the matter and that:
The Administrative Order entered by the Chancellors in Greene County on April 29, 1991, is unreasonable and inconsistent with 42 U.S.C.S. § 666(b) and therefore, in conflict with the principles announced by the Arkansas Supreme Court in Letaw v. Smith, 223 Ark. 638, 268 S.W.2d 3 (1954). Further, the Administrative Order is a local rule in violation of the principles announced by the Arkansas Supreme Court in In Re: Changes to the Arkansas Rules of Civil Procedure, 294 Ark. 664, 742 S.W.2d 551 (1987) and In Re: Administrative Rules, 299 Ark. 335, 772 S.W.2d 600 (1989) .... the Administrative Order... is determined to be unreasonable and in conflict with the above described statute and therefore invalid and unenforceable.
Appellants reacted by filing a notice of appeal to this court in response to Judge Burnett’s grant of summary judgment and by issuing a new order “essentially indistinguishable” from the first order. Monroe Auto Equip. Co. v. Partlow, 311 Ark. 633, 635, 846 S.W.2d 637 (1993). Appellees Monroe and Darling then filed an original action for a writ of prohibition challenging the chancellors’ actions in response to the circuit court order. In denying their petition for writ of prohibition, we declined to address jurisdictional issues noting that these issues were formulated in the pending appeal and that they could be more appropriately addressed in that action. Id. While the appellees’ petition for writ of prohibition was pending, appellants were granted a stay of their briefing schedule in the present appeal. Appellants now bring this appeal from the circuit court’s grant of summary judgment.
Appellants first argue that the circuit court was without jurisdiction to render a declaratory judgment as to matters falling within the chancery court subject matter jurisdiction, citing Ark. Code Ann. § 16-13-304 (1987 & Supp. 1991), Ark. Code Ann. § 16-11 1-103(a) (1987) and Arkansas Dept. of Human Servs. v. Ross-Lawhon, 290 Ark. 578, 721 S.W.2d 658 (1986), to support the proposition that co-equal courts have no authority to rule on the validity of decisions of the other. See ex parte Dame, 162 Ark. 382, 259 S.W. 754 (1923). Appellants also cite Ark. Code Ann. § 9-14-105(a) (Repl. 1991), which exclusively assigns jurisdic tion of child support matters to chancery.
Appellees respond that the underlying issue here is not child support but local rules, and these local rules are in conflict with 42 U.S.C. § 666(b)(6)(B) and Ark. Code Ann. §§ 9-14-222(d)(9) and 9-14-228(b) (Repl. 1991). Appellees also respond that appellants failed to challenge the circuit court’s jurisdiction or to file a motion to transfer pursuant to Ark. Code Ann. §§ 16-57-104(c)(2) and 16-57-105 (1987). A review of the record reveals that appellants did raise the issue both in their response to appellees’ motion for summary judgment and in their response to appellees’ petition for declaratory judgment, but they did not file a motion to transfer.
We do not labor over whether or not the circuit court’s jurisdiction was preserved for appeal as we specifically reserved this issue for appeal in our opinion denying the petition for writ of prohibition:
We decline to address these arguments, as it appears that they are formulated in the pending appeal [which is now the case before us] and can be more appropriately addressed in that action than in this. That being so, it cannot be said there is no other adequate or appropriate remedy but prohibition.
Monroe Auto Equip. Co. v. Partlow, 311 Ark. at 636, 846 S.W.2d at 640.
Turning to the merits, then, of the jurisdiction dispute, we look to see whether circuit court had jurisdiction to resolve the issues at hand.
Circuit courts and chancery courts are courts of equal power and dignity. In Ex Parte Dame, we explained:
[C]ourts of equal power and jurisdiction have no power to review or control the decisions of each other, but it does not follow from that axiom that, merely because concurrent jurisdiction is conferred in two courts, one is divested of jurisdiction to review decisions of the other. That depends on the Constitution, which confers the jurisdiction.
162 Ark. at 385, 259 S.W.2d at 757.
If a chancery court has subject matter jurisdiction to decide a case under our constitution, the circuit court has no power to review that decision.
Here, the underlying subject matter of the dispute involves child support payments, which are clearly within the jurisdiction of chancery court. Arkansas Code Ann. § 9-14-105(a) (Repl. 1991) addresses jurisdiction:
The chancery courts in the several counties in this state shall have exclusive jurisdiction in all civil cases and matters relating to the support of a minor child or support owed to a person eighteen (18) or older which accrued during that person’s minority.
Accordingly, we hold that the circuit court was without jurisdiction to review the collateral administrative order defining the matter of paying child support issued by the chancery court. As this court has the power to reverse and remand with instructions to transfer between chancery and circuit courts, see White v. Holmes, 302 Ark. 545, 790 S.W.2d 902 (1990), we remand this case to circuit court with instructions to transfer to chancery court for further proceedings. | [
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Tom Glaze, Justice.
Appellants Kurt Morris and Roosevelt Burton were convicted of kidnapping and rape. The third appellant, Gary Cloird, was convicted of rape and of theft of a van which occurred the same evening as the rape. All three appellants claim error and request reversal. Because we find no errors warranting reversal, we affirm all three convictions.
On the evening of January 25, 1992, the victim entered a nightclub called PJ’s in Pine Bluff where she had a number of drinks and met Kurt Morris and Roosevelt Burton. Later they decided to go to another club named Bad Bob’s. The three got into a car driven by Morris with the victim and Burton in the back seat, and instead of going to Bad Bob’s, they went to a trailer near Humphrey, Arkansas. During the trip to the trailer and then inside the trailer, the victim testified that, without her consent, Morris and Burton forced her to have oral, vaginal, and anal sex. She also testified that a gun barrel and a screwdriver handle were inserted into her rectum. During this time, Cloird entered the trailer and was alleged to have forced the victim to have sexual intercourse. The next day on January 26, the appellants returned her to Pine Bluff. The three appellants were subsequently arrested, tried and convicted by jury. For clarity, we will discuss each appeal separately.
Kurt Morris v. State
Kurt Morris was charged by amended information with kidnapping and rape. Prior to trial, Morris filed a motion for continuance and a motion to sever his case from Burton’s and Cloird’s. Both motions were denied. At trial, Morris’s defense was based on the victim consenting to sexual intercourse with him. He was found guilty and sentenced to twenty years imprisonment for kidnapping and thirty years for rape, to run consecutively. On appeal, Morris argues that the trial court abused its discretion in denying his motions.
On the first day of trial, August 24, 1992, Morris filed a motion for a continuance stating that on August 17, he had requested a subpoena for a potential witness, Randy Williams, but on August 20, he discovered that, due to an incorrect address, Williams had not been served. Williams was a friend of the victim’s, and had given a statement to the police on January 28 which Morris claimed contradicted the victim’s version of the events on January 25 and 26. According to the motion, Williams had moved from the address to which service was attempted. The motion was accompanied by a “witness statement” signed by-Williams, witnessed by a police officer, and dated January 28, 1992. The record is bare of an objection by the state to the motion, and of any arguments made by the parties or rationale for the court’s denial.
Citing Ark. R. Crim. P. 27.3 which provides in part that a continuance shall be granted only upon a showing of good cause, Morris argues that the testimony that Williams would have given was material and relevant to his case. Further, because William’s testimony went directly to the credibility of the victim, Morris urges such testimony would have had a direct impact on the outcome of the trial. Morris, however, failed to provide an affidavit to accompany his motion as required by Ark. Code Ann. § 16-63-402(a) (1987) which reads as follows:
A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove and not merely show the effect of the facts in evidence, that the affiant himself believes them to be true and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement.
We have consistently interpreted this statute as requiring the presence of an affidavit in order to justify a continuance due to a missing witness. King v. State, No. CR93-266, slip op. (Ark. Sup. Ct. Sept. 20, 1993); Henderson v. State, 310 Ark. 287, 835 S.W.2d 865 (1992). Further, the denial of a continuance when the motion is not in substantial compliance with the statute is not an abuse of the trial court’s discretion, and the burden is on the appellant to establish prejudice and abuse of discretion in denying the continuance. The factors to consider in exercising discretion over continuance motions are:
(1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.
Id. at 292, S.W.2d at 868 (cites omitted).
By omitting the affidavit, Morris’s counsel failed to show his diligence in obtaining the appearance of Williams since Morris knew as early as January 28, 1992, that Williams was a potential witness. Despite this, Morris delayed locating Williams and learned only four days prior to trial that Williams had moved and could not be served. Nothing was presented to indicate that Williams had avoided service or that his whereabouts were not easily discoverable. Because Morris failed to support his motion as required and to produce a record upon which we can evaluate the soundness of the trial court’s decision, we cannot say the trial court erred in denying his motion for continuance.
Turning to the second point, the record reflects that, on August 14, Morris filed a motion for severance of trial from that of Burton and Cloird. Ark. R. Crim. P. 22.3 provides as follows:
(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the' prosecution intends to offer the statement in evidence at the trial. If so, the court shall require the prosecuting attorney to elect one of the following courses:
(i) a joint trial at which the statement is not admitted into evidence;
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or
(iii) severance of the moving defendant.
Morris cites Chappell v. State, where the Court of Appeals stated:
The issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where' defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against another.
18 Ark. App. 26, 37, 710 S.W.2d 214 (1986) [citing McDaniel v. State, 278 Ark. 631, 638, 648 S.W.2d 57, 60 (1983)]. Morris bases his argument to support severance on a number of the seven factors including: antagonistic defenses, difficulty in segregation of the evidence, lack of substantial evidence, and deprivation of peremptory challenges. Additionally, Morris argues that his request for severance from Cloird should have been granted because Cloird had been convicted of burglary and theft.
To support severance based on antagonistic defenses, Morris points to the fact that statements of Burton implicating Morris were read into the record by police officers at the trial. He argues that these statements in effect amounted to an antagonistic defense , and for this reason the trial court erred in denying him a severance. The state argues that because Morris’s name was deleted and not mentioned by the officers when reading Burton’s statement, he has failed to show how the trial court failed to comply with Rule 22.3(a).
Rule 22.3(a)(ii) provides for deletion of the defendant’s name from a codefendant’s statement if such deletion will not prejudice the moving defendant. Morris presents no argument that the statements as entered into evidence without reference to him were improper. Concerning the other factors raised and argued in support of his severance argument, the record reflects those matters were never argued below and thus cannot be considered by this court. Morris does argue Cloird had a prior criminal record but Cloird’s convictions were never mentioned or presented to the jury.
At the close of the trial, the jury was instructed to consider the evidence for or against each defendant separately and render their verdict as if each were tried separately. There is nothing in the record or in Morris’s arguments to indicate that the jury was not able to follow this instruction. Because Morris has failed to show any abuse of discretion by the trial court or prejudice to his case, we affirm.
Roosevelt Burton v. State
Roosevelt Burton was charged by information and convicted of kidnapping and rape. He was sentenced to five years imprisonment for kidnapping and ten years for rape with the sentences to run consecutively. On appeal Burton challenges the admission of certain testimony by Tremaine Parker.
Parker, an acquaintance of the three appellants, testified for the state. During the state’s questioning, Parker stated that Gary Cloird told him that Burton took rings off of the victim’s fingers. Burton’s counsel objected, and stated that, while Cloird could testify to what Burton said, Parker’s testimony was hearsay since Parker was not a co-conspirator or codefendant. On appeal, however, Burton’s argument involves a non-hearsay contention that the court’s application of Ark. R. Evid. 801 (d)(2)(v) was in error because Cloird’s statement pertaining to Burton’s action was not made in the course and furtherance of a crime. Because an appellant may not change his grounds for objection on appeal, Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991), this point is not preserved on appeal. However, even if the point had been preserved and error had occurred, the error was harmless since the same evidence was introduced by the victim when she testified that Burton took one of her rings.
Affirmed.
Gary Cloird v. State
Gary Cloird was convicted of rape and theft of property, and sentenced to thirty years imprisonment for the rape conviction and five years imprisonment and a $1000 fine for theft of a van. The sentences were to run consecutively with each other and with any sentence he was then serving. Cloird was acquitted of the kidnapping charge.
Cloird challenges the sufficiency of the evidence on appeal. However, he failed to renew his motion for a directed verdict at the end of all the evidence. To preserve a challenge to the sufficiency of the evidence on appeal, the appellant must move for a directed verdict both at the end of the state’s case-in-chief and again at the close of all the evidence. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993); Ark. R. Crim. P. 36.21(b) (1993).
Cloird also challenges the pretrial identification procedure, but failed to make a timely objection below. An argument for reversal will not be considered in the absence of an appropriate objection. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Affirmed.
Holt, C.J., and Brown, J., concurring in part and dissenting in part. Dudley, J., not participating in Burton v. State.
Robert L. Brown, Justice.
I agree with the affirmances relating to Gary Cloird and Roosevelt Burton but would reverse the conviction of Kurt Morris and remand for a new trial.
Appellant Kurt Morris moved for severance of his trial from that of appellant Roosevelt Burton prior to trial on the basis of antagonistic defenses. It was denied. He renewed the motion after the State rested:
APPELLANT: Your Honor, again, I would also like to make a record on my motion for severance that was filed August 14, asking that my client’s case be severed from the defendants and the Court has advised me that it was going to deny that motion.
THE COURT: The Court did deny that motion for severance, yes.
In his brief on appeal, Morris argues that Burton’s statement in effect accused Morris of the crime. I agree.
Captain Dennis McVay of the Pine Bluff Police Department testified that he took statements from both Kurt Morris and Roosevelt Burton. McVay’s testimony came later than the testimony of the victim who described the criminal activity of Morris and Burton in detail.
Captain McVay proceeded to describe Burton’s statement generally and then to read from portions of it. Though Kurt Morris’s name was not mentioned, it is clear from the statement and from the victim’s previous testimony who the “other individual” mentioned in the statement was. The “other individual,” namely Morris, is painted as the primary culprit by Burton while Burton makes exculpatory comments about himself to the effect that he was trying to get the other person “to let her go” and that he, Burton, “had nothing to do with it.” Morris in later testimony denied any culpability.
In sum, the defenses of the two defendants were clearly antagonistic. Deletion of Morris’s name from Burton’s statement did not have the envisioned salutary effect as the identity of the other person was obvious. Burton in effect said Morris did it, and Morris denied it. The defenses of the two joined defendants were antagonistic, and Morris was seriously prejudiced by the joinder. It is evident from our rules that severance is warranted when name deletion does not cure the problem. Ark. R. Crim. P. 22.3(a)(ii).
Because of the error in denying severance, I would reverse the conviction of Kurt Morris and remand for a new trial.
Holt, C.J., joins.
Burton stated that the crime was committed by Morris and that he, Burton, tried to protect and help the victim. Further, Burton stated that he was afraid of Morris. | [
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Donald L. Corbin, Justice.
Appellant, Gilbert E. Burton, appeals a judgment of the Miller Circuit Court convicting him of possession of a schedule II controlled substance (cocaine) with intent to deliver, sentencing him to forty years imprisonment, and fining him $20,000.00. Appellant asserts only one point of error in his jury trial. We find no merit and affirm.
For reversal of the judgment entered pursuant to a jury verdict, appellant contends the trial court erred by allowing the admission of undisclosed evidence. Appellant filed a motion for discovery on January 6,1992, requesting the disclosure of, among other things, “[a] 11 reports of scientific tests, experiments and comparisons” and “the names, addresses, telephone numbers of any witnesses the State intends to call to testify in the trial.” The state responded to the discovery request by asserting its “open file” policy. Appellant was allowed access to the prosecutor’s file and made photocopies of its contents. The file did not include the names of three of the witnesses the state called at trial — Sergeant Mark Lewis of the Texarkana Police Department, Lieutenant Gerry Brown of the Texarkana Police Department, and Norman Kemper, a chemist from the State Crime Laboratory. The index to the file did indicate a laboratory report was pending. Appellant argues that because the prosecutor did not disclose the names of those three witnesses and a chemical analysis performed by the State Crime Lab on the controlled substance, the evidence should not have been admitted.
When evidence is not disclosed pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). The prosecutor’s responsibility is to provide reports of scientific tests and any information or materials concerning witnesses he or she intends to call. A.R.Cr.P. Rule 17.1(a)(i), (iv). If the prosecutor fails to comply with discovery requirements, the trial court may order compliance, grant a continuance, exclude the evidence, or order other appropriate relief. A.R.Cr.P. Rule 19.7(a). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose; absent a showing of prejudice, we will not reverse. Scroggins, 312 Ark. 106, 848 S.W.2d 400.
As the laboratory report was never introduced into evidence, other than for the limited purpose of preserving appellate review, we find no prejudice in that respect.
Officers Lewis and Brown testified as to the chain of custody of the substance appellant was accused of possessing. Mr. Kemper testified the substance recovered from appellant was identified as 84% pure cocaine base. The trial court allowed Sergeant Lewis’ testimony after giving appellant’s counsel “whatever time you feel like you need right now to talk to Detective Lewis before examination goes forth.” The trial court allowed Lieutenant Brown’s and Mr. Kemper’s testimonies reasoning that the subpoenas issued in their names were sufficient notice to appellant that the state intended to call them as witnesses. Appellant’s defense to the charge was that he never possessed the cocaine, either actually or constructively. Consequently, the three witnesses’ testimonies as to the identification and chain of custody of the cocaine did not prejudice appellant.
We note that the exclusion of undisclosed evidence is not the only remedy available under A.R.Cr.P. Rule 19.7(a). The trial court may remedy the failure to disclose by granting appropriate relief, such as the opportunity for defense counsel to interview the undisclosed witness, Sergeant Lewis.
Although we express disapproval of the prosecutor’s failure to disclose, for the reasons stated we find no merit to appellant’s argument and affirm the judgment of conviction.
Affirmed. | [
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David Newbern, Justice.
Michael McGlothlin seeks to prohibit Judge John Dan Kemp from enforcing an order compelling discovery. Finding no basis for issuing a writ of prohibition, we deny the petition.
Michael McGlothlin and Christopher Lee Jones were involved in a single car accident in which Jones was killed. The parents of Jones have brought suit against McGlothlin, alleging that he was the driver of the car and the accident was the result of his negligence. The Joneses’ complaint also alleges McGlothlin was intoxicated at the time of the accident. McGlothlin denies these allegations.
Through discovery, the Joneses have asked McGlothlin to sign a medical authorization for the release of medical information, and to produce all medical records pertaining to injuries McGlothlin received as a result of the accident, citing Ark. R. Civ. P. 35(c). McGlothlin has objected, stating that his medical condition is not in issue in this lawsuit, and thus his medical records are not made discoverable by Rule 35(c).
The Joneses contend McGlothlin’s medical condition is in issue. They state that McGlothlin has not only denied driving the car at the time of the accident, but has also denied being drunk. Moreover, the Joneses contend that the injuries McGlothlin received were consistent with those of the driver of a car. The Joneses moved to compel McGlothlin to execute the medical authorization and to produce his medical records.
Judge Kemp granted the motion, subject to a protective order prohibiting the release of confidential communications between McGlothlin and his doctors. In his letter opinion granting this Motion, Judge Kemp stated:
The plaintiffs contend that the defendant was the driver of the automobile in the accident that caused the death of the plaintiffs’ son. The discovery indicated the defendant sustained injuries in the course of the accident. The plaintiffs contend that the injuries to the chest sustained by the defendant are consistent with the defendant being the driver of the automobile. The defendant has denied the allegations of the plaintiffs’ complaint that he was the driver.
The court finds that the physical condition of the defendant is relied on by the defendant as part of his defense. Rule 35(c) therefore requires the defendant to execute an authorization to allow the plaintiffs to obtain copies of defendant’s medical records, provided confidential communication between the defendant and his physician are not disclosed
A writ of prohibition is an extraordinary remedy and “is only proper when the trial court has no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts.” Lupo v. Lineberger, 313 Ark. 315, 317, 855 S.W.2d 293, 294 (1993). The purpose of a writ is not to prohibit a lower court from committing error, but to prohibit the unauthorized exercise of jurisdiction when there is no other adequate remedy available by appeal or otherwise. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992).
We make no determination whatever about the correctness of Judge Kemp’s decision. We hold only that he had jurisdiction to enter his order pursuant to Rule 35(c) and thus that a writ of prohibition would not be proper.
Petition denied. | [
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Hart, J.,
(after stating the facts). Counsel for the plaintiff contends that the court erred in giving instructions Nos. 3, 6 and 7 at the request .of the defendant. These instructions read as follows:
“3. You are instructed that it is not the duty of the defendant to have any person constantly inspecting its switch-lights and switch-stands, but that if, in the usual course of its business, and without negligence, the defendant placed a light in the proper manner on its switch at Upscn, and had the switch properly locked and lighted for the main line, and that some person, without notice to the defendant, broke open such switch, and that plaintiff wa.s injured as a result of the breaking of said switch-lock and the opening of said switch, then your verdict will be for the defendant, unless the defendant knew that said switch was broken or dangerous.
“6. You are instructed that you are not to guess or conjecture as to what was the proximate cause of the derailment of the train whereby the plaintiff was injured, and, if you believe that said derailment which injured the plaintiff would not have occurred except for the fact that said switch had been opened by trespassers without notice to the defendant, than the action of such trespassers in opening said switch was the proximate cause of the derailment, and your verdict must be for the defendant.
“7. You are instructed that, although you may find that the headlight did not focus as usual, yet this will not entitle the plaintiff to recover if you believe that the proximate cause of the plaintiff’s injury was the act of third persons, without notice to defendant, in breaking the lock of said switch and opening same. By proximate cause is meant the nearest efficient cause, or, in this case,-the thing without the happening of which the derailment could not have happened.”
The instructions in question were prejudicial, because they made it the imperative duty of the jury to return -a verdict for the defendant if it believed that the switch was thrown open by a trespasser. This constituted reversible error. It was the theory of the plaintiff that, notwithstanding the switch had been thrown open by a trespasser, if the engine had been equipped with a good headlight, the engineer could have seen that the switch was open and could have stopped his train in time to have avoided the injury.
Evidence on the part of the plaintiff tended to show that, when the switch was thrown, a red signal would be displayed upon it. The engineer, at a, distance of 800 to 1,000 feet, could have discovered that the red signal was displayed. He could have told this, not only by the color of the signal, but by its position on the switch-stand. The instructions complained of wholly ignored this theory of the plaintiff.
Instruction No. 3 told the jury that, if the defendant had placed a light in the proper and customary way on the switch-stand in question, had left the switch properly locked, and it had been broken open by some third person without notice to the defendant, and the plaintiff was' injured as the result of the breaking of the switch-lock and the opening of the switch, its verdict should be for the defendant, unless the defendant knew that said switch was broken or dangerous. Thus it will be seen that this instruction entirely ignored the plaintiff’s theory of the case.
As we have already seen, suppose the switch-lock had been broken and the switch thrown open only five minutes before the train in question cáme along; this would not have relieved the defendant from responsibility if the jury should believe the plaintiff’s evidence. According to the evidence for the plaintiff, if a proper headlight had been on the engine, the engineer could have seen the danger signal on the switch-stand at a distance of 800 feet and could have stopped the train in 600 feet. The engineer was keeping a lookout, and the jury might have found that he could and would have stopped the train before it got to the switch if he had had a good headlight. Therefore, even though some trespasser broke the switch-lock and opened the switch only a few minutes before the train came along, it cannot be said that this act alone caused the injury; for, if a. proper headlight had been on the engine, the jury might have found that the accident could and would have been prevented.
The error in this instruction was emphasized by instructions Nos. 6 and 7. Instruction No. 6 told the jury that, if it believed that the derailment would not have occurred except for the fact that the switch had been opened by a trespasser without notice to the defendant, then the act of the .trespasser in opening the switch was the proximate cause of the derailment, and that its verdict must be for the defendant.
Instruction No. 7 told the jury that, although the headlight did not focus as usual, this fact would not entitle the plaintiff to recover if the jury believed that the proximate cause of the plaintiff’s injury was the act of a third person, without notice to the defendant, breaking the lock of the switch-stand and opening it.
These instructions emphasized the fact that the court wholly ignored the plaintiff’s theory of the case, and in effect told the jury that, if a trespasser opened the switch, this was the proximate cause of the injury to the plaintiff, and that it must find for the defendant. Now, no matter if a trespasser did break the lock and open the switch, it cannot 'be said that this act alone was the proximate cause of the injury. The jury might have found that the negligence of the defendant in failing to equip its engine with a good headlight was a concurring cause of the injury.
Where the negligent acts of the defendant and another concur to produce an injury, the author of either negligent act will be liable to the injured party for damages sustained. Jenkins v. Midland Valley Rd. Co., 134 Ark. 1; St. L. I. M. & So. Ry. v. Steel, 129 Ark. 520; St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 297, and Bona v. Thomas Auto Co., 137 Ark. 217.
In view of another trial, we desire to call attention to two other errors which would not call for a reversal of the judgment had proper instructions been given and a verdict rendered in favor of the defendant.
The first of these alleged errors is in the action of the court in allowing the testimony of Dr. Zeiner to go to the jury. According to the testimony of the plaintiff, he was first examined by the physician of the Missouri Pacific Hospital Association at Port Smith, Arkansas, and they were not certain as to the extent of his injuries. The plaintiff was a member of the Missouri Pacific Hospital Association, and his dues, together with those of the other employees of the railroad company, kept up the various hospital associations of the railroad, and the physician and surgeons employed therein were paid by said dues. Therefore it follows that all these physicians and surgeons were the physicians and surgeons of the employees of the railroad company.
Owing to the uncertainty as to the extent of his injuries, the plaintiff agreed with the claim agent of the railroad company to go to St. Louis and be examined with a view of ascertaining- the extent and character of his injuries, in order that he might settle therefor with the claim agent. After the plaintiff had been examined' by the surgeon at St. Louis, the latter was called as a witness on the trial of the case to testify on behalf of the defendant as to the character and extent of the plaintiff’s injuries. The plaintiff objected to him testifying, and the court allowed .the surgeon to testify in behalf of the defendant over the objections of the plaintiff.
This .court has decided that the incompetency of a physician concerning information acquired while attending a person in a professional capacity extends to a physician connected with a hospital, who offers testimony as to the condition of a patient therein, where his duties in the hospital require him to obtain information which is necessary to enable him to determine the patient’s condition and prescribe for him. Poinsett Lbr. & Mfg. Co. v. Longino, 139 Ark. 69.
A physician in charge of a railroad hospital, whose services are compensated by assessments upon the wages of the railroad employees, acts in a professional employment, within the rule excluding communications made by a patient to his physician, in the course of professional capacity in examining an injured employee who is sent to the hospital, and eliciting information as to his injuries on the day of the examination. McRae v. Erickson (Cal.) 82 Pac. 209; Colorado Fuel & Iron Co. v. Cummins (Colo.), 46 Pac. 875; Obermeyer v. F. D. Logeman Chair Mfg. Co., St. Louis Court of Appeals, 96 S. W. 673; and Freel v. Market Street Cable Ry. Co. (Cal.), 31 Pac. 730.
Counsel for the defendant admit the correctness of the general rule, but attempt to differentiate the case before us on the ground that the plaintiff agreed with the claim-agent of the railroad company to go to St. Louis and be examined by the general surgeon in charge of' the hospital there in order to learn, the character and extent of his injuries with a view to a settlement. This did not make any difference. The General Hos pital Association at St. Louis wag kept up by contributions from the employees of the railroad, and the physician and surgeon in charge were the physicians and surgeons of the employees. The plaintiff had it in his mind to' be treated by the surgeon there as well as to be examined with a view to making a settlement with the railroad company. If he afterwards changed his mind and did not wish to settle or treat with the railroad company, he had the right to do so, and this would not constitute a waiver of the privilege.
In this connection, it may be stated that when Johnson went to St. Louis he reported to Dr. Vasterling, the chief surgeon of the General Hospital Association at St. Louis. Dr. Vasterling assigned the case to Dr. Zeiner, who was a member of his staff. It is true that Dr. Zeiner ’did not devote all of his time to surgical operations at the Missouri Pacific Hospital at St. Louis, but nevertheless he was a member of the general staff and was paid by the employees of the railroad company for his services in that respect.
Inasmuch as there was a finding in favor of the defendant, the admission of this testimony would not have prejudiced the plaintiff and does not constitute reversible error.
Another assignment of error relates to the testimony of Frank Hedrick. On cross-examination counsel for the defendant asked him if he had ever been paid anything by the railroad company on account of the accident in question. Hedrick replied that he had not. The circuit court properly held that it was competent for counsel for the defendant to cross-examine the witness on this point for the purpose of testing his credibility.
Councel for the plaintiff then asked the witness if he had been promised anything by the railroad company on account of injuries isuffered by him in the accident. Objections was made to this question by counsel for the defendant, and the court sustained the objection. The record does not show what the answer of the witness would have been, and this court has repeatedly held that the exclusion of evidence is not ground for a reversal where appellant fails to show what the excluded evidence was. Russell v. Brooks, 92 Ark. 509; Mutual Life Ins. Co. v. Owen, 111 Ark. 554, and Battle v. Guttrey, 137 Ark. 228.
We call attention to the general rule, however, that, where a part of the matter or transaction has been given in evidence, it is competent to develop the whole matter or transaction in order to explain or qualify the testimony already given. Thus,' if it was competent to impeach Hedrick by asking him if he had not been paid anything for the injuries suffered by himself, and he answeerd “No,” it would be proper for the opposing party to develop the whole transaction by asking him if he had been promised 'anything.
For the error in giving instructions as indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial. | [
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Steele Hays, Justice.
Robert Mankey (appellant) brought this action against Wal-Mart Stores, Inc. (appellee) for injuries sustained in a slip and fall at a Wal-Mart store in Walnut Ridge. Wal-Mart moved for a directed verdict at the close of Mankey’s evidence and the trial court granted the motion. Mankey appeals on the single point that the trial court should have permitted the issue of Wal-Mart’s negligence to be decided by the jury. We hold the trial court ruled correctly.
Robert Mankey and his companion, Diane Eldon, were shopping together at a Wal-Mart store. Ms. Eldon went to the clothing department and Mr. Mankey went to the automotive department. Mr. Mankey picked up a case of motor oil and placed it in his basket. He then went elsewhere in the store, returning to the automotive department some ten to fifteen minutes later with Ms. Eldon. As Mr. Mankey was looking up at the oil filters, he slipped on motor oil which had leaked from a carton onto the floor. In falling, Mankey reinjured his back and aggravated a pre existing condition. Mr. Mankey sued Wal-Mart alleging that the store had breached its duty of care to him as a customer. At trial, he testified he did not see anything on the floor before he fell and he did not know how long the oil had been on the floor. Margaret Jones, a Wal-Mart employee, testified that she had been down the aisle where the accident occurred approximately five or ten minutes before and did not see the oil.
The trial court ruled there was insufficient evidence to establish negligence on the part of Wal-Mart in placing the foreign substance on the floor or that the substance had been there for a sufficient period of time that Wal-Mart either knew or should have known that the substance was present and failed to remedy the situation.
In determining whether a directed verdict should have been granted, we view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992); Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989). A motion for a directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Howard v. Hicks, 304 Ark. 112, 800 S.W.2d 706 (1990).
The law is well settled that a property owner has a general duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989). In order to prevail in a slip and fall case, a plaintiff must show either (1) the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991); Skaggs Co. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986).
We have stated that the mere fact that a person slips and falls does not give rise to an inference of negligence. Moore v. Willis, Etc., 244 Ark. 614, 426 S.W.2d 372 (1968). The doctrine of res ipsa loquitur is not applicable to slip and fall cases. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. J.M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1990). Also, the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence. Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980). It must be proved that the substance was negligently placed there or allowed to remain. Diebold v. Vanderstek, 304 Ark. 78, 799 S.W.2d 804 (1990).
Robert Mankey admits there is no evidence Wal-Mart did anything that constituted negligence in causing the substance to be on the floor. However, he contends there is evidence from which the jury could infer that Ms. Jones, the Wal-Mart employee, was negligent in not noticing the oil or the container on its side or the oil dripping down the boxes. Mr. Mankey points to Ms. Jones’ testimony that it was unlikely that she walked by and didn’t see the substance and that Ms. Jones had an affirmative duty to look for debris or objects on the floor. However, the argument presupposes that the oil was on the floor when Ms. Jones passed by, when in fact there was no evidence, direct or circumstantial, from which that inference could be drawn. In short, there is no evidence that Wal-Mart breached its obligation to keep a reasonable watch over its premises.
Mankey argues a number of inferences and assumptions but he offered no evidence that Wal-Mart was responsible for the motor oil being on the floor or that it knew or should have known the motor oil was there. In fact, Mr. Mankey admitted in his deposition that he did not know how much oil was on the floor, or exactly where it came from. He did not see it leaking and he did not see a Wal-Mart employee or anyone else spill the oil.
We have recognized the length of time a substance is on the floor is a key fáctor. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). The burden is on the plaintiff to show a substantial interval between the time the substance appeared on the floor and the time of the accident. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).
Robert Mankey admits there is no proof as to how long the oil had been on the floor but argues this evidence is relatively unimportant. He maintains the court should not substitute its judgment for that of the jury as to how long it took the oil to accumulate. Mankey relies upon his own testimony at trial in which he estimated that it would have taken four to five minutes for that much oil to pool on the floor. In addition, he claims that the jury could consider the fact the oil had dripped down the side of the boxes in determining how long the oil had been on the floor.
The only evidence concerning the time the oil might have been on the floor came from Ms. Jones. She testified as follows:
Q. So, based on your recollection then, how long had it been since you had been down the aisle where Mr. Mankey fell before you were aware that an accident had happened?
A. I’d say roughly five to ten minutes, because I had taken boxes back, I come out checked the, when I come back out, I checked the register and there was a customer there and I was in the process of checking this customer out at the time the lady hollered at me. (TR. 103).
Ms. Jones testified that it is doubtful that she went back up the aisle without seeing the oil, but admitted “anything was possible.” The longest period of time the oil could have been on the floor under the proof was ten minutes. We have held that an interval of almost two hours between the time a substance was placed on the floor and the time of an accident was not sufficient to establish an inference of negligence. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989); Moore v. Willis, 244 Ark. 614, 426 S.W.2d 372 (1968) Also, the fact that an employee was in the vicinity where a foreign substance was later discovered is not sufficient to raise an inference a spill was negligently overlooked. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986)(employees had been up and down the aisle for an hour and fifteen minutes before the fall and did not see the substance); Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992)(employee had gone down the aisle ten to fifteen minutes before the accident and saw no spill on the floor); Skaggs Co. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986)(employee had walked down the aisle five minutes before the occurrence and did not observe the foreign matter). Here, there was no proof the motor oil was present on the floor for anywhere near the “substantial” period of time required to justify an inference of negligence.
Giving Mankey’s evidence its highest probative value, and considering all the reasonable inferences deducible from it, the proof falls short. Mankey did not prove the motor oil was on the floor because of Wal-Mart’s negligence or that the oil had been on the floor for so long that Wal-Mart knew or should have known, it was there. Therefore, the trial court was correct in granting Wal-Mart’s motion for a directed verdict.
Affirmed.
Dudley and Corbin, JJ., not participating. | [
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Robert H. Dudley, Justice.
A confidential informant told law enforcement officers that appellant was manufacturing phenylacetone, a Schedule II controlled substance, at the residence of David and Shawna Smillie in Nevada County. Acting on that information, the officers executed an affidavit for a warrant to search the Smillie’s residence. The magistrate issued the warrant. The officers searched the house and found appellant with the equipment and chemicals used to produce phenylacetone, commonly called P2P, which is the immediate precursor to amphetamine and methamphetamine. The stench of chemicals in the equipment was strong, and some of the phenylacetone and its by-products were still warm at the time of the search. Appellant was charged with “Manufacturing or Possessing With Intent to Manufacture or Deliver a Schedule II Controlled Substance,” see Ark. Code Ann. § 5-64-401 (Supp. 1991), and with “Using or Possessing With Intent to Use Drug Paraphernalia”, see Ark. Code Ann. § 5-64-403 (1987). The jury found appellant guilty of both charges, and the trial court entered judgments of conviction for both crimes. We reverse both judgments because of trial error and remand for a new trial on both charges.
Before trial, appellant filed a motion to suppress the evidence, and in the motion asked that the State be required to disclose the name of the confidential informant. The trial court denied the motion. In a subsequent oral motion the appellant’s attorney stated that his defense would be entrapment, and, for purposes of that affirmative defense, it would be necessary for him to know the name of the confidential informant. The trial court again denied the motion to compel disclosure. At trial, after the State’s case-in-chief, appellant took the stand, and in his affirmative defense admitted that he had possessed the paraphernalia with the intent to manufacture a chemical and did, in fact, manufacture in excess of four hundred grams of the controlled substance. He then testified that the only reason he committed the crime was because Ronnie Prescott offered him $10,000.00 to manufacture an illegal chemical. He also testified that Prescott supplied the flasks, vessels, other necessary equipment, and the needed chemicals, and, in a one-hour course, showed him how to manufacture the desired chemical. Appellant admitted that he understood he was manufacturing an illegal chemical, but denied that he knew it was a Schedule II substance. He stated that he “never messed with it before and hadn’t since, and won’t ever again.” He testified that he later learned that Prescott was working for the State as an informant, and that Prescott had entrapped him so that the State would reduce some criminal charges that were pending against Prescott. In sum, appellant testified that Prescott entrapped him in order to get some charges reduced and to stay out of the penitentiary. Other witnesses, including police officers, confirmed that Prescott was cooperating with the police during the material period, gave information in some other cases, and received consideration for his cooperation in a charge that was pending against him. After this proof, appellant’s attorney moved for the trial court to compel the State to disclose whether Prescott was a confidential informer. The trial court refused to order the State to disclose whether Prescott was the confidential informant.
In an effort to prove his affirmative defense, appellant called a witness, Gary Creed, who testified that he had heard Ronnie Prescott tell appellant that he had a way for appellant to make some fast money. The State objected to the testimony, and the trial court sustained the objection on the basis of hearsay. Appellant assigns the ruling as error. The argument is well taken. A.R.E. Rule 801 (c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial. . . offered in evidence to prove the truth of the matter asserted.” Here, appellant offered the testimony of the witness to show that the statement was made to entrap appellant. It was not offered to prove truth of the statement made by Prescott, that is, that he would have, in truth, paid appellant some fast money. Since the statement was not made to prove the truth of the matter asserted and therefore was not hearsay, the ruling of the trial court was in error. In a similar case, Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978), we said that any statement made by an undercover agent to the accused, which is indicative of the fact that the agent was using persuasion to induce a normally law abiding person to deliver controlled substances, was admissible, not to show the truth of the agent’s statements, but to show that they were made and perhaps entrapped the accused. See also Wilson v. State, 261 Ark. 5, 545 S.W.2d 636 (1977). In another similar case, United States v. Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989), the Fifth Circuit Court of Appeals held that the trial court committed reversible error in refusing to allow the defendant to testify, in support of his entrapment defense, that a paid confidential informant, who did not testify at trial, consistently pressured him to secure customers for the informant’s illicit drug activities. The court held that the informant’s statements were not hearsay because they were not offered to prove the truth of the matter asserted. The court wrote: “The statements were not offered as an assertion of fact, but, rather, as the fact of an assertion.” Id. at 1137. Similarly, it has been written, “the words are offered, not for their truth, but merely to show the fact of their expression.” 4 J. Weinstein & M. Berger, Weinstein’s Evidence § 801(c)(01), at 801-93 (1993), quoting from Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L. J. 229, 233(1922). The erroneous ruling in the case at bar was critical to appellant’s affirmative defense and was prejudicial. Accordingly, we must reverse.
We address other points for the guidance of the trial court upon retrial of the case. During the cross-examination of defense witness Bailey, the prosecuting attorney asked if the witness had heard that appellant and his brother at another time and place had run an illicit drug laboratory. The witness responded that he had not heard such a statement. The prosecutor then asked the witness if he knew appellant and his brother “got caught” at such an operation. During cross-examination of another defense witness, Joe Thomas, a police official, the State was allowed to expand on the incident and was allowed to prove that the raid at which appellant “got caught” was a raid on the home of appellant’s brother where drug paraphernalia and chemicals were found and, as a result, charges were filed against appellant’s brother. At the same time, the police found some traces of marijuana and amphetamine on appellant’s wife and, as a result, charges were filed against her. Some type of charge was filed against the appellant as a result of the incident, but he was subsequently acquitted of the charge.
The trial court was faced with a situation in which appellant testified, as part of his affirmative defense, that he did not know how to manufacture drugs and had never done so either before or after his arrest. It would be a perversion of A.R.E. Rules 403 and 404(b) to hold that the State could not rebut this testimony, and we have so held. McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986). However, on retrial the State should not be allowed to introduce evidence of mere charges against appellant or other defense witnesses, and good faith on the part of the State should be required before the prosecutor is allowed to question appellant in any way about any incident of which he was acquitted.
Appellant contends that the trial court erred in refusing to compel the State to disclose the name of the confidential informer. The trial court obviously intended to give effect to the “informers’ privilege.” Under it, disclosure shall not be required of an informant’s identity where his identity is a prosecution secret, and a failure to disclose will not infringe upon the constitutional rights of the defendant. Roviaro v. United States, 353 U.S. 53 (1957). “When the disclosure of the informant’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 61-62. In determining whether the privilege shall prevail, the trial court must balance the public interest in getting needed information against the individual’s right to assert a defense. The trial court must consider the crime charged, the possible defenses, the significance of the informant’s testimony, and any “other relevant factors.” Id. at 61. The burden is upon the defendant to show that the informant’s testimony is essential to his defense. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973). Here, appellant first asked that the name of the informant be ordered disclosed in his pre-trial motion to disclose identity. He offered no evidence to show that the informant was a participant in the search or how the informant’s testimony would have aided his defense. Thus, the ruling was correct at the time. Treadway v. State, 287 Ark. 441, 700 S.W.2d 364 (1985). Much the same can be said for his first motion made during the trial. Appellant simply did not show that the name of the informant, whoever he or she might be, was essential to a fair determination of his case. However, the facts that were to be weighed by the trial court changed considerably after appellant testified that he was entrapped by Ronnie Prescott, and after appellant elicited testimony from officers that Prescott was working as an informant for the police at all material times. After this proof, appellant moved that the State be compelled to disclose if Prescott was the informant in this particular case. The trial court refused to compel the State to disclose if Prescott was the informant in this case. This ruling was in error. In weighing the relevant factors at this point in the trial, it was now public information that Prescott was an informant. This information was no longer a prosecution secret. The State had no real interest in protecting the disclosure of Prescott’s identity, and, if the State had been compelled to state whether Prescott was the informant in this case, it might have been a substantial factor in appellant’s affirmative defense. In sum, the trial court’s rulings regarding disclosure of whomever might have been the informant were correct. However, the ruling was in error when appellant’s counsel limited the request to disclosure of whether Ronnie Prescott was the informant and it had already been shown that disclosure might be a substantial factor in his defense.
Prior to trial, appellant filed a motion requesting the trial court to dismiss one of the charges because “to bring defendant to trial on both charges constitutes double jeopardy.” During trial he orally made the same motion. Appellant now argues that the trial court erred in refusing to dismiss one of the charges because both convictions arose out of the same continuing course of conduct. He contends that his use of drug paraphernalia and manufacturing a controlled substance are one continuous offense that constitutes only one offense. The ruling of the trial court was eminently correct as the issue was presented.
Appellant argues that the trial court’s ruling was in error because Ark. Code Ann. § 5-1-110(a)(5) (1987) provides that a defendant may not be convicted of more than one offense if the defendant’s conduct constituted an offense defined as a continuing course of conduct, and the defendant’s course of conduct was uninterrupted. The argument overlooks basic elements of the statute. The statute begins, “When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not be convicted, however of more than one offense. . . .” Ark. Code Ann. § 5-1-110(a) (1987) (emphasis added). We have repeatedly interpreted this statute to mean that a defendant may be prosecuted for more than one offense, but, under specified circumstances, a judgment of conviction may only be entered for one of the offenses. Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). Perhaps the best example of the way the statute is intended to work is in the case where a prosecutor is entitled to go to the jury and ask for conviction on the greater or the lesser offense, and the jury might find a defendant guilty of both the lesser included offense and the greater offense. Under the statute, the trial court should enter the judgment of conviction only for the greater conviction. The purpose of the statute in such a case is to allow a conviction of the lesser included offense when the accused is not convicted of the greater offense, but the trial court is clearly directed to allow prosecution on each charge. Section 5-1-110 of the Arkansas Code Annotated works in the very same way with a continuing offense. The original commentary to subsection (a)(5) provides that it “prohibits multiple convictions for an uninterrupted course of conduct that violates a statute defining a continuing offense.” (Emphasis supplied.) The commentary then gives nonsupport or promoting prostitution as examples of continuing offenses. See 1988 Supp. Original Commentary to Ark. Code Ann. § 5-1-110 at 496.
Upon retrial, if appellant is again convicted on both charges, appellant will likely move to limit the judgment of conviction to one charge. Only at that time will the trial court be required to determine whether convictions can be entered in both cases.
Appellant makes other arguments that we do not address as they are either procedurally barred or else they are wholly without merit, and a discussion of them will not be of assistance to the trial court upon retrial.
Reversed and remanded.
Hays, J., dissents.
Brown, J., concurs. | [
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Steele Hays, Justice.
Boyd and Viva Gazaway, appellants, brought this action to challenge a property tax assessment by the Greene County Equalization Board, appellee, because the assessment was not determined by the current use of the property. We find no error in the method used in making the assessment.
The Gazaways own real property in Greene County. The property lies within a commercial zone, but only part of it is used for commercial purposes. The other part consists of a residential duplex rented out by appellants. The Greene County Tax Assessor originally appraised the property pursuant to Ark. Code Ann. § 26-26-1202 (1987), at $380,100.00, resulting in a taxable. valuation of $76,020.00 and a tax liability of $2,296.58 for 1990. The basis of the valuation was comparable sales of nearby commercial properties.
On appeal to the Greene County Equalization Board, the Board lowered the appraised value to $311,625.00, thereby reducing the taxable evaluation to $62,325.00 and the tax to $1,882.62. The Gazaways appealed to the Greene County Court and when the Board’s decision was upheld, they appealed to the circuit court, arguing that the property’s current use must be considered. After a bench trial, the trial court affirmed the Board’s appraisal.
The only witness to testify was Jane Wheeler, an appraiser with the Greene County Tax Assessor’s Office. She testified that in evaluating appellants’ property she used only comparable sales of commercial property within the immediate area of the commercial zone where the property was located and did not use residential sales. Appellants contended the residential property should have been evaluated by comparable residential sales in conformity with the present use of the property. They argued that comparable sales of commercial properties should not have been used because that would only project the property’s value for future use and not its current, actual use. The trial court affirmed the appraisal and appellants bring this appeal contending, as in the trial court, that current use was not properly considered in the assessment.
We agree that current use is a factor to be considered in making an assessment, but it is only one factor. In Public Service Comm’n v. Pulaski County Equalization Board, 266 Ark. 64, 582 S.W.2d 942 (1979), we held unconstitutional statutes which based assessments only on use. We held that under Ark. Const. art. 16, § 5, which provided for uniformity of taxes and valuation based on “value,” “value” means true market value and property should be so assessed to insure uniformity of taxation. We held unconstitutional statutory methods enacted by the legislature which provided for valuation only on the basis of “current use,” and not true market value. We also discussed what factors should be used in determining the true market value:
In the determination of the market value of a given piece of property, necessarily a great many things are to be taken into account. . . . It is proper always in determining that question to take into account the character of the land; the uses to which it may be put; the character of the soil; the timber growing on the surface of the land as well as the ores hidden beneath; the accessibility of the land; its development; its proximity to other lands which have been so developed as to add to its own value; and the quantity of other lands of a similar character adjacent to it which would be calculated to make it more attractive to prospective purchasers, together with any other fact or circumstance which affects the property’s value. But all of these questions are to be considered for the purpose at least of ascertaining the market value of the tract in question, and that is the value which must be adopted for the purposes of assessment when it has been ascertained. [Emphasis in original.]
While “use” is mentioned, it is only one of several factors to be considered, and even then, “use” is not restricted to current use, but rather to “the uses to which it may be put.” To the same effect see Jim Paws, Inc. v. Equalization Board of Garland County, 289 Ark. 113, 710 S.W.2d 197 (1986). Therefore, under Ark. Code Ann. § 26-26-1202 (1987), which calls for the “true market value in money,” the statute must be read in light of our interpretation of that term.
Ms. Wheeler testified that appellants’ property was completely surrounded by commercial property and her primary method of evaluation was the comparison of sales of commercial property. She discussed different factors affecting the evaluation of each piece of property she priced, including: access to more than one street, frontage on a commercial thoroughfare, improvements on the land, the development in the surrounding area, and the potential for appreciation or depreciation because of such surroundings. She stated she did not evaluate property at its highest and best use because ultimately the test is the existing market value. For comparable businesses containing improvements in the surrounding commercial zone, Wheeler’s appraisal per square foot ranged from $3.33 to $5.43. On the property in question she assessed the part used commercially at $2.41 per square foot and the part used residentially at $3.00 per square foot.
There were evidently no residences in the zoned commercial area other than appellants’ duplex. Wheeler testified there was a residence nearby which she valued at $2.41 per square foot, but she excluded it from her calculations because it was located across the street from the commercial zone in a residential area where no commercial enterprise could be located.
Under the dictates of Arkansas Public Service v. Pulaski Co. Equalization Board, supra, using only a property’s current use will not yield a true market value as required by Ark. Const. art. 16, § 5. Rather, all the factors listed in that opinion should be considered. While current use is one factor, it must be considered along with all other factors, and only for the ultimate purpose of obtaining the market value. Where, as here, the residential use does not reflect its true market value because of its situs in a commercial zone, current usage will not greatly influence actual market value. That was the thrust of Ms. Wheeler’s testimony as to this property’s value, and that was the finding of the trial court.
Appellants’ other arguments are unpersuasive. The first is based on Ark. Code Ann. § 26-26-407(a) and (c) (1987). Section -407(a) provides that residential property used solely as the principal place of residence of the owner shall be valued as a residence until the property ceases to be used for residential purposes. Section -407(c) provides that vacant residential and commercial land shall be “valued at its typical use.” Appellants reason that if residential property of the owner and vacant residential property are to be assessed according to its use, so should residential rental property. We cannot sustain the argument.
The first section of subchapter Ark. Code Ann. § 26-26-400 (1987), i.e., § 26-26-401, determines its application:
The provisions of this subchapter relative to the adjustment or rollback of millage levied for ad valorem tax purposes shall be applicable only where there is a countywide or statewide reappraisal of property:
(1) Pursuant to court order; or
(2) Pursuant to directive of law enacted by the General Assembly; or
(3) When the reappraisal is initialed by the assessor, the county equalization board, by directive of the quorum court or upon request of one (1) or more taxing units of a county, and is determined and certified by the Assessment Coordination Division of the Arkansas Public Service Commission as constituting a comprehensive countywide reappraisal; or
(4) When ordered by or implemented by a county pursuant to a directive of the division or its successor agency.
Thus, the provisions of Subchapter 4 apply only to a rollback of millage levied where there has been a countywide or statewide reappraisal of property pursuant to the four factors listed in the statute. Since there is no evidence the appraisal in this case occurred as a result of a county or statewide reappraisal of property by one of the four listed methods, § -407 does not apply.
A similar argument is based on Ark. Const. art. 16, § 15, which provides:
(a) Residential property used solely as the principal place of residence of the owner thereof shall be assessed in accordance with its value as a residence, so long as said property is used as the principal place of residence of the owner thereof, and shall not be assessed in accordance with some other method of valuation until said property ceases to be used for such residential purpose.
(b) Agricultural land, pasture land, timber land, residential and commercial land, excluding structures thereon, used primarily as such, shall be valued for taxation purposes under the provisions of Section 5 of this Article, upon the basis of its agricultural, pasture, timber, residential, or commercial productivity or use, and when so valued, such land shall be assessed at the same percentum of value and taxed at the same rate as other property subject to ad valorem taxes.
(c) The General Assembly shall enact laws providing for the administration and enforcement of this Section and for the imposition of penalties for violations of this Section, or statutes enacted pursuant thereto. [Added by Const. Amend. 59.]
This segment of Amendment 59 conduces further argument in the same vein, i.e., because section (a) provides that residential property used solely as the residence of the owner shall be valued as such until it ceases to be residential property, and section (b) provides that land, excluding the structures thereon, shall be based upon use, then by implication, residential property, regardless of who resides there, should be valued according to its use.
Section 15 is new and we have not interpreted its meaning and application. For purposes of addressing the argument it will suffice to point out that appellants’ interpretation would require an implication that another category of property is included in
§ 15. However, the rules of construction do not permit such implication. The rules governing construction of constitutional amendments are the same as those governing statutes. Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965). The phrase expressio unius est exclusio alterius is a fundamental principle of statutory construction that the express designation of one thing may properly be construed to mean the exclusion of another. Chem-Ash, Inc. v. Arkansas Power & Light Co., 296 Ark. 83, 751 S.W.2d 353 (1988); Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1946). Reading § 15 and Amendment 59 in their entirety, this rule of construction refutes appellants’ argument.
In Tuthill v. Arkansas County Equalization Board, 303 Ark. 387, 797 S.W.2d 439 (1990), we noted that a challenger to a tax assessment has the burden of showing that the assessment is “manifestly excessive or clearly erroneous or confiscatory.” And in Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992), we wrote:
We will reverse property assessments “only in the most exceptional cases,” however, and the burden of proof is on the protestant to show that the assessment is manifestly excessive, or clearly erroneous or confiscatory. Also, in reviewing a finding of fact by a trial judge, we view the evidence and all reasonable inferences therefrom, in the light most favorable to the appellee. [Cites omitted.]
Under the circumstances of this case, we do not find error in the trial court’s decision and therefore cannot find the assessment is clearly erroneous.
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Jack Holt, Jr., Chief Justice.
This case is an appeal from the denial of a petition for relief filed pursuant to Ark. R. Crim. P. 37. We affirm.
Appellant, John W. Parks, pleaded guilty to aggravated robbery and theft of property with a value of $2500 or more. He was sentenced to twenty-five years, with eight years suspended, on the aggravated robbery charge and seventeen years on the theft of property charge, the sentences to run concurrently. Subsequently, Parks filed a Rule 37 petition alleging that his pleas were made without effective assistance of counsel.
An evidentiary hearing was held. During the hearing, counsel for Parks orally amended his petition to include an allegation that his pleas should be set aside because the court failed to ask him whether there was a factual basis for the pleas and because there was no factual basis for the pleas. The court denied Parks’ petition, finding that counsel was effective and that there was a factual basis for his pleas.
Parks contends that he entered his pleas of guilty without effective assistance of counsel in that counsel did not (1) file a motion to suppress a statement made by him to police, which he alleges was given after he was promised leniency; (2) file a motion for discovery; (3) advise him or discuss potential witnesses with him; (4) prepare him for trial; (5) investigate the case; and (6) explore the possibility of either an insanity defense or the possibility of using his mental condition as a mitigating factor.
A petitioner has the burden of overcoming the strong presumption that his counsel was competent. Rheuark v. State, 299 Ark. 243, 771 S.W.2d 777 (1989); Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). To prove ineffective assistance of counsel, a petitioner must show that (1) his attorney made so serious an error that he was not functioning as the “counsel” guaranteed by the sixth amendment and that (2) his counsel’s deficient performance was so prejudicial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984).
The Strickland standard has been made applicable to challenges to guilty pleas based upon ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52 (1985). In order to satisfy the prejudice requirement of Strickland, a defendant who pleads guilty must demonstrate but for counsel’s errors, he would not have done so. Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988). As this court stated in Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984), “A defendant whose conviction is based upon a plea of guilty normally will have difficulty proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.”
Parks has shown neither serious errors or that he would not have pleaded guilty but for counsel’s alleged errors. In fact, he concedes that he cannot “pinpoint” one error that was definitely prejudicial, but asserts that his counsel’s overall performance was ineffective. We do not recognize cumulative error in allegations of ineffective assistance of counsel. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).
In sum, the appellant has failed to meet the heavy burden of proving ineffective assistance of counsel. Strickland, supra.
Parks also contends that the trial court erred in failing to question him as to whether there was a factual basis for his pleas; and in not establishing a factual basis for his pleas because (1) the court was given the incorrect information that the victim of the robbery charge and the theft of property charge was the same person and (2) because the State did not prove that the value of the stolen automobile was $2500 or more in support of the charge of theft of property.
Ark. R. Crim. P. 24.6 provides that “[t]he court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish a factual basis for the plea.”
A factual basis requires the existence of sufficient facts from which a judge may fairly conclude that a defendant could be convicted if he stood trial. Furr, supra. See also Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987). The purpose of the factual basis requirement is to prevent an accused from pleading guilty on the mistaken assumption that his conduct was unlawful when it was not. Furr, supra.
A factual basis is most commonly established by inquiry of the accused and of the prosecutor and by an examination of the presentence report. Id. However, Rule 24.6 does not require that the factual basis come from the accused himself or that he be addressed personally. Ashby v. State, 297 Ark. 315, 761 S.W.2d 912 (1988); Flaherty v. State, 297 Ark. 198, 761 S.W.2d 167 (1988). Moreover, the factual basis can be supplied at a Rule 37 hearing. Knee v. State, 297 Ark. 346, 760 S.W.2d 874 (1988).
In Smith, supra, we held that a factual basis was established by the prosecutor’s recital of the underlying facts of the crime with which the defendant was charged and the defendant’s admission of guilt.
At the plea hearing in the case at bar, the following exchange occurred:
The Court: You’re charged with Aggravated Robbery, a Class Y Felony, and Theft of Property, a Class B Felony:
That on the 7th day of December 1987, you did unlawfully and feloniously and with the purpose of committing a theft and resisting apprehension immediately thereafter, did employ or threaten to employ physical force while armed with a deadly weapon.
Count II: Did unlawfully and feloniously take unauthorized control over property of more than twenty-five hundred dollars, belonging to another, with the purpose to deprive the true owner of the value thereof. Do you understand both charges?
Mr. Parks: Yes.
The Court: How do you plead to the charge of Aggravated Robbery, a Class Y Felony, and Theft of Property, a Class B Felony, guilty or not guilty?
Mr. Parks: Guilty.
The Court: Factual basis for the plea on both counts, Mr. Marquette (defense counsel)?
Mr. Marquette: Yes, Your Honor.
Mr. Evitts (prosecutor): Yes, there is, Your Honor. On December 7th, 1987, Mr. Parks entered a cafe at Natural Dam, Arkansas, and at shotgun point took a sum of money and some cigarettes from the owners of the cafe and subsequently left the cafe and took an automobile, which was parked in front of the cafe, and drove oif with it. He was apprehended some hours later.
The Court: Are you pleading guilty because you’re guilty as charged?
Parks: Yes.
At the Rule 37 hearing, one of the victims identified Parks as the person who robbed him at his cafe and stole a car belonging to a customer. Parks’ confession was also admitted into evidence.
We quickly dispose of Parks’ first contention that there was no factual basis in that the trial court was given the incorrect information that the victim of the robbery charge and the theft of property charge was the same person. At the Rule 37 hearing, Ransford Hopkins, the owner of the cafe that Parks robbed, testified that he was the victim of the aggravated robbery and that a customer was the victim of the theft of property. This cured any deficiency at the plea hearing.
Parks’ second assertion is that there was no factual basis established for his plea to theft of property in that the State did not prove that the value of the automobile stolen was $2500 or more. It has no merit. Granted, there was no proof by the State as to the automobile’s value. However, the State did not have an obligation to prove the automobile’s value or any other specific element of the oifense charged. What was required was that the underlying facts of the crime be recited and that the defendant admit his guilt. Smith, supra.
The trial judge advised Parks at the plea hearing that he was charged with theft of property with a value over $2500, and Parks indicated that he understood the charge and admitted that he was guilty. Both his counsel and the prosecuting attorney stated to the court that there was a factual basis for the plea, which was recited into the record by the prosecuting attorney. Parks again admitted he was guilty as charged.
At the Rule 37 hearing, Ransford Hopkins identified Parks as the person who robbed him and stole a customer’s automobile, and Parks’ confession was admitted into evidence. Moreover, neither Parks nor his counsel alleged below or allege on appeal that the value of the automobile was less than $2500. They merely describe the automobile as being in poor condition.
Under all of the circumstances, we find that a sufficient factual basis was established. See Smith, supra; Gibson v. State, 301 Ark. 44, 781 S.W.2d 469 (1989); Furr, supra; Ashby, supra.
Affirmed.
Dudley and Newbern, JJ., concur in part and dissent in part.
Price, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
This appeal focuses on a question concerning disqualification of the presiding chancellor. We find that she should have recused from this case; thus, we reverse and remand.
The appellees, four adults, individually and as parents and next friends of six minors, filed this class action suit in equity pursuant to 42 U.S.C. § 1983 (1982) on behalf of:
Themselves and all parents, guardians, and custodians whose children have been found by a court of competent jurisdiction to be dependent/neglected or abused and have been placed in the custody of a relative or other person or institution, but who have not been placed in a state-approved foster care program, and who are not receiving the statutorily mandated services to reunite the family.
The appellees alleged below that appellants, the Department of Human Services and Walt Patterson, Director of the Department, had failed to provide the same reunification services to the members of the class that are provided to parents, guardians, or custodians and their children where the children have been placed in state-approved foster care, thereby violating the Arkansas Juvenile Code of 1975 [Ark. Code Ann. §§ 9-27-301 — 9-27-367 (1987)] and the due process and equal protection clauses of the fourteenth amendment. They asked for declaratory relief stating that appellants’ failure to provide them with reunification services mandated by the Juvenile Code violated their statutory and constitutional rights and for injunctive relief requiring the appellants to provide services and to amend their policies.
When this action was filed, it was assigned to the First Division of the Pulaski County Chancery Court. The case was transferred to the Third Division to be heard by the Honorable Judith Rogers. Shortly thereafter, appellants filed a motion for an order of recusal asking that the chancellor disqualify herself. The motion was denied.
After numerous hearings and several amendments to the pleadings, an agreement was reached by the parties as to a new definition of the class, and the chancellor entered an order accordingly. However, the chancellor, in her decision on the merits, established a new class as follows:
All parents, guardians, or custodians and their children who, since July 1, 1985, have been involved in judicial proceedings [where the Department of Human Services or its agents (including SCAN) has been a party] in which a finding of dependency/neglect or sexual abuse has been entered and has resulted in placement of the child(ren) with a relative, or other person or institution, and who are not receiving or will not receive in the future the same services to reunite the family which are being provided to families and their children who have been placed in a state-approved foster care, and who are not receiving permanency planning service and periodic reviews in those situations where reunification is not possible.
In this decision, the chancellor found that the appellees’ equal protection, due process, and statutory claims had merit and ordered the appellants to provide the same services to class members as are provided to families and children where the children have been placed in state-approved foster care and to amend their policies to conform to the order of the court. In addition, the chancellor ordered the appellants to establish an implementation process for reunification services. From this order, appellants appeal.
For reversal, appellants contend that the chancellor erred in refusing to recuse. We agree. Appellants make six additional arguments on appeal; however, we do not address them inasmuch as the issues in the case may be different on remand.
“A judge must avoid impropriety and appearance of impropriety.” Arkansas Code of Judicial Conduct Commentary to Canon 2 (1988). Accordingly, “[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . .” Arkansas Code of Judicial Conduct Canon 3(C)(1) (1988).
Where a judge exhibits bias or the appearance of bias, this court will reverse. Burrows v. City of Forrest City, 260 Ark. 712, 543 S.W.2d 488 (1976); Farley v. Jester, 257 Ark. 686, 520 S.W.2d 200 (1975). “[T]he proper administration of the law requires not only that judges refrain from actual bias, but also that they avoid all appearances of unfairness.” Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978).
In Farley, supra, the chancellor made a statement during trial, which reasonably could have been understood by the litigants as an implication that the testimony of one witness would receive more consideration than the testimony of other witnesses. In holding that the chancellor should have disqualified himself, we stated:
[C]ourt proceedings must not only be fair and impartial — they must appear to be fair and impartial. This factor is mentioned in a Comment found in 71 Michigan Law Review 538, entitled, “Disqualification of Interest of Lower Federal Court Judges: 28 U.S.C. § 455”, as follows:
“Another factor to be considered in a judge’s decision to disqualify is the contention that the appearance of impartiality is as important, if not more so, than actual impartiality. In 1952, Justice Frankfurter explained his disqualification in a case by stating that ‘justice should reasonably appear to be disinterested as well as be so in fact.’. . . More recently the Court set aside an arbitration award and stated that ‘(a)ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.’ ”
Likewise, in the Code of Judicial Conduct, prepared by the Special Committee on Standards of Judicial Conduct of the American Bar Association, and adopted by this court by Per Curiam Order of November 5,1973, the Commentary to Canon 2 points out that not only must a judge avoid all impropriety, but must avoid also any appearance of impropriety.
In appellants’ motion to recuse and brief in support thereof, they alleged that Chancellor Rogers should recuse inasmuch as she is an active member of the Permanency Planning Task Force sponsored by the National Council of Juvenile and Family Court Judges, “an advocacy group which has taken public positions with respect to the policy questions which are subject of this litigation” and supported and participated in the drafting of Act 868 of 1985. They also claimed that she should recuse because she has provided services to the Juvenile Justice Commission and, as a result, “will participate in proposals regarding a number of policy questions which could be a matter of litigation in this case.”
In response, appellees admitted the chancellor’s membership in the Permanency Planning Task Force, but denied that the Task Force supported and drafted Act 868 of 1985.
Chancellor Rogers, in her order denying the appellants’ motion for recusal, acknowledged membership on the Permanency Planning Task Force and the Juvenile Justice Commission, and noted that the Task Force is not an advocacy group; that it has not issued any advisory opinions dealing with the relief sought by the plaintiffs; that the Juvenile Justice Commission has not discussed the type of case presently involved; that she possesses no knowledge of disputed evidentiary facts to warrant recusal; and that her membership on the committees in question does not affect her impartiality.
The chancellor’s membership on the Juvenile Justice Commission and the Permanency Planning Task Force does not automatically require disqualification, nor do we find that any bias necessarily resulted from the chancellor’s membership and participation in these organizations. However, her identification with these organizations, coupled with her conduct and comments during pretrial proceedings and at trial, exhibited the appearance of bias. In short, she should have recused.
During a hearing on a motion for class certification, the chancellor, in response to cross-examination of appellees’ expert witness, Amy Rossi, concerning Rossi’s position on whether home placement should trigger intervention by the state, remarked: “I want to make a statement, since I’ve looked at the definition of an expert, I’m going to say I’m pretty much an expert in this area. . . .”
Later in this hearing, the following exchange between the chancellor and appellees’ expert witness, JoAnn Nash, took place during direct examination:
Mr. Stockley (appellees’ counsel): Ms. Nash, were you employed by me to review some case files?
Ms. Nash: Yes.
The Court: You say, “Unlike foster case, it was frequently noted in cases where children were placed with relatives that it was the agency’s goal to close the case without attempts for reunification and without permanency planning for the child.”
Ms. Nash: Yes, Judge Rogers.
The Court: Did it say on it, “the goal is to close without attempts for” — or what was the wording that you got that?
Ms. Nash: No, the wording would say that it was the agency’s goal to close the case due to relative placement.
Ms. Nash: Can I refer to a particular example —
The Court: Sure. Well, pull one out that says, “even in those instances when it was the opinion of the agency that reunification was not possible and/or desirable, no permanency planning assistance was provided even though requested by the relative.” Do you have one of those?
Ms. Nash: Yes.
The Court: Good, let’s pull that one.
From this scenario it is obvious to this court that the chancellor, during the early stages of the trial proceedings, communicated the appearance of bias to the litigants by declaring that she was an expert and then directing the appellees’ witness to furnish the court with certain types of case files that would bolster the appellees’ allegations.
In examining another pretrial proceeding on appellants’ motion to dismiss, we find further comments by the chancellor that provided a basis for the litigants to reasonably question her disinterest:
Mr. Stockley: Even — if I could make one comment because I need to be clear on this myself. Even if all these cases got resolved before trial date, we still have a class that has been certified that is entitled to —
The Court: Some relief.
Mr. Stockley: — to the relief or no relief. I mean —
The Court: Yeah, I agree with that.
Ms. Nye (appellants’ counsel): Your honor, I disagree with that. If there — there’s a continuing responsibility to keep the class definition alive and if at a point in time we come to trial —
The Court: Well now, wait a second, wait a second. Suppose you go ahead and deliver services to all these people but we haven’t changed the system, which is really what the plaintiffs are caring about, and which is what this court cares about ....
Ms. Nye: Certainly and that is to my point on the declaratory aspect of it, being a legal issue with respect to the treatment of the remaining class definition.
The Court: It’s certainly a legal issue as respect to whether or not people get damages and their 1983 things, but whether or not we go ahead and set guidelines for future action because we have seen it happen over and over and over again by members of a class, I think that’s a little different. Then I think the court can go ahead and do that and the court’s going to do that. I know it’s very difficult but I’m going to do it. We may sit here between now and the 29th or 30th, but we’re going to get — we’re going to go ahead and see that not only these individually named plaintiffs are given services, but that we set up some sort of system, by agreement or court order which is then appealable, to say that we will not do this to children. . . .
The mind-set of the chancellor is apparent to us. By commenting, “Suppose you [appellants] go ahead and deliver services to all these people, which is really what the plaintiffs [appellees] are caring about, and what this court cares about . . . ,” the chancellor has declared before trial that the appellees are entitled to receive services before she had heard any evidence on the merits concerning their entitlement to services. She further exhibited the appearance of bias when she stated that “we’re going to go ahead and see not only these individually named plaintiffs are given services, but that we set up some sort of system, by agreement or court order. . . .” [Emphasis added.]
The chancellor’s involvement had obviously gone beyond objectivity, and the court seemed to be announcing the outcome of the case before it was tried. The tone of the court’s remarks was administrative in nature and not judicial.
Likewise, the chancellor’s remarks during trial provided cause for the litigants to reasonably question her impartiality. For example, during the testimony of Ms. Rossi, the first witness called by the appellees, the chancellor commented, “— you know, I don’t think Ms. Rossi will have any real trouble finding a case or you [Mr. Stockley] should have — be able to give it to her and and say, “Was this one of the cases you found and on that basis did you go ahead? Do you remember any case that you found that said it didn’t provide services, could you go through your cases and find it?”
In addition, the chancellor, in response to a request by one of the attorneys, stated: “Yes you may inquire. Counsel if you think that my patience is short, it is not because my patience is short on this particular case, it is because I have been dealing with this system for eleven years and although I do see an improvement, I do not see enough of an improvement. . . .” [Emphasis added.] Later, the chancellor expressed appreciation of appellee’s witness, Ms. Nash, acknowledging that Nash’s testimony made it easier for her [the chancellor] to “make some sense out of what I wanted to do . . . .” [Emphasis added.]
In the chancellor’s findings of fact and conclusions of law, she gave effect to her earlier remarks by ordering appellants to provide services to the appellees and to change their system by amending their policies to conform to her order.
Of course, a judge trying a case without a jury may develop “bias” as the trial progresses, and that “bias” ultimately may result in the court’s judgment. It is, however, the communication of that bias at inappropriate times and in inappropriate ways that will cause us to reverse. That is what has happened in this case. While we suggest no knowing violation or intentional misconduct on the part of the chancellor, we reverse this decision because it was so tainted by the appearance of prejudgment.
As Justice Black stated for United States Supreme Court in In Re Murchison, 349 U.S. 133 (1955), “[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ”
Reversed and Remanded.
Hays, J., dissents.
Glaze, J., not participating. | [
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Robert H. Dudley, Justice.
The appellant, an habitual offender, was convicted of aggravated robbery in 1981 and sentenced to life imprisonment. We affirmed. Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1982). Since then appellant has filed numerous post-conviction motions in state and federal courts. In this one he argued below that the trial court applied the wrong procedure in his 1981 trial in determining the number of prior felony convictions in sentencing him. He concludes that his “illegal sentence” must be set aside. The trial court in this case correctly denied relief.
Ark. Code Ann. § 16-90-111 (1987) provides that a circuit court may correct an illegal sentence at any time, and may correct a sentence that is imposed in an illegal manner within 120 days after the sentence is imposed or within 120 days after the case is affirmed or dismissed on appeal. An illegal sentence is a sentence that is illegal on its face. Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). The sentence in this case is not illegal on its face. Accordingly, a motion to correct the sentence had to be filed within 120 days after the judgment of conviction was affirmed on appeal. The appellant filed his petition in this case over eight (8) years after his case was affirmed on appeal. It was not timely, and the trial court correctly denied relief.
Affirmed.
Price, J., not participating. | [
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Steele Hays, Justice.
This is an appeal from the denial of a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37. The appellant raises three points for reversal: (1) ineffective assistance of counsel; (2) no factual basis for the guilty plea; and (3) failure of the state to adhere to its promise to allow the appellant to serve his time in Oklahoma. We find no merit in these arguments.
The appellant, Steve Gibson, and a co-defendant, Carlos Humphrey, went to a convenience store and service station at about 3:30 a.m. on June 6, 1986. The record reveals that the appellant stayed outside near the gasoline pumps, allegedly for the purpose of filling a small container with gasoline to prime the fuel pump on a stalled automobile. Humphrey went inside and attempted to buy beer. Upon being refused because of the late hour, he pulled a handgun, saying “I’ll take the money instead,” and robbed the two employees.
During the time Humphrey was inside the store, a witness sitting in a parked truck (a Mr. Barnard) observed the appellant about thirty feet from the store window appearing to be looking in. Two other persons, co-defendants Liles and Yendell, had remained in an automobile a short distance from the convenience store. When one of the clerks shouted for the police, appellant and Humphrey broke into a run and were seen getting into an automobile which was waiting with lights off and motor running. All four were arrested several hours later and charged with aggravated robbery. The appellant and Humphrey were also charged as felons in possession of firearms, with theft of property and with being habitual criminals.
The co-defendants, Liles and Yendell, were handled separately by the state. Yendell was released on bond and disappeared. Liles obtained the services of private counsel and received a suspended sentence. The public defender was appointed to represent the appellant and Humphrey.
The appellant insisted that he did not know that Humphrey was going to rob the store or that he had a gun in his possession. Humphrey corroborated the appellant’s version of the facts. The victims had identified Humphrey as the person who held the gun on them and robbed them. On the other hand, there was no positive identification of appellant except that appellant was wearing a green flannel shirt when arrested and the individual who waited outside near the gas pumps was described as wearing a green shirt.
Defense counsel moved for a severance based upon the state’s intention to introduce statements Humphrey was alleged to have made to a third party which incriminated appellant as well as himself. At the close of a hearing on the severance motion the court granted severance and with that, the state announced that it would not offer the incriminating statements. Whether the order for severance was then vacated is not clear, as the state and the defendants entered into plea agreements and pre-trial proceedings were terminated.
On November 13, 1986, Humphrey and the appellant entered pleas of guilty. The appellant was sentenced to twenty-five years on the aggravated robbery charge, with five years suspended. He received six years, to run concurrently, on the felon in possession charge. A charge of theft was dismissed. Humphrey was given thirty-two and one-half years for the aggravated robbery and six years on the felon in possession conviction, to run concurrently with the aggravated robbery charge, and both to run concurrently with any Oklahoma sentence.
Appellant contends no factual basis for his guilty pleas was established as required by A.R.Cr.P. Rule 24.6. He cites only McDaniel v. State, 288 Ark. 629,708 S.W.2d 613 (1986), where we held that the court must ask the defendant directly if he is pleading guilty because he is guilty. But we have held several times since McDaniel that a factual basis is not so narrowly defined. See Snellgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987); Furr v. State, 297 Ark. 232, 761 S.W.2d 1650 (1980). Moreover, the record of the guilty plea hearing establishes clearly that the trial court meticulously complied with Rule 24.6. He asked defense counsel, the deputy prosecutor, and both appellant and Humphrey in turn if a factual basis existed and obtained a positive response from each (quoting from page 95 of the record):
THE COURT: Mr. Gibson, is there a factual basis for your pleas in these cases?
MR. DEFENDANT GIBSON: Sir?
THE COURT: Is there a factual basis for your pleas of guilty in these cases?
MR. DEFENDANT GIBSON: I plead guilty, yes.
THE COURT: I asked you if there was a factual basis for it. That means do you feel that the jury could find you guilty if all this evidence was presented against you?
MR. DEFENDANT GIBSON: I believe it’s possible, yes.
THE COURT: Mr. Humphrey?
[MR. DEFENDANT HUMPHREY]: I believe it’s possible.
THE COURT: Well, do you want to withdraw your pleas of guilty at this time, Mr. Gibson?
MR. DEFENDANT GIBSON: No, sir.
THE COURT: Do you want to go forward with this, Mr. Gibson?
MR. DEFENDANT GIBSON: Yes.
THE COURT: Mr. Humphrey?
MR. DEFENDANT HUMPHREY: Yes.
Even if a factual basis had been wanting at the guilty plea hearing, it was adequately supplied by the testimony of Mr. Barnard at the Rule 37 hearing, which is sufficient. Furr v. State, supra. Appellant’s undisputed presence outside the gas station during the robbery, his running with Humphrey to the waiting car, and his giving a false name and other false information to the police at the time of and following his arrest are sufficient to establish a factual basis.
Turning to the contention that defense counsel was ineffective because there was a conflict of interest between Humphrey and appellant, in Burger v. Kemp, 483 U.S. 776 (1987) , it was held that one attorney may be appointed to represent two or more defendants without such representation constituting a per se violation of the Sixth Amendment right to effective assistance of counsel. In order to prevail on such a contention, the defendant must demonstrate that counsel actively represented conflicting interests which adversely affected counsel’s performance. Ingle v. State, 294 Ark. 353, 742 S.W.2d 939 (1988) . Appellant has made no such showing. The public defender in this case was an attorney with eleven years experience in the defense of criminal cases. He testified that there was no conflict between Humphrey’s defense and appellant’s defense, that Humphrey intended to testify that he had no prior intent to rob the store but when the clerks refused to sell him beer he drew his gun and robbed them on sudden impluse. Humphrey’s proposed testimony was that appellant did not participate in a robbery and did not even know Humphrey was armed. Appellant’s testimony was expected to coincide entirely with Humphrey’s. Thus, defense counsel testified that the two versions, rather than being in conflict, were entirely consistent. The trial court’s findings accepted that testimony as credible.
In Holloway v. Arkansas, 435 U.S. 475 (1978), the Supreme Court recognized that defense counsel “is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.”
Nor does the record otherwise support an inference of ineffective assistance of counsel. The public defender was neither indifferent nor ineffectual. The plea agreements are some indication of counsel’s effectiveness. The defendants were charged as habitual offenders with aggravated robbery, felon in possession of a firearm and theft. The state initially offered only a life sentence to Humphrey and 45 years with 5 years suspended to appellant but defense counsel negotiated decidedly more favorable terms: the aggravated robbery was reduced to robbery, the felon in possession sentence was merged with the robbery and the theft charge was dismissed. Humphrey agreed to plead guilty to aggravated robbery for a recommended sentence of 32.5 years with 5 years suspended. Appellant’s plea was based on a recommended sentence of 20 years with 5 suspended. Humphrey testified at the Rule 37 hearing that he had expected both he and Gibson would receive life sentences.
Finally, appellant maintains the state breached a promise to allow him to serve his time in Oklahoma where he was subject to a lengthy sentence. The state contends that there was no such agreement. The deputy prosecutor, testifying at the Rule 37 hearing, said that when the plea bargaining reached its final stages, with the trial imminent, he went to the jail to talk to Humphrey and the appellant at the request of, and accompanied by, defense counsel. He said the defendants tried to negotiate for shorter sentences based on family circumstances and the like:
... I can’t really remember exactly what the reason was, I told Mr. Settle [defense counsel] and I told them I was not coming off the time at all, and then they discussed well, what if we serve it in Oklahoma. I said I don’t care where you serve the time, but I want you to be — to understand that I have nothing to do with you serving anything, anywhere, other than in the State of Arkansas.
Q: Okay. Well, now you just heard the testimony of Mr. Gibson, he said you specifically told him you can serve your time in Oklahoma.
A: That’s a bald-faced lie.
Q: You never told him that?
A: I never told him anything like that. I told him that if there was some mechanism available in the State of Arkansas, where he could go to the Department of Correction and he could file a petition with the State of Oklahoma and Oklahoma would accept him back, that the State of Arkansas, as far as my office was concerned, would not resist any action on its part to have him transferred to serve his time.
Nor does the plea agreement provide support for this contention. At the plea hearing the only discussion concerning the Oklahoma sentences came when the judge asked defense counsel if the defendants understood that even though Arkansas was willing for the sentences to run concurrently with the Oklahoma sentences, that Oklahoma was not bound by such provision. Told the defendants did understand, the trial judge asked both defendants if they wished to withdraw their pleas of guilty or knew of any reason why the sentences should not be imposed. They answered no on both counts and each defendant was sentenced in strict accordance with the plea agreement. The appellant has, we believe, wholly failed to meet the heavy burden of proving ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984).
AFFIRMED.
Purtle, J., dissents. | [
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Otis H. Turner, Justice.
The appellant, Kenneth Wayne Pickett, was charged with driving under the influence of intoxicants, third offense. He subsequently moved to dismiss on the basis that, in his prior convictions, the record did not reflect that he had waived his right to counsel or that he had been advised of his rights and the consequences of a guilty plea. The motion was denied. The appellant also moved to strike the previous convictions, citing as justification the same basic reasons stated in his previous motion to dismiss. The motion to strike was apparently never acted upon.
On March 28,1989, the appellant filed a motion to suppress the evidence of the prior convictions, again reciting the same grounds advanced in the motion to dismiss and the motion to strike. On the same date, the appellant, obviously intending to take advantage of Arkansas Rule of Criminal Procedure 24.3(b), entered a written plea of nolo contendere, “reserving the right . . . on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence.”
From a fine of $2,000 and costs, a one year jail term with all but 90 days suspended subject to the appellant’s compliance with the balance of the court rule, a two-year suspension of driving privileges and completion of an alcohol treatment and education program, this appeal is taken.
We find that the issue raised is jurisdictional and that the appeal is not permitted under the rules and the prior decisions of this court.
The general rule in Arkansas is that, in the language of Ark. Code Ann. § 16-91-101 (c) (1987), “there shall be no appeal from a plea of guilty or nolo contendere.” See Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987), where the court plainly stated, “There is no right to appeal from a guilty plea.”
The Rules of Criminal Procedure, amended by a per curiam in July, 1987, with an effective date of October, 1987, provides an exception to the statutory ban. Rule 24.3(b) 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 [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.
In Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989), this court interpreted Rule 24.3(b), and the holding of the Jenkins case is clear in its application here. In Jenkins, the appellant was charged with DWI, fourth offense, and pled not guilty. Before trial, he sought by motion to suppress the use of a prior DWI conviction due to the lack of a proper waiver of counsel. In ruling on the motion, the trial court found that the waiver of counsel was valid. Subsequently, Jenkins pled guilty and invoked the provisions of Rule 24.3(b), believing that he was afforded the right to appellate review of the trial court’s denial of his motion to suppress the prior conviction.
In Jenkins this court addressed the question “whether or not the matter is properly before this court” and determined that “the judgment appealed is not encompassed within Rule 24.3(b).” The rule’s reference to a “pretrial motion to suppress evidence” places the emphasis on the evidence instead of the motion. “A motion to suppress evidence,” Chief Justice Holt wrote, “presupposes that the evidence was illegally obtained. Here, we are simply dealing with the admissibility of evidence, rather than ‘illegally obtained’ evidence.”
It is clear that the question now before the court is jurisdictional and that the rules do not provide for an appeal following a plea of nolo contendere where the appeal challenges the admissibility of evidence as distinguished from evidence illegally obtained.
This appeal is dismissed. | [
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Steele Hays, Justice.
The appellant was convicted of possession of cocaine with intent to deliver and possession of drug paraphernalia. He was sentenced to seventy years in prison as an habitual offender. The sole issue before us is whether the prosecutor exercised his peremptory challenges with the discriminatory purpose of excluding black persons from the jury.
The appellant, a black man, claims the jury panel should have been quashed when the prosecuting attorney used peremptory challenges to strike two black persons. He relies on Batson v. Kentucky, 476 U.S. 79 (1986) and Ward v. State, 293 Ark. 88, 722 S.W.2d 728 (1987).
The appellant had the burden of making a prima facie case of discrimination in the selection of jurors. Batson, supra; Ward, supra. A prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of a discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). Once a prima facie case has been made, the burden shifts to the prosecutor to give a sufficiently neutral explanation for the peremptory strike in the context of a “sensitive inquiry” by the court. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). Weconcludethe appellant failed to establish a prima facie case of discrimination. Therefore, we will not address the need for a sensitive inquiry or the reasons behind the prosecutor’s use of the peremptory challenges.
The jury that convicted the appellant included three black members. The presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is of some significance. Ford v. State, supra. It is also noteworthy that, when the three black jurors were seated on the jury, the prosecutor still had peremptory challenges remaining. See Owens v. State, supra. Finally, we note that the number of black persons serving on the jury (three) was greater than the number struck by the prosecutor (two).
We have not been reluctant to recognize those situations in which a prosecutor has used peremptory challenges to exclude potential jurors solely on the basis of race. See Mitchell v. State, 259 Ark. 341, 750 S.W.2d 936 (1988); Ward v. State, supra. But those cases differ markedly from the case at bar. In Mitchell, the sole black venireman was excluded by the prosecutor, resulting in an all-white jury. We determined, based on the nature of the prosecutor’s questioning during voir dire, that a prima facie case of discrimination had been made. In Ward, the prosecutor exercised all eight of his peremptory challenges to strike black jurors, resulting in an all-white jury. We declared that a prima facie showing of discrimination was made in that case also.
The record in this case fails to reflect a discriminatory purpose in the prosecutor’s use of peremptory challenges. The appellant did not meet his burden of making a prima facie case. See Owens v. State, supra; Ford v. State, supra. See also White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989).
Affirmed.
Price, J., not participating. | [
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Robert H. Dudley, Justice.
Appellant, Christopher Segerstrom, a fifteen-year-old boy, raped and killed four-year-old Barbara Thompson. Both the rape and the murder were outrageously violent: a stick was rammed into the little girl’s vagina with such force that it protruded into her abdominal cavity, and she was beaten with a forty-pound rock to such an extent that her skull was partially flattened with brain matter protruding. In addition, she had abrasions to her back and chest, including one through her right nipple which appeared to have been intentionally inflicted. The appellant was charged with capital murder, but the State waived the death penalty because of his age. He was convicted and sentenced to life in prison without parole. We affirm the judgment of conviction.
We need not devote a great deal of time to appellant’s first point of appeal as it is wholly without merit. In it, appellant argues he was deprived of due process of law because the trial court refused to appoint a private psychiatrist or to provide funds for one because: (1) the psychiatric evaluation by the state hospital was inadequate, and (2) the two psychiatrists who examined appellant had directly conflicting opinions.
More specifically, appellant contends the evaluation by the state hospital was inadequate because: (a) the psychiatrist’s report was not based upon the psychiatrist’s own evaluation, but instead, upon what she thought the court wanted to hear, and (b) the psychiatrist had been treated by another psychiatrist. The assertion that the psychiatric report was not based upon evaluations is wholly without factual support. Further, there is nothing in the record which indicates that the trial judge attempted to direct any particular response from the psychiatrist.
The examining psychiatrist from the state hospital, Dr. Lynch, had been treated by another psychiatrist for anxiety brought on by having to testify at criminal proceedings. We fail to see any causal connection between seeking counseling for anxiety and the adequacy of the evaluation. In fact, the evaluation, as supplemented, is thorough.
Appellant additionally argues that a private psychiatrist should have been appointed to resolve the “direct conflict” between the testimony of the psychiatrist from the state hospital, Dr. Lynch, and the testimony of another appointed psychiatrist who worked at Ozark Guidance Center, Dr. Jenkins. The short answer to the argument is there was no direct conflict in their testimony. Dr. Lynch’s testimony was about appellant’s ability to appreciate the criminality of his conduct at the time of the murder and his ability to understand the nature of the charge against him and to cooperate in his defense. Dr. Jenkins very candidly testified he had not been asked to form an opinion about those matters. Instead, he was asked whether appellant had the ability to knowingly and intelligently waive his Miranda rights.
Appellant’s next point of appeal is that the trial court erred in refusing to suppress his confession because it was neither voluntary nor was there a knowing and intelligent waiver of his rights. There is no merit to either contention.
The “voluntary” requirement is concerned with coercive police activity. Appellant contends that he was physically abused on four (4) occasions before he confessed and, accordingly, his confession was not voluntary. The first incident oc curred before the police arrested appellant. An antagonistic crowd of the victim’s neighbors gathered around appellant. A dangerous situation existed. The police had to work their way through the crowd in order to safely remove appellant from the scene. Very simply, that did not constitute coercive police activity. The second incident was in the police car on the way to the police station. Appellant was handcuffed while in the back seat of the car. Still, he managed to get hold of a bottle and an umbrella and said to the policeman that he was going to “poke your. . . eyes out.” He fought as the police tried to get him out of the car. Under the circumstances the police grabbed his legs to keep him from kicking them. The use of reasonable force to subdue a prisoner and transport him to the police station is not a police activity designed to coerce a confession. Third, the police saw that he had a red substance on his clothes. They correctly assumed the substance might be the victim’s blood and the clothes might constitute valuable evidence. They asked for the clothes. The appellant, possibly realizing how damaging the evidence might be, refused to give the police the clothing with blood on it. They had to physically remove his clothes. No excessive force was used. Fourth, appellant refused to stand for a mug shot. In fact, he strenuously fought having his picture taken, and it took two and sometimes three officers to hold him for the picture. Again, no excessive force was used.
As can be seen from those incidents, appellant was very hostile. The police were only trying to restrain appellant for the legitimate purposes of transporting him to the station, taking his picture and collecting evidence. By these activities, there was no attempt to force a confession out of him. There was no lengthy period of interrogation. The murder occurred around 2:30 p.m., and appellant was arrested shortly after 3:00 p.m. He was given his Miranda warning at 4:50 p.m. and was questioned for about 30 minutes in front of a number of officers. He denied committing the murder. He then was taken to another room by an officer who knew him, and he soon confessed to that officer. The confession had been handwritten and signed by 7:22 p.m. There was no police overreaching, and appellant was not intimidated.
Appellant additionally argues that he did not knowingly and intelligently waive his Miranda rights. Again, in examining this issue we make an independent review of the totality of the circumstances and reverse the trial court only if its ruling is clearly erroneous. Burin v. State, 298 Ark. 611, 770 S. W.2d 125(1989). The credibility of the witnesses who testify to the circumstances surrounding the accused’s custodial statement is for the trial court to determine. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). In this case a psychiatrist, Dr. Jenkins, testified that appellant had an intelligence quotient of 77 on the WISC-R test, was fifteen years old, but only had a mental age of six years and four months, and had an attention deficit disorder as well as a learning disability. Under these circumstances, Dr. Jenkins stated that it would be likely that appellant did not understand his Miranda warning. However, the witness also stated that if appellant were slowly told of his rights, and if the officers paused after advising him of each right, and if he were warned only a short time before being questioned, it would increase the likelihood that appellant understood his rights. Finally, the doctor stated, “It’s totally possible that when he was advised of those rights on July 26th, that he understood those rights.”
Testimony by the officers showed that appellant had been arrested previously on burglary and drug charges and had been given Miranda warnings on four or five earlier occasions. On the afternoon the confession was given, the officer slowly read the standard Miranda form to appellant and then explained each individual right to him and then asked questions about each right. For example, two of the questions the officer asked on his own were, “You understand you do not have to say anything?” and “Do you want an attorney right here?” The appellant signed the form that he understood he was waiving his rights, and he told the officers that he understood his rights and waived them. The officers testified that they were satisfied that the appellant understood his Miranda rights and knowingly waived them. Under these facts we cannot say the ruling of the trial judge was clearly erroneous.
Appellant further questions the voluntariness of the waiver on the basis that it was falsely induced. We reject the argument as there was no false promise. Just before he confessed, appellant asked what was going to happen to him. The officer replied that he did not know, but he was definitely going to jail and would probably be evaluated. He did go to jail and was evaluated by the state hospital. Consequently, there was no false promise which rendered appellant’s statement inadmissible. See Tippitt v. State, 285 Ark. 294, 686 S.W.2d 420 (1985).
Appellant makes the related argument that his confession should not have been admitted because he invoked his right to remain silent. We do not interpret the testimony cited by appellant as demonstrating an attempt to invoke his right to remain silent. In the cited testimony, which occurred during the first few minutes of questioning, the appellant said he knew the victim, but did not murder her, and he wanted to go fishing.
Appellant’s next point of appeal is that the police placed physical restraints upon him and these restraints had a chilling effect on his right to present a defense. The argument is wholly without merit. Appellant was most unruly during the 154 days he was in jail awaiting trial. He would run and butt his head on the cell door. He beat on the cell wall. He urinated on the cell door. He screamed. He intimidated other prisoners. He plugged the air vent in the cell. He tore up a blanket, and put it in the toilet and flooded his cell. He flooded the cell on other occasions by plugging a shower. He was combative. He attempted suicide. As a result of this, the police, on seven (7) occasions, placed physical restraints on him. These included handcuff's, shackles, and a waist chain. Appellant offered no proof at the trial to show how the use of restraint on seven (7) occasions had a chilling effect on his right to present a defense, and he offers no explanation of the argument on appeal. Accordingly, we dismiss the argument.
Finally, appellant argues that the trial court erred in allowing a policeman to testify that appellant threatened him on the way to the police station. The appellant objected on the basis of relevancy. The trial court’s ruling was correct.
By the time of trial, appellant had confessed to the murder, but he had also told the victim’s mother that he accidentally dropped the stone on the little girl. Thus, one issue was whether the killing was intentional or accidental. Appellant’s emotional state of hostility and anger shortly after the child was killed was clearly relevant to show that it was more likely that the killing was intentional.
Appellant alternatively argues that, even if the above evidence was properly admissible, the trial court did not weigh probative value against prejudice as required by A.R.E. Rule 403. We summarily dismiss the argument as no such objection was made to the trial court.
In compliance with Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, an examination of all other motions and objections decided adversely to appellant has been made, and we find no prejudicial error.
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Tom Glaze, Justice.
This is an appeal from the trial court’s affirmance of the Arkansas Transportation Safety Agency, Transportation Regulatory Board’s (Board) granting Dwayne Stone a certificate of public convenience and necessity to operate as a motor common carrier in intrastate commerce. The appellee’s certificate is limited to secondary moves of mobile homes, which are any moves other than moving a new mobile home from a dealership, over irregular routes between points in Cleburne, Conway, Faulkner, Perry, Van Burén, and White Counties. Appellants, three companies who transport mobile homes in the areas where the appellee sought authority, protested the awarding of the certificate to the appellee below and here on appeal. On appeal, they contend that the Board’s order is contrary to the preponderance of the evidence. We reverse.
At the hearing before the Board, the appellee and five witnesses testified in support of his application. The appellee stated that he had been working with mobile homes since 1967, and if he was granted the certificate he would be the sole driver. In his testimony, he stated that he had previously filed an application for a certificate of public convenience and necessity on August 12, 1976, but it had been denied. He also testified that he had an ad in the phone book stating that he would provide escorts in and around Conway in a fifty mile radius, but that he had placed the ad before the hearing and just had not removed it. While the appellee stated that he tried to keep his business within the commercial zone, he candidly admitted that he had recently made moves outside the commercial zone of Conway without proper authorization. He also admitted that he was aware he needed the Board’s certification to permit him to engage in the intrastate movement of mobile homes, outside the commercial zone of the city.
Three of the appellee’s witnesses, as noted by the Board, testified as to their experiences with moves of mobile homes within the commercial zone of the city. These moves are not regulated by the Board, and thus no authorization is required. The other two witnesses, who are partners in Keathley Enterprises, a mobile home dealership engaged in buying and selling used and repossessed mobile homes, testified about bad experiences with using the other moving companies and about good experiences with using the appellee in moving mobile homes. In recounting those moves, the witnesses stated that the appellee had recently made unauthorized moves for them outside the commercial zone of Conway. In countering this evidence, the appellants mainly testified as to the amount of business they would lose, and requested that they be given an opportunity to provide any needed service before the appellee is authorized to provide new service.
After hearing the above testimony, the Board made the following pertinent findings: 1) Stone’s financial statement revealed that he had sufficient assets to serve the public as a common carrier; 2) Stone had many years experience in transporting mobile homes and is capable of performing the service; 3) the granting of additional authority to transport mobile homes would benefit the general public since there are not sufficient movers locally to handle short hauls wherein it would be unprofitable to deadhead equipment from another state or a distant county; 4) the granting of the authority would not represent a substantial diversion of traffic from any protestant, but would provide a “local” person to be available in a six-county area; and 5) Stone has conducted his business and himself in such a manner as to gain the confidence and respect of the witnesses.
Before a certificate for public convenience and neces sity can be approved by the Board, the applicant has the burden of proving the following: 1) he or she is fit, willing, and able properly to perform the service proposed and to conform to the provisions of the Motor Carrier Act and the requirements, rules, and regulations of the Arkansas Transportation Commission; and 2) the proposed service is or will be required by the present or future public convenience and necessity. Ark. Code Ann. § 23-13-220(a)(1) (1987). Unless the applicant can prove both of these requirements, the Board must deny the application. Id. When an existing service is in operation for the route applied for, the applicant must prove one of the following to show public convenience and necessity: 1) the existing service is inadequate; 2) additional service would benefit the public; or 3) the existing carrier was given an opportunity to furnish additional service. See Jones Rigging & Heavy Hauling, Inc. v. Howard Trucking, Inc., 298 Ark. 33, 764 S.W.2d 450 (1989); Santee v. Brady, 209 Ark. 224, 189 S.W.2d 907 (1945).
While we review appeals from the Transportation Regulatory Board de novo, we will not disturb its findings unless they are against the preponderance of the evidence. Jones Rigging & Heavy Hauling, Inc., 298 Ark. 33, 764 S.W.2d 450. The burden is on the appellants to show that the Board’s decision is wrong. Id. We do not retry the cases or substitute our judgment for that of the Board, and we accord due deference to the Board because of its expertise in passing on the fact questions involved and because of its advantage of seeing and hearing the testimony of the witnesses. Id. If we find that the evidence is evenly balanced, the Board’s view must prevail on appeal. Jones Truck Lines v. Camden-El Dorado Express, 282 Ark. 50, 665 S.W.2d 867 (1984).
After stating these tenets, we first consider the statutory requirement bearing on fitness and whether the appellee met his burden in meeting that standard. The appellants argue that because the appellee knowingly conducted unauthorized moves of mobile homes prior to the hearing, the Board erred in finding the appellee fit. We must agree and find that this determination is dispositive of the case.
This court has never directly addressed the effect of prior illegal moves on the applicant’s showing of fitness. In Purolator Courier Corp. v. Arkansas Air Courier, 289 Ark. 455, 712 S.W.2d 892 (1986), this same argument was made, but we dismissed it because we could not find sufficient proof of the violations in the record. In the present case, the Board concluded from the appellee’s testimony that he misunderstood the “confusing” rules pertaining to commercial zones. We find nothing in the record to support such a finding. Instead, the appellee openly admitted in his testimony to knowingly performing moves outside the commercial zone without a certificate. In addition, the owners of Keathley Enterprises testified that the appellee recently made moves for them outside the commercial zone of Conway.
The Board stated that if it refused authority to every applicant who had provided transportation service without holding operating authority to do so, few applicants would receive authority. The Board’s summary dismissal of appellee’s blatant disregard for the law and the Board’s regulation runs counter to all precedent we have discovered bearing on appellee’s fitness and how it must be viewed in these matters.
In cases from the Interstate Commerce Commission, the applicant appearing before the federal regulatory board must also make an affirmative showing that he is fit, willing, and able to provide the transportation to be authorized by the certificate and to comply with the regulations of the Commission. 49 U.S.C.A. § 10922(b)(1)(A) (Supp. 1989). In considering an applicant’s fitness, the Federal Commission has stated that past failures to comply with regulatory requirements are pertinent insofar as they relate directly to his willingness and ability to conduct the proposed operation in a manner consistent with applicable laws and regulations. See Terminal Taxi Co. v. Common Carrier Application, 112 M.C.C. 796 (1971); Barrett Extension—Ironwood, Mich., 81 M.C.C. 731 (1959). The Commission has stated that prior violations do not in and of themselves require a finding of unfitness, but if the acts or omissions were willingly and knowingly engaged in with the intent of evading or defeating the purpose of the regulation, then such a finding must be made. See Terminal Taxi Co., 112 M.C.C. 796 (1971); see also Haywood Trucking Co. Contract Carrier Application, 81 M.C.C. 437 (1959).
Likewise, other jurisdictions have stated that while illegal operations are not a per se bar to the granting of a certificate of public convenience and necessity, a common carrier engaged willfully in illegal operations may be found unfit for purposes of obtaining a certificate of public convenience and necessity. See Wells Fargo Armored Serv. Corp. v. Bankers Dispatch Corp., 188 Neb. 584, 198 N.W.2d 195 (1972); Matador Serv., Inc. v. Missouri Basin Well Service, 367 N.W.2d 749 (N.D. 1985); Stephens v. Public Service Comm’n, 356 S.E.2d 191 (W. Va. 1987); see also Lynden Transfer, Inc. v. United States, 262 F. Supp. 336 (1967). In Stephens, the West Virginia Supreme Court of Appeals noted the following factors that mitigate against the extension of authority to a motor carrier that has engaged in illegal operations: 1) one should not be permitted to benefit from his wrongdoing; 2) the legislative intent behind statutes regulating common carriers may not be construed to mean that those who abide by such regulations should be penalized and those who violate rewarded, i.e., by granting of a certificate because they have established a need by their illegal operations; and 3) neither an administrative agency nor a reviewing court should encourage, by ignoring such operations, the infringement on the rights of others authorized to provide the services. 356 S.E.2d at 194 (quoting Donohue v. Public Utilities Comm’n, 145 Colo. 499, 508, 359 P.2d 1024, 1028 (1961)).
We consider the authorities cited above to be persuasive. The appellee first applied for a certificate from the Board, and when this application was denied he knowingly performed moves outside the commercial zone without proper authorization. Neither this court, nor the Board, should reward the appellee’s flagrant violation of the Board’s regulations with the granting of a certificate for public convenience and necessity. Therefore we hold that the Board’s finding that the appellee was fit is contrary to controlling law and against the preponderance of the evidence. Hence we reverse. Since we hold that the appellee failed to meet his first burden of proof in accordance with Ark. Code Ann. § 23-13-220(a)(l), we need not address whether the appellee showed that his service is required by public convenience or necessity. Suffice it to say, most of the evidence appellee presented in support of the public necessity issue directly resulted from his illegal operations in the six-county area for which he now seeks authority to work.
For the reasons stated above, we reverse.
Hickman and Turner, JJ., dissent.
We note that Crews Mobile Home Service only protested the appellee’s application for authority for movements that originate or terminate in Faulkner County as being in conflict with its present authority.
Also, we note that the appellants argue that the appellee is unfit because he leveled and blocked mobile homes without obtaining the necessary license from the Arkansas Manufactured Housing Commission. But, because of the appellee’s illegal moves, we find it unnecessary to address whether this failure to obtain a license should make the appellee unfit. | [
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Claude W. Jenkins, Special Justice.
The appellant, Gary Smith, was convicted in the Pulaski County Circuit Court on the charge of driving while intoxicated, fourth offense. On appeal, he argues that (1) the trial court erred in denying his motion to suppress; (2) the trial court erred in allowing the introduction of the result of his breathalyzer test because the State failed to prove that the officer who gave the test was certified; and (3) the trial court erred in finding him guilty of driving while intoxicated, fourth offense, because the State failed to show that he was represented by counsel in an earlier proceeding in Louisiana wherein he was convicted of driving while intoxicated.
The evidence concerning Smith’s initial arrest was that the arresting officer observed Smith driving in the center lane of I-430 “quite slow.” Several other vehicles were in the area. As the officer drove past Smith, she noticed that he had his bright lights on. She slowed down, and he slowed down “even slower.” She then got behind Smith and turned on her blue lights.
Smith argues, in essence, that his actions prior to the time the arresting officer turned on her blue lights did not give the officer reasonable suspicion to stop him. We disagree. In United States v. Cortez, 449 U.S. 411 (1981), the Supreme Court found that under certain circumstances, a police officer may rely on his experience and make “inferences and deductions that might well elude an untrained person.” Police officers are required to obtain special training before certification and are also trained through experience to observe the actions of individuals in order to ascertain suspicious activities so that they may protect the public from unlawful activities.
The arresting officer testified that Smith’s slow driving in the center lane of 1-430, together with the bright lights when other traffic was present (for which Smith was issued a warning), and Smith’s reactions to her slowing down caused her to stop him.
We find that Smith’s actions at the location, time, and under the circumstances were sufficient to give the arresting officer a reasonable suspicion that a misdemeanor involving risk of forcible injury to persons or damage to property had been, or was about to be, committed, and therefore the officer was entitled to stop Smith, as the stop was reasonably necessary to determine the lawfulness of Smith’s conduct. See A.R.Cr.P. Rule 3.1.
Smith next contends that the trial court erred in allowing the introduction of the results of his breathalyzer test because the State failed, under the best evidence rule, to prove that the officer who gave the test was certified. We disagree.
Arkansas Code Ann. § 5-65-206(d)(l) (1987) does not require the machine operator’s testimony, or his certificate, as a prerequisite to the introduction of chemical analysis test results. This court adopts the rationale of the Arkansas Court of Appeals in its holding in the case of Johnsons. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986) that the provision only requires that the person who calibrates the machine, and the person who operates it, will be made available for cross-examination by the defense upon reasonable notice to the prosecutor.
However, there is ample evidence in the record of this case to uphold the verdict of the lower court aside from the results of the breathalyzer test.
Smith also alleges that the trial court erred in finding him guilty of driving while intoxicated, fourth offense. This contention is based upon his argument that the State failed to show that he was represented by counsel in connection with a previous conviction for driving while intoxicated in Louisiana.
On the contrary, we find that the record of the Louisiana conviction placed into evidence in this case showed that Smith had signed a document entitled “Waiver of Constitutional Rights and Plea of Guilty,” which stated in part that:
The judge has addressed me individually in open court of my right to trial, my privilege against self-incrimination, my right to be represented at all times in the proceeding, including appeal, by counsel of my choice or a court-appointed attorney at no cost to me if I lack finances to employ one. ... I understand my rights and that I desire to waive them by entering a plea of guilty.
The document that appears in the record of this case contains not only Smith’s signature but also the signature of someone identified as his attorney at the place indicated on the document for his attorney to sign “if represented.” Although the document is mainly a written guilty plea containing a waiver of constitutional rights, it was signed by both Smith and his attorney at the proper place on the document showing that Smith was represented by an attorney.
This record is sufficient to sustain the lower court in finding the defendant guilty of driving while intoxicated, fourth offense.
Affirmed.
Dudley and Price, JJ., not participating. | [
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Tom Glaze, Justice.
This appeal involves an oil, gas and mineral rights case. Appellants, Atlanta Exploration, Inc. (Atlanta), J. C. Ferguson III (Ferguson III), and Bettye Perry (Perry), contend the trial court erred (1) in holding Ferguson III’s and Perry’s ownership interests were effectively integrated in a brine production unit established by appellee, Ethyl Corporation (Ethyl), in 1982, (2) in finding Ethyl not liable for penalties or attorney’s fees under Ark. Code Ann. §§ 15-74-601 to -74-604 (1987) and in failing to award prejudgment interest, and (3) in applying the three-year statute of limitations erroneously. Ethyl, on cross-appeal, argues the trial court erred in finding that Ferguson Ill’s grandfather, J. C. Ferguson Sr., had not committed fraud in executing certain documents and receiving royalties and in holding that Atlanta should not be barred from recovery because it knew about and benefited from that fraud. We affirm the trial court’s decision on appeal, but modify the judgment to award the appellants prejudgment interest, and affirm on cross-appeal.
The facts are largely undisputed. On May 24, 1960, H.C. Ferguson conveyed by warranty deed all of his undivided interest in S.W. ¼ of N.W. ¼ of Section 18, Township 18 south, Range 19 west, located in Columbia County, to J. C. Ferguson Jr. (Ferguson Jr.), his grandson. This property is the center of this controversy. In 1964, Ferguson Jr. died intestate survived by his widow, Bettye Ferguson (now Perry), and his son Ferguson III. After Ferguson Jr.’s death, on February 11,1966, H. C. Ferguson again conveyed the same property by warranty deed to his son, Ferguson Sr. In 1980, Ferguson Sr. executed leases for oil, gas and brine, regarding the property. Ethyl became the owner of the leases, and was unaware at the time that Ferguson III owned the Ferguson acreage subject to Perry’s claim as Ferguson Jr.’s widow.
In 1982, Ethyl drilled Baker No. 1 well on a 160-acre oil and gas unit and Ethyl also petitioned the Arkansas Oil and Gas Commission to form a brine unit of 1076.5 acres using this same well. The Ferguson acreage was included in the units, but was not the land on which the well was located.
Notice of Ethyl’s application to establish the brine unit was published for one day in the Magnolia newspaper, The Daily Banner News. The notice requested that the owners of unleased interests within the unit elect whether or not to participate in 60 days. The notice also contained a list of the owners of unleased mineral interest, but stated that it included but was not limited to those listed or named owners. Ferguson III and Perry were not specifically listed because Ethyl was unaware of their ownership of property. The acreage subsequently was unitized by order of the Arkansas Oil and Gas Commission. Ethyl’s well proved very successful and produced oil, gas and brine from 1982 until 1986. In 1986, Ethyl completed the drilling of another well named Baker No. 2, and its first disbursements were made in January of 1987. Brine continued to be produced to the time this litigation was filed. Ferguson Sr., rather than Ferguson III and Perry, received royalties from the well’s production because of the leases he previously executed.
When Atlanta learned of Ethyl’s plans to drill Baker No. 2 well, it commenced acquiring oil and- gas leases in the acreage involved, and on May 20, 1987, Ferguson Sr. executed such a lease, which included the same property described in the earlier leases. Alan Ribble, the sole stockholder of Atlanta, discovered Ethyl’s earlier mistake when he forwarded the new lease to Ethyl. Ethyl refused to pay because the leases were signed “J. C. Ferguson,” and the ownership of the property was in the name of Ferguson Jr.
Ribble subsequently called Ferguson Sr., and after discussing with him the relationships between the various Fergusons and the leases and deeds as they were executed, Ribble became fully aware that Ethyl had paid royalties to the wrong Ferguson.
Ribble did not immediately inform Ethyl of its mistake, because he first wanted to execute a lease with the correct person. After leasing from J. C. Ferguson III, Atlanta then notified Ethyl about its mistake.
Atlanta, Ferguson III and Perry joined forces in suing Ethyl to collect past royalties.* * Specifically, they requested that the court quiet title to the Ferguson acreage in Ferguson III, recognize Perry’s claim in such acreage, declare Atlanta the owner of the leasehold estate covering the acreage and award Ferguson III and Perry statutory penalties and attorney’s fees for bringing the action. Ethyl answered denying the appellants were entitled to any relief. It also counterclaimed, raising certain general defenses but in particular, alleged that Atlanta was not entitled to relief because it had benefited from Ferguson Sr.’s fraudulent execution of documents and receipt of royalties. As previously noted above, the trial court denied Ethyl’s claim altogether, and while it recognized appellants’ respective interests in the property, leases and deeds in issue, the court limited recovery from Ethyl to those mineral interests payable only during the three-year period prior to the appellants’ filing their action.
In their first argument, appellants claim basically that they are not bound by the Oil & Gas Commission’s 1982 integration order that unitizes the Ferguson acreage or by any royalties paid as a result of it and that they are entitled to recover the fair market value of the brine produced since 1982, less the production costs. To support their argument, they argue the notice given by the Commission was not proper, it was not directed to “unknown owners” and it was not directed to non-resident owners, which Ferguson III was at the time the integration order was issued. Appellants offer no case authority in support of their argument and cite only Ark. Code Ann. § 15-76-309(b) (1987), which requires that integration orders be made after notice and hearing and § 15-76-310 (1987), which provides that a copy of the integration must be sent or otherwise made available to each owner in the unit.
Although Ethyl’s notice did not mention unknown owners, it was addressed to “unleased mineral interest owners” and it then listed, but stated it was not limited to, each owner known at the time. Certainly, Ferguson III came within such a description. In these matters, the General Assembly has given the Commission broad authority when prescribing its procedure regarding its hearings as follows:
(a) The commission shall prescribe its rules of order and procedure with respect to all hearings or proceedings hereunder in accordance with and as limited by the laws of this state applicable to hearings and other proceedings before the commission under other acts of this state, including provisions of law regarding notice and hearing and provisions of law regarding the promulgation by the commission of rules, regulations, and orders, including changes, renewals, or extensions thereof and including emergency promulgations.
Ark. Code Ann. § 15-76-307(a) (1987).
Furthermore, § 15-76-307(b) provides the Commission with the authority to prescribe the manner and form of the notice given of the public hearing that is required before the Commission promulgates or issues any rule, regulation or order. The Commission’s notice met the twenty-day notice requirement set out in § 15-76-307(b), and it also otherwise is in keeping with Ark. Code Ann. § 15-72-323 (1987), another related statutory provision, that requires a public hearing notice to be published at least one time in a general circulation newspaper in the county or counties where the lands are embraced. Appellants urge no constitutional or due process arguments regarding the notice provided by the Commissioner. Nor do they argue that Ark. R. Civ. P. Rule 4 should apply. In sum, we hold the Commission’s notice met the statutory requirements, and the public hearing and resulting integration order issued by the Commission in 1982 were proper and binding on the appellants.
In the second point, the appellants argue that they are entitled to 12% interest on the back royalties owed to Ferguson III and that their attorney’s fees should be paid. Ark. Code Ann. § 15-74-601(a) (1987) establishes the time limits when oil and gas payments must be made. Section 15-74-601 (e), in relevant part, provides that if payment is not made within these time limits, the first purchaser (here Ethyl) is required to pay interest to those legally entitled to the withheld proceeds at the rate of 12% per annum on the non-paid amounts. In addition, Ark. Code Ann. § 15-74-603 (e) provides that the prevailing party in any proceeding brought for proceeds not paid timely shall be entitled to recover any court cost and reasonable attorney’s fee.
In support of this argument that they are entitled to penalties and attorney’s fees, appellants cite TXO Production Corp. v. Page Farms, Inc., 287 Ark. 304, 698 S.W.2d 791 (1985) and TXO Production Corp. v. First Nat’l Bank of Russellville, 288 Ark. 338, 705 S.W.2d 423 (1986). Although attorney’s fees were affirmed on appeal in those two cases, the facts involved in those holdings are clearly distinguishable from the ones before us now. In the first TXO Production case, the court concluded that there was no evidence to support TXO’s claim that it failed to pay proceeds because it found the title was unmarketable. The court found that even TXO’s own title opinion failed to support TXO’s position. In the second TXO case, this court merely affirmed the trial court’s assessment of penalties and attorney’s fees because TXO made untimely payments.
Here, Ethyl made timely payments, but due to a mistake, it made them to the wrong person, viz., Ferguson Sr. instead of Ferguson III. Our court has recognized that our law governing timely oil and gas payments is remedial. TXO Production Corp. v. First Nat’l Bank of Russellville, 288 Ark. 338, 705 S.W.2d 423. When considering remedial legislation, we have stated that it should be construed with appropriate regard to the spirit which prompted its enactment, the mischief sought to be abolished and the remedy proposed. Skelton v. B. C. Land Co., 260 Ark. 122, 539 S.W.2d 411 (1976). Arkansas’s law is designed to prevent a company from withholding the payment of royalties to persons entitled to them. It does not, however, embrace or address the situation where timely payments are made but, by mistake, were made to the wrong person. Under these circumstances, we believe the trial court correctly refused to award appellants the penalty and attorney’s fee they requested.
Appellants alternatively argue they are entitled to prejudgment interest. We agree. The trial court awarded judgment to appellants for certain payments that had accrued within the three-year period prior to filing this action. After deducting a $500.77 amount paid J. C. Ferguson, as stipulated by the parties, the court calculated that Ethyl owed Ferguson III and Atlanta $3,651.87 and Perry was due $1,825.93. Except for its claim against Atlanta on cross-appeal, Ethyl does not challenge these amounts or judgments.
We have stated that the test for an award for prejudgment interest is whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action. See Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983); Lovell v. Marianna Fed. Sav. & Loan Ass’n, 267 Ark. 164, 589 S.W.2d 577 (1979). If such a method exists, prejudgment interest should be allowed, because one who has the use of another’s money should be justly required to pay interest from the time it lawfully should have been paid. Id. Where prejudgment interest is collectible at all, the injured party is always entitled to it as a matter of law. Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981). Here, clearly at the time of the trespass, the amount of damages could be determined. Therefore, prejudgment inter est must be awarded to give the appellants complete indemnity. See Ward v. Spadra Coal Co., 168 Ark. 853, 272 S.W. 353 (1925).
Considering appellants’ final argument, we first note that all parties agree that the appellants’ claims are ones of trespass and that the three-year statute of limitations under Ark. Code Ann. § 16-56-105(4) (1987) applies. The parties differ, however, on when the limitation commenced. Appellants contend that the three-year period did not commence until the trespass was discovered in May of 1987, or until the last oil and gas lease was taken in December of 1986. Appellee argues the limitation period began when the original trespass occurred in 1982. The trial court agreed with appellee’s position below, and on appeal, we agree as well.
The original, wrongful act complained of in this matter was the inclusion of Ferguson Ill’s property in the 160-acre drilling unit, and the production that commenced from that unit in 1982. Appellants agree on this point, and the parties also agree that the trespass was a continuing one from that date. However, appellants suggest that Ferguson III could have never been reasonably expected to discover the trespass. In this respect, he argues variously that he was a non-resident of the state, was unaware he owned the Ferguson acreage and that even if he knew of such ownership, the well was not located on the acreage.
In Arkebauer v. Falcon Zinc Co., 178 Ark. 943, 12 S.W.2d 916 (1929), the court held that where a wrongful act results in a recurring or continuing injury, there is a cause of action not only for the injury consequent upon the original act but also for such successive ones as may result in the future, in which case the statute attaches at the time of the occurrence of the injury. This court has also held that a mere ignorance of one’s rights does not prevent the operation of the statute of limitations, but where the ignorance is produced by affirmative and fraudulent acts of concealment, the statute of limitations does not begin to run until the fraud is discovered. Williams v. Purdy, 233 Ark. 275, 265 S.W.2d 534 (1954). The court in Williams, quoting from McKneely v. Terry, 61 Ark. 527,33 S.W. 953 (1896), stated the following rule with approval:
No mere ignorance on the part of plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.
The Williams court also announced that the mere fact plaintiffs are non-residents does not entitle them to preferred consideration under the statute of limitations. Williams, 223 Ark. at 279, 265 S.W.2d at 536.
In the present case, the record reflects no evidence that Ethyl perpetrated any fraud in this matter and any wrong it committed was due to mistake. And while appellants argue that Ferguson III could never have reasonably discovered Ethyl’s mistake and resulting trespass in 1982, we believe the evidence reflects otherwise. Here, Ferguson III, although a small boy at the time of his father’s death, could have later ascertained the status of his father’s estate. The deeds and leases executed in connection with the Ferguson estate were recorded as a matter of public record, and exercising reasonable diligence, Ferguson III could have learned of his acreage and how it had been affected. Since the trial court limited appellants’ recovery for production revenues to the three-year period prior to bringing this action, it presumably concluded the limitations commenced in 1982. After reviewing the record, we are unable to say the court was clearly erroneous.
On cross-appeal, Ethyl argues the trial court erred in finding that Ferguson Sr. did not commit fraud and in concluding Atlanta was not barred from recovery by having benefited from that fraud. Ethyl cites Malakul v. Altech Arkansas, Inc., 298 Ark. 246, 766 S.W.2d 433 (1989), for the proposition that one who accepts the fruit of fraud, knowing the means by which it was obtained, is liable therefor even though he did not personally participate in the fraud.
The simple answer to Ethyl’s claim is that there is sufficient evidence to support the trial court’s finding that Ferguson Sr., by his acts, did not intend to misrepresent his ownership or entitlement to the Ferguson acreage and royalty payments. Admittedly, there was evidence that Ferguson Sr. varied in the use of his signature, when executing documents, sometimes using Sr. or Jr. and, at other times, using neither designation. While one might argue such practice was Ferguson Sr.’s way of misrepresenting his ownership of the property and entitlement to royalty payments, Ferguson Jr. testified that he had discovered his grandfather (Ferguson Sr.) thought he actually owned the acreage. Atlanta’s Mr. Ribble also testified that he believed Ferguson Sr. thought he was entitled to the royalties he was receiving. Based upon this and other evidence in the record, the trial court was reasonably justified in holding Ferguson Sr. committed no fraud, and as a consequence, we are in no position to hold the court was clearly wrong in so finding.
For the reasons stated above, we affirm on appeal but modify to award prejudgment interest and affirm on cross-appeal.
We note that J. C. Ferguson III uses a different spelling of his name, but for clarity we will use only one spelling of Ferguson in our opinion.
Apparently, Ethyl’s title work reflected Ferguson Jr. owned the property rather than Ferguson III because nothing appeared of record showing Ferguson Jr. had died. One of the earlier leases was signed by Ferguson Sr. as “J. C. Ferguson,” but no one questioned whether the lease was signed by the right Ferguson.
Actually, they agreed to deduct all royalties previously paid Ferguson Sr. but asserted they were entitled to the fair market value of such royalties which had not been paid and which was in excess of the royalties already paid.
Appellee mentions Rule 4 in its brief, but disposes of it by stating the Rule does not apply when special statutory provisions for notice are applicable. See Watts v. Reynolds, 286 Ark. 425, 692 S.W.2d 247 (1985); Ark. R. Civ. P. Rule 81(a).
This section has been amended since this action was tried below. See Ark. Code Ann. § 15-74-603(e) (Supp. 1989).
In so stating we note the appellee’s misplaced reliance on Dobson v. Oil & Gas Comm'n, 218 Ark. 160, 235 S.W.2d 33 (1950). We refused to address the question of prejudgment interest on royalties in Dobson, because the chancellor had not ruled on the issue in the first instance. However, here the chancellor specifically stated that the appellants were not entitled to prejudgment interest. Appellee offers no other legal authority or argument concerning why prejudgment interest should not be awarded in these circumstances. | [
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Tom Glaze, Justice.
This case involves certain money lending transactions between two pawn shop owners, Larry Burge and Odus Pack. The primary issues argued in this appeal concern whether the men’s transactions involved simple loans between them, as Pack suggests, or whether the two men were involved in a joint venture, which is the contention of Burge. Burge argues alternatively that if no joint venture existed, the loans Pack provided Burge were usurious. The trial court found and entered judgment in favor of Pack. We affirm that decision.
The specific transaction that led to this litigation concerned two checks Pack delivered to Burge. One check was for $5,000 and the other was for $6,500. Pack claims that these checks represented loans to Burge and that in return, Burge gave Pack two checks bearing the maturity dates of the loans. The check amounts, including principal and interest, were calculated to the date of maturity and totaled $ 14,30o. Pack states that after the loans matured, he attempted to negotiate the checks but the bank dishonored them.
Burge’s version concerning the checks is that he and Pack were involved in a joint venture to loan money to third persons, who would offer their real property as security for the loans. Burge claims that he was to provide the “know how” in this venture because he had the real estate license and property experience; Pack was to supply the money. Burge says he and Pack were to split the proceeds resulting from the third-party transactions. He further contends that the checks given Pack were written merely to protect Pack’s interest in the profits of the joint venture and were to be cashed only in the event Burge died. Burge asserts Pack violated the parties’ agreement when he tried to negotiate Burge’s checks. Pack then brought this suit to collect the face amount of the checks, totalling $14,300, and Burge answered, denying he owned any loan amounts to Pack. Burge also counterclaimed, stating he was damaged in the sum of $50,000 because of Pack’s breach of the parties’ joint venture agreement.
In claiming he and Pack were involved in a joint venture, Burge had the burden of showing such a business relationship existed between them. See 46 Am. Jur. 2d, Joint Ventures, § 69 (1969). In Tackett v. Gilmer, 254 Ark. 689, 496 S.W.2d 368 (1973), this court stated that in order for a business enterprise to constitute a joint venture, the following elements must be present: (1) two or more persons combine in a joint business enterprise for their mutual benefit; (2) right of mutual control or management of the venture; and (3) an expressed or implied understanding that they are to share in the profits or losses of the venture. See also 46 Am. Jur. 2d, Joint Ventures, § 7 (1969).
When considering the joint venture issue, the trial court was confronted with a swearing match between the parties and their respective witnesses. Although Burge and his witnesses testified in support of Burge’s claim that he and Pack had entered into the business of funding real estate loans by the use of promissory notes and deeds, no proof was offered that showed Pack was named in any of the documents involving these third-party transactions. Nor was there evidence presented showing Pack had the right to the mutual control or management of any of these third-party property deals. In fact, Burge admitted there were no records or documents reflecting any formal arrangement between him and Pack.
Pack, on the other hand, introduced carbon copies of the two checks he gave to Burge and the copies reflect the purpose of the checks were for loans to Burge. Patsy Lochridge, Pack’s employee, testified that she made the checks out to Burge, and she understood the checks reflected loans made to Burge by Pack.
When considering the conflicting testimony as well as the prominent lack of documentary evidence that any joint venture existed between the parties, we cannot say the trial court was clearly wrong in rejecting Burge’s claim that he and Pack were in business. To the contrary, strong evidence was introduced that Pack’s involvement in these matters concerned loans to Burge for which Pack would be compensated in income from the interest accruing on those loans. The trial court obviously believed Pack’s account that he loaned Burge money at 10% interest and that Burge defaulted on the loans.
In this appeal, Burge alternatively argues that, if the court affirms the trial court’s finding that loan transactions were entered into between the parties rather than a joint venture, the loan agreement was usurious. Burge, however, failed to raise this issue below in a proper or timely manner.
Usury is an affirmative defense that must be pleaded and established. See Dreyfus Co. v. Tim Wargo & Sons, Inc., 282 Ark. 468, 668 S.W.2d 957 (1984); Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S.W.2d 70 (1954). Under ARCP Rule 8(c), in responding to a complaint,. a party shall set forth affirmatively any matter constituting an affirmative defense. Burge’s amended answer and counterclaim failed to set forth the affirmative defense of usury. Also, while there was some testimony by Pack on cross examination regarding the interest rate charged on the loans, Burge never moved to conform his pleadings to the evidence in accordance with ARCP Rule 15(b). See Brooks v. Town & Country Mut. Ins. Co., 294 Ark. 173, 741 S.W.2d 264 (1987). Although Burge made a belated attempt to raise the usury question in his motion for a new trial, such a motion cannot be used to bring into the record that which does not appear of record. Sharp Co. v. Northeast Ark. Plng. & Cnsltg., 269 Ark. 336, 602 S.W.2d 627 (1980). Because the usury issue was not properly pled or timely raised below, we do not consider it on appeal.
For the reasons given above, we affirm.
Price, J., not participating.
Apparently these loans had been extended by replacement of Burge’s two original checks with others.
We note Burge’s reference to Pack’s income tax return reporting interest from seller-financed mortgages listing Burge’s name, but we do not find this evidence corroborative of the joint venture argument. Pack’s returns made no reference to a joint venture or partnership. | [
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David Newbern, Justice.
This appeal questions whether there was a sufficient factual basis to support the chancellor’s decision to reform an instrument evidencing an insurance contract. Also at issue is the insurer’s claim for a declaratory judgment to the effect that the policy, due to an exclusionary clause, did not cover liability which might arise because of the unlawful sale of alcoholic beverages. The chancellor granted reformation on the ground of unilateral mistake of the insured coupled with inequitable conduct on the part of the insurer. The effect of the reformation was to remove the clause excluding liability for liquor sales. We hold the reformation was improper because there was insufficient evidence of mistake. We also hold the insurer was entitled to a declaratory judgment to the effect that the policy did not cover the liability asserted. The decree is reversed and remanded.
Keri Didier, a minor, was seriously injured in an automobile accident on November 5,1981. The car was driven by Paula Kay Baty, also a minor, who was driving while intoxicated. Keri and his father, Don Didier, sued Paul Hogan and his wife, Johnnie F. Hogan, the owners of Cheers Fort Smith, a liquor store. It was alleged that Baty and other minors had purchased beer and wine at Cheers on the day of the accident without having to show identification to establish their ages.
The actions was removed to federal court. The insurer, appellant Continental Casualty Company, a division of CNA Insurance Company (CNA), declined to defend the suit on the basis that the policy it had issued covering Cheers contained a clause excluding coverage for “personal injury” or “property damage” resulting, “[b]y reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person.”
The Didiers and the Hogans entered an agreement by which the Hogans stipulated their liability and agreed to cooperate with the Didiers in pursuing their claim against any third party including insurers. In return, the Didiers agreed not to pursue any judgment they might get against the Hogans. Based on a stipulation, the federal court entered judgment in favor of the Didiers and against the Hogans for $351,546.73.
The Didiers and the Hogans then brought an action in Sebastian County Circuit Court against CNA and Brown-HillerClark, the insurance agency which had sold the Hogans the policy in question. One of the counts sought reformation of the policy. That count was transferred to chancery court. CNA counterclaimed for a declaratory judgment to the effect that the policy did not cover the asserted liability.
The chancellor found that Paul Hogan was mistaken in thinking that he had an “all risk” insurance policy and that his mistake had been induced by inequitable conduct on the part of CNA. The chancellor granted reformation of the policy. The decree provided that, “[i]n the event the policy cannot be reformed,” CNA’s claim for declaratory judgment should be denied because the policy could be interpreted as providing coverage. As its reason for the alternative holding denying CNA’s declaratory judgment claim, the decree stated that the policy attempted to exclude “personal injuries” as opposed to “bodily injuries” resulting from liquor sales, thus permitting the conclusion that a narrower class of injuries was excluded. The decree mentioned other issues to be determined in the action remaining in circuit court but stated, presumably to comply with Ark. R. Civ. P. 54(b), that there was no just reason for delay in entering the chancery decree. CNA has appealed.
1. Reformation
Upon purchasing a building in Fort Smith in which to locate his liquor store, Paul Hogan called Larry Clark, an insurance agent with whom he had previously done business. He told Clark he needed a binder right away to give to the bank which was to be his mortgagee. Clark had brochures from CNA describing a “Business Account Policy” which was available in two forms, basic coverage and “broad form.” Clark testified that he wanted to get a “deluxe policy” for Hogan, and the literature had not made him aware of the liquor sales exclusion. He wrote a binder for the broad form.
An advertisement sent by CNA to agents was introduced as an exhibit. It described the business coverage policy and stated, “everything you need to present, rate, quote and bind coverage is now in your hands.” It listed types of businesses for which the policy would not be available, and liquor stores were not listed. It noted “liquor and wine” as a category of business for which the policy was available but stated that category would be eligible for basic coverage only.
The cover of another brochure was also introduced. It described the policies and noted that “The Broad Plan offers protection for all perils except the ones excluded in the policy.”
Clark had not sold this type of CNA policy previously. He wrote the binder for Hogan on the basis of the literature without seeing the policy. He testified that when the policy was received later he delivered it to Hogan or the manager on the premises at the liquor store. Hogan testified he could not remember receiving a copy of the policy.
Upon receiving the policy Clark became aware of the exclusion for liability based on liquor sales. He tried to get CNA to waive the exclusion. He tried to place the liquor sales coverage with other companies, including specialty companies, without success. He finally induced AETNA to agree to issue the coverage upon the date the policy would have been renewed with CNA, but by then the accident had occurred, and the Hogans had sold the business.
The basis stated in the chancellor’s decree for his finding of inequitable conduct on the part of CNA is the CNA literature describing the coverage as “all risk” and the failure of the company to inform Hogan, either directly or indirectly, of the exclusion. The decree states that Hogan was mistaken about the coverage afforded. The basis for that finding apparently was that Hogan expected coverage for liability resulting from illegal liquor sales.
There is no evidence to support the finding that Hogan was under a mistaken impression about the insurance he was buying. He had once sold insurance for Allstate for over two years and was familiar with the insurance business. The strongest statement in his testimony is that he “wanted liability coverage and property insurance, whatever you need to cover your liability from whatever standpoint.” He did not state that he thought he had been insured against any risk resulting from illegal liquor sales.
A written instrument may be reformed if there has been a mistake of one party accompanied by fraud or other inequitable conduct of the other or remaining parties. Turney v. Roberts, 255 Ark. 503, 501 S.W.2d 601 (1973). See also Arnett v. Lillard, 245 Ark. 939, 436 S.W.2d 106 (1969). The evidence must be clear and convincing. Hervey v. College of the Ozarks, 196 Ark. 481, 118 S.W.2d 576 (1938). See also Turney v. Roberts, supra. A mistake is a state of mind not in accordance with the facts. Restatement of Restitution, § 6 (1937); D. Dobbs, Remedies, § 11.2 (1973). In Arkansas there is no civil liability resulting from the illegal sale of liquor. Rone v. H.R. Hospitality, Inc., 297 Ark. 107, 759 S.W.2d 548 (1988); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). A policy holder has a duty to educate himself concerning his insurance. Howell v. Bullock, 297 Ark. 552, 764 S.W.2d 422 (1989). Given Hogan’s experience as an insurance agent, to say nothing of his duty to investigate his coverage, it is most unlikely that he even contemplated such liability, much less that he assumed his policy covered it. His testimony that he “wanted” liability coverage from every standpoint is clearly insufficient to show his state of mind was inconsistent with the facts.
We need not discuss whether CNA’s conduct can be considered to have been inequitable because we find the chancellor’s conclusion that Hogan was mistaken to be clearly against the preponderance of the evidence. See Ark. R. Civ. P. 52(a).
2. Declaratory judgment
Given our reversal of the reformation portion of the decree, CNA was entitled to a declaration that the policy did not cover the liability asserted here.
The general liability section of the policy provides coverage for injury to a third party for personal injury caused by an “occurrence.” The policy defines “occurrence” as, “an accident . . . which result [s] in bodily injury. . .or. . .personal injury.” “Bodily injury” is defined in part as, “bodily injury, sickness or disease sustained by any person which occurs during the policy term. . . .” “Personal injury” is defined as follows:
PERSONAL INJURY means bodily injury and other injury arising out of any of the following acts if first committed during the policy term:
1. False arrest, detention, imprisonment, or malicious prosecution.
2. Wrongful entry or eviction or other invasion of the right of private occupancy of an occupant.
3. A publication or utterance
(a) of a libel or slander or of other defamatory or disparaging material.
(b) in violation of an individual’s right to privacy.
4. Piracy, infringement of copyright, title or slogan in the course of Your advertising activities.
The exclusionary language of the policy was:
We will not pay for any of the following Personal Injury or Property Damage to or resulting from.
5. Damages resulting from Your operation or the operation of someone else from whom You have assumed liability and may be held liable:
a. As a person or organization engaged in the business of manufacturing, distributing, selling or serving of alcoholic beverages, or
b. If not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed:
(1) Because of violation of any statute, ordinance or regulation regarding the sale, gift, distribution or use of alcoholic beverages.
(2) By reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person.
In his decree the chancellor stated that CNA’s petition for declaratory judgment should be denied because the policy could be interpreted as granting coverage. He noted further, “CNA’s attempt to exclude ‘personal injuries’ as opposed to ‘bodily injuries’ permits the conclusion that a narrower class of injuries were excluded.” Because “bodily injury” is specifically included in the policy’s definition of “personal injury,” we cannot agree with the chancellor’s conclusion.
There is ambiguity in the policy definition of “personal injury” when it is viewed out of context. It could mean “bodily injury” limited to that arising from the “following acts” listed in the definition. On the other hand it could mean “bodily injury,” as separately defined in the policy, and, in addition, “other injury arising out of the [listed] following acts.” However, in the context of the clause excluding liquor sales liability, we have no doubt the term “personal injury” includes “bodily injury” as defined in the policy. That is so because it is so unlikely that “bodily injury,” if it were limited to that arising from false arrest, wrongful entry, publications, etc., could have anything to do with the sale of liquor. The kind of liability likely to arise from liquor sales is precisely the kind which might have arisen in this case had Arkansas law provided it, which it did not.
We do not quarrel with the cases cited by the Didiers and the Hogans to the effect that an ambiguous insurance policy is interpreted in favor of the insured; however, we will not indulge in a forced construction outside tjie intent of either party. Mercury Ins. Co. v. McClellan, 216 Ark. 410, 225 S.W.2d 931 (1950); Habaz v. Employers Fire Ins. Co., 243 F.2d 784 (8th Cir. 1957). We consider the whole policy to determine the meaning of the clause in question. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971); Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W.2d 611 (1929). Given the separate definition of “bodily injury,” the inclusion of that term in the policy’s definition of “personal injury,” and the fact that “bodily injury” is unlikely to occur in the categories of “other injury” listed in the exclusionary clause, we conclude the intent of the policy was to exclude liability for “bodily injury” resulting from liquor sales.
Reversed and remanded.
Glaze, J., concurring. | [
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Darrell Hickman, Justice.
Dorothy Ponder was injured when the bus in which she was riding was involved in an accident. She sued the bus driver, Don Cartmell, and Ozark Coaches Sales and Service, the owner of the bus. The case went to trial on the sole issue of damages, liability having been admitted. The jury awarded Mrs. Ponder $25,000. On appeal, she challenges certain evidentiary rulings by the trial court which affected the jury’s assessment of damages. We find error and reverse and remand.
In her complaint, Mrs. Ponder claimed she sustained injuries to various parts of her body, including her back, neck, and left breast. Immediately following the accident, she was examined by Dr. Livingstone, a general practitioner. The doctor prescribed treatment for her injured breast, then referred her to specialists for a mammogram. Apparently, there was no other treatment of the breast injury until nearly two years later when Mrs. Ponder was examined by Dr. Pike. Dr. Pike discovered fibrocystic disease in the breast and performed surgery. In a letter to Mrs. Ponder’s attorney, Dr. Pike said he doubted the accident had any relation to the development of the disease. The first issue involves the appellees’ use of this letter at trial.
The appellees had filed a motion in limine asking that the breast injury not be mentioned. The trial judge agreed that evidence of the breast surgery and Mrs. Ponder’s resulting fear of developing breast cancer should not be admitted. However, he did not prohibit evidence of Mrs. Ponder’s treatment by her general practitioner and the doctors who performed the mammogram.
During Mrs. Ponder’s testimony about her injuries, she did not mention the breast surgery performed by Dr. Pike nor did she ask the jury to award her damages for the expenses incurred in Dr. Pike’s treatment. However, on cross-examination, the appellees introduced Dr. Pike’s opinion letter and attempted to discredit Mrs. Ponder’s testimony with it. Mrs. Ponder objected, saying that she had not presented any evidence of her treatment by Dr. Pike.
The court allowed the letter to be introduced into evidence because the appellant had “opened the door” on the subject. In fact, it was the appellees who first mentioned the surgery performed by Dr. Pike. Their use of the letter created the impression that Mrs. Ponder was seeking damages for injuries which her own doctor realized were not caused by the accident. The appellees introduced a collateral matter into evidence, then used it to impeach Mrs. Ponder’s testimony. The court should not have allowed this to take place. See Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987).
This error alone would be sufficient to warrant reversal, but we also base our decision on another evidentiary error committed by the court. Mrs. Ponder’s treating physician, Dr. Richard Jordan, testified that Mrs. Ponder had a degenerative disc disease in her neck which was aggravated by the accident. He performed two surgical procedures on her — an anterior scalenotomy and a discectomy — and testified that the treatment was necessitated by the injury she received in the accident.
The appellees presented an expert witness, Dr. Thomas Fletcher, who disagreed with Dr. Jordan’s testimony. Dr. Fletcher’s testimony emphasized three things. First, he said the appellant had only suffered a neck sprain and lower back sprain in the accident; second, he said the accident did not cause or aggravate the appellant’s degenerative disc problem. In other words, he disagreed that the bus accident caused the injuries to the discs in the appellant’s neck. There is no problem with this aspect of Dr. Fletcher’s testimony. Certainly, a defendant’s medical expert may testify that the physical injuries for which the plaintiff seeks compensation were not caused by the accident. See Shemman v. American Steamship Co., 89 Mich. App. 656, 280 N.W.2d 852 (1979). But Dr. Fletcher’s testimony went beyond this. In the third aspect of his testimony, Dr. Fletcher told the jury that Dr. Jordan misdiagnosed the appellant’s symptoms and that this misdiagnosis led to unnecessary surgery. He disagreed that the scalenotomy was the proper treatment for the appellant’s continuing complaints of neck pain, saying an anterior scalenotomy was “not indicated for muscle spasm alone or pain alone.” He also said that the discectomy was not a proper treatment for the appellant’s neck problems, saying “discectomy is not indicated for degenerative disc disease alone.” Dr. Fletcher said he would not have performed either operation. It is this part of Dr. Fletcher’s testimony that the appellant says should not have been admitted into evidence, and we agree.
The appellant’s recovery should not be diminished because Dr. Jordan’s misdiagnosis, if indeed that was the case, led to the use of extreme medical procedures. Given Dr. Fletcher’s testimony, the jury might have determined that the appellant should have been treated more conservatively and that surgery was an extreme or unnecessary measure. This violates the principle that, so long as an individual has used reasonable care in selecting a physician, she is entitled to recover from the wrongdoer to the full extent of her injury, even though the physician fails to use the remedy or method most approved in similar cases or adopt the best means of cure. See Am. Jur.2d Damages, § 536. This principle is also recognized in Restatement (2d) Torts, § 457, Illustration 1:
A’s negligence causes B serious harm. B is taken to a hospital. The surgeon improperly diagnoses his case and performs an unnecessary operation. . . A’s negligence is the legal cause of the additional harm which B sustains.
See also O’Quinn v. Alston, 213 Ala. 237, 104 So. 653 (1925) (where treating surgeon amputated finger, it was error to ask defense expert whether amputation was necessary); Whitaker v. Kruse, 495 N.W.2d 223 (Ind. App. 1986) (Plaintiff may recover expenses of unnecessary surgery).
It is true that a plaintiff who seeks to recover medical expenses must prove the expenses are reasonable and necessary. Kay v. Martin, 300 Ark. 193, 777 S.W.2d 859 (1989). “Necessary” means causally related to the tortfeasor’s negligence. See Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1985). If a plaintiff proves that her need to seek medical care was precipitated by the tortfeasor’s negligence, then the expenses for the care she receives, whether or not the care is medically necessary, are recoverable.
We will briefly address two issues which may arise upon retrial. Two exhibits entered into evidence by the appellees clearly mentioned the appellant’s insurance coverage. Reference to insurance should be deleted if the exhibits are used on retrial.
A surveillance tape, showing some of the appellant’s daily activities, was entered into evidence by the appellees over the appellant’s objection. We find the tape was admissible. The tape showed the appellant walking past a Social Security benefits sign, but she explained that she was procuring benefits for her mother, not herself. That the tape depicted only a selected portion of two days of appellant’s life is not an argument against admissibility of the tape, but a factor to be weighed by the jury. Also, on retrial, appellant should receive any tapes to which she was not previously given access.
Finally, there was no error in the court’s failure to compel the appellees to answer certain interrogatories and deposition questions.
Reversed and remanded.
Holt, C.J., Hays and Turner, JJ., concur in part and dissent in part. | [
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Otis H. Turner, Justice.
The appellant, Tyrone Jones, was convicted of the crime of aggravated robbery, a class Y felony, and was sentenced to forty years imprisonment. The trial court ordered the sentence to run consecutively with previous consecutive sentences of life imprisonment and thirty-seven years.
Two issues are raised as grounds for reversal. First, the appellant contends that he should receive credit against his sentence for time spent in confinement while awaiting trial. Because we are reversing on the other issue, it is unnecessary for us to address that question. However, in a companion case decided today, Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990), that issue is fully discussed; there, the appellant was credited with jail-time while incarcerated awaiting trial on those charges and the charges here. The holding in that case applies as well here.
For his second point for reversal, the appellant objects to two gratuitous comments made by the trial judge in the course of jury voir dire. He contends that the remarks were inappropriate and so prejudicial in character that a mistrial should have been declared. We agree.
After the twelve prospective jurors were seated, the following transpired:
PROSPECTIVE JUROR: There’s one thing I should say, I was a victim of a crime in March. My car was broken into in my driveway, but as far as I am concerned it wouldn’t have any bearing on my decision today, but I thought I should tell you this.
COUNSEL FOR STATE: I appreciate it. Was some resolution achieved in that case or is it still —
PROSPECTIVE JUROR: It’s still pending. Nothing was — personal items were taken, credit cards and —
COUNSEL FOR STATE: I see. Is there anything about that particular incident that makes you uncomfortable about being here today for this one?
PROSPECTIVE JUROR: No, sir.
Hi * *
COUNSEL FOR DEFENDANT: Thank you, your Honor. I’ll ask you all the same questions I have asked everybody. Would any of your answers be different than the answers given by the other jurors to my questions? Mr. Dunn, I appreciate your candor on that one issue. Were you a witness in this case?
PROSPECTIVE JUROR: My particular —
COUNSEL FOR DEFENDANT: Yes, sir.
PROSPECTIVE JUROR: There’s nothing that will solve this case.
COUNSEL FOR DEFENDANT: But you weren’t an eyewitness?
PROSPECTIVE JUROR: No. It happened in the night and my car was in my driveway and I discovered it the next morning.
COUNSEL FOR DEFENDANT? Okay. And you would be able to set that aside and hear the case today?
PROSPECTIVE JUROR: Yes, sir.
COUNSEL FOR DEFENDANT: Okay. Anything else from anybody else? Thank you very much.
THE COURT: Thank you . . . [Addressing the prospective juror] Did you read in the paper the other day someone got shot breaking in a car?
PROSPECTIVE JUROR: Yes, sir, I did.
THE COURT: Attorney General tells me that’s against the law. I don’t think it is.
PROSPECTIVE JUROR: I agree with you.
THE COURT: I think the Attorney General says you are supposed to say “Stop” and if he doesn’t (sic) stop you let them go. If you tell them to stop and they don’t stop, you shoot them.
PROSPECTIVE JUROR: My car sits right out of my bedroom, and I can just look right out and see my car. Whoever did it was awfully quiet.
THE COURT: It’s a shame. How many here would convict someone of shooting somebody getting in their car? You think you would convict someone who did that?
PROSPECTIVE JUROR: Could or would?
THE COURT: Convict someone? Find them guilty of battery or something like that.
PROSPECTIVE JUROR: I think I would.
THE COURT: No, no. If you shot someone, like take this fellow over here. The paper said they hadn’t decided whether or not to bring charges. And he was brought here to court and he’s the defendant and he gets up here and testifies that, “I shot, fired a warning shot, and that fellow started running off and I shot him in the rear with a .22.” How many of you would find him guilty? Any of you find him guilty? I wouldn’t. I’ll probably get in a lot of trouble for saying that.
* * *
COUNSEL FOR DEFENDANT: Your Honor, I’ve got kind of a problem with the conversation regarding how —
THE COURT: Oh, you want to move for a mistrial?
COUNSEL FOR DEFENDANT: Yes, sir. I think I will.
THE COURT: Well, good. It’s denied.
We hold that these comments, made by the trial court to prospective jurors as they were questioned and being qualified to try a case of aggravated robbery, constitute error per se. We have consistently acknowledged the great influence that a trial judge has on jurors. He must, therefore, refrain from impatient remarks or unnecessary comments which might indicate his personal feelings or which might tend to influence the minds of jurors to the prejudice of a litigant. See Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989).
The trial judge is the one person who controls the conduct of all participants in the course of a trial, from beginning to end, and instructs the jury regarding the law which must be applied to the facts. Hence, a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Chapman v. State, 257 Ark. 415, 516 S.W.2d 598 (1974).
In the present case, the appellant made a timely motion for a mistrial. Though mistrial is a drastic remedy, if justice cannot be served by continuing, it is nevertheless an appropriate remedy. Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983).
Reversed and remanded.
Price, J., not participating. | [
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Darrell Hickman, Justice.
The question is one of statutory construction. The legislature undoubtedly made a mistake when it created an exception to the usual four year statute of limitations applicable to suits for personal injuries caused by the defective design of construction projects. An exception was intended to be made for those injured during the fourth year after substantial completion of such a project, allowing an extra year to bring suit. The legislation actually stated that an exception was being made for those injured during the third year after substantial completion of construction.
To give the statute its literal meaning would void the obvious intent of the legislature. The trial court gave the statute its literal meaning and denied the appellant his right to bring suit. We reverse that judgment and remand the case for further proceedings.
The facts are undisputed. Gary D. Dooley, the appellant, broke his neck when he dove into the swimming pool at the Hot Springs Family YMCA. As a result he became a quadriplegic. He sued the YMCA as well as Hill Construction Company, who built the pool and CMM Architects, who designed it.
The accident occurred August 8, 1987. Suit was filed July 26, 1988. The trial judge granted a motion for summary judgment filed by the appellees, Hill Construction Company and CMM Architects, because of the statute of limitation applicable to such suits.
The basic statute, Ark. Code Ann. § 16-56-112(b)(1) (1987), is a four year statute of limitations, and it reads:
No action in tort or contract, whether oral or written, sealed or unsealed, to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement more than four (4) years after substantial completion of the improvement.
However, an exception is made in the very next provision of the statute, Ark. Code Ann. § 16-56-112(b)(2), and it reads:
Notwithstanding the provisions of subdivision (b)(1) of this section, in the case of personal injury or an injury causing wrongful death, which injury occurred during the third year after the substantial completion, an action in tort or contract to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which injury occurred, irrespective of the date of death, but in no event shall such an action be brought more than jive (5) years after the substantial completion of construction of such improvement. (Emphasis added.)
In this case substantial completion of the project occurred in September, 1983. The injury occurred during the fourth year, not during the third year after completion. Therefore, if the literal meaning of § (b)(2) is applied, Dooley’s claim must be dismissed as untimely, because it was filed more than four years after substantial completion. That was the trial judge’s decision and we appreciate his reluctance to read into the act that the legislature actually meant to say “during the fourth year” instead of “during the third year.” But that has to be the legislature’s intent. Because, obviously, if a person is injured during the third year after completion and has only one year from that date to file suit, then suit must be filed within four years after substantial completion. That is what the general limitation is for all such actions. There would be no exception if the legislation is read that way. The intention of the legislature was to honor personal injury claims occuring during the fourth year after substantial completion, otherwise there would be no purpose in making five years the outside limit.
When we interpret legislation, we first have to decide if it is clear or ambiguous. If it is clear, we must apply its clear meaning. Chandler v. Perry-Casa Public Schools Dist. No. 2, 286 Ark. 170, 690 S.W.2d 349 (1985). But if it is ambiguous, then we must decide what the legislature intended. Woodcock v. First Commercial Bank, 284 Ark. 490, 683 S.W.2d 605 (1985).
We have said on several occasions that it is our duty to give effect to the true intent of the general assembly even though such intent has not been clearly expressed by the language used. Woodcock v. First Commercial Bank, supra; Steele v. Murphy, 279 Ark. 235, 650 S.W.2d 573 (1983).
In order to give effect to the real intention, we may correct errors by rejecting certain words and substitute others to reconcile apparent inconsistencies. Langford v. Brand, 274 Ark. 426,626 S.W.2d 198 (1981). In Carters. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), we examined the constitutionality of this statute but did not address the issue raised in this case. We did, however, intentionally or otherwise, say:
This Act only cuts off action after four years. But, even then, if an accident or injury occurs before the expiration of that four year period, it may still be brought within an additional 12 months against those furnishing the design, planning, supervision or observation of construction and repairing of any improvement to real property.
We feel the legislature simply made a mistake and used “third” instead of “fourth” and correct it without hesitation. To do otherwise would be to erase § (b)(2).
Reversed and remanded. | [
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Otis H. Turner, Justice.
Appellant, Susan E. Meeks, challenges the validity of a default judgment obtained by appellee, Arthur Stevens, contending that service of process was never perfected. We agree.
Appellant was formerly employed as a social worker with the Arkansas Social Services Division of the Arkansas Department of Human Services. In August, 1988, she informed appellee and his wife of a Division investigation, directed by her, that revealed possible child abuse and neglect of the children of appellee’s wife. Among other things, the report contained allegations of sexual abuse by appellee of his stepdaughter.
Appellee subsequently filed an action against the appellant, alleging that she had used her position, and had conspired with the natural father of the children, to destroy appellee’s reputation. He sought damages for libel, slander, outrage, and invasion of privacy.
Appellee sought personal service on his complaint by placing the summons in the hands of a deputy sheriff, who was unable to locate appellant. Appellee then attempted service by certified mail, addressed to appellant’s postal box, with delivery restricted to appellant. Notices directed to appellant were placed in the box on three separate occasions, but the certified mail was never claimed. There was no evidence that the notices were received by appellant, but they were not returned to the issuing office and, in addition, other mail addressed to appellant at that box was not returned and was apparently removed from the box.
Thereafter, the certified mail was returned to appellee’s attorney marked by the Postal Service “unclaimed.” Subsequently, appellee sent a summons, complaint, and letter to appellant, which warned that the case could proceed to default judgment. This letter was again sent by certified mail to appellant’s postal box. Appellee also sent a copy of the motion for default judgment by certified mail on the same date.
The motion for default judgment was subsequently heard and a judgment was entered on appellee’s complaint when appellant failed to appear. Thereafter, appellant moved to set aside the default judgment. It is from a denial of that motion that appellant brings this appeal.
Though Rule 55 of the Arkansas Rules of Civil Procedure provides for entry of a default judgment when a party fails to appear or otherwise to defend, Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), the courts have made it abundantly clear that defaults are not favored and this court has so stated. Allstate Insurance Co. v. Bourland, 296 Ark. 488, 758 S.W.2d 700 (1988). Because of its harsh and drastic nature which can result in the deprivation of substantial rights, a default judgment should only be granted when strictly authorized and when the party affected should clearly know he is subject to default if he does not act in a required manner. Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976).
Service of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution. Smith v. Edwards, 219 Ark. 79, 648 S.W.2d 482 (1983). Therefore, where sufficient notice of an action has not been given, and a default judgment has followed, a motion to set aside the judgment must be granted. Ideal Mutual Insurance Co. v. McMillian, 275 Ark. 418, 631 S.W.2d 274 (1982). Appellee’s attempt at service of process and notice of impending default must then be measured against the extremely heavy burden imposed upon him.
Appellee first attempted personal service pursuant to Arkansas Rules of Civil Procedure, Rule 4(d)(1), but was unsuccessful. He next sent a copy of the summons and complaint by certified mail to appellant’s postal box in compliance with Arkansas Rules of Civil Procedure, Rule 4(d)(8)(A), which provides in pertinent part:
Service of a summons and complaint upon a defendant . . . may be made ... by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail the copy of the summons and complaint and a notice that despite such refusal the case will proceed and the judgment by default may be rendered against him unless he appears to defend the suit.
Clearly, the rule requires a “refusal” of the mailed notice before default may be entered. The question dispositive of this appeal is whether under these facts the “unclaimed” mail returned by the postal department is “refused” mail within the meaning of Rule 4(d)(8)(A).
The Domestic Mail Manual of the U.S. Postal Service at Section 159.16 characterizes “refused” mail as mail which the addressee has refused to accept and “unclaimed” mail as mail which the addressee abandons or mail which the addressee fails to call for or claim. “Refused” appears in the government manual to be self-defining. Hence, it is necessary to look elsewhere for a definition. The ultimate arbiter, the Oxford English Dictionary, gives as its relevant definition: “To decline positively, to express or to show a determination not to do something.” (Emphasis is original.) The Random House Dictionary of the English Language, Second Edition (1987), in relevant part, defines “refuse” as “to decline to accept (something offered); to express a determination not to (do something).” Both definitions of the term “refuse” stress the active element of refusal — declining “positively” and expressing or showing a determination not to do a particular thing. Refusal therefore is not passive in character.
With respect to Rule 4(d)(8)(A), the active nature of refusal is spelled out with care. The record must contain “a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee.” (Emphasis added.) Silence or inaction, which elsewhere in the law may be presumed to be token consent, is not, in this instance, equivalent to refusal.
Though this appears to be a case of first impression in Arkansas, we agree with the analysis of the Missouri Court of Appeals, Western District. In Central Wholesale Distributors v. Day, 672 S.W.2d 88 (Mo. App. 1984), the court held specifically that the return of an attempted service by registered mail is not tantamount to a refusal to receive service of process. See also, In the Matter of the Interest of M.L.K., 768 P.2d 316 (Kan. App. 1989), and Romeo v. Looks, 535 A.2d 1101 (Pa. Super. 1987), where courts endorsed publication as a secondary method of notice when unclaimed letters were returned.
The record in this case does not show whether appellant was the only person to receive mail in the postal box to which the notices were sent. The postmaster testified that appellant was sent three claimed notices for certified mail but failed to present the notices and claim the mail. A failure to present claimed notices at the post office does not reach the level of affirmative action suggested by the definitions of “refuse.” Further, this failure to act affirmatively is a far cry from the explicit requirements of Rule 4(d)(8)(A), which serves as a safeguard against the harshness of default judgment.
In this instance, and under these facts, we are not persuaded that appellant’s due process rights would be satisfied by a finding that the notices of certified mail not returned and other mail addressed to appellant at the same location and not returned, establishes or creates a presumption that the mail was refused. Neither fact, considered separately or together, is sufficient to infer or create a rebuttable presumption that the appellant “refused” the certified mail under the provisions of the rule.
It has long been established that when no sufficient service has been had, the court does not acquire jurisdiction of the person of the defendant. Coffee v. Gates and Bro., 28 Ark. 43 (1872).
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Jack Holt, Jr., Chief Justice.
The appellant, Carl Freeman, was convicted of driving while intoxicated, first offense, and sentenced to 24 hours in jail, which was reduced to time served, fined $593.00 plus costs of $51.25, had his driver’s license suspended for 90 days, and ordered to participate in an alcohol treatment or an education program.
Freeman appeals on two points of error: 1) that the trial court erred in failing to suppress the results of a breathalyzer test because it was not obtained in compliance with Ark. Code Ann. § 5-65-202 (1989), and 2) the trial court erred in not dismissing the charges or in not suppressing the testimony of the arresting officer due to his failure to be in compliance with the minimum employment standards set by the Commission on Law Enforcement Standards and Training.
We reverse and dismiss on the basis of finding merit in Freeman’s second point of error; consequently, we need not address his first argument.
On January 15, 1989, Freeman was stopped by Officer Stigaullde, of the DeWitt Police Department, for erratic driving. Subsequently, Stigaullde suspected that Freeman was intoxicated, due to the odor of alcohol and the results of field sobriety tests, and took him to the police station for a breathalyzer test. After he assessed the results of the breathalyzer test, Stigaullde arrested Freeman on the charge of driving while intoxicated.
Freeman alleges in his second point of error that the trial court erred in refusing to dismiss the chárges or in not suppressing the testimony of the arresting officer because of the officer’s failure to be in compliance with minimum standards for employment set by the Commission of Law Enforcement Standards and Training.
We recognized in Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), that:
Qualifications of candidates for police positions in Arkansas are set by regulations promulgated by the Arkansas Commission on Law Enforcement Standards and Training. By Ark. Code Ann. §§ 12-9-104 and 12-9-106 (1987), the general assembly has empowered the commission to establish minimum selection and training standards and general qualifications of law enforcement personnel.
Commission on Law Enforcement Standards and Training Regulations . . . provide:
§ 1002(2) (c). Every officer employed by a law enforcement unit shall be fingerprinted and a search made of state and national fingerprint files to disclose any criminal record.
§ 1002(2) (i). Every officer employed by a law enforcement unit shall be examined by a licensed psychiatrist or a licensed psychologist, who, after examination, makes recommendations to the employing agency.
§ 1002(4). The minimum standards for employment or appointment must be completed before employment eligibility is established. Employment eligibility should depend upon the results and recommendations received by the investigator and examiners.
Arkansas Code Ann. § 12-9-108(a) (1987) also provides that “[a] person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training [Commission] shall not take any official action as a police officer, and any action taken shall be held as invalid.”
In Grable, supra, we held that strict compliance with the standards and qualifications of police officers is required by the emphatic language of section 12-9-108(a), and that substantial compliance with those requirements was insufficient.
We reaffirmed the Grable standard in Johnson v. City of Kensett, 301 Ark. 592, 787 S.W.2d 651 (1990), and stated that meeting the minimum employment qualifications under the Standards Act is mandatory and requires strict compliance.
In this case, Stigaullde was originally employed by the DeWitt Police Department on November 21, 1979. Two weeks after his initial employment, Stigaullde underwent a psychological examination and a fingerprint check, and the results of both of these procedures were placed in Stigaullde’s personnel file.
On September 2,1982, Stigaullde resigned from the DeWitt Police Department in order to work for the police department of Hope, Arkansas. Thereafter, Stigaullde was rehired by the DeWitt Police Department in March 1987; no additional psychological testing or fingerprint checks were performed by the police department in regard to Stigaullde’s reemployment.
Freeman contends that Stigaullde’s initial lack of compli anee with the Commission standards for employment or, in the alternative, the fact that the reports were not updated prior to his reemployment, preclude him from making a valid arrest.
Our decisions in Grable, supra, and Johnson, supra, mandate that this case be reversed on the basis of noncompliance with section 1002(2)(i) regarding the psychological report.
Although Stigaullde’s personnel file at the DeWitt Police Department did contain the results of both a psychological examination and fingerprint checks prior to his reemployment on March 1987, the psychological report did not contain the necessary recommendations required by section 1002(2) (i).
The report states in pertinent part as follows:
REASON FOR REFERRAL: Mr. Stigaullde was referred to this Agency for evaluation by the DeWitt Police Department where he is presently employed.
TEST ADMINISTERED: MINNESOTA MULTI-PHASIC PERSONALITY INVENTORY (MMPI)
TEST RESULTS AND INTERPRETATION: This appears to be a valid MMPI profile, although a significant need to appear in a favorable light and to give socially approved answers regarding self-control and moral values is suggested. A rather defensive attitude toward emotional tension and distress is likely. The test results also suggest a mildly independent and non-conforming individual, who is probably energetic and active. A history of minor difficulty with societal limits and expectations may occur.
DIAGNOSTIC IMPRESSION: The test results do not suggest the presence of a psychiatric disorder.
This evaluation should be considered as only one part of the overáll assessment for employment.
This report interprets the results of the test administered to Stigaullde but clearly does not contain any recommendations. Therefore, compliance with section 1002(2)(i) has not been met and, according to section 12-9-108(a), Stigaullde “shall not take any official action as a police officer, and any action taken shall be held as invalid.”
We also stated in Grable, supra (citing Robbins v. State, 219 Ark. 376, 242 S.W.2d 640 (1951)), that it is the duty of the state to give notice of the offense charged in the charges levied against the defendant. “Just as the defendant has no duty to establish any fact proving his innocence, Griffin v. State, 169 Ark. 342, 275 S.W. 665 (1925), he has no duty to prove the negative proposition that there are no charges against him other than the one before the court of which he complains.”
Apparently, the citation that Stigaullde issued to Freeman serves as the only basis for the offense, as the State has not shown any additional charges.
If the state is willing to stand on the charge of which the defendant complains, so be it, and the court can then determine its validity. If there is a valid charge against the defendant other than the one to the validity of which he objects, the state should be able to produce it and should have the duty to do so.
Grable, supra.
Finally, we find that the issue of whether Act 44 of November 8, 1989, which ab initio amended subsection (a) of section 12-9-108 to the effect that actions taken by law enforcement officers who were not in compliance with employment regulations would not be invalid merely because of that noncompliance, is an application of ex post facto law need not be addressed, as we will not consider arguments raised for the first time on appeal. Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988) (citing Hopper-Bond Ltd. Partnership Fund III v. Ragar, 294 Ark. 373, 742 S.W.2d 947 (1988)).
Reversed and dismissed.
Hays, J., concurs.
Price, J., not participating. | [
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David Newbern, Justice.
Ralph St. Clair, the appellant, was convicted of sexual abuse of his seven-year-old stepdaughter. He contends A.R.E. 803(25)(A) permitting certain hearsay evidence to be admitted in child sexual abuse cases was unconstitutionally enacted by the general assembly after this court had declared its inherent authority to promulgate rules of evidence in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). We hold the separation of powers doctrine does not preclude the general assembly from enacting a rule such as the one in question here. He also contends that the case must be reversed because, even if the rule is not unconstitutional, the court failed to instruct the jury in accordance with the rule. We decline to reverse on the latter point because there was neither a request for the instruction nor an objection at the trial to the court’s failure to give it.
1. Separation of powers
In the Ricarte case and its accompanying per curiam order this court exercised its' inherent authority to adopt the Uniform Rules of Evidence as the Arkansas Rules of Evidence. We adopted them “ as set forth” in the 1976 act by which the general assembly adopted them. In Re Adoption of the Uniform Rules of Evidence, 290 Ark. 616, 717 S.W.2d 491 (1986). After the original adopting act of 1976 and before our 1986 order, the general assembly enacted Rule 803(25)(A). That rule estab lishes an exception to the hearsay rule for a “statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest . . . .” provided a hearing is held to determine the reasonable trustworthiness of the evidence based on factors named in the rule.
In this case such a hearing was held, and the court determined that testimony as to the child’s out-of-court statements would be admitted. At the trial a psychological examiner, a physician, and the child’s mother were allowed to testify about the child’s statements to them.
In Curtis v.State, 301 Ark. 208, 783 S.W.2d 47 (1990), which we hand down today, we explain that we share the rule making power with the general assembly. We point out that we give full effect to legislation in an area of procedure or practice we have not preempted by rule and note that we will defer to the general assembly where a court rule conflicts with a public policy adopted by legislative act or as part of the constitution.
The general assembly’s adoption of Rule 803(25)(A) deals with a matter our rules do not cover. We have provided no exception to the hearsay rule for child victims of sexual crimes. We hold the rule to be not unconstitutional.
2. Failure to instruct
Rule 803(25)(A)3. provides:
If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
The jury was given no such instruction, but St. Clair did not ask for it and did not object to the failure to give it.
St. Clair relies on Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988). In that case the court of appeals held Rule 803 (25) (A) inapplicable because there had been no attempt by the state to invoke it as a basis for admitting into evidence hearsay statements of a child victim. The court noted there had been no hearing on trustworthiness, no notice of intent to offer the evidence, and no jury instruction on weight to be given, and the court noted that all of these would have been required had the rule been the basis of admitting the evidence at trial.
While it is correct to say the trial court was required to give the instruction and erred in failing to do so, it was given no opportunity to correct its error at the trial, and we will not consider the matter for the first time on appeal. Hegwood v. State, 297 Ark. 218, 760 S.W.2d 859 (1988); Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984).
Affirmed.
Hickman, J., concurs.
See concurring opinion of Hickman, J. in Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). | [
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Per Curiam.
On July 29,1988, the Benton County Probate Court entered an order finding that custody of the petitioners’ children should continue with the Department of Human Services for foster care placement and that Human Services should proceed with a petition for guardianship with authority to consent to adoption. Petitioners appealed to this court, and on September 12, 1988, we granted petitioners’ motion to proceed in forma pauperis and ordered that the transcript be furnished at the State’s expense.
On March 20,1989, we reversed the decision of the probate court and remanded the case for further proceedings. According to the petitioners, a hearing was held on October 10,1989, in the Benton County Chancery Court, and on January 2, 1990, the court ordered that the petitioners’ children be taken from them and placed for adoption in a suitable home, or placed in long term foster care until an adoptive home could be found.
Petitioners appeal the court’s decision and make a motion for leave to proceed in forma pauperis, for filing fees, for costs for transcription of the October 10,1989, hearing, and for attorney’s fees as allowed under Ark. Code Ann. § 9-27-316 (Supp. 1989). To be consistent with our action taken in the first appeal, we grant the motion for leave to proceed in forma pauperis and for filing fees and order the State to pay costs of transcription. However, we remand for a determination by the trial court as to the petitioners’ entitlement to attorney’s fees from the Juvenile Court Representation Fund as prescribed by Ark. Code Ann. § 9-27-316 (Supp. 1989).
Price, J., not participating. | [
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Robert H. Dudley, Justice.
A burst package containing 3.33 grams of crack cocaine was intercepted by security officials at the Federal Express hub in Memphis, Tennessee. The package was addressed to: “Mr. D. Walker, 1851 South Donaghey, No. 132, Conway, Ark.” The appellant’s name is Darryl Walker, and he lived at the address listed on the package. The Conway police were notified and, with additional information, obtained a search warrant and searched appellant’s residence. There, they found 2.53 grams of cocaine packaged in zip-lock baggies, an opened but empty envelope in which appellant had received something through Airborne Express, and receipts from Emery Air Freight and United Parcel Service, along with drug paraphernalia, including various sizes of zip-lock bags, single-edge razor blades, a set of scales of the type used to weigh drugs, and a police radio scanner.
Appellant was charged with: (1) attempted possession of a controlled substance based upon the package intercepted in Memphis, (2) possession of a controlled substance based upon the cocaine found in his residence, and (3) possession of drug paraphernalia. The three counts were tried together. At the close of the State’s case, the trial court directed a verdict on count one (1), attempted possession. The jury returned a verdict of guilty on counts two (2) and three (3), possession of a controlled substance and possession of paraphernalia. We affirm those convictions.
After the directed verdict on the attempted possession count was granted, the appellant took the stand to deny any knowledge about the cocaine and the paraphernalia found in his apartment. On cross-examination he was asked why he had so many zip-lock baggies, why he had a police scanner, why he used an alias, why he had scales which measured in grams, why he had cocaine in baggies, and finally, “Who was it that was mailing you 3.33 grams of crack?” Appellant objected to the last question and asked for a mistrial on the basis that a directed verdict had been granted on the attempted possession charge. On appeal he contends the refusal to grant a mistrial is error. There is no reversible error for a number of reasons. First, the trial judge did not rule on either the objection or the motion for a mistrial. The burden of obtaining a ruling on an objection or a motion is upon the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Porter v. Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984). Error must be clearly shown before we will reverse. Second, immediately after appellant’s objection the prosecutor repeated the question and appellant failed to object or to again ask for a mistrial. When a question is repeated, and there is no objection, the matter is waived. Gregory v. Rees Plumbing Co., 222 Ark. 908, 263 S.W.2d 697 (1954). Third, the argument now advanced on appeal, an A.R.E. Rule 403 issue of weighing probative value vs. prejudice, was not made to the trial court. Since the weighing issue was not brought to the attention of the trial court, the matter cannot be considered on appeal. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); A.R.E. Rule 103(a)(1). Stated differently, a party cannot change the grounds for objection on appeal. Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (1986) (supplemental opinion on denial of rehearing).
The other point of appeal also concerns the 3.33 grams of crack cocaine found in the burst package. As previously stated, the three (3) counts were tried together. During the State’s cases-in-chief, the 3.33 grams of cocaine were admitted into evidence without objection. After the trial court directed a verdict on count one (1), the attempted possession count, the appellant moved that the 3.33 grams of crack cocaine be removed from evidence because, he argued, that evidence was no longer relevant. The trial court refused to grant the motion. On appeal, the appellant argues that the evidence was no longer relevant, but even if it were relevant, it should not have been allowed to remain in evidence under an A.R.E. Rule 403 weighing. Again, the 403-weighing argument was not made in the trial court, and we will not consider matters as error which were not ruled upon. Thus, we consider only the relevancy part of the argument.
A trial court’s ruling on relevancy is entitled to great deference, and a trial court’s ruling will be reversed only if the trial court abused its discretion. White v. Clark Equipment Co., 262 Ark. 158, 553 S.W.2d 280 (1977). This is especially so where the evidence has been properly admitted and one later seeks to remove that evidence.
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. A.R.E. Rule 401. [Emphasis supplied.] Under this expansive definition, evidence “need not conclusively prove the ultimate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” New Jersey v. T.L.O., 469 U.S. 325 (1985). [Emphasis supplied.] Dean'McCormick has written: “To be relevant evidence it need only be a brick, not a wall.” E.W. Cleary, McCormick on Evidence 543 (3d ed. 1984). Accordingly, we have held that evidence that an accused has previously been involved in similar criminal activity is relevant to show his culpable state of mind. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985). We have held that an accused’s involvement with a nefarious gang that committed robberies and his possession of a weapon were relevant evidence in a subsequent robbery-murder case. The evidence was relevant to show a method of operation, or scheme. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). Similarly, the burst package of cocaine with appellant’s name and address on it, when coupled with the cocaine packaged in baggies and other air-express items found at his residence, makes it more probable that the packaged cocaine found in his apartment was not there by mistake, as claimed by the appellant. It further shows the overall plan to acquire and intent to distribute cocaine.
The trial judge did not abuse his considerable discretion in denying the motion to remove the evidence.
Affirmed. | [
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Otis H. Turner, Justice.
This appeal is from the denial of a Rule 37 petition in which the appellant alleges, as a basis for relief, ineffective assistance of counsel. In order to prevail, the appellant must show that legal counsel’s performance was deficient and that the deficiency was such that she suffered prejudice to the extent that she was deprived of the opportunity of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984). Due to the unusual circumstances existing in this case, we are persuaded that the appellant’s counsel was ineffective to the extent that the petition for relief should have been granted.
Bobbi Lynn Mitchell (now Howard) was, along with her then-husband, charged with kidnapping, rape, aggravated robbery, and theft of property arising out of an extraordinarily brutal series of events. As a result of her guilty pleas, made upon recommendation of her counsel and without any plea bargaining, she was sentenced to twenty years on the kidnapping charge and forty years on the rape charge, with the terms to run consecutively. In addition, she was sentenced to twenty years on the aggravated robbery count and to four years for theft of property, both to run concurrently with the kidnapping and rape charges.
The appellant subsequently filed a motion to set aside the plea, which the trial court denied. Thereafter, this Rule 37 petition was filed, and from its denial comes this appeal.
Upon her arrest, the appellant retained an attorney of her own choosing— the same attorney she had employed in a recent domestic relations matter. It would serve no useful purpose to recite her all of the details, except to say that the appellant’s attorney, admittedly relying on outdated Arkansas statutes, convinced his client that, upon her plea of guilty, the court would possibly impose sentence under the provisions of the Alternative Service Act, Ark. Code Ann. §§ 16-93-501 to-510 (1987 &Supp. 1989); that all or a portion of her sentence would likely be suspended; and that there was a reasonable possibility that she would not have to spend more than ninety days in prison before being released on parole.
However, three of the four charges to which the appellant pled guilty are class Y felonies, and suspension of sentence or probation would not be available. Ark. Code Ann. § 5-4-301(a)(1) (1987); Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). Legal counsel admitted, at both the hearing to set aside the guilty pleas and the hearing on the Rule 37 petition, that at the time he advised the appellant he was unaware of the current statutory restrictions on sentencing and parole.
The erroneous advice of legal counsel, standing alone, would be sufficient to establish the first prong of the Strickland test — the deficiency of legal counsel’s performance. However, those facts would not necessarily constitute prejudice justifying the granting of the relief sought.
But here, the record reveals that during the period of representation by her attorney, the appellant was undergoing psychiatric counseling, experiencing a problem with alcohol abuse, and finally, having sexual relations with her lawyer, both at his office and elsewhere.
In light of these facts, we are convinced that the extraordinary influence by the appellant’s attorney, to her prejudice, proved instrumental in her entering a guilty plea. That plea should be set aside.
Reversed and remanded.
Glaze, J., dissents. | [
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Robert H. Dudley, Justice.
This is a taxpayers’ suit to enjoin the appellee central improvement district from repairing and constructing sidewalks, the purpose for which it was formed. Appellants argue a number of defects in the organization of the district, but only one need be discussed.
In order to form a central business improvement district, the owners of two-thirds of the assessed value of real estate within the proposed district must petition the city council for the creation of the district. Ark. Code Ann. § 14-184-108 (1987). After that is done, and after public notice and hearing, the city council can pass an ordinance creating the district. The appellants argue that the district was not validly created because the petition to the city council did not contain the signatures of the owners of two-thirds of the assessed value of real estate within the district. The argument is meritorious.
At the time the ordinance was passed the total assessed value of real estate in the district was $3,279,080.00, and two-thirds of that total is $2,186,053.33. The petition contained signatures representing $2,321,940.00 in assessed value, or only $135,886.67 more than necessary. We discuss only one of the purported owner’s signatures since it represents $191,645.00 in assessed value, or more than enough to invalidate the organization of the district.
The statute requires that the name of the owner be signed to the petition. The owner’s name can be signed by an agent, but only when the agent signs as an agent and the name of the owner is disclosed. Colquitt v. Stevens, 111 Ark. 314, 163 S.W. 1141 (1914). In this case, a tract having a value of $191,645.00 was owned by the Arkansas Holding Company, but the name of that company does not appear on the petition. Instead, the name of “Flake, John L. TR” is printed as owner of the tract. To the right of the trustee’s name is the signature of Charles R. Reed. Thus, the name of the owner, Arkansas Holding Company, was not signed to the petition in any manner, and the assessed value of the land owned by the Arkansas Holding Company cannot be counted as part of the petition. Consequently, the district was not validly formed.
Reversed and remanded for entry of decree consistent with this opinion.
Hickman, Purtle, and Newbern, JJ., concur. | [
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Per Curiam.
The petitioner Charles Sullivan pleaded guilty to aggravated robbery in 1988. In 1989, he filed in the trial courta pro se petition for post-conviction relief pursuant to Criminal Procedure Rule 37. The petition was denied, and the petitioner filed a timely pro se notice of appeal. The record was not tendered to this court within the ninety days provided by Rule 5 of the Arkansas Rules of Appellate Procedure. Petitioner has now filed a motion for rule on the clerk and a motion for appointment of counsel. In the motion for rule on the clerk the petitioner asserts that the circuit clerk must assume fault for the late tender of the record because she failed to forward the record to this court or to him within time for him to lodge the record in accordance with the rules of procedure. He contends that as an incarcerated indigent layman, he did not have the means to obtain and submit the transcript.
The motions are denied. All litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating good cause for not doing so. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). It is not the duty of the circuit clerk to perfect an appeal. The appellant has the responsibility for filing a timely notice of appeal and requesting in a letter to the clerk that the record be prepared and transmitted to either the appellant or to the clerk of this court. This request is not part of the notice of appeal. If the pro se appellant desires appointment of counsel, he must file a separate motion for counsel with the notice of appeal. The appellant here filed a lengthy notice of appeal styled “Notice of Appeal and Motion for Designation of Record” which contained in its body a request for appointment of counsel and a request that the record be transmitted to him, to this court and to his attorney if one was appointed to represent him. Clerks and judges are not required to sift through a notice of appeal or other documents to decipher whether any hidden request or motion is contained in it. A litigant’s failure to act in accordance with the prevailing rules of procedure will not be excused solely on the ground that he was acting pro se. Likewise, the fact of incarceration does not excuse a prisoner from complying with the rules. See Peterson v. State, supra.
Motions denied. | [
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McHaney, J.
Appellees brought this action to foreclose ia mortgage on 975 acres of land which was given to secure a debt by the defendants, T. P. Powell and son, who are the father and brother of appellant, T. C. Powell, of approximately $11,000, subject to a prior mortgage to the Joint Stock Land Bank of St. Louis, of approximately $7,000. The case proceeded to judgment, in which a decree was rendered for ¡appellees, foreclosing the second mortgage, subject to the prior mortgage, and providing for a sale of said lands in satisfaction of said indebtedness, which should be sold “subject to a prior deed of trust executed to the Joint Stock Land Bank of St.'Louis, Missouri.” During the pendency of the suit, and before the sale, the defendants in this action became insolvent, and were adjudged bankrupts, and their equity in said mortgaged lands was sold by the trustee in bankruptcy, with the other assets of the bankrupt estate, and the appellant, who was not then a party to .this litigation, became the purchaser of the equity in the lands covered by said mortgages ¡and the other property. A sale was had by the commissioner, at which appellant was present, and the appellees bid the sum of $19,500 for the lands, which was about- $7,000 more than, the indebtedness then being foreclosed, and, this being the only bid, the land was struck off and sold to the appellees for said sum. The undisputed facts show that the appellees, in making their bid, only intended to bid the amount of their debt and the assumption of the prior mortgage against the lands, which amounted to the total-sum of $19,500, and were advised to do this by the commissioner, Hall, who made the sale, who understood that appellees were only bidding the amount of their indebtedness under the foreclosure, plus the amount of the prior mortgage, which they would pay off when it became due. Appellant claims that, inasmuch as the land was ordered sold subject to this prior debt, their bid being the flat sum of $19,500, appellees should be required to pay into the registry of the court for his benefit the sum of approximately $7,000. Under this state of the case the court permitted the commissioner to amend his report of sale.
The original report, showing that “at such sale so made and had by him, J. H. Landers, Ed Billingsley and R. D. Harris bid and offered the sum of $19,500 for said lands and premises, and, that being the highest bid, the same was struck off and sold to them for that sum, $19,-500. ’ ’ That report was amended so as to read as follows: “And at such sale so made and had by him, J. H. Landers, Ed Billingsley and R. D. Harris bid and offered the sum of $19,500 for the amount of judgment and costs, $12,-290.37, and debt to the St. Louis Joint Stock .Lank Bank, $7,229.63, for said land and premises, and that being the highest bid, the same was struck off and sold to them for that sum, $19,500.”
Thereupon appellant filed his intervention in the action setting out the foregoing facts, in which he alleged that he.was present at said sale, and would have bid the amount of the mortgage debt and costs for which it was being foreclosed, but that he would mot have bid more than $19,500, and prayed that the amended report of the commissioner be stricken from the files, and that the original report be confirmed, and that he be declared to be tlie owner of the sum so bid by appellees, in excess of their judgment debt, and that, upon the payment of said amount, the excess of the $19,500 over and above the mortgage debt then being foreclosed, be paid to him.
Appellees filed a reply to the intervention, setting out their theory of the matter, as hereinbefore stated. After hearing evidence on the intervention, the court entered a decree which recites that “the court tendered said lands to the intervener upon payment of said debt and cost, without interest from date of filing intervention, and upon refusal of said intervener to accept said tender of said lands, it is the opinion of the court that 'said amended report of the commissioner should be, and the same is, hereby confirmed, and said commissioner is hereby directed to execute a deed to the plaintiffs purchasing at said sale, upon their satisfying their judgment 'against the defendants and assuming the indebtedness of defendants to the Joint Stock Land Bank.” From this order confirming the amended report and sale of said lands the intervener has prosecuted an appeal to this court.
As indicated by the decree above quoted from, the appellees offered to permit appellant to step into their shoes, as it were, on their bid as shown in the amended report, and accept from him the payment of their debt, and let him become the purchaser of the lands at the sale, subject to the prior mortgage. He refused to do this, and seeks to profit on a strict construction of appellee’s bid, as shown by the original report of the commissioner, to the extent of approximately $7,000, which bid was conclusively shown to have been erroneously made, or erroneously construed by appellant. There is no dispute in the evidence as to what appellees meant by their flat bid of $19,500, that is, that they meant to bid the amount of their debt and assume the first mortgage. This is not only shown by the testimony of the appellees and the commissioner, but the land itself is not worth more than the amount of both mortgages, at least it is not worth $7,000 more than both mortgages.
We think this case is controlled by the decision of this court in the case of Minick v. Ramey, 168 Ark. 180, 269 S. W. 565, where a similar state of facts was involved, and the court permitted the report of the commissioner to be amended in accordance with the intent of the parties, and confirmed it as amended.
No error appearing’, the decree is affirmed. | [
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Mehaeey, J.
The appellee, Leah Holwerk, brought suit in the Phillips county circuit court against the appellant, Berryman Henwood, trustee for St. Louis Southwestern Railway Company, alleging that on July 31,1941, she had purchased a ticket from the said railway company from Forrest City, Arkansas, to Pine Bluff, Arkansas, having paid the passenger fare required by the company. She became a passenger at that time, and while undertaking to board the train she was, through the carelessness and negligence of the servants, agents and employees of the said company, injured in the manner set out in her complaint. The complaint alleged that she is an elderly woman of very little physical strength; that she presented herself at the proper place to board the train, carrying her baggage; that the conductor in charge of said train failed in the manner provided by law to properly assist her, but permitted her alone to take her baggage and enter the car; her baggage was placed on the platform, and from thence forth she was left unassisted; she picked up her baggage and while making an effort to open the door that leads to the coach, she found it in such shape that it was difficult for a woman of her physical strength to take her baggage and get into the train; that while undertaking to enter the coach and while she was in the act of going into the car for the purpose of finding a seat, unattended and unassisted by any employee on said train, the train gave a violent and unusual jerk and jar, throwing her violently down and so injuring her that she has not fully recovered; she is about 65 years old and very slight of build; that as a result of said injuries she had inflicted upon her bruises and abrasions about the head, the right arm and leg; as she fell she struck the right side of her head and since the injury has suffered pain in the leg and arm and has.continually suffered with headaches resulting from said injuries. There continues to be tenderness or pressure over the right occipital bone just behind the ear; there were contusions on her head, right arm and right leg; she suffered great mental pain and anguish and incurred medical bills; she has since been unable to prosecute her work; she is a seamstress, earning approximately $2.50 a day, and there has been .a com píete loss of time from her occupation since the date of her injuries; she prays damages in the sum of $2,500.
Appellant filed answer admitting that he operates a line of railway in the state of Arkansas; denied each and every material allegation contained in the complaint, and specifically denied that plaintiff was injured by reason of any negligent conduct of the defendant’s employees ; states that the alleged injury to plaintiff, if any, was due solely to the negligence of plaintiff and want of care for her own safety.
There was a jury trial and a verdict and judgment for $500 in favor of appellee.
Appellant filed motion for new trial, stating that: “1. The court erred in refusing to instruct the jury to return a verdict for the defendant at the close of plaintiff ’s testimony.
“2. The court erred in refusing to instruct the jury to return a verdict for the defendant at the close of all the testimony.
“3. The court erred in giving plaintiff’s requested instruction No. 3, over the objections and exceptions of the defendant.
The court erred in giving plaintiff’s requested instruction No. 6 over the objections and exceptions of the defendant.
“5. The verdict of the jury is contrary to the law.
“6. The verdict of the jury is contrary to the evidence.
“7. The verdict of the jury is contrary to both the law and the evidence.”
Motion for new trial was overruled, and the case is here on appeal.
Appellant states in his brief that the errors relied on by him are three in number, although for practical purposes numbers one and three are the same:
“1. Refusal of the court to instruct a verdict in appellant’s favor.
“2. The giving of plaintiff’s request for instruction No. 3.
“3. That there is no substantial evidence to sustain the verdict. ’ ’
Of course, No. 1 and No. 3 relied on are the same, and it is contended under them that the evidence is insufficient to support the verdict.
It is undisputed that appellee was a passenger on the train; that she boarded the train at Forrest City. It is also undisputed that she fell and was injured. She testified that when she approached the train a brakeman put the stool down and put her suitcase on the platform, but no one undertook to assist her. She picked up the suitcase and tried to open the door, but before she got it open the train jerked and threw her to the floor; the train started just as she was opening the door and the jerk threw her in; she was preparing to enter the coach but did not have a chance to do so; all she remembers is that the gentleman from Texas, Mr. Murphree, picked her up; they took her to the first seat from the door. When the conductor came in to collect the tickets, Mr. Murphree told him about appellee’s falling. When appellee reached the station in Forrest City, she was told that the train was coming, and she went as quickly as she could and boarded the train; none of the agents, servants or employees of the railroad company undertook to assist her in any way; she had her suitcase in her hand and was preparing to enter the coach when the train gave the jerk and she fell. She cannot say whether the .jerk was forward or backward; she was too sick to know; knows it was a violent jerk. She was 63 years old and was on her way to Dallas, Texas, to attend her son’s wedding.
Since there is no controversy about the fact that appellee fell, and no contention that the verdict is excessive, it is unnecessary to set out the testimony as to her injuries and treatment by physicians.
C. J. Murphree was examined by deposition and testified that he lived in Dallas, Texas; he is 45 years old and B. & B. foreman; was a passenger on the Cotton Belt Railroad on July 24,1941, riding a pass to Dallas by way of Brinkley, Arkansas; he saw appellee coming up the steps of the coach; she had a suitcase; did not see the conductor or any other train employee assist her; the conductor was on the other end of the coach, and no one employed by the railroad assisted her with her luggage or in opening the door leading into the coach; she had not been given time to reach a seat before the train started; she reached down to pick up her suitcase when the train started; witness opened the door, and she fell through it; the train started with a jerk; no one connected with the train assisted her after the fall; witness himself opened the door; the jerk was violent, harder than passenger trains usually start; witness picked her up after the fall and helped her to a seat; when he first saw appellee he was talking to the brakeman and saw her coming up the steps with a small, heavy suitcase; the brakeman set her suitcase up in the vestibule; witness did not see him assist her. Witness does not know whether other passengers were disturbed by the jerk of the train.
It is contended by the appellant that to controvert any inference of negligence that might be drawn from the above testimony, appellant has set out the testimony of four members of the train crew. It is true that the members of the train crew testified, and that their testimony was in conflict with that of appellee and Murphree. But it is argued that to sustain the verdict, the jury has to disregard not only the testimony of appellant’s employee, but also the testimony of passengers Ferguson, Koppel, and Mrs. Short, and that the jury had. no right to do this. Appellant cites the case of St. Louis-San Francisco Ry. Co. v. Porter, 199 Ark. 133, 134 S. W. 2d 546. In that case the court said: i£It was not negligence for the train to start and to apply as much steam pressure in the cylinders of the locomotive as was necessary for the purpose of starting the train.” In that case appellee’s testimony alone was relied on and one witness who boarded the train immediately behind appellee, testified that the train started so easily that he did not know when it started. Here, the evidence of both appellee and Mr. Murpliree, who was the foreman of B. & B. in Texas, showed that there was a violent jerk of the train which threw the appellee down and injured her.
We do not agree with appellant that to sustain the verdict of the jury, the jury would have had to disregard not only the testimony of appellant’s employee, but also the testimony of three passengers. One of those passengers, Mr. Koppel, testified that he was a passenger on the train, and that his attention was attracted toward the rear door by some commotion in the rear of the car; he saw two men supporting a lady who ivas standing on her feet; at that time the train was standing still and remained still for one of two minutes; appellee asked witness ’ name, and she later communicated with him concerning Mrs. Holwerk’s injury. He does not say that there was no violent jerk, but says he recalls nothing unusual; he was reading his paper and paid no attention. Mrs. Short, who was the wife of a locomotive engineer, testified that she did not notice anything unusual and knew nothing of the lady’s being injured. The other witness, J. R. Ferguson, testified that he is employed by the B. & O. Railroad, and has been for sixteen years; his attention was attracted by unusual noise while the train was standing at the station. There is nothing in the testimony of any of these witnesses that contradicts the evidence of' appellee. Mr. Ferguson, however, did testify that he knew she fell, but he did not see her fall; assisted her to a seat.
We think there is substantial evidence to show that the train started with a violent jerk before appellee had time to get to a seat, causing her to fall and injuring her. It is true that the railroad employees testified, and their testimony was in conflict with that of appellee and her witnesses.
This court said in a recent case: “In determining the sufficiency of the evidence, this court will consider the appellee’s evidence alone, and if there is any substantial evidence to support the verdict, it will not be disturbed by this court.” Harmon v. Ward, 202 Ark. 54, 149 S. W. 2d 575.
We also said in. a recent case (Missouri Pacific Transportation Company v. Sharp, 194 Ark. 405, 108 S. W. 2d 575): “In testing the sufficiency of the evidence to support a verdict the appellate court is controlled by general rules of universal application which have been recognized by this court in a long line of decisions. Among these are the following: that juries are the sole judges of the credibility of the witnesses and the weight to be given their testimony; on appeal, in testing the sufficiency of the evidence, such evidence will be viewed in the light most favorable to the appellee and will be sustained where there is any substantial testimony to support it, although it may appear to the appellate court to be against the preponderance.” In support of this rule, the following cases were cited: St. L., I. M., etc., v. White, 48 Ark. 495, 4 S. W. 52; Richardson v. Cohen, 113 Ark. 598, 167 S. W. 83; American Surety Co. v. Kinnear Mfq. Co., 185 Ark. 593, 30 S. W. 2d 825; So. Lbr. Co. v. Green, 186 Ark. 209, 53 S. W. 2d 229; East Ark. Lbr. Co. v. Moss, 186 Ark. 30, 52 S. W. 2d 49; American Co. v. Baker, 187 Ark. 492, 60 S. W. 2d 572. See, also, Brown v. Duggan, 189 Ark. 551, 74 S. W. 2d 640.
There is a long line of cases to the effect that where the evidence is in conflict, it is the province of the jury, and not the court, to pass on the credibility of witnesses and the weight to be given to their testimony, and if there is any substantial evidence to support the verdict, it cannot be disturbed by this court, although we might believe that the preponderance of the evidence was against the' finding of the .jury.
As contended by appellant, the carrier is not an absolute insurer of the safety of its passengers, but it is required to exercise toward its passengers the highest degree of care which a prudent and cautious man would exercise, and that which is reasonably consistent with the mode of conveyance and practical operation of its trains.
Appellant objects to instruction No. 3, given at the request of the plaintiff, which is as follows: “You are instructed that it was the duty of the defendant or trustee operating for the railroad company to stop its trains at the station long enough to allow passengers to enter the car of the train, and it is the duty of the passengers to enter the train with reasonable dispatch. You are further instructed that it is negligence for the defendant company to start its trains after it stops before the passengers have had a reasonable time to enter the train so that if you find from a preponderance of the evidence that the plaintiff, Leah Holwerk, was in the act of entering defendant’s coach with reasonable dispatch and exercised due care for her own safety, and that the defendant did not stop its train long enough to permit her to enter it before the train started up, and by reason of this failure plaintiff was injured, then your verdict will be for the plaintiff, provided that the plaintiff herself was not guilty of contributory negligence.”
We think instruction No. 3 correctly states the law. Appellant has argued that the mere starting of a train before a passenger reached a seat, but after safely boarding it, does not constitute actionable negligence. The charge of negligence in this case is that the train was started with a violent and unusual jerk.
This court recently said in the case of Hamburg Bank v. Jones, 202 Ark. 622, 151 S. W. 2d 990: “It is said the court erred in giving and refusing to give a number of instructions. These assignments cannot be considered, because appellant has failed to abstract or set out all the instructions given and refused. This court will not explore the record to determine whether error has been committed in this regard.”
The only question in this case for the jury, was whether the appellee was jerked or thrown down by the starting, jerking and lurching of the train before she had entered the coach.
We have carefully examined all the evidence and have reached the conclusion that there is substantial evidence to support the judgment. The fact that the evidence is in conflict makes it a jury question, and when the jury has found a verdict, and that verdict is sustained by substantial evidence, it will not be disturbed by this court.
The judgment is affirmed. | [
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Kirby, J.
This appeal comes from a conviction for grand larceny upon an indictment returned by the grand jury of Madison County charging appellant with the crimes of burglary and grand larceny.
No brief has been filed for appellant.
'The testimony shows that the store of Nolen Pool, at Delaney, Arkansas, was broken into and merchandise of the value of more than $10 taken therefrom; that the appellant was operating a little restaurant, where lie served short orders, adjoining the store. Goods of con-' siderable value had been missed from time to time, as taken out between the closing of"the store at night and the opening in the morning, and appellant was suspected as having taken them.
A witness, one of the clerks, had seen a car drive up in front of the store, while he was standing in the door with his wife, and noticed appellant come out to the car with a bundle or something in a sack, which he put in the bottom of the car. He knew the lady driver, and received information that the stuff he had seen put in the car had been taken out of the store. They began to watch the store, and, on Christman Eve, witness, with his wife, when the other watchers came out of the store, talked a little while with them, and went to the store to get some candy and some things to put in the boy’s stockings, and found a man in the store, who ran into the side room and slammed the door. Witness was scared, and went back to his house, which was about 15 or 20 steps from the store, and stood inside of the door until the man came out of the store, and he recognized him to be Pete Warford, the appellant. He came out of the back door and turned straight to the left, and went over the palings between two buildings, in direction of Warford’s place. They told the proprietor, and the next day the officers came out and arrested Warford. He was brought to witness’ house, and admitted to him and Mr. Guinn, the sheriff, that he had been in the store about three times, and asked that they be as light on him as they could.
The sack that Warford had put in the car had overalls and jumpers in, it that belonged to the store, and witness did not know how many had been taken, but only the number recovered. Warford’s children had on two small pairs of 'overalls and jumpers when he was arrested. Warford was with the children.
After appellant was bound over, he inquired if he could pay enough to satisfy the owners of the goods and have the matter kept out of court, and was told that, so far as they were concerned, it would he settled, and he paid $500 and was given two receipts therefor, one for $75 and the other for $425, which he produced in evidence.
This witness stated that the stock carried was of the value of three or four thousand dollars', and that he had been in sole charge of the store, as the clerk of Mr. Pool. Thought that the store had lost somewhere between seven and nine thousand dollars in goods taken in the last eight years. This witness stated that a considerable amount of goods had been missed on another occasion, shortly before appellant was arrested, and that he did not know when the goods described in the indictment were stolen nor how much at a time.
.Other witnesses stated that they had found some of the goods, the overalls land jumpers, at Jim Warford’s, where appellant boarded, and some at George Walker’s, which had been bought from appellant and given to his father by Leonard Walker, and also some at Sanford Warford’s, the father of appellant.
The night after appellant was arrested, he told two or three people that he had been in the store two or three times and had got goods each time, and also stated that he guessed he was. gone.
The sheriff testified about the recovery of the goods, that were identified as the property of Nolen Pool, the owner of the store. Another witness, and also the deputy prosecuting attorney, stated that they had had a conversation with Warford at Mr. Faubus’, the clerk’s house, and that he stated he had gone into the store at the window, and was by himself, and the last time he went into the store was when Mr. Faubus claimed he saw him coming out, and that he did not get anything that time, but got all the stuff at other times shortly before-
Stewart, a deputy sheriff, testified about finding some of the stuff, and, before they put Warford in the car, he asked witness to use what influence he had to help him get out of the trouble as- lightly as possible, telling him at the time that he figured he was in bad, and needed assistance.
Defendant testified that lie was running a restaurant at Delaney, where he had lived for 43 years, and had not been arrested before. That he went to the store about 2 o ’clock and bought a jumper and overalls, and, when he bought them, some one called him to the door, and he told Al he would be back and settle with him. He then went to his restaurant and found a bunch there to cook for, and did not get to go back until late, and A1 was talking to some man, and told him he would be with him in a minute. He stayed about five minutes, and stepped back and picked up the overalls and jumper and two small pairs, thinking he would go hack and pay him in a few minutes, as he could trade on credit there when he got ready, and he wanted to see if the overalls fitted the children, and found they did. He said they had the tags on, and that he did not mean to steal them, and that was all he ever took. Admitted selling a new pair of overalls to Mr. Walker; said they were too small for him, and had them lying on the counter where everybody could see them, and did not try to conceal them. Denied that A1 Faubus, the .clerk, saw him in the store one night, but told the officers that he went in the store because they kept bringing up things against him. Said he was not in there that night, hut was in there when he got the stuff. He paid Pool $500, and said that he had agreed to stop prosecution as far as they were concerned. They did not guarantee him anything. Said he had mortgaged or sold nearly everything he had to get the money which he claimed he paid to stop prosecution, because he heard that Al and his wife claimed they caught him in the store, and he knew that if they claimed that and stuck with it he would sure go to the pen. Said he did not tell Mr. Cruinn the truth when he said he had been in the store three times, and only said it to get rid of the talking.
The first three grounds of the motion for a new trial' challenge the sufficiency of the evidence to support the verdict. In testing the legal sufficiency of the evidence to sustain a conviction, this court .has uniformly held that it must be .considered in the light most favorable to the State, aiid it is sufficient to sustain the verdict; White v. State, 164 Ark. 517, 262 S. W. 338; Cash v. State, 151 Ark. 75, 255 S. W. 311.
There was no error in allowing A1 Faubus, the clerk, to testify regarding goods alleged to have been taken from the store, which were not described- in the indictment. He stated that there were more overalls and jumpers recovered than the number charged to have been taken in the indictment. The testimony shows that other overalls and jumpers that were recovered in addition to those charged to have been taken in the indictment were all the same make and kind of goods as those charged to have been stolen, and no error was committed in proving that more goods were stolen than had been charged in the indictment to have been taken. This constituted no material variance between the allegations and the proof. Hyde v. State, 168 Ark. 580, 271 S. W. 330.
There is no merit in the contention that error was committed in allowing the witness, A1 Faubus, to state what was contained in the receipts given to' the defendant for money alleged to have been paid by him, since the testimony shows this witness had given appellant receipts for the $500 claimed to have been paid for the stolen goods. The receipts of course were the best evidence, but they were in the possession of the appellant, who later produced them in testimony himself, and, if any error was committed in-permitting Faubus to make a statement about their contents, it could not have been prejudicial. Clayton v. State, 159 Ark. 592, 252 S. W. 589.
Neither was error committed in allowing Faubus, the clerk, to testify that a -considerable amount of goods had been missed as taken from the store shortly before defendant was arrested. The defendant told the officers that he been in the store on three different occasions, and it was -not error to show that some goods, had been missed from the store before he was arrested. He admitted having taken some goods from the- store at one time, but stated that he had no intention of stealing them, but intended to return and pay for them. The testimony tending to show that he had taken goods from the store at other times was admissible for disclosing the good faith or .criminal intent of the accused. Cain v. State, 149 Ark. 616, 233 S. W. 779; Davis v. State, 117 Ark. 296, 174 S. W. 567; Howard v. State, 72 Ark. 586, 82 S. W. 196.
The last assignment, that‘the court erred in refusing to grant a new trial on the grounds of newly discovered evidence, is without merit. The name of the witness who was supposed to know the facts and give the testimony was not disclosed, nor any statement made setting out what the witness would testify. Neither did the motion disclose that any diligence had been used to procure the testimony of the witness, and the alleged testimony was only contradictory and impeaching in character anyway, and the court did not abuse its discretion in denying the motion. Hayes v. State, 169 Ark. 883, 277 S. W. 36.
The evidence is sufficient to support the conviction, as already stated, and wc find no prejudicial error in the record, and the judgment is affirmed. | [
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Humphreys, J.
This is an appeal from a judgment of the circuit court of Independence County affirming judgments of the probate court of said county appointing Mrs. Lula G-. Parse, probation officer of said county, guardian of the person of Lewallen Jackson, a minor, and adopting said minor to Lamon Roach and his wife.
The judgments of the probate court, which were affirmed by the circuit court, from which is this appeal, were based upon a judgment rendered and entered of record by the juvenile court of said county on the 14th day of September, 1926. That judgment is as follows :
“September 14, 1926.
“State of Arkansas v. Cady, Charles, Hadley, Lewallen and Virginia Jackson. In the juvenile court of Independence County, Arkansas.
“Now on this, the 14th, day of September comes Lula G-. Parse, probation officer, who brings into court G-ady, Charles, Hadley, Lewallen and Virginia Jackson, age of 11, 9, 7, 5 and 4 years, respectively, who are charged with being dependent and neglected children, said children appearing by their uncle, Jeff Engles, who has legal custody and control of said children, and the court, after hearing the evidence and being fully advised in the premises, finds said children are dependent and neglected children.
“It is therefore considered by the court that the said children be and remain wards of the court, that they be permitted to go hence subject to the visitation of the probation officer, and that siiitable home or homes be found for them. E. R. Hooper, Judge of Juvenile Court.”
The juvenile court judgment was procured under §§ 5758 and 5759 of Crawford & Moses’ Digest, which provides the method by which either a dependent or neglected child may be taken from its unfit parent or parents, custodian or guardian, and placed under the guardianship of some suitable person. The statutes mentioned require, among other things, that the parents or parent, if living, of the child shall be named in the written petition, made defendants, and notified of the proceeding by summons, if residents of this State.
The proceeding unde£ the juvenile court act is a special proceeding, so any judgment procured thereunder, to be impervious against collateral attack, must recite all necessary jurisdictional facts. The appeal in the instant case from the probate court judgments to the circuit court and from the circuit court to this court is 'a collateral attack on the juvenile court judgment relied upon as a basis for the guardianship and adoption proceedings. By reference to that judgment, which is set out in full above, it will be seen that it fails to show that the mother of Lewallen Jackson, the appellant herein, was made a party to the proceedings and duly served by summons, as required by §§ 5758 and 5759 of Crawford & Moses’ Digest. The juvenile court judgment is void for failure to recite this jurisdictional fact, and subject to collateral attack.
The trial court erred therefore in affirming the probate judgments, and, on account of such error, the judgment of the circuit court is reversed, and remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Wood and Mr. Justice McHaney dissent. They are of the opinion that the judgment of the juvenile court herein set out is not void on its face and therefore open to collateral attack, also that the order of adoption is a valid order. The judgment of the circuit court was based on oral testimony not preserved in a bill of exceptions, and should be affirmed for that reason. | [
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McHaney, J.
This is an action of unlawful detainer brought by appellee, being four separate suits against four defendants, who were tenants of appellant. Appellee claimed to be the owner of the land described in the complaint, on which the defendants resided as tenants, and brought this action to dispossess them. Appellee’s title to the property consisted of a mortgage thereon, which it had purchased from the Bank of Ratcliff, and transferred to it in due course by said Bank of Ratcliff, on the 26th day of April, 1926, securing an indebtedness of $3,500 and interest. Appellant had acquired the fee to the property, on which appellee held the mortgage, and, on the 27th day of April, 1926, the day after appellee acquired said mortgage, he tendered to plaintiff a certified check for the principal and interest due on the mortgage, which was refused by appellee, and, two days later, on April 29, he made a legal tender of money in the sum of $3,616.56, which, it is admitted, was the correct amount of principal and interest due at that time to appellee, hut it was again refused. Thereafter, on May '22, appellee brought these suits, in which appellant intervened, setting up these facts, and claimed damages against appellee on account of loss of rents by the wrongful action of appellee in bringing these suits and dispossessing his tenants, appellant claiming that he had been damaged not only thereby, but had been unable to sell or rent tlie property on account of appellee refusing to accept tlie money tendered, and release the mortgage, and in bringing this action, claiming right of possession. Thereafter, on October 30, appellee notified appellant that it was willing to accept the money tendered, and appellant paid his original tender, and it thereafter conceded appellant’s right to the property, and released all claim it had thereto. At the conclusion of the testimony the court instructed a verdict for appellee on the ground that the payment of the amount due on the mortgage while the suit was still pending, without reserving any part thereof for damages, was a settlement of the whole matter as between appellant and appellee. Judgment was entered accordingly, from which comes this appeal.
We think the court was right in holding that the whole matter had been settled between the parties by the payment of the amount of the mortgage and the surrender of the property to appellant by appellee. Amicable settlements of lawsuits are to be encouraged, and, where a settlement has been made, agreed to by both parties and accepted and acted upon, it will be enforced by the court. So, when appellant paid appellee the whole of its mortgage and it surrendered to him all its rights, claims or interest in or to said property, he said nothing about insisting upon any damages, but, by his silence, led appellee to believe that the payment and release ended the whole matter. We think the court correctly so held, and the judgment is accordingly affirmed. | [
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Kirby, J.
This appeal necessitates the construction of § 36(d)iof act. 5, Special Acts of 1923 (Castle’s Supplement to Crawford & Moses’ Digest, § 5166). Information was filed against appellee charging him with operating motor vehicles for hire without the payment of license fee required under said section. The case was tried on an agreed statement of facts, which the court held insufficient to support a conviction, and dismissed the cause, from which the State has prosecuted this appeal.
■ The appellee, George Dahney, operates a business in the city of Little Rock under the style or name of “DriveItYourself Company.” He owns 23 automobiles, all passenger cars, including coupes, sedans and touring cars. He conducts his business by leasing them to the customers, who come to his garage where they are kept, .under a contract in printed form, the customer himself being in exclusive control of the car during its operation. He does not have in his employ any drivers or chauffeurs, does not drive the leased cars himself, nor operate a jitney, taxicab line, or motor bus business. A certain price is charged for the leased car, which is used by the bailee at his own discretion, and the rental charged is the same whether the customer alone occupies the car or whether he carries other persons with him. Virtually all the cars rented are used exclusively within the limits of the city of Little Rock. Appellee refused to pay the license fee required under said section of the statute.
The statute-provides, § 36:
“(d) In addition to the registration fees herein provided for all motor vehicles, when such vehicles are used for the transportation or delivery of persons for hire, there shall he paid two dollars and fifty cents ($2.50) for each passenger-carrying capacity. * * *
“ (m) Bach of the fees herein authorized is declared to he a tax on the privilege of using the vehicle on the public roads and highways of the State of Arkansas.”
Subdivision (n) of § 36 declares it a misdemeanor for any person to operate or permit the operation of a Vehicle without having'paid the required fee.
The classification is made herein for charging an additional fee for motor vehicles “when such vehicles are used for the transportation or delivery .of persons for hire” according to the carrying capacity of the vehicle.
The undisputed testimony shows that the appellee was not engaged in the business of operating a jitney, taxicab or motorbus line, but only in renting or hiring to individuals, who applied therefor, cars of different styles and sizes, to be operated by the hirer at his own risk and discretion. Such operation of such business did not constitute appellee either a private or public carrier of passengers or his business the using of motor vehicles for the transportation or delivery of persons or passengers for hire within the meaning of the act. He was not a carrier of passengers al all, nor liable to the payment of the additional tax required under § 36 (d) of the act. Forbes v. Reinman, 112 Ark. 417, 166 S. W. 563, 51 L. R. A. (N. S.) 1164; Locke v. Ft. Smith, 155 Ark. 158, 244 S. W. 11; Winfrey v. State, 133 Ark. 357, 202 S. W. 23; State v. Bee Hive Auto Service Co., 137 Wash. 376, 242 Pac. 384; State v. Robinson, 42 Minn. 107, 43 N. W. 833, 6 L. R. A. 339; Burlington v. Unterkircher, 99 Iowa 401, 68 N. W. 795; Rathborn v. Ocean Accident Guaranty Ass’n., 299 Ill. 562, 132 N. E. 754, 19 A. L. R. 140; Booth v. Dallas, Texas (Tex. Civ. App.), 179 S. W. 301, 4 R. C. L. 549.
No error was committed in so holding, and the judgment is affirmed. | [
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Wood, J.
Tom Withem was indicted by the grand jury of Little River County. Omitting formal parts, the indictment charged that “the said Tom Withem, in the county and State aforesaid, on the 15th day of October, A. D. 1926, unlawfully and feloniously did sell and was unlawfully and feloniously interested in the sale and giving away of ardent, vinous, malt, spirituous, alcoholic and fermented liquors,” etc. Indorsed on the back of the indictment was the following:
“No. 482 — State of Arkansas v. Tom Withem, J. R. Wood.' A true bill......................................................................Foreman. Indictment for selling liquor. Filed in open court in the presence of all the grand jurors this 15th day of July, 1927. Natalie S. Williams' Clerk. By.....................D. C. Witnesses: Homer Darby. ’ ’
It is not contended here that the verdict was contrary to the evidence. Therefore it is unnecessary to set out the testimony. The defendant moved to quash the indictment on the ground that no true bill had been presented, inasmuch as the indictment was not indorsed a true bill and signed by the foreman of the grand jury.
The court, on its own motion, gave instructions numbered from one to six. Instruction No. 1 is as follows:
“It shall be unlawful for any person, firm or corporation to sell, or give away, or be interested, directly or indirectly, in the sale or giving away of any alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters or medicated liquors.”
In the second instruction the court told the jury in substance that, if they believed from the evidence beyond a reasonable doubt that the defendant sold or gave away or was interested, directly or indirectly, in the sale or giving away of the liquors mentioned in the first instruction, they should find him guilty and fix his punishment at imprisonment in the State Penitentiary for a period of one year at hard labor.
The third instruction is as follows: ‘ ‘ The jury are instructed that the indictment is not evidence of defendant’s guilt; that the defendant is presumed innocent and not guilty as charged in the indictment, and that this presumption follows him throughout the trial until the jury are constrained to find him guilty from the evidence in the case, beyond a reasonable doubt; that the burden is upon the State to prove the defendant guilty beyond a reasonable doubt.”
The fourth instruction defines reasonable doubt.
The fifth instruction was on the credibility of witnesses.
The sixth instruction is as follows:
“You are instructed that it is as competent to convict upon circumstantial evidence as upon positive testimony. Positive testimony is that of eye-witnesses, witnesses who testify as to the transaction that shows the guilt or innocence of the defendant. Circumstantial evidence is evidence of circumstances by which guilt or innocence is proved or disproved. In so far as the evi- . dence is circumstantial in this case, to convict the defendant it is necessary that the circumstances not only point to and be consistent with the guilt of the defendant, but should also be inconsistent with his innocence.”
The defendant presented seven prayers for instructions, all of which were refused by the court. The substance of the first prayer was that the burden of proof was on the State to prove the defendant guilty, and, unless the State had shown from the evidence, beyond a reasonable doubt, that the defendant did feloniously sell or give away, or was directly or indirectly interested in the selling or giving away of intoxicating liquors, they should find him not guilty.
The second prayer for instruction told the jury, in substance, that, if they had a reasonable doubt as to whether witness' Darby might not be mistaken as to the identity of the defendant, then, before the jury would be authorized to convict, they should find the corroborating circumstantial or other evidence tending to establish his identity must be such as, with the other testimony, produced a degree of certainty in the minds of the jury so great that they had no reasonable doubt as to the identity of the defendant.
The third prayer for instruction, in substance, told the jury that the indictment was not a mere, fonnal charge or accusation against the defendant, and is of itself no evidence of the defendant’s guilt, and that no juror should permit himself to be influenced to any extent because of the indictment.
Prayer for instruction No. 4 told the jury that the defendant was entitled to the presumption of innocence, which attended him throughout the trial as evidence in his favor, and entitled him to an acquittal, unless the State produced evidence which convinced the jury beyond a reasonable doubt of the defendant’s guilt.
Prayer for instruction No. 5 told the jury that the burden was on the State to prove the defendant’s guilt beyond a reasonable doubt.
Prayer for instruction No. 6 was as follows:
“The court instructs the jury that the facts relied on by the State to show the defendant’s guilt must not only be consistent with and point to his guilt, but must be inconsistent with his innocence; and if all the facts and circumstances of evidence, viewed together, are susceptible of two reasonable interpretations, one of innocence, and the other of guilt, the interpretation of innocence must be adopted in the defendant’s behalf, and you should acquit him.”
Prayer for instruction No. 7 is as follows:
“You are instructed that you will not consider the testimony with reference to the time he entered his plea of guilty in the justice court and the facts concerning that • transaction. ’ ’
The jury returned a verdict finding the defendant guilty, and fixed his punishment at imprisonment in the State Penitentiary for a period of one year. Judgment was rendered in accordance' with the verdict, from which is this appeal.
1. Section 3008 of C. & M. Digest provides: “The concurrence of twelve grand jurors is required to find an indictment.” Section 3009 provides: “When so found, it must be indorsed a true bill, and the indorsement signed by the foreman.” The record shows that J. R. Wood was selected foreman of the grand jury that returned the indictment against the appellant. It is true his name appears above the words, “A true bill” instead of below, but that is wholly immaterial. His indorsement gives sanction to the indictment as being a true bill and is a compliance with the statute. The trial court therefore ruled correctly in overruling appellant’s motion to quash the indictment.
In the cases of State v. Agnew, 52 Ark. 275, 12 S. W. 563, and McFall v. State, 73 Ark. 327, 84 S. W. 479, we decided that the above provision of the statute was directory. In the case of Taylor v. State, 169 Ark. 589, 276 S. W. 577, the indictment was not signed by the foreman of the grand jury, but was indorsed by him, and in that case we said: “The record reflects that the indictment was indorsed by the foreman of the grand jury. This meets the requirement of the statute.” It will be observed that in none of these cases is it held that a failure to comply with the directory provision of the statute would be ground for quashing an indictment, neither are we called upon to decide, and we do not decide, that ques-lion in this case, for the reason, as already stated, that the indorsement as found on the indictment is a sufficient compliance with the statute, even if the same were a mandatory provision.
2. Appellant, in his exceptions to instruction No. 1 given bv the court on its own motion, states: “The defendant objects generally to action of the court of its own motion reading the statute defining the crime charged in the indictment, generally, and specifically for the reason that the statute defines several separate offenses. It covers the sale directly or indirectly not only of whiskey, but various iand sundry other, items, and also charges the jury as to giving away of liquors, all of which is confusing and misleading to the jury and releases it in the realm of speculation as to other crimes and other offenses described by the statute, when there is no testimony in the case concerning any violation of the statute except a direct sale; and it further authorizes the jury to find him guilty for giving away liquors.”
The appellant’s fourth ground of his motion for a new trial assigns as error that the court erred in reading to the jury, over the objection of defendant, § 6160 of C. & M. Digest. But the bill of exceptions does not show anywhere that the court read § 6160 to the jury. True, the first instruction given by the court defines the offense of which the appellant is charged in the language of a part of that section. Instruction No. 1 followed the language of the statute as it pertains to the sale or giving away or being interested in the sale or giving away of liquors mentioned in the statute, and it is not error for the court to instruct the jury defining the offense charged in the language of the statute. After so defining the offense, thq court submitted the issue to the jury as to whether the defendant was guilty of the crimes charged. It should be stated in this connection that the appellant did not move to require the State to elect to try the defendant on the charge of selling liquor only. But all the testimony in the case shows that the State did in effect elect to pursue the appellant only for the offense of selling liquor by directing its proof solely to that offense. See Rhinehart v. State, 160 Ark. 129, 254 S. W. 351; Gramlich v. State, 135 Ark. 243, 204 S. W. 848; Chronister v. State, 140 Ark. 40, 215 S. W. 634.
Instructions Nos. 1 and 2 were germane to the offense of selling liquor as charged in the indictment, but they also covered the offense of giving away and being interested in the giving away of liquors as charged in the indictment. The appellant objected generally and specifically to these instructions on the ground that “‘they defined several separate offenses, when there is no testimony in the ease concerning- any violation of the statute except a direct sale, and it further authorizes the jury to find defendant guilty of giving away liquors.” Upon these specific objections the court erred in not eliminating the language as to other offenses from the instruction, and should have submitted to the jury solely the offense of selling the intoxicating liquors named. The State, as we have said, in effect had elected to prosecute the appellant for the sale of intoxicating liquors only, and the specific objections of the appellant were tantamount to a request of the court to have that issue only submitted to the jury. One of the witnesses testified that the appellant came by his house and left with him a gallon of liquor; that he didn’t pay appellant anything for it, because appellant didn’t ask him for the money. He had agreed to pay appellant six dollars for it about a year ago. Appellant brought the whiskey down to witness’ house and just gave it to him.
The instructions as to the giving away and being-interested in the giving away of the inhibited liquors wrere abstract, and calculated to confuse and mislead the jury. The doctrine that it is erroneous to give abstract instructions calculated to confuse and mislead the jury is too well established by numerous decisions of this court to cite cases. But see St. Louis, I. M. & So. Ry. Co. v. Denty, 63 Ark. 177, 37 S. W. 719; Frank v. Dungan, 76 Ark. 599, 90 S. W. 17; Emerson v. Turner, 95 Ark. 597, 130 S. W. 538; St. L. S. F. Ry. Co. v. Vernon, 162 Ark. 226, 258 S. W. 126; Wis. Ark. Lumber Co. v. McCloud, 168 Ark. 352, 270 S. W. 599. An error in giving- an abstract instruction will not cause a reversal of the judgment where, notwithstanding- the instruction, a special finding of the jury shows that it was eliminated from their consideration. St. L. I. M. & S. Ry. Co. v. Baker, 67 Ark. 531, 55 S. W. 941. But here the verdict of the jury was general in form, finding the defendant “guilty as charged in the indictment.”
Inasmuch as the cause must be reversed for the error indicated, it is unnecessary and would unduly extend this opinion to discuss the other instructions to which objection is made by counsel for the appellant. We have examined the other instructions given by the court on its own motion and the prayers of the appellant for instructions. We find no error in the other instructions given by the court on its own motion, nor in the ruling- of the court in refusing the prayers of the appellant for instructions. Appellant’s prayers for instructions numbered 3, 4 and 5, relating to presumption of innocence, and- burden of proof, and reasonable doubt, were sufficiently covered by instruction No. 3 given by the court on its own motion. Appellant’s prayer for instruction No. 1 is sufficiently covered by instruction No. 4 given by the court. Appellant’s prayer for instruction No. 2 is argumentative ; it singled out a' particular witness' and drew . attention to a particular piece of evidence. Prayers for instructions Nos. 6 and 7 by the appellant were also argumentative, and the court did not err in refusing them. Instruction No. 6 given b3r the court on its own motion on the subject of circumstantial'evidence was a correct declaration of law.
The court did'not err in refusing to grant appellant’s prayer for instruction No. 7. It will be observed that this instruction told the jury that they would not consider the testimony with reference to the time that appellant entered his plea of guilty 'in the justice court and the facts concerning same. Boy Sellman testified that he, in company with another officer, searched appellant’s premises in the early fall of 1926 and found a thirty-gallon keg in his seed-house with some liquor in it. Counsel for appellant was then granted permission by the court to ask the witness the following:
“Q. Mr. Sellman, what you have related Mr. Withem has paid a fine for that in the Foreman justice court? A. He did. Q. That is a matter of record, is it? A. I suppose it is.”
The appellant objected to the testiinony of Sellman, and asked that the same be excluded for the reason that the “matter is of record, and he cannot go into details.” Appellant was charged with the crime of selling intoyi eating liquors on or about tlio lotlr day of October, 1926, and the testimony of Sellman tended to prove tliat, in the late summer or early fall of that year, the liquor mentioned was found on appellant’s premises. The testimony was relevant as a circumstance tending to prove that appellant was engaged in the business of selling intoxicating liquors. Herrin v. State, 169 Ark. 636, 276 S. W. 365; Melton v. State, 165 Ark. 448, 264 S. W. 965; Noyes v. State, 161 Ark. 340, 256 S. W. 63. The testimony of Sellman that appellant had paid a fine in the justice court for possessing liquor was elicited by appellant’s counsel, and therefore this was invited error of which appellant is in no attitude to complain. Smith v. State, 153 Ark. 645, 241 S. W. 37; Tarkington v. State, 154 Ark. 365, 242 S. W. 830. There was no error in the ruling of the court in admitting the testimony of Sell-man, nor in refusing to grant appellant’s prayer for instruction No. 7.
For the error in giving instructions Nos. 1 and 2, over the special objection of appellant, and in submitting to the jury the issues as to whether or not appellant gave away, or was interested, directly or indirectly, in giving away, the contraband liquors mentioned in these instructions, the judgment is reversed, and the cause is remanded for a new trial. | [
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Kirby, J.
It is insisted for reversal that the court erred in overruling the demurrer to the complaint. Appellant urges the objection, however, against the com plaint for things not alleged therein, rather than because of the insufficient allegations thereof. If the vendor of-the land by the written contract could not and did not make a valid contract for their conveyance, that fact did not appear.in the allegations of the complaint, and certainly could not be taken advantage of on demurrer, which admitted all the properly pleaded allegations with all intendments and inferences arising therefrom.
The undisputed testimony shows that Dewey Poindexter, with his wife, Ruby Poindexter, appellee, established their homestead upon the land purchased under the contract o'f sale, immediately, and continually resided thereon until long after the full purchase price therefor was paid and Poindexter was entitled to his deed of conveyance. It is no longer questioned that an equitable estate will support the homestead right and form a sufficient basis under the law for the claim of homestead. Spaulding v. Haley, 101 Ark. 296, 142 S. W. 172; Kirby v. Vantreece, 26 Ark. 370.
It is also true that a married man cannot make a valid conveyance of the homestead if his wife fails to join in the execution of the deed, and that he cannot even make a contract to convey the homestead which would be obligatory upon the wife or of any validity, without her joining in the execution of such instrument. Section 5542, C. & M. Digest; Waters v. Hanley, 120 Ark. 465, 179 S. W. 817; 13 R. C. L. § 84, page 625.
No error was committed by the court in canceling the deed of conveyance of this homestead from Watson to the bank, nor -in directing its conveyance to Dewey Poindexter under the terms of the contract of purchase which had been performed by him, and it was also competent for the court to award the homestead to appellee, the innocent party, along with the custody of the dependent child during the minority of such child, and so long thereafter as appellee remains a widow. Woodall v. Woodall, 144 Ark. 159, 221 S. W. 463.
We find no error in the record, and the decree is in all things affirmed. | [
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Smith, J.
Appellant became the county treasurer of Woodruff County on January 1, 1926, and is now acting- in that capacity. Notice was served on him that, on October 10,1927, his quarterly settlements previously filed and approved in the year 1927 would be examined for errors in allowing’ improper credits in said settlements. The county court found that the treasurer had been improperly allowed credits for certain warrants, most of which had been paid him by the collector on account of the collection of the 1926 taxes. Prom this order an appeal was duly prosecuted to the circuit court, where the court found that certain warrants, which had been issued in the years 1925 and 1926, but which had been reissued in May, 1927, under an order of the county court calling in outstanding warrants for reissuance, had been received by the county treasurer in satisfaction of demands in favor of the county aggregating $19,441; that, having received these warrants, there did not remain in the treasury enough money to redeem other warrants which had been issued in payment of the county’s expenses for the fiscal year 1927.
It was shown in the trial below that the revenues of the county for the year 1927 were $29,738.20, and that the expenditures, for that year were $21,196.48, but, as the treasurer had received $19,441 of warrants outstanding* at the beginning of the year 1927, there did not remain in the county treasury enough money to redeem all the warrants issued in the year 1927, and the court held that this must first be done before the treasurer • would be authorized to receive for any purpose any warrant outstanding at the beginning of that year, and, upon this theory, adjudged that the county treasurer had been improperly allowed credit for such warrants. In other words, the warrants issued in 1925 and 1926, and which were ieissued in 1927, were valid warrants, but, by receiving and redeeming* them, there was not left sufficient funds to redeem all the warrants issued in 1927, and it was held by the circuit court that such warrants could not be redeemed until all the expenses of 1927 had first been paid.
•Counsel review the recent decisions of this court construing the amendment to the Constitution commonly referred to as Amendment No. 11, and it is insisted that the opinion in the case of McGregor v. Miller, 173 Ark. 459, 293 S. W. 30, decided April 4, 1927, and the opinion on rehearing in the same case, delivered' April 25, 1927, are controlling here, and support the finding* of the court below.
We have here, however,, a different state of facts. There a certain warrant which had been issued in 1926 was, together with other warrants which had been previously issued in that year, slightly in excess of the total revenues of the county for that year, and we held that, to the extent of this excess, the warrant was void, but tfiat it might be reissued in an amount which, in connection with other warrants previously issued, did not exceed the total revenues of that year. Certain other warrants were issued in 1926 on demands which arose in the prior fiscal year of 1925 and which, when issued, were in excess of the 1926 revenues. In elucidating the original opinion we said, in the opinion on the rehearing, that:
“'We think we have made it plain that a county cannot incur any obligation in any year which exceeds the revenues of that year, and, if this is done, such obligations are void, and cannot be paid out of the revenues of a succeeding year. If this could be done, obligations could thus be carried from one year to another. The revenues of one year would be applied to the discharge of obligations of a previous year, and one of the purposes of the amendment was to prevent this from being done.”
We there further said:
“Those warrants are valid which, at the time of their issuance, do not exceed the revenues. All others are void. The holder of a valid warrant may, by an appropriate action, compel the receipt and payment of his warrant to the exclusion of an invalid warrant, and he may, if necessary, enjoin the redemption of an invalid warrant. More than that, the invalid warrant cannot be received by any collecting officer of the county, and the officer who does receive it does so at his peril, and is not entitled to take credit for it in any settlement of his accounts, because the warrant is void. It is issued without authority, and the action of a collecting officer in receiving it cannot give it validity. ”
We were, of course, there speaking of void warrants, and the thing which made them void was that they were in excess of the revenues for the year in which they were issued.
For the same reason the claim involved in the case of the Dixie Culvert Co. v. Perry County, 174 Ark. 107, 294 S. W. 381, was held void. The county court had contracted an obligation which, in conjunction with other obligations previously contracted, was in excess of the county’s revenue for the year in which the obligation was incurred, and we held the contract void for that reason.
We have here a wholly different case. The warrants were not invalid at the time of their issuance: at least they are not shown, to have been so. There was not enough money in the county treasury to redeem them in the year of their issuance, but they were not invalid on that account. The inhibition of the amendment is that expenditures shall not exceed revenues, and it is a violation of this inhibition which renders the allowance invalid.
In the case of Nelson v. Walker, 170 Ark. 170, 279 S. W. 11, we quoted from the prior case of Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, as follows':
“ We think the amendment means' just this: That, if a county, city or town avails itself of the provisions authorizing the taking up of its outstanding indebtedness, it shall not thereafter draw warrants upon the treasurer for an amount in excess of its annual revenues. It must' stay out of debt. It means, further, that, if a city, county .or town has any outstanding unpaid warrants which it does not take up by issuing bonds as authorized by the amendment, it must not add to its existing indebtedness by issuing more warrants than can be paid out of the revenues of the current year. ’ ’
A county, whether it issued bonds or not, cannot increase the amount of its existing indebtedness; but it is not an increase of indebtedness if a county, which cannot redeem all its outstanding warrants, issues others which cannot be redeemed through lack of funds, but which, when issued, are not in excess of the indebtedness outstanding at the end of the prior fiscal year. To illustrate: If a county has an outstanding indebtedness of $19,441, as Woodruff County had at the beginning of the fiscal year, it may, during that year, issue warrants which, while they cannot be redeemed, do not exceed the indebtedness existing at the beginning of that year. The amendment does' not prohibit this. The prohibition of the amendment is against increasing the amount of the indebtedness.
The ease of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, delivered October 17,1927, is directly in point. There allowances were made by the county court in the year 1925 which did not equal the revenues of that year, but the redemption of valid outstanding warrants out of the revenues of that year made. it impossible to redeem all the claims contracted and allowed that year. This was true also in the year 1926, so that there remained outstanding warrants which could not be redeemed. It was held that these facts did not prevent- the county from contracting’ necessary obligations which could 'be paid only by the issuance of warrants which could not be redeemed out of the revenues of 1926*, and that such obligations might be paid out of the revenues of a subsequent year. This was true because these last obligations, which were paid by warrants, which could not be redeemed in the year of their issuance, were not expenditures in excess of revenues. The county did not, in issuing those warrants, which could not be redeemed in the year of their issuance, increase the county’s indebtedness.
We held, in the cases of Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782; Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006, and Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554, that a county may ¡build a courthouse, although its cost could not be paid out of the revenues of the year in which its construction was authorized, but that this could be done only when it had been ascertained that, by distributing the payment of the cost over a period of years, these installments of cost would not, in connection with the other essential expenses of government, exceed the revenues of the county for the years in which such payments were to be made. In the last of those cases, that of Lake v. Tatum, we said that: “In other words the limit of the amount for which a county may contract for in any one fiscal year is the difference between the amount of its necessary governmental expenses or fixed charges in running its government and the total county revenue which -can be derived from levying and collecting county taxes in any one year”; and that, if a county makes a contract which requires payments over a period of years, these payments must be taken into account-in determining what other expenses may be incurred, and that the total expenditures, including such payments, shall not exceed the revenues.
But here, as in the case of Polk County v. Mena Star Co., supra, expenditures have not exceeded revenues. The receipt by the collector and the redemption by the treasurer of valid warrants, which those officers could not refuse when tendered in payment of any demand due the county, made it impossible to redeem all the warrants issued in the year 1927, but those unredeemed in the year of their issuance may.be redeemed, as was said in that case, out of the revenues of a subsequent year, and this is true because, in so doing, the indebtedness of the county is not increased.
The original order of the county court allowing the treasurer credit for these valid outstanding warrants was correct, and the later order of the county court and that of the circuit court on appeal were erroneous, and the judgment here appealed from will be reversed, and the cause remanded, and the circuit court will direct the county court to allow the treasurer credit therefor. | [
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Paul Ward, Justice.
This appeal is taken from a chancery decree setting aside a warranty deed on the ground it was executed to defraud a creditor. Also, a matter of procedure is involved on cross-appeal. The appellants are Trennon Bobo, Donnie Bobo, and Ora Bobo. The appellee is the First National Bank of Hope, Arkansas. Hereafter, for brevity, we will refer to them in the above order as Trennon^ Donnie, Ora, and the bank.
The 'background facts, set out below, are not in dispute.
Trennon and his brother Donnie executed a note to the bank for $2,780.50, payable as follows: $78 per month for the first thirty-five months and $50.75 for the thirty-sixth month. All payments were made up to May 10, 1966 when there was a default, and no other payments have been made. The note was secured by a mortgage on a 1966 Ford Mustang car. On the last named date Trennon conveyed, by warranty deed, twenty acres of land to Ora.
The bank filed suit in the chancery court to collect the balance due on the note, and to have the car sold and the proceeds applied as a credit. The decree of the court was in accord with the bank’s complaint as to the above items, and no objection is here made by appellants.
Also, in the same complaint, the bank alleged that the deed to Ora was executed ‘‘in an effort to avoid payment of the said indebtedness . . .”, and asked the court to declare the same “null and void as against plaintiff”. The bank also asked “that title to said property (the land) should be declared in defendant, Trennon Bobo, for satisfaction of any judgment that may be rendered ...”
For answer to the above complaint, appellants entered a general denial.
After a hearing the trial court held the deed to be a fraudulent conveyance, and void as to appellee. On appeal, appellants ’ only contention for a reversal is that “there was no evidence to support such a finding”.
We are of the opinion that the trial court erred in holding the conveyance void since we find no evidence in the record to support such holding. There is no evidence to show, that Ora was related to Trennon, that the consideration paid by Ora was inadequate or, that Trennon was financially embarrassed and unable to pay any judgment rendered against him in this litigation. All the above is virtually conceded by appellee, but it contends the case should be affirmed on our holding in Keck v. Gentry, 238 Ark. 672, 384 S. W. 2d 242. There we said, in effect, that when a person who is in debt makes a voluntary conveyance to a near relative, the transfer is presumed to be fraudulent. Patently the Keck case is not controlling here because appellee did not prove Ora was a “near relative” or that the conveyance was “voluntary”.
Cross Appeal. During the trial below, when appel-lee had introduced its testimony appellant chose not to introduce any testimony — to the surprise of appellee. At that time appellee realized it had failed to show Ora (grantee in the deed.) was the mother of. Trennon (grant- or in the deed), apparently thinking everyone (including the Judge) knew she was the mother of Trennon. Thereupon appellee (at the same term of court) filed a Motion, requesting the court to reopen the record to allow it to introduce testimony to show Ora was the mother of Trennon. The Motion was denied.
For reasons hereafter set forth, we conclude that the trial court erred in refusing to allow appellee to make the desired proof.
(a) It is apparent from the record that appellee, in good faith, believed it was understood that Ora was the mother of Trennon. The bank stated in its Motion that this was understood by counsel and the court from the beginning of the trial. This is confirmed by language in the court’s “Memorandum Opinion” where we find this statement: “. . . he made a voluntary conveyance to his mother, Mrs. Ora Bobo”.
(b) A showing by appellee that Ora was the mother of Trennon, together with other testimony in the record, would have made a prima facie case, shifting the burden on appellants to go forward with the evidence. In the Keck case, supra, we quoted language to that effect. Also, in that case, we find this further statement:
“These plaintiffs proved that Gentry owed a substantial sum of money and that he conveyed 680 acres to his wife. That proof was sufficient to make a prima facie cáse, shifting to the defendants the burden of going forward with the evidence.”
In the case before us here it is undisputed that Trennon owed a substantial sum of money and that he conveyed the land to Ora. When, and if, appellee proves Ora was Trennon’s mother, then the burden will be on appellants to go forward with the evidence to show Trennon was not insolvent.
The decree is reversed on direct and cross appeal, and the cause is remanded for further proceedings consistent with this opinion.
Byrd, J., dissents in part. | [
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Humphreys, J.
Appellant brought suit against appellee in the circuit court of Faulkner County to recover a Nash sedan automobile, 1925 model, engine number 181580, serial number 2971566, alleging ownership thereof by transfer from John D. Eeagon, to whom it paid $800 on an insurance policy on account of same being stolen. A replevin bond was executed by appellant. Appellee’s Nash sedan, which had no engine or serial number upon it, was seized by the, sheriff under the writ of replevin issued in the suit, and detained thereunder for five months and twenty days, or until the trial of the cause.
Appellee filed an answer, denying appellant’s title, and claiming and praying for damages for the detention of his automobile under the writ.
The cause was submitted to a jury upon the pleading’s, testimony, and instructions of the court, resulting in a verdict and consequent judgment in favor of appellee for the car and for $342 damages for the detention thereof.
Appellant has prosecuted an appeal to this court from that part of the judgment awarding damages against it for detention of the car under the writ. It contends for the reversal thereof upon two alleged grounds:
First, that the automobile had no usable value when seized or during its detention, because it had not been registered and a license paid thereon, under the requirements of § 7413 of Crawford & Moses’ Digest, and because the motor and serial number had been mutilated, which prevented its use under inhibitions contained in § 7437 of Crawford & Moses’ Digest. Second, because the testimony failed to show any usable value of the car to' appellee.
(1) . Appellee testified that it was his intention to register his automobile and put the license thereon as soon as he could get it out of the repair shop. It does not lie in the mouth of appellant to say that appellee would not have carried out this intention, after seizing and detaining the car at the time it was being repaired. This disposes of appellant’s suggestion that the car could not have been used on ¡account of the penalty imposed by failure to comply with the requirements of % 7413 of Crawford & Moses’ Digest with reference to registering it and paying a license to use same. The other statute referred to persons, firms and corporations having automobiles in their possession upon which the motor and serial numbers have been mutilated so that the same cannot be read. There is no testimony in the record showing that the numbers had been mutilated. The witnesses testified that they failed to find any motor or serial number upon the car. Unless the testimony showed mutilation of the numbers, the statute could have no application to the facts in the case.
(2) . Appellee testified that he purchased the auto-. mobile in question to go and come home from his work, and to haul his ladders and materials from place to place. He was a painter, and lived out a mile from the town in which he carried on his business. The testimony relative to the usable value of the chr took a wide range, without any objection to the introduction of same by the appellant. C. E. Ramsey testified that, in his opinion, a car used for business and pleasure both would be worth two or three dollars a day. C. E. McNutt testified that the usable value-of the car was four or five dollars a day. McNutt based his opinion upon the fact that the car would carry four or five passengers and that the fare per passenger from the home of appellee to Little Rock would be two or three dollars.
The court instructed the jury that the measure of' damages was the usable value of the car, meaning, of course, that the use to which appellee intended to put the car governed in arriving at the amount of his damages for the detention of same. In the case of Kelley v. Altemus, 34 Ark. 184, 36 Am. Rep. 6, wliich was cited and approved in the case of Minkwitz v. Steen, 36 Ark. 265, this court announced that the true measure of damages during the unlawful detention of property in replevin suits, which has a usable value, is the value for the use thereof during the time. In stating the rule the court also announced that special damages, for deterioration might be shown. In § 883 of the 8th edition of Huddy on Automobiles it is stated: “In case of unlawful detention of a vehicle, there being no physical injury to the vehicle, the value of the use during the period .of detention fairly represents the damages.” The rule thus announced seems to be sustained by the decided weight of authority. In the application of the rule, of course,- the testimony relative to the use during the period of detention should be limited or restricted to the character of use the owner was making or intended to make of the automobile. -It was disclosed by the record in the instant case that the owner intended to use the automobile going to and returning from the town where he did business, and in hauling his ladders and materials from place to place. Being a sedan, it is reasonably inferable that he. would use it to some extent for pleasure. One of appellant’s witnesses testified that, in his opinion, where it was used for business and pleasure both it would be worth from two to three dollars a day. In proving value it is generally a matter of opinion, and there is substantial evidence of this kind in the record unobjected to. It cannot therefore be said that the instruction was abstract. We cannot agree with appellant that there is no evidence in the record at all justifying or warranting the court in submitting the issue of damages to the jury.
No error appearing, the judgment is affirmed. | [
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Carleton Harris, Chief Justice.
Appellants, Jerry Hammond and Terry Evans were convicted in the White County Circuit Court on January 25, 1968, of the crime of burglary and grand larceny, and were sentenced to the Arkansas State Penitentiary for two years on the count of burglary, and one year on the count of grand larceny. From this conviction, appellants bring this appeal. For reversal, it is first asserted that the trial court erred in admitting evidence obtained by the sheriff during a search of Evans’ premises.
The evidence reflects that Pete Cole, a radio engineer in Searcy, together with Earl Baker and Billy Davis, owned a cabin two miles west of Honey Hill Church in White County. The cabin was equipped in the same manner as any house, with furniture, T.V., stereo, and vaiaus other items of personal property. This cabin was broken into and a number, of items stolen therefrom. Cole made a par ial list of property that had been taken, and reported the theft to Sheriff John Davis of Whte Counts On the afternoon of November 30, 1967, the sheriff, together with the Chief of Police of Searcy, Waymon Goree, and Cole, went to the apartment occupied by Emins, and the sheriff knocked on the door. Evans responded, “Come in,” and the three, without identifying themselves, went inside. The sheriff told Terry that he (the sheriff) had heard that this appellant might have some information about the burglary:
“He said, ‘Hell, here it is; you might as well take it; I’ve been in so much trouble already that I’m going to the penitentiary anyway.’ And I said, ‘That isn’t what I came for,’ I just wanted to talk to him because I’d heard he might have some information. Then, I advised him of his rights. * * *
“I told him I had information that he might know something about the burglary of the cabin, and I told him, ‘You know you don’t have to talk to me, that anything you say can be used against you,’ and he said, ‘Hell, here it is.’ ”
Asked whether he advised Evans of his right against self-incrimination, the sheriff replied that he carried a card with him which he would read to suspects, and he said Evans was told that he did not have to say anything, and that he was entitled to an attorney; that, if he couldn’t pay for an attorney, the court would appoint one for him:
“I told him he had the right of an attorney, and I advised him of his rights. I have handled Terry several times before.”
According to the officer, Evans replied that he did not want an attorney, and he suggested that the sheriff take merchandise which Cole recognized, on entering the apartment, as having been in the burglarized cabin. However ,the sheriff refused to take the property at that time, but arrested Evans and obtained a search warrant for Terry’s apartment, and also the apartment of Oscar McDougal, who was also subsequently charged on the burglary count . The information about McDougal was furnished by Terry. After obtaining the search warrant, the sheriff found two red bed spreads, one pole lamp, one white sheet, and five stereo records on this appellant’s premises. A search of McDougal’s apartment revealed one Zenith TV, one stereo record player, records, a lamp, an electric clock, and an assortment of knives, forks and spoons, which were identified by Cole. Evans admitted his part in taking the property. As the officers were searching the apartment, Jerry Hammond, whose car was parked at the back of the apartment, came up, and wanted to know what was going on. The sheriff replied that they were recovering “that stolen merchandise.” Hammond said that he didn’t know anything about it, but Officer Hunnicutt, of the State Police, who was assisting in the search, placed Hammond under arrest, and the sheriff testified that Hunnicutt stated to appellant Hammond:
“Well, you are under arrest, and he [Hunnicutt] said I would rather you didn’t say — he started to say something, and he said I’d rather you didn’t say anything about it. So we arrested bim and placed him in the police car. Fish [Hammond] — we hadn’t placed him when he said that, but about that time Fish came out — Terry came out from under the floor with á box of this while Fish was standing there. And Terry looked up at Fish and said, ‘You might as well tell them, Fish, they’ve caught us anyway.’ He said, ‘I’ve done told them.’ So Hunnicutt told Hammonds again, he says, ‘I’d rather you didn’t say anything,’ and he took him and put him in the police car, and we took him to the County Jail. We loaded that car and the other car with the merchandise that came from under the floor.
“When he got to the County Jail, again on the way to the County Jail he tried to indicate that he was with them and wanted to tell us about it. We told bim again that we didn’t want to talk to him about it. When we got to the County Jail when we was going through his things, taking his things out of his pockets, he told us that he wanted to tell us about it.”
Appellants contend that the evidence obtained both before, and after, the search warrant was obtained, was acquired illegally. A motion to quash the information, and to suppress the evidence was filed by appellants, and this matter was heard by the court in chambers. The court overruled the motion, finding that Evans was advised of his constitutional rights before making any statement; that the search warrant obtained was valid, based upon information given to the sheriff by Cole, and voluntarily by appellant. Appellants say that the initial search was illegal, and assert that Evans did not invite the police and Cole to search his apartment, nor did he waive any constitutional right against an illegal search by saying, “Come in.” There was testimony that Evans was in bed, and appeared sleepy when the officers and Cole entered the apartment, and it is argued that appellant did not understand the consequences of his act in responding to the knock on the door, and that the sheriff and police, chief did not identify themselves before coming in. Appellants rely upon our case of Mann v. City of Heber Springs, 239 Ark. 969, 395 S. W. 2d 557, where we said that “voluntary consent requires sufficient intelligence to appreciate the act as well as the consequences of the act agreed to.” The federal ease of Mapp v. Ohio, 367 U. S. 643, holding that evidence illegally obtained is not admissible in the state courts is also relied upon.
We find no merit in this contention. We do not see that Mapp applies, for we are of the view that the evidence was not illegally obtained. Nor is there any showing that Evans did not have sufficient intelligence to appreciate the consequences of inviting visitors into the room. In fact, it is only argued that he was in bed and looked “sleepy,” or, as the defense counsel expressed it in asking questions, “groggy.” This is hardly sufficient to constitute a defense. In the case of Harris v. Stephens, 361 F. 2d 888, the proof reflected that the sheriff of Drew County went to the home of a suspect at night, and was admitted by the suspect (Trotter), who was wearing blood-stained undershorts. Trotter, being unable to explain the blood stains, was arrested, and taken to the jail and incarcerated. Thereafter, the sheriff, accompanied by city policemen, having received information that Albert Harris had been with Trotter that night, proceeded to the home of Harris and was admitted. Upon receiving an unsatisfactory explanation from Harris as to his earlier whereabouts, the sheriff asked to see the clothes the suspect had worn. Harris’ clothes were stained with blood, and the victim’s wrist watch was found in his billfold. Harris was advised by the sheriff of his constitutional rights, and arrested. The same contentions were made there as appellants presently make, but the United States Court of Appeals (Eighth Circuit) found no merit in these contentions, citing Schook v. United States, 337 F. 2d 563. Here, the sheriff had been advised by owners of the cabin which had been burglarized that approximately $1,500.00 worth of property had been taken. Without making a search, a number of articles were clearly visible which were identified as being part of the property taken during the burglary. Evans was arrested, and the sheriff subsequently obtained a search warrant and found additional property upon returning to the apartment.
The next two points deal with an allegation that the court and prosecutor erroneously called to the attention of the jury the fact that the appellants did not testify in their own defense. The court gave the following instruction :
“Thereupon, the Court, at the request of the Prosecuting Attorney will give the instruction which says to the jury that if they find Defendant, or either of them, had in their possession property recently stolen that this fact is evidence from which inference of guilty may be drawn and is to be considered by the jury in arriving at guilt or innocence; to which counsel for defendants objects; and which said objection is by the Court overruled, to which action and ruling of the Court counsel for Defendants objects: Defendants object to this particular instruction, that it draw[s] inference of guilt by the mere possession of stolen property and which requires defendants to explain in that it would require defendants to testify in violation of their rights of self-incrimination. ’ ’
Now, this is not a correct instruction, mainly because the court did not add, after “their possession property recently stolen,” the phrase, “without reasonable explanation of that possession.” However, it will be noted that the objection treats the instruction as though the latter clause had been used, i. e., the objection is not that the court left out this last phrase, but rather, that the instruction does require an explanation from the appellants — which a correct instruction would have stated.
Appellants argue that this instruction placed them in the position of being compelled to testify, i. e., offer an explanation, and that the .instruction was a judicial comment upon the failure of appellants to deny the charges. In their brief, appellants state:
“* * * It is, in no uncertain terms, an instruction to the jury that the defendants are guilty because they did not deny the charges. The instruction so prejudiced the jury against the defendants, that this alone is ample reason to reverse the verdict.”
There is no merit in this contention, and the court’s overall instructions told the jury that the defendants were innocent until proven guilty; that the presumption of innocence remained with them throughout the trial, and that any reasonable doubt as to their guilt should be resolved in their favor.
It is also argued that certain remarks of the Prosecuting Attorney before the jury amounted to a comment upon the failure of appellants to testify. During closing argument, the prosecutor made the following statements, and those now contended to be prejudicial are italicized:
“The proof’s in here that the McDougal boy admitted it, and the proof’s in here that the other boy, or Jerry Hammond, or Jerry ‘Fish’ Hammond, admitted it. And it’s uncontradicted and it’s undisputed.
“Now then, what does that bring us down *to just purely and simply? We just have no other — there’s no alternative. It’s inconceivable to me of anything other than guilty on burglary, without question. There is even an inference when you’ve found stolen property and the possession of it is not explained. That’s not enough to put you in the penitentiary itself; but, that alone is inference of your guilt. You say, ‘Well, it might happen to me. They might catch me with it.’ You’re going to answer pretty quick where you got it, where you bought it, and what you did with it. We have no such explanation. * * *
“Is he guilty? or is he innocent? If he’s guilty, then talk about the sentence. If there’s extenuating circumstance, then, sure, take into consideration the minimum. That’s why — that’s what minimum sentences are for, if there’s extenuating circumstances. I know of none here. None has been called to your attention here. None has been told you here. * * *
“These aren’t boys we are jerking out of high, school out here and bringing into court, bringing them up here for the first time, and they enter a plea of guilty, beg for leniency, to be placed on probation, be permitted to return back to school with certain restrictions on it by the Court, admit they made a mistake. Gentlemen, that’s not the case. That’s not this case. Not at all.
“They’ve come in here and they’ve pleaded not guilty. There’s been no considerations asked. There’s been no considerations for you to even consider.
Mr. Lewis: Your Honor, this is the fourth time the Prosecuting Attorney’s made comment on the Defendants’ failure to testify.
The Court: No, sir; I don’t think that was a comment on their failure to testify, until you brought it to the attention of the jpry.
Mr. Lewis; We object to it, Your Honor.
The Court: Very well. The objection is overruled.”
In the first place, it will be noted that there is no objection to the first three italicized statements. Even on the fourth occasion, there was no actual objection, defense counsel merely commenting that “this is the fourth time the Prosecuting Attorney has made comment on the defendants’ failure to testify.” It is not clear whether the objection made was to the statement of the Prosecuting Attorney or the statement of the court mentioning that counsel had brought it to the attention of the jury. In either event, there was no exception to the overruling of the objection.
However, entirely aside from the failure to object and except to the rulings of the court, there is no merit in the contention. The first italicized statement can simply refer to the fact that no explanation was given to the sheriff or other officers, of how, or where, the stolen property had been obtained. We cannot visualize any person, innocently holding stolen goods, waiting until he is tried by a jury to explain — rather, he would make his explanation to the officers when they made the arrest. The second comment refers to extenuating circumstances, and certainly that testimony could as properly have been offered by friends or relatives as by the appellants themselves. It is difficult to see how “there’s been no considerations for you to even consider” can be termed a comment on the failure of appellants to take the stand in their own defense. Actually, much stronger statements have been held to not constitute a comment upon the failure to testify.
It is next asserted, “It was prejudicial error for the Prosecuting Attorney to state to the jury in his opening statement material facts without later offering proof in support of them. ’ ’ The transcript does not contain the opening statement of the Prosecuting Attorney, and we accordingly cannot consider this point on appeal.
Finally, it is argued that the trial court erred in admitting into evidence the confessions of the appellants, which it is argued were made before they were adequately advised of their rights against self-incrimination.
As to Evans, the testimony has already been reviewed, and it reflects that all warnings required by Miranda v. Arizona, 384 U. S. 436, were given by the sheriff to Evans, though, at the very outset, Evans stated, “Hell, here it is; you might as well take it; I’ve been in so much trouble already that I’m going to the penitentiary anyway.” There is no evidence that appellant Hammond was given the warnings set out in Mircmda, but there is plenty of evidence that Hammond made these statements spontaneously, and entirely voluntarily, even though being told by Hunnieutt, “I’d rather you didn’t say anything.” There is not a single line of evidence in the record that this statement was not made.
We do not take Miranda to iñean that a man cannot voluntarily open his mouth. In Turney v. State, 239 Ark. 851, 395 S. W. 2d 1 (in which the United States Supreme Court denied certiorari), this court, in distinguishing Turney from Escobedo v. Illinois, 378 U. S 478, said:
“We see no resemblance in the facts related and the facts that are presently before us. Here, Officer Caldwell, of the State Police, arrested Turney at his residence on a Monday at approximately 4:30 A.M., serving a warrant , of arrest, which had been issued by a Justice of the Peace. Caldwell testified that he asked Turney ‘point blank why would a man living in a house like he was, with his job, get involved in something like this, and he said he didn’t know and that he must be out of his mind. He then admitted his part in the theft to me and told me at that time where the property was.’ Thereafter, Turney directed the officers to the location of the stolen property. It will be thus observed that Sergeant Caldwell was not carrying out a process of interrogation for the purpose of obtaining incriminating statements. The simple statement, above quoted, was responded to by the spontaneous admission of guilt by Turney. ’ ’
See also Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653.
Finding no reversible error, the judgment is affirmed.
A floor type lamp with the base missing, a bed spread, a pile of clothing and a blanket, a part of the property taken, and in plain view, were recognized by Cole when they went into the room.
McDougal’s conviction is not before this court.
Hammond also implicated two other hoys, who pleaded guilty-on the morning of the trial of these appellants.
For instance, in Davis v. State, 96 Ark. 7, 130 S. W. 547, the Prosecuting Attorney told the jury:
“ ‘He (referring to the defendant) told Bentley and Dr. Cunningham how he had administered the medicine to her to produce an abortion. And it is undisputed and undenied in this case, and he cannot deny it.’ These remarks, we think were but the expression of the opinion of the State’s Attorney as to the weight of the testimony of these two witnesses, and could not fairly be construed to refer to the fact that the defendant had not testified in the case, and did not tend to create any presumption against him by reason of his failure to testify.”
In Culbreath v. State, 96 Ark. 177, 131 S. W. 676, the opinion recites:
“Another ground urged for reversal is as to alleged improper remarks of an attorney representing the State in his closing argument. The following are the objectionable remarks: ‘Where was the defendant that day? He has never seen fit to say. He has not shown by any one where he was between the hours of 10 o’clock in the morning and 1:30 in the afternoon.’ Taking the whole statement together, we do not think it can fairly be construed as a comment or criticism on defendant’s failure to testify in his own behalf or as calling attention to that fact. It was merely an expression of the opinion of counsel that the defendant had not adduced evidence accounting for his whereabouts during the hours named.”
In Sanders v. State, 164 Ark. 491, 262 S. W. 327, the opinion reflects:
“The prosecuting attorney, in his closing argument, among other things said: ‘It is not denied that the defendant sold the liquors mentioned in the indictment. He has not denied it [emphasis supplied;] Mr. DeBois did not deny it in his argument; Mr. Miller does not deny it in his argument to you gentlemen, and no one else has denied it. The witnesses have testified that they bought it, and so the only question for you gentlemen to determine, under the. law as given you by the court, is whether or not the stuff which the defendant did sell was intoxicating, or contained alcohol.’ The appellant entered a plea of not guilty to the indictment, but did not testify at the trial. He contends that the court erred in overruling his objection to the above argument.
“When .the remarks of the State’s attorney are considered as a whole, they cannot be fairly interpreted to have reference to the failure of the defendant to testify, but only to the fact that the witnesses had testified that the defendant sold the liquors mentioned in the indictment, and that they had bought the same, and that such fact was undisputed by the testimony.” | [
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Mehaffy, J.
The appellee brought suit in the Nevada Circuit Court against the appellant, alleging that he was employed by appellant as brakeman upon its log-train, which operated from the log camp in the woods to the town of Kilgore, a distance of about twelve miles. That on the 12th day of January, 1927, the train was returning from the log camp with a load of logs, when, on account of the rough and uneven condition of the track, the train, in rounding a curve, became uncoupled or broke in-two. That it was appellee’s duty as brakeman to make the coupling, and he got down from the car, adjusted the drawheads of the couplers, and, after the train started, he stepped upon the step or stirrup on the car he had coupled. That the train was moving, and, as he stood on said step or stirrup, a large stump, standing within a very few inches of the track, caught appellee’s foot between the stump and the step on which he was standing, breaking the bones in his foot and causing severe and permanent injuries. That the injury resulted from the negligence of the company in allowing and permitting said stump to stand within a few inches of the track, when it knew or should have known the same was dangerous to its employees. The suit was for $3,000.
Appellant filed answer, denying all the material allegations, and pleaded contributory negligence and an assumption of risk.
'The appellee is 35 years old; was in the employ of the company as brakeman on a log-train and working under the orders of C. L. York, the engineer, who was his foreman. He was the only brakeman on the train, and his duties were to couple and uncouple cars, set out cars, and make up the train. At the time he was hurt they had made up the train, and were coming into Kilgore. They had several cars of logs and flatcars, and the train became uncoupled. Appellee got off to make the coupling, and it was on a curve, and he had to get out some distance, so the engineer could see him when he flagged him. He made the coupling, gave the signal, and, when the train started up, he got on. He caught the train with both hands and pulled himself up on the car, and had gone but a few yards when he hit the stump. His foot was in the stirrup, and when the stump was hit it broke his foot. He did not see the stump until it was hit. There was no switch-track there. He was confined to his room 91 days, and then had to walk on crutches for 'a time. He had been braking for. the company about four years; was earning 35 cents an hour when he was hit, and is able now to earn but little. He had had experience as brakeman on other log roads.
The train would be taken out to the woods where . the logs were by pushing the empty oars ahead of the engine, and, when the logs were loaded, the engine then pulled the cars into Kilgore. The track is not level, but there are hills and hollows and soft places, and these cause the couplers to miss or pass over each other.
Appellee g-ot on the train after making the coupling as quickly as he could. He had made a statement about how the injury occurred, and admitted signing the statement which was made to the company. In that he stated that the stirrup cleared the stump about two inches. Appellee went over the road twice every day, and sometimes three times. They made-all their trips in the daytime, unless they had trouble.
The physician testified that his foot was broken, and that the injury was permanent. Another physician tes tiffed that it was impossible to tell whether the foot was broken without an X-ray, and that he did not think the injury was permanent.
The road was just a log-road cut through the bottom, laid on top of the ground on poles and ties. It is not graded. The bottom there overflows, and the track crosses sloughs. There are obstructions along the side of the track too close to clear a brakeman on the side of a car. There are stumps and logs, and sometimes there !are tree-tops. The day appellee was hit the train was. on a curve,- and there was a stump there that would not clear the brakeman. They had in the train that day six or eight cars. They often have trouble with the train becoming uncoupled or breaking in two. The right-of-way is narrow. The road is not fully spiked. The train would break in two all along the road, and it was appellee’s business to couple it.
The company has a section foreman, and it is his duty to keep up the track. The stumps are out in the open, where everybody can see them. There is nothing to hide them. There had been a great deal of trouble with car stirrups being bent back or knocked off by stumps. The road was built to get logs into the mill. There is nothing about the brakeman’s duty that requires him to ride on the side of the car while the train is in motion. After he makes a coupling he has to get on the train, but he does not -have to ride on the side of the car. He would have to catch the side of the car or rear end. If a coupling is made on a curve, the brakeman would have to move back from the track until he got where he could be seen. When the signal was given the train would start, and the brakeman would have to catch the train while it was in motion. The engineer started the train as quickly as he could after getting the signal. There are.sink-holes in the track, stumps, treetops and logs scattered all along the line. They just maintain the track so that they can get the log-cars over it. The track is moved as the timber is cut out. The company has a good deal of trouble caused by obstructions along tbe track knocking stirrups off tbe cars. The right-of-way is very narrow, just wide enough for the train to get over. The road.is not made for people to travel over. It is safe for a brakeman if he is on the cars. When the train breaks in two, the brakeman has to get on the ground to make the coupling. A man making a coupling would not have the opportunity to see all the obstructions. Practically all work connected with a logging railroad is dangerous.
The appellant’s first contention is that the plaintiff assumed the risk, and that the court below should have given a peremptory instruction.
The appellee was the brakeman, and it was his duty to couple the cars and give the engineer the signal to move ahead. At the place where the injury occurred there was a curve that made it necessary for him to get some distance from the track to give the signal, and, when the signal was given, the engineer started the train. After the brakeman had given the signal, he then had to get on the train again after it was in motion. While in the performance of his duty coupling the cars, giving the signal and getting on the train of cars, it was not possible for him to notice obstructions near the track that one could notice who was not engaged in the performance of any duties. Duties must be performed, and there is no contention that he was not performing them in the proper manner.
He testifies that he caught the train with both hands, got his foot in the stirrup, and got on the train as quickly as he could. One riding on a train in the manner that the witnesses testified that the employees had to ride, in the middle of the car, would probably not be able to tell whether the stumps and other obstructions near the track were close enough to injure them or not. He knew there were stumps on the right-of-way, and knew that there were other obstructions. He knew that some of them were near the track, but there is no evidence that he knew that they were near enough to injure him. And, unless it could be said that, riding back and forth on. the track, as appellee had for a long while, he could tell that the obstructions were close enough to be dangerous, then 'it cannot be said he knew the hazard, although he knew the obstructions were near the track.
Appellant, in support of his contention that' the court below should have given a peremptory instruction because appellee had assumed the risk, cites Asher v. Byrnes, 101 Ark. 197, 141 S. W. 1176, and quotes as follows:
“When a servant enters into the employment of' any one, he assumes the ordinary risks and hazards which are incident to the service, and this includes all,those defects and dangers which are obvious and patent. He assumes all the risks which he knows to exist and all those which are open and obvious.”
The above is a correct statement of the law, but it will be observed that it refers to the ordinary risks and hazards incident to the service. And it is true that he assumes the obvious risks, but, because an obstruction is near the track and the object itself or obstruction is obvious, does not necessarily mean that the risk or hazard is obvious. The servant does not assume any risk or hazard "caused by the negligence of the master, unless he knows that the risk or hazard exists. If it were an ordinary or usual risk or hazard, then he would assume the risk, even if he did not know it, if he could, by the exercise of ordinary care, have known it. , But, in order to assume the risk caused by the negligence of the master, he must know that the risk exists. He has a right to assume that the mastér will not be guilty of negligence, and he has the right to rely on that assumption, unless he knows that the contrary is true.
In the instant case it was the duty of the appellant to make inspection and to ascertain whether or not obstructions were, so near the track as to be dangerous, but the employee was not under any duty or obligation to make inspection. He had a right to assume that the master had performed his duty, and did not have to make any investigation or inspection to find out whether or not the master had been guilty of negligence.
This court has many times held that, while an employee assumes all the risks and hazards usually incident to the employment he undertakes, he does not assume the risk of the negligence of the company for whom he was working, or any of its servants. He has a right to assume, not only that the master will perform its duty, hut he has a right to assume that each of the other servants will perform their duty, and if, while in the exercise of ordinary care, he is injured either by the negligence of the master for whom he works or by the negligence of any other servant of the master, he has a right to recover.
The above is substantially the declaration of law by this court in Aluminum Co. of America v. Ramsey, Ark. 522, 117 S. W. 568, and it has been approved many times since that decision.
It was the duty of the appellant in this case to use reasonable care to see that the obstructions on the track were not so close as to injure a servant in the performance of his duty. It was its duty to make inspection and use reasonable care to keep the road in this condition.
“That it was the duty of the railroad company to use reasonable care to see that the cars employed on its road were in good order and fit for the purposes for which they were intended, and that its employees had a right to rely upon this being the case, is too well settled to require 'anything but mere statement. * * * Sound reason and public policy concur in sustaining the principle that a railroad company is under a legal duty not to expose its employees to dangers arising from such defects in foreign cars as may be discovered by reasonable inspection 'before such cars are admitted into its train. This general duty of reasonable care as to the safety of its appliances resting on the railroad, the instructions in question proposed "to limit by confining its performance solely to such foreign cars as are received by a railroad ‘for the purpose of being hauled over its own road.’ * * * The argument wants foundation in reason, and is unsupported by any authority. In reason, because, as the duty of the company to use reasonable diligence to furnish safe appliances is ever present and applies to its entire business, it is beyond reason to attempt, by a purely arbitrary distinction, to take a particular part of the business of the company out of the operation of the general rule, and thereby to exempt it, as to the business so separated, from 'any obligation to observe reasonable precautions to furnish appliances which are in good condition.” Texas & P. R. Co. v. Archibald, 170 U. S. 665, 18 S. Ct. 777, 42 L. ed. 1188.
It is the duty of the company to use this reasonable care with reference to every part of its business and with reference to seeing that obstructions on the track are not so close to the track that , they will injure an employee in the performance of his duty. It will be remembered that the doctrine of assumed risk is based on contract, and the master cannot make a valid contract exempting itself from its own negligence. And this would be the result if an employee was held to assume the risk resulting from the negligence of the master, because assumed risk is based on contract. If the servant assumed the risk of the negligence of the master, this would be permitting the master to contract for exemption from its own negligence.
In a case of injury of a. servant by a railroad com: pany, the following instruction was given at the request of the plaintiff and excepted to by the defendant: “If the exigencies of the situation were such as to make it necessary for them to place the track so near the post as -to be a source of danger, or to allow the post to remain so near the track as to be a source of danger, then it was their duty to notify their employees of that source of danger.” The appellate court said: “This instruction was proper.” Savage v. Roch Island Co., 28 R. I. 391, 67 Atl. 633.
In that case a conductor riding on the running-board of an electric car was struck by á pole near the track. The count said:
“The danger from this pole, if any, was either an obvious risk, and so assumed by the deceased; or else it was non-obvious or extraordinary, and, if so, it was a matter as to which the deceased was entitled to special warning and instruction from the defendant. And, of course, it is well settled that in the latter case the burden of proof is upon the. defendant to show that proper warning and instruction was given. * # * The railroad company and any other employer of labor and any other person cannot be allowed to contract himself out of his own negligence.” Wilson v. New York, N. H. & H. R. Co., 29 R. I. 146, 69 Atl. 364.
It will of course not be contended that the company could contract itself out of its own negligence. That is, it could not contract so as to relieve it from liability for its negligence.
“An examination of the language and reasoning of the courts shows that the question whether a risk is or is not an ordinary one may be determined with reference to either one of two conceptions which are logically distinct. According to one of these, the differentiating test is furnished by the principle already adverted to in § 895, ante, viz., that every risk which is not caused by a negligent act or omission of the master’s part is assumed by the servant.” Labatt’s Master & Servant, 2d ed. vol. 3, 3110.
Whether the appellee in this case knew of the risks and hazards was a question for the Jury. Instruction No. 2, given at the request of the appellee, was a correct .statement of" the law. A servant does not assume the risk of the negligence of the company unless he knows of such negligence. And, for the same reason, instruction 10 was properly refused.
Appellant also complains at the refusal of the court to give its instruction No. 6. Number 6 was a peremp- . tory instruction. When a servant is in the performance of his duty, as the brakeman was in this case, he does -not .have the opportunity to look out for obstructions of-the kind mentioned here that he wbhld have if he was not so engaged. It is Ms duty to perform Ms work. Of course Ire should exercise reasonable care in the performance of it, but the fact that be is engaged in the performance of a duty and must give Ms attention to that should be taken into consideration in determining whether he was guilty of contributory negligence. Contributory negligence is not a bar, but may be shown in order to reduce the damages. ■ And the jury was properly instructed by the court with reference, to contributory negligence.
We think as to whether the servant would know that the obstructions were close enough to injure him was a question about which fair-minded men might differ, and therefore was properly submitted to the jury, and their verdict is conclusive on this court.
Finding no error, the judgment is affirmed. | [
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